Case 1:14-cv-00208-N Document 1 Filed 05/07/14 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA

CARI D. SEARCY and KIMBERLY MCKEAND, Individually and as parent and next friend of K.S., a minor,

Plaintiffs,

v.

Case No.: 14-208

ROBERT BENTLEY, individually and in his official capacity as the Governor of the State of Alabama; LUTHER STRANGE, III, individually and in his official capacity as the Attorney General of the State of Alabama; THE HON. DON DAVIS, individually and in his capacity as the Judge Of Probate for Mobile County, Alabama; CATHERINE M. DONALD, individually and in her official capacity as the State Registrar of Vital Statistics for the State of Alabama; and NANCY T. BUCKNER, individually and in her official capacity as the Commissioner of the Department of Human Resources for the State of Alabama,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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COME NOW the Plaintiffs, CARI D. SEARCY, and KIMBERLY MCKEAND individually and as parent and next friend of K.S., a minor, and file this Complaint as follows:
JURISDICTION AND VENUE 1. This is an action filed pursuant to 28 U.S.C. § 2201-2202 as a challenge to Ala. Code § 30-1-19 (the so-called “Marriage Protection Act”), Ala. Const. Amend. No. 774 (the so-called “Sanctity of Marriage Amendment”).1 2. It is alleged that the Defendants, separately and severally, have violated the Plaintiffs’ constitutional rights of equal protection under the law and due process under the law pursuant to the 14th Amendment of the United States Constitution. Likewise, the Defendants, separately and severally, have violated the Plaintiffs’ constitutional right to enjoy the benefits and privileges of the Full Faith and Credit Clause of Art. 4 §1 of the United States Constitution. 3. This Court is a proper venue pursuant to 28 U.S.C. § 1331(1) because one or more of the named Defendants reside in this judicial district. Alternatively, venue is proper in this judicial district pursuant to 28 U.S.C. § 1331(2) because “a substantial part of the events or omissions giving rise to the claim occurred” in this judicial district.
1 Collectively, these statutes and constitutional amendment shall be referred to as “Marriage Sanctity Laws” and/or “Sanctity Laws.”
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THE PARTIES 4. Plaintiff Kimberly McKeand is an adult resident citizen of Mobile County, Alabama. Plaintiff Kimberly McKeand is the lawful wife of Plaintiff Cari D. Searcy. Kimberly McKeand is also the biological mother of the minor, K.S. 5. Plaintiff Cari D. Searcy is an adult resident citizen of Mobile County, Alabama. Plaintiff Cari D. Searcy is the lawful wife of Plaintiff Kimberly McKeand. 6. K.S. is a child citizen of the United States and the State of Alabama. K.S. resides in Mobile County, Alabama. K.S. is the natural born son of Plaintiff Kimberly McKeand. 7. Defendant Robert Bentley is an adult resident citizen of the State of Alabama living and working in Montgomery. Robert Bentley is the Governor of the State of Alabama, and is vested with the powers of the office of the highest executive branch state official. Governor Bentley maintains, exercises and enforces his authority, among other ways, in connection with the Sanctity Laws. 8. Defendant Luther Strange, III is an adult resident citizen of the State of Alabama. Luther Strange is the Attorney General for the State of Alabama and is the state officer who is responsible for appearing in court on behalf of the State of Alabama. Attorney General Strange has the legal duty to provide his opinions on questions of law and procedures relating to the duties of county, state, and local
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officials. This includes probate judges and court clerks. Attorney General Strange has enforcement authority over the Sanctity Laws. 9. Defendant Don Davis is an adult resident citizen of the State of Alabama. Don Davis is the Judge of Probate for Mobile County, Alabama. Judge Davis is the Judge responsible for hearing and granting adoptions in Mobile County. Judge Davis heard the adoption petition filed by the Plaintiffs, and he denied the same. Judge Davis therefore has enforcement authority in connection with the Sanctity Laws. Judge Davis is sued in his official capacity. 10. Catherine M. Donald is an adult resident citizen of Montgomery, Alabama, and her office is located in Montgomery, Alabama. Catherine M. Donald is the State Registrar of Vital Statistics for the State of Alabama. Defendant Catherine M. Donald’s responsibilities, among others, include administering, supervising, and directing the vital statistic collection for the State of Alabama. Her office maintains and registers birth certificates. Defendant Donald, therefore, has enforcement authority in connection with the Sanctity Laws because she has the power to amend the State of Alabama’s records to reflect the adoption made the basis of this lawsuit. Defendant Catherine M. Donald is sued in her individual and official capacity. 11. Under information and belief, Defendant Nancy T. Buckner is an adult resident citizen of the State of Alabama. Nancy T. Buckner is the commissioner of
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the Alabama Department of Human Resources (DHR). DHR has the authority and power to, among other things, amend birth certificates to reflect the adoption of a child. Nancy T. Buckner, therefore, has enforcement authority in connection with the Sanctity Laws. Nancy T. Buckner is sued in her individual and official capacity.
FACTUAL ALLEGATIONS 12. Plaintiffs Kimberly McKeand and Cari D. Searcy are both female. McKeand and Searcy have been in an exclusive, monogamous romantic relationship for approximately fourteen years. 13. McKeand and Searcy were lawfully married to each other in California in 2008. California grants marriage licenses to two adults regardless of their gender or sexual orientation. 14. McKeand and Searcy are still married. 15. McKeand and Searcy jointly own a home in Mobile, Alabama, and they are co-owners of a business. 16. McKeand is the biological mother of K.S. 17. Searcy is also a parent to K.S., and she has been so since birth. 18. K.S. was born in Mobile, Alabama on December 30, 2005. K.S.’s father is a adult citizen of the State of Florida named Mike. McKeand and Searcy became friends with Mike, and eventually it was decided that Mike would be a sperm
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donor and that McKeand would carry a child that would be raised by Searcy and McKeand. 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 and executed a waiver to that effect. Mike has waived all parental rights and he has terminated all rights as a parent to K.S. 20. K.S. suffered numerous medical complications at birth requiring substantial care, both from medical professionals and K.S.’s parents. Plaintiff Searcy provided the majority of the care to K.S. 21. On December 29, 2011, Cari D. Searcy filed a petition with the Probate Court of Mobile County seeking to adopt K.S. pursuant to Ala. Code § 26-10A-27 (1975), which “[a]ny person may adopt his or her spouse’s child according to the provisions of this chapter” subject to three exceptions and conditions that are inapplicable to this matter. 22. Following briefing and a hearing, Judge Don Davis entered an Order on April 6, 2012, denying Searcy’s adoption petition because Judge Davis determined that Searcy is not a “spouse” of McKeand within the meaning and context of Ala. Code § 26-10A-27 (1975).
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23. Searcy then timely filed a Notice of Appeal. The Supreme Court of Alabama assigned the case to the Court of Civil Appeals of Alabama. The Court of Civil Appeals entered an Order on October 12, 2012, denying Searcy’s appeal and affirming the decision of Judge Davis. 24. The Plaintiffs have exhausted all avenues of legal recourse in Alabama state courts and are left without the remedy they seek--the adoption. 25. Searcy and McKeand’s 2013 federal tax return reflects that they filed jointly as a married couple. 26. Searcy and McKeand’s 2013 Alabama tax returns reflect that they are prevented from filing jointly as a married couple. 27. Searcy and McKeand enjoy a close, loving, and stable relationship, and they have provided K.S. with a nurturing, supportive, and loving home environment since birth. Together, they attend to K.S.’s educational, physical, emotional, spiritual, and mental development. 28. Searcy and McKeand share in financial, medical, career, spiritual, and social decisions as a married couple. More importantly to this matter, the two jointly parent K.S. and they will continue to do so. K.S. views both as parents, and K.S. has only known Searcy and McKeand as his parents since birth. 29. There is no articulable reason why Searcy is not allowed to adopt K.S. other than the fact that she is a woman married to another woman.
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30. This lawsuit challenges the constitutionality of the Sanctity Laws as applied an interpreted in the context of Alabama’s step-parent adoption statute, Ala. Code § 26-10A-27 (1975). 31. Specifically, this lawsuit challenges Ala. Const. 1901, Art. I, §36.03 and Ala. Code 1975, Section 30-1-19. Plaintiffs assert that Ala. Code 1975 Section 301-19(e), which states “The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued,” is unconstitutional. 32. Searcy is allowed to adopt K.S. because “any person may adopt his or her spouse’s child.” Ala. Code § 26-10A-27 (1975). Searcy is the spouse of McKeand, and K.S. is McKeand’s biological child. 33. Currently, eighteen states issue marriage licenses to same-sex couples. It is inevitable in our mobile society that same-sex married couples will move between states and that in doing so, these married couples may come to reside in states, including Alabama, that do not recognize same-sex marriages entered in to in other states. 34. The Sanctity Laws single out same-sex married couples for discriminatory purposes, including the Alabama Courts’ refusal to issue the step-parent adoption sought in this case.
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35. Marriage is a fundamental right and a legal right, and the refusal to recognize a same-sex marriage from another state for purposes of step-parent adoption violates these fundamental and legal rights. 36. Parenting choices are likewise a fundamental and legal right. Alabama recognizes this, and Alabama has long allowed step-parents to adopt the biological child of their spouse. All requirements for a step-parent adoption have been met in this case, yet Alabama refuses to grant the adoption on the grounds that the adult parties are not “spouses” within the meaning of the step-parent adoption statute found at Ala. Code § 26-10A-27 (1975) which states that “[a]ny person may adopt his or her spouse’s child according to the provisions of this chapter.”
COUNT ONE PLAINTIFFS’ CLAIM FOR DEFENDANTS’ VIOLATION OF THE FULL
FAITH AND CREDIT CLAUSE 37. Plaintiffs adopt, re-allege, and incorporate by reference all contents of paragraphs 1-36 as if fully set forth herein. 38. The Full Faith and Credit Clause states that “Full Faith and Credit shall be given in each State to the public acts, Records, and judicial proceedings of every other State.” U.S. Const., Art. 4, Section 1. 39. Marriage licenses and marital status is one such legal category that is encapsulated in the Full Faith and Credit Clause.
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40. The State of Alabama, acting through the named Defendants in this lawsuit, may not unilaterally and summarily invalidate a marriage properly executed in a sister state unless the State of Alabama has a legitimate public policy reason for doing so. It has no such legitimate reason for doing so in this case. The State of Alabama cannot unilaterally and summarily prevent K.S. from enjoying the benefits of having two parents for legal purposes just as he, in reality, enjoys all other benefits of growing up in a two parent home. 41. The Sanctity Laws are facially unconstitutional as violative of the Full Faith and Credit Clause. 42. The Sanctity Laws are unconstitutional as applied to this case because Alabama has no legitimate basis in public policy for denying the adoption sought by the Plaintiffs. 43. The Sanctity Laws are arbitrary and capricious.
COUNT TWO PLAINTIFFS’ CLAIM FOR DEFENDANTS’ VIOLATION OF PLAINTIFFS’
14TH AMENDMENT EQUAL PROTECTION RIGHTS 44. Plaintiffs adopt, re-allege, and incorporate by reference all contents of paragraphs 1-43 as if fully set forth herein. 45. If Plaintiffs were in a different-sex marriage, the adoption would be due to be granted under Alabama law.
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46. But for the Defendants’ interpretation and application of the Sanctity Laws to prohibit step-parent adoption despite a same sex couple being validly married by another state, this adoption would be granted. This unconstitutionally creates a second-class group of citizens in the State of Alabama. 47. Refusing to recognize a same-sex marriage validly entered in to in another state for purposes of step-parent adoption categorically and by definition denies the legal benefits of marriage to same-sex couples with no legitimate state-interest reason to do so. 48. The purpose of Ala. Code 1975 Section 30-1-19(e) is to single out homosexual couples who are lawfully married to one another as is evident in the plain language: “The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.” Despite being lawfully married, homosexual couples are summarily treated differently for all purposes under the law in the State of Alabama, including for purposes of step-parent adoption. 49. The purpose of the Sanctity Laws is to impose inequality for reasons other than legitimate governmental purposes, including the denial of the step-parent adoption at issue in this case. The State of Alabama has no legitimate reason to summarily deny step-parent adoptions on the basis of the parents’ sexuality.
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50. Plaintiffs have fulfilled their obligations under the law to be lawfully married, yet they are afforded none of the rights afforded to different-sex married couples, including the right to adopt step-children.
51. Likewise, K.S. is not afforded the equal protection of law and equality under the law because he is not afforded the privileges of being the adopted son of one of the two people who is, in reality and in spite of the Sanctity Laws, one of his two parents. 52. The Sanctity Laws unconstitutionally target married couples who happen to be homosexual for unequal treatment under the law. This is especially evident given the long history of Alabama laws that criminalized, marginalized, and penalized gay people for being gay. 53. The Defendants’ failure and refusal to recognize the Plaintiffs’ status as a married couple for purposes of the step-parent adoption is done under color of state law. 54. Interpreting and applying the Sanctity Laws to prohibit step-parent adoptions is facially unconstitutional as violative of equal protection. 55. Interpreting and applying the Sanctity Laws to prohibit step-parent adoption is unconstitutional as applied to the facts of this case.
COUNT III
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PLAINTIFFS’ CLAIM FOR DEFENDANTS’ VIOLATION OF PLAINTIFFS’ 14TH AMENDMENT DUE PROCESS RIGHTS
56. Plaintiffs adopt, re-allege, and incorporate by reference all contents of paragraphs 1-55 as if fully set forth herein. 57. The Sanctity Laws injure homosexual couples who are lawfully married in other jurisdiction in violation of the 14th Amendment Due Process Clause. Likewise, the children of homosexual, married couples are injured by not having the benefits of having two parents for legal purposes, and this is a violation of the 14th Amendment Due Process Clause. The Plaintiffs in this lawsuit have been so injured. 58. The Sanctity Laws are facially unconstitutional as violative of the Due Process Clause of the 14th Amendment. 59. The Sanctity Laws are unconstitutional as applied in this case as violative of the Due Process Clause of the 14th Amendment. 60. The Constitution protects the rights and liberties of married, homosexual couples just as it does heterosexual, married couples. Alabama’s Sanctity Laws unconstitutionally violate those rights and liberties without due process.
WHEREFORE, the premises considered, the Plaintiffs, separately and severally, respectfully request that this Court enter a judgment as follows: (a) Issue a judgment pursuant to 28 U.S.C. § 2201 declaring that those provisions
of the Alabama statutes and constitutional amendment that prevent Alabama
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from recognizing the validity of lawful same-sex marriages conducted in other states violate the Due Process Clause and the Equal Protection Clauses of the United States Constitution; (b) Issue a judgment pursuant to 28 U.S.C. § 2201 declaring that those provisions of the Alabama statutes and constitutional amendment that prevent Alabama from recognizing the validity of lawful same-sex marriages violate the Full Faith and Credit Clause of Art. IV, section 1 of the United States Constitution; (c) Issue an injunction pursuant to 28 U.S.C. § 2202 to require Alabama state officials to recognize marriages of same-sex couples in other jurisdictions on an equal basis as the marriage of different-sex couples; (d) Issue an injunction pursuant to 28 U.S.C. § 2202 that Defendants, separately and severally, grant the step-parent adoption sought by the Plaintiffs as Defendants would do in an identical different-sex married couple situation; (e) Award Attorneys’ fees and costs to Plaintiffs pursuant to 42 U.S.C. § 1988; and (f) Granting such other, further, and different relief as the Court may deem just and proper under the circumstances.
Respectfully submitted this 7th day of May, 2014.
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/s/ Christine C. Hernandez Christine C. Hernandez ASB 8252I64H
The Hernandez Firm, LLC Attorneys for Plaintiffs P.O. Box 66174
Mobile, Alabama 36660-1174 251-479-1477
christine@hernandezlaw.comcastbiz.net /s/ David G. Kennedy David G. Kennedy ASB 1238I72K
The Kennedy Law Firm Attorneys for Plaintiffs
P.O. Box 556 Mobile, Alabama 36601
251-338-9805 david@kennedylawyers.com
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARI D. SEARCY and KIMBERLY MCKEAND, individually and as parent and next friend of K.S., a minor,
Plaintiffs, vs.
LUTHER STRANGE, in his capacity as Attorney General for the State of Alabama,
Defendant.

) ) ) ) ) ) ) CIVIL ACTION NO. 14-0208-CG-N ) ) ) ) ) )

MEMORANUM OPINION AND ORDER

This case challenges the constitutionality of the State of Alabama’s “Alabama Sanctity of Marriage Amendment” and the “Alabama Marriage Protection Act.” It is before the Court on cross motions for summary judgment (Docs. 21, 22, 47 & 48). For the reasons explained below, the Court finds the challenged laws to be unconstitutional on Equal Protection and Due Process Grounds. I. Facts
This case is brought by a same-sex couple, Cari Searcy and Kimberly McKeand, who were legally married in California under that state’s laws. The Plaintiffs want Searcy to be able to adopt McKeand’s 8-year-old biological son, K.S., under a provision of Alabama’s adoption code that allows a person to adopt her “spouse’s child.” ALA. CODE § 26-10A-27. Searcy filed a petition in the Probate Court of Mobile County seeking to adopt K.S. on December 29, 2011, but that petition was denied based on the “Alabama Sanctity of Marriage Amendment” and the “Alabama

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 2 of 10
Marriage Protection Act.” (Doc. 22-6). The Alabama Sanctity of Marriage
Amendment to the Alabama Constitution provides the following:
(a) This amendment shall be known and may be cited as the Sanctity of Marriage Amendment.
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting this unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
(f) The State of Alabama shall not recognize as valid any common law marriage of parties of the same sex.
(g) A union replicating marriage of or between persons of the same sex in the State of Alabama or in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state as a marriage or other union replicating marriage.
ALA. CONST. ART. I, § 36.03 (2006).
The Alabama Marriage Protection Act provides:
(a) This section shall be known and may be cited as the “Alabama Marriage Protection Act.”
(b) Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting the unique relationship in
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order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.
(c) Marriage is a sacred covenant, solemnized between a man and a woman, which, when the legal capacity and consent of both parties is present, establishes their relationship as husband and wife, and which is recognized by the state as a civil contract.
(d) No marriage license shall be issued in the State of Alabama to parties of the same sex.
(e) The State of Alabama shall not recognize as valid any marriage of parties of the same sex that occurred or was alleged to have occurred as a result of the law of any jurisdiction regardless of whether a marriage license was issued.
ALA. CODE § 30-1-19. Because Alabama does not recognize Plaintiffs’ marriage,
Searcy does not qualify as a “spouse” for adoption purposes. Searcy appealed the
denial of her adoption petition and the Alabama Court of Civil Appeals affirmed the
decision of the probate court. (Doc. 22-7).
II. Discussion
There is no dispute that the court has jurisdiction over the issues raised
herein, which are clearly constitutional federal claims. This court has jurisdiction
over constitutional challenges to state laws because such challenges are federal
questions. 28 U.S.C. § 1331.
Summary judgment is appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P 56(a). Because the parties do not dispute the pertinent
facts or that they present purely legal issues, the court turns to the merits.
Plaintiffs contend that the Sanctity of Marriage Amendment and the Alabama
Marriage Protection Act violate the Constitution’s Full Faith and Credit clause and
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the Equal Protection and Due Process clauses of the Fourteenth Amendment. Alabama’s Attorney General, Luther Strange, contends that Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), is controlling in this case. In Baker, the United States Supreme Court summarily dismissed “for want of substantial federal question” an appeal from the Minnesota Supreme Court, which upheld a ban on same-sex marriage. Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (Minn.1971), appeal dismissed, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). The Minnesota Supreme Court held that a state statute defining marriage as a union between persons of the opposite sex did not violate the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. Baker, 191 N.W.2d at 185–86. However, Supreme Court decisions since Baker reflect significant “doctrinal developments” concerning the constitutionality of prohibiting same-sex relationships. See Kitchen v. Herbert, 755 F.3d 1193, 1204–05 (10th Cir. 2014). As the Tenth Circuit noted in Kitchen, “[t]wo landmark decisions by the Supreme Court”, Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), and United States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), “have undermined the notion that the question presented in Baker is insubstantial.” 755 F.3d at 1205. Lawrence held that the government could not lawfully “demean [homosexuals'] existence or control their destiny by making their private sexual conduct a crime.” Lawrence, 539 U.S. at 574, 123 S.Ct. 2472. In Windsor, the Supreme Court struck down the federal definition of marriage as being between a man and a woman because, when applied to legally married same-sex couples, it “demean[ed] the couple, whose moral and sexual choices the Constitution protects.”
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Windsor, 133 S.Ct. at 2694. In doing so, the Supreme Court affirmed the decision of the United States Court of Appeals for the Second Circuit, which expressly held that Baker did not foreclose review of the federal marriage definition. Windsor v. United States, 699 F.3d 169, 178–80 (2d Cir.2012) (“Even if Baker might have had resonance ... in 1971, it does not today.”).
Although the Eleventh Circuit Court of Appeals has not yet determined the issue, several federal courts of appeals that have considered Baker's impact in the wake of Lawrence and Windsor have concluded that Baker does not bar a federal court from considering the constitutionality of a state's ban on same-sex marriage. See, e.g., Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014); Kitchen, 755 F.3d 1193 (10th Cir.2014); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). Numerous lower federal courts also have questioned whether Baker serves as binding precedent following the Supreme Court's decision in Windsor. This Court has the benefit of reviewing the decisions of all of these other courts. “[A] significant majority of courts have found that Baker is no longer controlling in light of the doctrinal developments of the last 40 years.” Jernigan v. Crane, 2014 WL 6685391, *13 (E.D. Ark. 2014) (citing Rosenbrahn v. Daugaard, 2014 WL 6386903, at *6–7 n. 5 (D.S.D. Nov.14, 2014) (collecting cases that have called Baker into doubt)). The Court notes that the Sixth Circuit recently concluded that Baker is still binding precedent in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), but finds the reasoning of the Fourth, Seventh, Ninth, and Tenth Circuits to be more persuasive on the question and concludes that
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Baker does not preclude consideration of the questions presented herein.1 Thus, the Court first addresses the merits of Plaintiffs’ Due Process and Equal Protection
claims, as those claims provide the most appropriate analytical framework. And if equal protection analysis decides this case, there is no need to address the Full Faith and Credit claim.
Rational basis review applies to an equal protection analysis unless Alabama’s
laws affect a suspect class of individuals or significantly interfere with a fundamental right. Zablocki v. Redhail, 434 U.S. 374, 388, 98S.Ct. 673, 54 L.Ed.2d 618 (1978). Although a strong argument can be made that classification based on sexual orientation is suspect, Eleventh Circuit precedence holds that such classification is not suspect. Lofton v. Secretary of Dep’t. of Children and Family
Services, 358 F.3d 804, 818 (11th Cir. 2004)/ The post-Windsor landscape may ultimately change the view expressed in Lofton, however no clear majority of Justices in Windsor stated that sexual orientation was a suspect category.
Laws that implicate fundamental rights are subject to strict scrutiny and will survive constitutional analysis only if narrowly tailored to a compelling government
interest. Reno v. Flores, 507 U.S. 292, 301–02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Careful review of the parties’ briefs and the substantial case law on the subject persuades the Court that the institution of marriage itself is a fundamental right
1 This court also notes that the Supreme Court has granted certiorari in the DeBoer case, Bourke v. Bashear , __ S.Ct.__, 2015 WL 213651 (U.S. January 16, 2015), limiting review to these two questions: 1) Does the 14th Amendment require a state to license a marriage between two people of the same sex? and 2) Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? The questions raised in this lawsuit will thus be definitively decided by the end of the current Supreme Court term, regardless of today’s holding by this court.
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protected by the Constitution, and that the State must therefore convince the Court that its laws restricting the fundamental right to marry serve a compelling state interest.
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” and women. Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Numerous cases have recognized marriage as a fundamental right, describing it as a right of liberty, Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), of privacy, Griswold v. Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and of association, M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
“Under both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny.” Bostic v. Schaefer, 760 F.3d 352, 375(4th Cir. 2014). Strict scrutiny “entail[s] a most searching examination” and requires “the most exact connection between justification and classification.” Gratz v. Bollinger, 539 U.S. 244, 270, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (internal quotations omitted). Under this standard, the defendant “cannot rest upon a generalized assertion as to the classification's relevance to its goals.” Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). “The purpose of the narrow tailoring requirement is to ensure that the
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means chosen fit the compelling goal so closely that there is little or no possibility
that the motive for the classification was illegitimate.” Grutter v. Bollinger, 539 U.S.
306, 333, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003).
Defendant contends that Alabama has a legitimate interest in protecting the
ties between children and their biological parents and other biological kin.2
However, the Court finds that the laws in question are not narrowly tailored to fulfill
the reported interest. The Attorney General does not explain how allowing or
recognizing same-sex marriage between two consenting adults will prevent
heterosexual parents or other biological kin from caring for their biological children.
He proffers no justification for why it is that the provisions in question single out
same-sex couples and prohibit them, and them alone, from marrying in order to meet
that goal. Alabama does not exclude from marriage any other couples who are either
unwilling or unable to biologically procreate. There is no law prohibiting infertile
couples, elderly couples, or couples who do not wish to procreate from marrying. Nor
does the state prohibit recognition of marriages between such couples from other
states. The Attorney General fails to demonstrate any rational, much less
2 Although Defendant seems to hang his hat on the biological parent-child bond argument, Defendant hints that this is one of many state interests justifying the laws in question and some of his arguments could be construed to assert additional state interests that have commonly been proffered in similar cases. The court finds that these other interests also do not constitute compelling state interests. See Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (finding that the following interests neither individually nor collectively constitute a compelling state interest for recognizing same-sex marriages: (1) the State’s federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting the optimal childrearing environment.).
8

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 9 of 10
compelling, link between its prohibition and non-recognition of same-sex marriage and its goal of having more children raised in the biological family structure the state wishes to promote. There has been no evidence presented that these marriage laws have any effect on the choices of couples to have or raise children, whether they are same-sex couples or opposite-sex couples. In sum, the laws in question are an irrational way of promoting biological relationships in Alabama. Kitchen, 755 F.3d at 1222 (“As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to appellants’ interest in fostering biological reproduction within marriages.”).
If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children. Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex parents. Yet Alabama’s Sanctity laws harms the children of same-sex couples for the same reasons that the Supreme Court found that the Defense of Marriage Act harmed the children of same-sex couples. Such a law “humiliates [ ] thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S.Ct. at 2694. Alabama’s prohibition and non-recognition of same-sex marriage “also brings financial harm to children of same-sex couples.” id. at 2695, because it denies the families of these children a panoply of benefits that the State and the federal government offer to families who are legally wed. Additionally, these laws
9

Case 1:14-cv-00208-CG-N Document 53 Filed 01/23/15 Page 10 of 10 further injures those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.
For all of these reasons, the court finds that Alabama’s marriage laws violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
III. Conclusion For the reasons stated above, Plaintiffs’ motion for summary judgment (Doc.
21), is GRANTED and Defendant’s motion for summary judgment (Docs. 47), is DENIED.
IT IS FURTHER ORDERED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate they Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
IT IS FURTHER ORDERED that the defendant is enjoined from enforcing those laws.
DONE and ORDERED this 23rd day of January, 2015. /s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
10

 </s> Case 1:14-cv-00208-CG-N Document 59 Filed 01/25/15 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARI D. SEARCY and KIMBERLY MCKEAND, individually and as parent and next friend of K.S., a minor,
Plaintiffs, vs.
LUTHER STRANGE, in his capacity as Attorney General for the State of Alabama,
Defendant.

) ) ) ) ) ) ) CIVIL ACTION NO. 14-0208-CG-N ) ) ) ) ) )

ORDER

On January 23, 2015, the court granted summary judgment for

plaintiffs in this lawsuit and declared that Alabama’s laws prohibiting same-

sex marriage and prohibiting recognition of same-sex marriages performed

legally in other states are unconstitutional (Docs 53-54). The Attorney

General has now moved for a stay of the order enjoining him from enforcing

those laws pending a ruling by the Supreme Court on other similar cases

(Doc. 56). The plaintiffs oppose that request and seek further clarification of

the injunction issued herein (Doc 56).

Rule 62(c) of the Federal Rules of Civil Procedure provides: “While an

appeal is pending from a[ ] . . . final judgment that grants . . . an injunction,

the court may suspend, modify, restore, or grant an injunction ... on terms

that secure the opposing party's rights.” Fed.R.Civ.P. 62(c). In this case there

Case 1:14-cv-00208-CG-N Document 59 Filed 01/25/15 Page 2 of 6
has been no notice of appeal filed, and from his motion, it appears that the Attorney General’s intention is simply to await the ruling of the Supreme Court in four similar cases that were recently granted certiorari. See James v. Hodges, Supreme Court No. 14-556, Order dated January 16, 2015; see also cases 14-562, 14-571 and 14-574. The motion for a stay cited Rule 62 “and other applicable law” as the basis for his request for a stay. Because he does not identify what other law may apply, the court applies the factors to be considered when a motion for stay pending appeal is filed:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). 1. The Attorney General Has Not Shown that He Is Likely to Succeed on Appeal
The Attorney General seems to concede that he cannot make such showing because his argument on this point simply refers to the arguments he made in connection with his motion for summary judgment, which the court has rejected. He further contends that because this case involves a “serious legal question”, the balance of the equities identified by the other factors “weighs heavily in favor of granting the stay,” and the stay may issue upon a “lesser showing of a substantial case on the merits.” Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986).
2

Case 1:14-cv-00208-CG-N Document 59 Filed 01/25/15 Page 3 of 6
Plaintiffs argues that recent actions by the Supreme Court indicate that it no longer views the possible risk of reversal of the validity of same-sex marriage cases to be a basis to stay an injunction. Plaintiffs points out that the Supreme Court recently denied certiorari from three circuit courts of appeals striking down marriage exclusions in four states, thus dissolving the stays in those cases and leaving those circuit court decisions as binding precedent to overturn marriage exclusions in eleven states. Moreover, the Supreme Court denied stays in similar marriage cases in which appeals were still pending, by denying Idaho’s application for stay pending a petition for certiorari, Otter v. Latta, ___U.S. ___, 135 S.Ct. 345 (2014), and Alaska’s application for a stay pending appeal, Parnell v. Hamby, ___ U.S. ___, 135 S.Ct. 399 (2014). Additionally, the Eleventh Circuit Court of Appeals recently denied a motion to stay pending appeal in the Northern District of Florida case overturning a ban on same-sex marriage. Brenner v. Armstrong, Cases No. 14-14061 and 14-14066, 2014 WL 5891383 (11th Cir., Dec. 3, 2014). The Supreme Court also denied a stay in those cases. Armstrong v. Brenner, 2014 WL 7210190 (Supreme Court, Dec. 19, 2014).
The court thus finds that the Attorney General is not likely to succeed on appeal. 2. The Attorney General Has Not Shown that He Will Suffer Irreparable Harm
The Attorney General argues that the state will suffer irreparable harm “if marriages are recognized on an interim basis that are ultimately
3

Case 1:14-cv-00208-CG-N Document 59 Filed 01/25/15 Page 4 of 6
determined to be inconsistent with Alabama law, resulting in confusion in the law and in the legal status of marriages.” (Doc. 55, pp. 1-2). The court disagrees. What the Attorney General is describing is harm that may occur to those whose marriages become legal or who are permitted to marry by the State while the injunction is in place, only to have them nullified if this court’s ruling is overturned. This is not a harm to the State, but rather a potential harm to the same-sex couples whose marriage arrangements recognized or entered into during the period of the injunction which may be subject to future legal challenge by the State if the injunction is overturned. Moreover, the plaintiffs point out that any marriages entered into in reliance on the court’s injunction are likely to be ruled valid regardless of the outcome of the appeal. See Evans v. Utah, 21 F.Supp.3d 1192, 1209-1210 (D.Utah 2014)(finding that marriages entered into in Utah after district court entered injunction and prior to stay issued by Supreme Court were valid).
3. Granting a Stay Will Irreparably Harm the Plaintiffs and Other Same-Sex Couples
As indicated above and in its order granting the injunction, the court has already found that same-sex couples face harm by not having their marriages recognized and not being allowed to marry. The harms entailed in having their constitutional rights violated are irreparable and far outweigh any potential harm to the Attorney General and the State of Alabama. As long as a stay is in place, same-sex couples and their families remain in a
4

Case 1:14-cv-00208-CG-N Document 59 Filed 01/25/15 Page 5 of 6
state of limbo with respect to adoption, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance and many other rights associated with marriage. The court concludes that these circumstance constitute irreparable harm.
4. The Public Interest Will be Harmed by a Stay The Attorney General argues that a stay will serve the public interest
by avoiding the confusion and inconsistency that will result from an on-again, off-again enforcement of marriage laws. (Doc. 55 at 2). The court finds that the state’s interesting in refusing recognize the plaintiff’s same-sex marriage or in allowing same-sex marriage is insufficient to override the plaintiffs’ interest in vindicating their constitutional rights. The public interest does not call for a different result.
In its discretion, however, the court recognizes the value of allowing the Eleventh Circuit an opportunity to determine whether a stay is appropriate. Accordingly, although no indefinite stay issues today, the court will allow the Attorney General time to present his arguments to the Eleventh Circuit so that the appeals court can decide whether to dissolve or continue the stay pending appeal (assuming there will be an appeal.) The preliminary injunction will be stayed for 14 days.
5

Case 1:14-cv-00208-CG-N Document 59 Filed 01/25/15 Page 6 of 6 Prior to the 14-day stay’s expiration, the court will issue a separate
order addressing plaintiffs’ request for clarification of the court’s injunction order. (See Doc. 56, pp. 6-10).
Conclusion IT IS HEREBY ORDERED that the Court’s Order of Injunction and Judgment (Docs. 53 & 54) are STAYED FOR 14 DAYS. If no action is taken by the Eleventh Circuit Court of Appeals to extend or lift the stay within that time period, this court’s stay will be lifted on February 9, 2105. DONE and ORDERED this 25th day of January, 2015.
/s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
6

 </s> Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARI D. SEARCY and KIMBERLY

)

McKEAND, individually and as parent )

and next friend of K.S., a minor,

)

)

Plaintiffs,

)

)

v.

)

)

ROBERT BENTLEY, individually and )

in his official capacity as the Governor )

of the State of Alabama, et al.,

)

)

Defendants.

)

Civil Action No. 14-00208-CG-N

REPORT AND RECOMMENDATION

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 Constitution1 (see Doc. 1, ¶ 1) (collectively, the “Marriage
Sanctity Laws” or “Sanctity Laws”2), “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

1

The Act is codified at Ala. Code § 30-1-19, and the Amendment, No. 774,

appears at Article I, § 36.03 of the State Constitution.

2

The undersigned adopts this description of the laws, provided in the

complaint, for purposes of the report and recommendation.

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 2 of 16

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.)3 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.)4 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

3

Defendant Don Davis, Judge of Probate for Mobile County, Alabama, also

sued in his individual and official capacity, also filed a motion to dismiss all claims against

him pursuant to Rule 12(b)(6) (Doc. 10). A joint stipulation of dismissal (Doc. 29), agreeing

that all claims against Judge Davis are dismissed with prejudice, was filed July 14, 2014.

And Judge Granade has ordered that, unless an objection was filed by July 25, 2014 (none

was filed), the claims against Judge Davis are deemed dismissed with prejudice as of that

date. Accordingly, the undersigned RECOMMENDS that Judge Davis’s motion (Doc. 10)

be DENIED as MOOT.

4

Plaintiffs also agreed to dismissal of all claims against Judge Davis and

Catherine M. Donald, State Registrar of Vital Statistics. See id. Ms. Donald was served on

June 5, 2014 (see Doc. 19). As such, her time to respond to Plaintiffs’ complaint had not

passed by the time Plaintiffs filed the response agreeing to voluntarily dismiss all claims

against her.

2

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 3 of 16
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 officialcapacity 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
3

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 4 of 16

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 [ ] stepparent 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-cv00922-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.5 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.)

5

Aaron-Brush also raises step-parent adoption. (See 2:14-cv-01091 (N.D. Ala.)

Doc. 1, ¶¶ 11, 30.)

4

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 5 of 16
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 2:14cv-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 Eleventh Amendment immunity because it goes directly to constitutional limitations on the Article III power of the court. Diaz v. Glen Plaid, LLC, No. 7:13–cv–853–TMP, 2013 WL 5603944, at *4 (N.D. Ala. Oct. 11, 2013) (citing Seminole Tribe of Fla. v. State of Fla., 11 F.3d 1016, 1021 (11th Cir. 1994), aff’d sub nom. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)). The exception at issue in this litigation is application of “the doctrine, first enunciated in Ex Parte Young, 209 U.S. 123 (1908), that ‘the Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief’ against state officials ‘to prevent a continuing violation of federal law’ because such conduct
5

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 6 of 16

is not considered to be state action.” Emmons v. City Univ. of N.Y., 715 F. Supp. 2d 394, 406-07 (E.D.N.Y. 2010) (citing Green v. Mansour, 474 U.S. 64, 68 (1985); Pennhurst, 465 U.S. at 102)); see also Walker v. Jefferson Cnty. Bd. of Educ., No. 2:13–CV–00524–RDP, 2013 WL 4056224, at *3 (N.D. Ala. Aug. 12, 2013) (“In certain circumstances, state officials may be subject to suit, despite the Eleventh Amendment, under the ‘fiction’ of Ex parte Young. That fiction allows an individual to obtain a federal injunction against a state officer to force the officer to comply with federal law.” (citations omitted)).6

6

Although not pressed by Plaintiffs here, any argument that the Governor’s

initial decision to participate in Hard “waived” his immunity from the defense of this

lawsuit would likely not be successful. Because “[t]he inquiry into whether a state has

waived its immunity[ ] is stringent.” Shedrick v. District Bd. of Trustees of Miami-Dade

Coll., 941 F. Supp. 2d 1348, 1359 (S.D. Fla. 2013) (Rosenbaum, J.) (citing Barnes v. Zaccari,

669 F.3d 1295, 1308 (11th Cir. 2012) (in turn citing College Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999); Edelman v. Jordan, 415 U.S.

651, 673 (1974))). “A waiver must specifically permit suits against the state in federal

court. Generally, waiver is found only when the state voluntarily invokes the jurisdiction of

a federal court or the state makes a clear declaration that it intends to submit itself to

federal jurisdiction.” Id. (citations and internal quotation marks omitted). At issue in

Shedrick was whether the community college, an arm of the State of Florida for purposes of

immunity under the Eleventh Amendment, “waived immunity by failing to plead it as an

affirmative defense in its answer.” Id. Florida, like Alabama, has expressly retained its

immunity from suit in federal court. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978);

Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1429 (11th Cir. 1997); Carr v. City of

Florence, Ala., 916 F.2d 1521, 1524 (11th Cir. 1990). And, in Shedrick, Judge Rosenbaum

concluded that plaintiff’s waiver argument was unavailing for reasons that could apply,

even more convincingly, to any waiver argument made in this matter. See 941 F. Supp. 2d

at 1359.

First, any “failure to plead Eleventh Amendment immunity[—here, initially, in litigation parallel to this litigation—]cannot plausibly be held to be a clear declaration of, or to even raise an overwhelming implication of, waiver, particularly in light of [a state’s] express retention of Eleventh Amendment immunity.” Id. (citing Edelman, 415 U.S. at 673 (“[W]e will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as (will) leave no room for any other reasonable construction.’”)); see also Ross v. Colorado Dep’t of Transp., Civil No. 11–cv–02603–REB– KMT, 2012 WL 5975086, at *6 n.10 (D. Colo. Nov. 14, 2012) (Eleventh Amendment immunity “cannot be waived by merely appearing in and litigating in a case ‘absent some

6

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 7 of 16
The relatively straightforward framework to determine whether official-
capacity claims against the Governor of Alabama should be dismissed in a lawsuit
challenging the constitutionality of state law has been recently addressed by the
Middle District:
Governor Bentley claims that he is entitled to dismissal from suit based on grounds of sovereign and Eleventh Amendment immunity. To join Governor Bentley to this suit, Plaintiffs must show that he is “responsible for the challenged action” of enforcing or implementing the [act at issue]. Luckey v. Harris, 860 F.2d 1012, 1015 (11th Cir. 1988). Governor Bentley must, “by virtue of his office, have some connection with” the enforcement of the allegedly unconstitutional [act]. Id. (quoting Young, 209 U.S. at 157 (quotation marks and alterations omitted)). “Whether this connection arises out of general law, or is specially created by the act itself, is not material so long as it exists.” Id. at 1016 (quoting Young, 209 U.S. at 157). But Governor Bentley’s connection to the [act] cannot be “too attenuated to establish that he is responsible for” its implementation. See Women’s Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003).
In Women’s Emergency Network, the Eleventh Circuit rejected the plaintiffs’ argument that the Governor of Florida was a proper defendant because he was ultimately responsible for the Department of Highway Safety and Motor Vehicles, the state agency charged by the challenged statute with issuing specialty license plates. Id. at 949.
extraordinarily effective waiver.’” (quoting Richins v. Industrial Constr., Inc., 502 F.2d 1051, 1056 (10th Cir. 1974)); id. (the routine defense of a matter in federal court “is not a case in which the state ‘becomes the actor and files a claim against the fund, [and thus] waives any immunity it otherwise might have had respecting the adjudication of the claims’” (quoting Gardner v. New Jersey, 329 U.S. 565, 574 (1947))); McGinty v. New York, 251 F.3d 84, 93 (2d Cir. 2001) (Eleventh Amendment immunity not waived were “[n]o intervention occurred, no claims were asserted by the state defendants, and no resolution of issues other than those presented by plaintiffs’ complaints had to be resolved” (distinguishing Clark v. Barnard, 108 U.S. 436 (1883))).
Eleventh Amendment immunity, which “deprives federal courts of any jurisdiction to entertain such claims,” moreover, “may be raised at any point in a proceeding.” Shedrick, 941 F. Supp. 2d at 1359 (quoting Pennhurst, 465 U.S. at 99 n.8) (citing Doe v. Moore, 410 F.3d 1337, 1349 (11th Cir. 2005) (“Eleventh Amendment jurisdictional questions can be raised for the first time on appeal.”)) (emphasis added); accord McGinty, 251 F.3d at 94 (collecting cases).
7

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 8 of 16

The court explained that “[w]here the enforcement of a statute is the responsibility of parties other than the governor[,] . . . the governor’s general executive power is insufficient to confer jurisdiction.” Id. at 949-50. C.M. ex rel. Marshall v. Bentley, --- F. Supp. 2d ----, 2014 WL 1378432, at *13-14 (M.D. Ala. Apr. 8, 2014) (finding the Governor’s statutory responsibility to prepare “the State’s general and education budgets each year” to be “too attenuated a connection to make him a proper defendant” in a lawsuit claiming the Alabama Accountability Act of 2013 (“the AAA”) violated the Fourteenth Amendmentguaranteed equal protection rights of certain students’ (those located in an area of the State with few or no nearby nonfailing school options and no financial resources with which to access nonfailing schools). “To conclude otherwise would authorize a plaintiff to challenge any state statute involving the appropriation of state funds merely by naming the governor as a defendant.” (citing Women’s Emergency Network, 323 F.3d at 949 (in turn citing Harris v. Bush, 106 F. Supp. 2d 1272, 127677 (N.D. Fla. 2000) (“[G]eneral authority, standing alone, is insufficient to make [the Governor of the State] the proper party whenever a plaintiff seeks to challenge the constitutionality of a law.” (collecting cases))))) (alteration to original).7

7

See Harris v. McDonnell, --- F. Supp. 2d ----, 2013 WL 6835145, at *6 (W.D.

Va. Dec. 23, 2013) (“[T]he court concludes that the Virginia Governor’s general supervisory

authority over the Commonwealth’s executive branch does not constitute a special relation

to the challenged same-sex marriage ban. The Virginia Governor has insufficient proximity

to and responsibility for Virginia’s marriage laws, and plaintiffs have not shown any

involvement by the Governor in the enforcement of these laws.”); Bishop v. Oklahoma, 333

Fed. App’x 361, 365 (10th Cir. June 5, 2009) (“[T]he Oklahoma officials’ generalized duty to

enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional

amendment they have no specific duty to enforce. . . . The Couples claim they desire to be

married but are prevented from doing so, or they are married but the marriage is not

recognized in Oklahoma. These claims are simply not connected to the duties of the

Attorney General or the Governor. Marriage licenses are issued, fees collected, and the

8

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 9 of 16
III. Analysis
As Governor Bentley argues, he neither has “enforcement responsibilities
with respect to Alabama’s marital and domestic laws” (Doc. 17 at 4 (citing ALA.
CODE § 30-1-1 et seq.) nor “enforcement responsibilities with respect to the adoption
statute that forms this basis of this lawsuit” (id. (citing ALA. CODE § 26-10A-27)).
Indeed, Plaintiffs mention the Governor only once in their complaint. (See Doc. 1, ¶
7.) As that singular substantive reference—that “ . . . Robert Bentley is the
Governor of the State of Alabama, and is vested with the powers of the office of the
highest executive branch state official. Governor Bentley maintains, exercises and
enforces his authority, among other ways, in connection with the Sanctity Laws.”
(id.)—makes clear, the sole basis for naming the Governor a defendant here is his
licenses recorded by the district court clerks.” (citations omitted)); but see Kitchen v. Herbert, --- F.3d ----, 2014 WL 2868044, at *5 (10th Cir. June 25, 2014) (distinguishing Bishop on facts specific to how marriage licenses are issued in Utah, where the Governor and Attorney General have statutory authority over county clerks who issue marriage licenses); see also Peter B. v. Sanford, Civil Action No. 6:10–767–RBH–BHH, 2010 WL 5684397, at *3 (D.S.C. Dec. 6, 2010) (“Ex parte Young requires a ‘special relation’ between the state official sued and the challenged statute, and ‘[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.’” (quoting Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir. 2001) (in turn quoting Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996)))); Nichols v. Brown, 859 F. Supp. 2d 1118, 113132 (C.D. Cal. 2012) (“It is well established that ‘a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.’” (quoting Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (other citations omitted))); compare id., with American Fed. of State, Cnty. & Mun. Emps. (AFSCME) Council 79 v. Scott, 278 F.R.D. 664, 670-71 (S.D. Fla. 2011) (distinguishing Women’s Emergency Network, and holding Governor of Florida properly named in his official capacity, where “the Governor issued the challenged [executive order]”), and Dyke v. Dudek, No. 4:11cv116/RS–WCS, 2011 WL 4370608, at *1-2 (N.D. Fla. Sept. 19, 2011) (“Because [the executive order] is no longer in effect, the Governor’s responsibility over the agencies in question amounts to general executive power which is not sufficient to permit jurisdiction over him. The Governor’s other actions including investigating and reviewing rules are part of his normal functions of administration. The Governor is entitled to Eleventh Amendment immunity.”).
9

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 10 of 16

“general authority” over the executive branch, which, “standing alone[ ] is insufficient to make [him a] proper party” to a lawsuit challenging the constitutionality of the Marriage Sanctity Laws. Harris, 106 F. Supp. 2d at 1276. Plaintiffs have failed to allege, specifically, the Governor Bentley is “‘responsible for the challenged action’ of enforcing or implementing the [Marriage Sanctity Laws].” C.M. ex rel. Marshall, 2014 WL 1378432, at *13 (quoting Luckey, 860 F.2d at 1015). And the only “connection” they do allege, his general executive power, is “too attenuated to establish that he is responsible for” implementation of the challenged laws. Women’s Emergency Network, 323 F.3d at 949. Thus, pursuant to the traditional analysis associated with this issue, Plaintiffs’ official-capacity claim against Governor Bentley is due to be dismissed.8
But Plaintiffs have not chosen to defend their choice to keep Governor Bentley, in his official capacity, in this litigation by arguing he has a special relationship with, and/or a specific duty to enforce, the Marriage Sanctity Laws (the traditional analysis). Plaintiffs instead argue, pursuant to Rule 19, that (1) “Governor Bentley’s presence in this case is required . . . because complete relief cannot be provided to [them] without his presence”; and (2) “Governor Bentley’s absence would leave the Plaintiffs at a substantial risk of inconsistent and multiple

8

Cf. Peter B., 2010 WL 5684397, at *3 n.3 (“In order to survive a motion to

dismiss on an Ex parte Young claim, it is typically sufficient that the plaintiff has alleged

facts that, if proven, would violate federal law and that the requested relief is prospective.

The Court, however, may look to the ‘special relation’ requirement to dismiss a claim where

‘the relationship between the state official sought to be enjoined and the enforcement of the

state statute is significantly attenuated.’” (quoting South Carolina Wildlife Fed’n v.

Limehouse, 549 F.3d 324, 333 (4th Cir. 2008)) (other citations omitted)).

10

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 11 of 16

outcomes in this litigation.” (Doc. 27 at 2.) As stated, Plaintiffs’ fear is “were Governor Bentley allowed out of this case as a party Defendant, he could file an appeal in this action and/or file other litigation to impede the Plaintiffs’ efforts to secure the relief sought.” (Id. at 2-3.) The basis for this concern, Plaintiffs state, is (1) the power of the Governor of Alabama, derived from the State Constitution and provided in numerous statutes, to bring suit in the name of the State and intervene in litigation involving the State and its agencies; and (2) that the Attorney General of Alabama cannot “interfere with or [ ] direct and control litigation being pursued by officers who are acting pursuant to directions from the governor . . . .” (See id. at 3-4 (chiefly relying on Riley v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d 704 (Ala. 2010)).9) Thus, Plaintiffs conclude,

9

There, Justice Murdoch, writing for the Supreme Court, first reached “two

preliminary conclusions.”

First, if our constitution’s grant of “supreme executive authority” to the governor and its charge that the governor “take care that the laws be faithfully executed” mean anything in relation to a matter for which another constitutional officer is also given responsibility, they at least mean as follows: when the governor determines that, whether due to inaction or inadequate action by the other official, it is necessary for him to act lest the law go unenforced, he may act.

Second, the aforesaid authority to act derives from the constitution itself, not from any statutory grant of authority by the legislature. That is, it is authority that exists even in the absence of a specific grant of authority by the legislature.

Id. at 722 (footnote omitted). The second preliminary conclusion notwithstanding, the Supreme Court next noted, “Numerous statutory provisions and decisions of this Court [also] authorize the governor to bring suit in the name of the State.” Id. at 723; compare id. at 726 (“Moreover, all statutes concerning the rights and powers of the governor must be read in the context provided by §§ 113 and 120 of the constitution. Under the constitution, it is the governor who is the ‘chief magistrate’ with ‘the supreme executive power’ to ‘take care that the laws be faithfully executed.’ The legislature has expressly provided that the governor can direct a district attorney or a supernumerary district attorney to represent the

11

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 12 of 16

Governor Bentley is a necessary and proper party to this lawsuit because complete relief cannot be provided to the Plaintiffs without his presence. Were Governor Bentley to not like the outcome before this Court, there is nothing stopping him from filing an appeal in this matter and using any judicial means that he deems appropriate. This could certainly lead to multiple outcomes for the Plaintiffs.
(Id. at 4.)
Plaintiffs invoke Rule 19(a)—19(a)(1)(A) (complete relief) and 19(a)(1)(B)(ii)
(substantial risk of multiple or otherwise inconsistent obligations10)—to argue that
a party currently joined should not be dismissed. In the usual course, however,
Rule 19(a) is not invoked to show that a party should not be dismissed, but is
merely the first step in determining whether an action should be dismissed,
pursuant to Rule 12(b)(7), for failure to join a party under Rule 19. See Challenge
Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 669 (11th Cir. 1982)

interests of the State in the trial court and in this Court, as applicable.” (citation omitted)), with id. at 736 (“[W]e conclude that the statutes discussing the powers and duties of the attorney general do not authorize the attorney general to interfere with or to direct and control litigation being pursued by officers who are acting pursuant to directions from the governor . . . .”).

10

Plaintiffs do not actually argue that the Governor’s absence will subject them

to multiple or otherwise inconsistent obligations, but that his absence could lead to “a

substantial risk of inconsistent and multiple outcomes.” (Doc. 27 at 2, 4 (emphasis

added)). But neither multiple litigation nor inconsistent outcomes, as a result of multiple

litigation, is what Rule 19(a)(1)(B)(ii) guards against. See, e.g., Wheeler Peak, LLC v.

L.C.I.2, Inc., No. CIV 07–1117 JB/WDS, 2009 WL 2982817, at *12 (D.N.M. Aug. 15, 2009)

(“The definition of inconsistent obligations is [ ] fairly uniform, among both courts and

commentators. Rule 19(a)(1)(B)(ii) does not attempt to stop different courts from rendering

inconsistent judgments, but rather is aimed at ensuring that parties are not subject to

conflicting commands from different courts. . . .”); New Hampshire Ins. Co. v. Cincinnati

Ins. Co., Civil Action No. 14–0099–CG–N, 2014 WL 3428911, at *6 (S.D. Ala. July 15, 2014)

(“Inconsistent obligations only come into play when it is shown that two or more parties in

two or more suits (including potential suits) seek the same property or seek a judicial

determination as to the same issue. In other words, an absent party with interests that

compete or overlap with interests being adjudicated by a court is what gives rise to an

inconsistent obligation as contemplated in Rule 19(a)(1)(B)(ii).” (citations omitted)).

12

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 13 of 16

(“[T]he court must [first] ascertain under the standards of Rule 19(a) whether the person in question is one who should be joined if feasible. If the person should be joined but cannot be (because, for example, joinder would divest the court of jurisdiction) then the court must inquire whether, applying the factors enumerated in Rule 19(b), the litigation may continue.”); accord Focus on the Family v. Pinellas Suncoat Transit Auth., 344 F.3d 1263, 1279-80 (11th Cir. 2003). But even if the Court accepts Plaintiffs’ position that Governor Bentley is a party required to be joined if feasible under Rule 19(a) (and apply such logic to mean that, since he is already a party, the official-capacity claim should not be dismissed), Plaintiffs’ argument falls apart because Rule 19 cannot abrogate the Governor’s right to Eleventh Amendment immunity. See, e.g., Diaz, 2013 WL 5603944, at *4 (“Eleventh Amendment immunity . . . goes directly to constitutional limitations on the Article III power of the court.”).
Indeed, in cases in which Rule 19 and Eleventh Amendment immunity have intersected, courts have held that sovereign immunity has significant, if not controlling, weight. The sovereign immunity of the required, but (in those cases) absent party did not, however, factor into whether that party should be joined under Rule 19(a)—because immunity made joinder not feasible11—but instead was

11

See Cyanotech Corp. v. U.S. Nutraceuticals, LLC, Civil No. 12–00352 JMS–

RLP, 2013 WL 504862, at *8 (D. Haw. Feb. 7, 2013) (“[A]t this first step, the court easily

concludes that the University is a party who should be joined. . . . The second step

addresses whether joinder is ‘feasible.’ Here, because the court has already dismissed

the University under Eleventh Amendment principles, joinder of the University

necessarily is not feasible. The University has not consented to suit in this jurisdiction,

and the court cannot order its joinder given its Eleventh Amendment immunity.” (citations

omitted; emphasis added)).

13

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 14 of 16
a factor in determining whether “the action should proceed among the existing parties or should be dismissed.” FED. R. CIV. P. 19(b). See Seneca Nation of Indians v. New York, 383 F.3d 45, 48-49 (2d Cir. 2004) (affirming the Magistrate Judge’s determination that “the State was indispensable under Rule 19(b)” and, as such, dismissal was required for, among other reasons, “that [while] the Senecas would be left without ‘an adequate remedy if the Thruway easement claim is dismissed for nonjoinder,’ . . . that ‘[ ] factor is outweighed by the “paramount importance” to be accorded to the State’s immunity from suit.’ We find no abuse of discretion in this analysis, particularly in light of the significance sovereign immunity plays in weighing the Rule 19(b) factors.” (citations omitted)); see also Diaz, 2013 WL 5603944, at *4, *7-8 (concerning the University of Alabama, a required, but absent party with sovereign immunity, and discussing the United States Supreme Court’s decision in Republic of Philippines v. Pimentel, 553 U.S. 851 (2008): “The Court’s discussion of the weight sovereign immunity should be given under the Rule 19(b) standard is instructive. . . . The Court stressed that the claims of the Philippines and the Commission were not frivolous and that proceeding with the interpleader in their absence clearly risked injury to their interests in the interpleaded assets. Where sovereign immunity is the bar to joining such required parties, ‘dismissal of the action must be ordered.’”).
Given Governor Bentley’s immunity from suit here, as explained above, the undersigned concludes his joinder (now that it is clear he is due to be dismissed) is not feasible, pursuant to Rule 19(b). This finding clearly ends any consideration of
14

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 15 of 16

Plaintiffs’ speculative opposition to Governor Bentley’s dismissal from this action— which appears to be that, at some point in the future, the interests of the Governor and Attorney General Strange, now clearly aligned in defense of the Marriage Sanctity Laws, will somehow diverge, necessitating that the Governor intervene in this case to defend the Sanctity Laws.12
IV. Conclusion For the reasons explained above, it is RECOMMENDED that Commissioner Buckner’s motion to dismiss (Doc. 14) and Governor Bentley and Attorney General Strange’s motion to dismiss (Doc. 17) be GRANTED; and that Judge Davis’s motion to dismiss (Doc. 10) be DENIED as MOOT. Accordingly, it is RECOMMENDED that this case proceed solely against Attorney General Strange in his official capacity.
V. Notice of Right to File Objections A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is

12

Plaintiffs merely speculate that the Attorney General could choose, at some

point in the future, not to defend the challenged laws. Contra cf. Federal Nat’l Mortg. Ass’n

v. Lefkowitz, 383 F. Supp. 1294, 1297-98 & n.3 (S.D.N.Y. 1974) (denying the Governor’s

motion to dismiss at least in part because “the Attorney General[’s] challeng[e to] court’s

jurisdiction . . . might well be prejudicial to the plaintiff).

15

Case 1:14-cv-00208-CG-N Document 34 Filed 07/30/14 Page 16 of 16 made, state the basis for the objection, and specify the place in the Magistrate Judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
DONE this the 30th day of July, 2014. /s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
16

 </s> Case 1:14-cv-00208-CG-N Document 65 Filed 01/28/15 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARI D. SEARCY and KIMBERLY MCKEAND, individually and as parent and next friend of K.S., a minor,
Plaintiffs, vs.
LUTHER STRANGE, in his capacity as Attorney General for the State of Alabama,
Defendant.

) ) ) ) ) ) ) CIVIL ACTION NO. 14-0208-CG-N ) ) ) ) )

ORDER CLARIFYING JUDGMENT

This matter is before the court on Plaintiffs’ Request for Clarification that

was contained in their Objection and Response (Doc. 56) to Defendant’s Motion to

Stay (Doc. 55).

On January 23, 2015, this court granted summary judgment in favor of

Plaintiffs in this lawsuit, declaring that Alabama’s laws prohibiting same-sex

marriage and prohibiting recognition of same-sex marriages performed legally in

other states are unconstitutional. (Docs. 53-54). As part of the Judgment entered in

this case, the court specifically enjoined the Defendant from enforcing those laws.

(Doc. 54). Upon Defendant’s motion, the court then stayed the order of injunction

and judgment for 14 days. (Doc. 59). If no action is taken by the Eleventh Circuit

Court of Appeals to extend or lift the stay within that time period, this court’s stay

will be lifted on February 9, 2015.

1

Case 1:14-cv-00208-CG-N Document 65 Filed 01/28/15 Page 2 of 3
Plaintiffs have asked for clarification of this court’s injunction and judgment based on statements made to the press by the Alabama Probate Judges Association (“APJA”)1 that despite this court’s ruling, they must follow Alabama law and cannot issue marriage licenses to same-sex couples. (Doc. 56, pp. 6-8). According to the local news, prior to this court’s entry of a 14 day stay, the APJA advised its members not to issue marriage licenses to same-sex couples. 2 A representative of the APJA reportedly stated that this court’s decision was limited to the same-sex couple that filed the case and that the only party who was enjoined from enforcing the laws in question was Attorney General Strange.
Because the court has entered a stay of the Judgment in this case, neither the named Defendant, nor the Probate Courts in Alabama are currently required to follow or uphold the Judgment. However, if the stay is lifted, the Judgment in this case makes it clear that ALA. CONST. ART. I, § 36.03 and ALA. CODE § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Commissioners of Mobile County, Alabama.
1 The court notes that on January 25, 2015, the APJA moved for leave to appear as amicus curiae in support of Defendant’s motion for stay. (Doc. 58). 2 See http://www.al.com/news/index.ssf/2015/01/alabama_probate_association_ju.html incart_related_stories and http://www.al.com/news/mobile/index.ssf/2015/01/alabama_probate_court_judges_ga y_marriage.html - incart_river
2

Case 1:14-cv-00208-CG-N Document 65 Filed 01/28/15 Page 3 of 3
As Judge Hinkle of the Northern District of Florida recently stated when
presented with an almost identical issue:
History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. here should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney's fees.
* * * * The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk's obligation to follow the law arises from sources other than the preliminary injunction.
Brenner v. Scott, 2015 WL 44260 at *1(N.D. Fla. Jan. 1, 2015).
For the reasons stated above, Plaintiff’s motion to clarify (Doc. 56), is
GRANTED and the Judgment in this case is CLARIFIED as set out above.
DONE and ORDERED this 28th day of January, 2015.
/s/ Callie V. S. Granade UNITED STATES DISTRICT JUDGE
3

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARI D. SEARCY and KIMBERLY )

MCKEAND,

)

)

Plaintiffs,

)

)

vs.

) CIVIL ACTION NO. 14-208-CG-N

)

LUTHER STRANGE, III, in his

)

official capacity as Attorney General )

of the State of Alabama,

)

)

Defendant.

ORDER

This matter is before the Court on Plaintiffs’ motion for attorneys’ fees and

costs (Doc. 76), Defendants’ opposition (Doc. 80), and Plaintiffs’ reply (Doc. 81).

Plaintiffs request attorneys’ fees in the amount of $189,310.00, plus costs in the

amount of $8,400.00, for a total award of $197,710.00. For the reasons explained

below, the Court finds that Plaintiffs’ motion is due to be granted in part and denied

in part to the extent that Plaintiff will be awarded attorneys’ fees in the amount of

$126,206.66. Additionally, the Court will allow Plaintiffs to file documentation to

support their claimed costs.

Congress passed the Civil Rights Attorneys' Fee Awards Act of 1976 (“Act”) in

order to ensure “effective access to the judicial process,” recognizing that a “civil

rights litigant acts as a ‘private attorney general’ who furthers important national

policy objectives.” Cooper v. Singer, 719 F.2d 1496, 1498 (10th Cir.1983) (citation

omitted), overruled on other grounds by Venegas v. Mitchell, 495 U.S. 82 (1990).

“[C]ivil rights laws ‘depend heavily upon private enforcement, and fee awards have

proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.’ ” Id. (citation omitted). The Act provides that “the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” 42 U.S.C. § 1988(b). In the instant action, the parties do not dispute that Plaintiffs are the prevailing party; however, they disagree whether the amount of fees and costs requested by Plaintiffs are reasonable.
Generally, the determination of reasonable attorneys’ fees begins with a determination of the reasonable hourly rate multiplied by the “hours reasonably expended.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). “The product of these two figures is the lodestar and there is a strong presumption that the lodestar is the reasonable sum the attorneys deserve.” Id. (internal citations and
quotation omitted). When making this “lodestar” determination, the Court may consider the twelve factors identified in Pharmacia Corp. v. McGowan, 915 So.2d 549, 552–53 (Ala. 2004). These factors are:
(1) [T]he nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a professional relationship; (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances.
Id. (quoting Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)).
2

After the lodestar is determined by multiplication of a reasonable hourly rate times hours reasonably expended, the court must next consider the necessity of an adjustment for results obtained. If the party achieved an excellent result, then the court should compensate for all hours reasonably expended. Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987). If the party achieved limited success, then the court may reduce the amount of fees that is reasonable in relation to the results obtained. Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983). In doing so, the court may attempt to identify specific hours spent in unsuccessful claims, or it may simply reduce the award by some proportion. Id.
Plaintiffs have the burden of supplying the court with sufficient evidence from which the court can determine the reasonable hourly rate for the attorneys and staff who worked on the litigation. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). A reasonable hourly rate is often “the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Garrett Investments, LLC v. SE Prop. Holdings, LLC, 956 F. Supp. 2d 1330, 1339 (S.D. Ala. 2013). In that regard, “[s]atisfactory evidence at a minimum is more than the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299 (citation omitted). When reviewing attorneys’ fees, the court may rely upon its own “knowledge and experience” to form an “independent judgment” as to a reasonable hourly rate. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing Norman, 836 F.2d at 1303); see also Garrett Investments, LLC, 956 F. Supp. 2d at 1340-41 (compiling market rates for attorneys with varied amounts of experience).
3

Plaintiffs also have the burden of establishing reasonable hours. Lee v. Krystal Co., 918 F. Supp. 2d 1261, 1266 (S.D. Ala. 2013). Reasonable hours are established through billing statements or invoices that state with sufficient particularity the nature of the work performed and by whom so the court may determine the reasonableness of the time expended. And if fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for which payment is sought, pruning out those that are excessive, redundant, or otherwise unnecessary. Norman, 836 F.2d at 1301. “Courts are not authorized to be generous with the money of others.” ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999).
In the instant case, Plaintiffs submitted affidavits from the attorneys that worked on this case, David Kennedy and Christine Hernandez (Docs. 76-3, 76-4), timesheets of the work performed by each attorney (Docs. 76-5, 76-6), and the affidavit of an attorney that works in the area, Edward Bowron – the managing partner at Burr Forman, LLP’s Mobile, Alabama office (Doc. 76-7). Plaintiffs request attorneys’ fees in the amount of $189,310.00, plus costs in the amount of $8,400.00, for a total award of $197,710.00. The attorneys’ fees total represents 349 hours of work by Mr. Kennedy and 339.4 hours of work by Ms. Hernandez multiplied by an hourly rate of $275. Kennedy and Hernandez both have about 8 years of litigation experience.
Mr. Bowron avers: 1) he is familiar with the hourly rates attorneys charge in Mobile, 2) he has reviewed the time entries and declarations of Kennedy and Hernandez and has generally followed the case, 3) the instant case was a complex,
4

risky, difficult, and hard-fought case requiring a high degree of skill and effort from Plaintiffs’ counsel, 4) he is familiar with the work of Kennedy and Hernandez, 5) other lawyers in his office and lawyers of similar experience and ability in the Mobile, Alabama community routinely charge $275-$375+ per hour where payment is expected promptly, 6) the rate of $275 charged by Kennedy and Hernandez is on the low range of market rates charged by attorneys of equivalent experience, skill, and expertise for comparable work in this community, and 7) he believes the amounts charged for fees and costs are more than reasonable.
Defendant contends that both the hourly rate of $275 and the number of hours charged, a total of 688.4, are excessive. Defendant points out that in this case there was no discovery, no hearing, and no trial. The case was resolved on summary judgment and Defendant contends it was a simple case. Defendant also argues that some of the work done by Plaintiffs’ counsel did not contribute to relief against this Defendant. Plaintiffs originally named several other Defendants in this action from which they were unable to obtain any relief. Defendants argue that Plaintiffs’ counsel should not be compensated for preparing pleadings that were not filed, for excessive time in some instances, for hearings that did not involve the claims against the Attorney General, for a non-compliant expert report that did not contribute to their relief, or for activity related to non-parties. Defendants also argue that the rate charged is not commensurate with the Mobile market, especially in light of the fact that Kennedy and Hernandez are not experienced in civil rights litigation and do not work in large firms with high operating expenses.
While Defendant describes this as a simple case, Plaintiffs’ counsel point to 5

the many hours they toiled attempting to overcome all the hurdles thrown at them by the State of Alabama. The Court agrees with Defendant that although this case was complicated by adoption issues, the claims relied on the recognition of Plaintiffs’ right to marry which had been litigated in many Courts across the country. Such claims are complex, but because of the vast prior litigation, there were many cases from which Plaintiffs could model their pleadings and motions. However, despite the clear roadmap for pursuing their claims and this Court’s grant of summary judgment without a hearing or trial, Plaintiffs’ path to complete relief was indeed obstructed at every turn thereafter. Plaintiffs’ counsel asserts that this was a hard fought case that required substantial briefing on complex issues with tight time deadlines necessitated by the intense opposition to this case. News sources have reported that no other state has fought against a court ruling on the recognition of same-sex marriage as hard as Alabama fought against the rulings in this Court.1 The Governor of Alabama, numerous Probate Judges and at least one prominent State Court Judge publicly opposed Plaintiffs’ claims. Some of these individuals were originally parties in this case and some were or are parties to other cases in this Court that sought to invalidate the same marriage laws in Alabama. However, the only Defendant that remained in this case past the initial round of motions to dismiss is Attorney General Strange. Probate Judge Don Davis and Governor Robert Bentley were originally named as defendants in this case, but after
1 See e.g. http://www.al.com/news/index.ssf/2015/02/no_state_has_fought_harder_aga.html
6

moving for dismissal, Judge Davis was dismissed by stipulation of the parties (Doc. 29) and Governor Bentley was dismissed by order of the Court on August 20, 2014 (Doc. 40). Attorney General Strange did not move to have the official capacity claims against him dismissed and instead agreed to remain in the case to defend the validity of Alabama’s marriage laws.
The Court agrees with Defendant’s assertion that when summary judgment was granted, the effort required by Plaintiffs’ counsel up to that time should have been relatively modest. However, after judgment was entered on January 23, 2015, the case became more complicated. Defendant immediately moved to stay the action (Doc. 55), the Alabama Probate Judges Association (“APJA”) moved to appear as amicus curiae in support of the motion to stay (Doc. 58) and this Court granted the APJA’s motion and stayed the action for 14 days to allow the Attorney General time to present his arguments to the Eleventh Circuit. (Doc. 59). Additionally, Plaintiffs filed a motion to clarify based on statements made to the press by the APJA that despite this Court’s ruling, Probate Judges must follow Alabama law and cannot issue marriage licenses to same-sex couples. (Doc. 56). The Attorney General appealed the judgment and moved for a stay pending appeal, and the Eleventh Circuit denied the motion to stay. (Doc. 70). Upon the Eleventh Circuit’s denial of a stay, Plaintiffs moved for an early lift of this Court’s 14 day stay, but the Attorney General sought a stay from the United States Supreme Court and this Court continued the stay for the full 14 days, which expired on February 9, 2015. (Doc. 69). On February 9, 2015, the United States Supreme Court denied Defendant’s motion to stay and Plaintiffs moved for contempt against Judge Davis
7

because he had refused to open the marriage license division of the Mobile County Probate Court. (Doc. 71). This Court denied Plaintiffs’ motion for contempt because Judge Davis was no longer a party to this case and had not been directed to do anything by this Court. (Doc. 72). On February 24, 2015, Plaintiff Cari Searcy filed a second lawsuit in this Court, seeking to enjoin Judge Davis from enforcing Alabama’s marriage laws. Searcy v. Davis, Case No. 15-00104-CG-N. In the second lawsuit, Davis moved for dismissal and then for a stay. The case was ultimately dismissed on March 26, 2015, on Searcy’s motion, because Judge Davis had complied. On June 26, 2015, the United States Supreme Court decided Obergefell v. Hodges, 135 S.Ct. 2584, 2588, 192 L. Ed. 2d 609 (2015) and the Eleventh Circuit Court of Appeals then summarily affirmed the judgment in this case based on that decision. (Doc. 75).
After reviewing the above history, and the supporting briefs and other related filings in the case, the Court finds that it was not the Attorney General who overly complicated this case, but rather the actions of non-parties together with Plaintiffs’ counsel’s inexperience and/or inability to use this action to obtain complete relief. Most of the motions in this case involved parties who were dismissed from this case. Many of the motions filed by Plaintiffs were unnecessary, premature,2 or unfounded. Defendant Strange did not overly complicate the case. Defendant Strange appropriately moved to dismiss the individual claims brought
2 Plaintiffs’ motion for summary judgment, filed on June 12, 2014, was found to be premature as there were three motions to dismiss (Docs. 10, 14, 17) pending at the time. (Doc. 25). The Court did not take up the motion for summary judgment until the motions to dismiss had been decided.
8

against him, but agreed to defend the claims brought against him in his official capacity as the Attorney General of Alabama. Strange filed the required response to Plaintiffs’ motion for summary judgment and he appealed the judgment and requested a stay pending the appeal, as any prudent defendant might. While Plaintiffs were successful in their claim against Defendant Strange in this action, the Court believes it was the success of plaintiffs in other cases, such as Strawser v. Strange, Case No. 14-424-CG-C ,3 that ultimately lead to Plaintiffs in this case obtaining complete satisfaction.
In the Court’s view, the amount of work required by Plaintiffs’ counsel in this case was not the product of the Attorney General’s actions, but the result of the inexperience of Plaintiffs’ counsel and the tactics of non-parties. With that in mind, the Court finds that the attorneys’ fees should not be adjusted upward or found reasonable because of any unjust actions by the Defendant, but instead should be reduced to some extent to account for the excessive hours caused by plaintiffs’ counsel’s inexperience. The Court, however, agrees with Plaintiffs’ counsel that the nature and value of the subject matter of this case, the time and labor required, the time limitations imposed by the circumstances and the fact that the fee was contingent with no guarantee of success, all tend to support the reasonableness of the requested fee award. The case provided a meaningful opportunity for the
3 The Court notes that the original plaintiffs in Strawser v. Strange filed their action pro se and were successful in obtaining a preliminary injunction without the help of counsel. The Strawser plaintiffs eventually obtained very capable counsel that helped them obtain class action status and succeed against all of the probate judges in the State of Alabama as well as the Attorney General of Alabama.
9

individual Plaintiffs to vindicate important constitutional policies of Due Process and Equal Protection and this Court finds a reasonable attorneys’ fee award should be granted. The question is what rate, hours, or total award is reasonable.
Defendant points to certain line items in Plaintiffs’ billing records as excessive. Defendant contends that at least 218.2 hours should be cut because of the following:
1) 20.5 hours for background research prior to filing the Complaint is not compensable,
2) 3 hours for basic administrative tasks (such as initial file setup, review of basic administrative documents and forwarding pleadings to clients) is excessive,
3) 16.8 hours for preparation of documents that were never filed should be stricken,
4) 66.7 hours for general research throughout the case is excessive, 5) 52.7 hours of daily billing is improbable or impossible (such as entries
for: 7.3 hours before 10:30 a.m. on a Sunday, 17.2 hours in one day, 28.2 hours in one day), 6) 21.1 hours working with an expert witness where the initial report did not provide grounds for his opinion, the report cited studies that supported Defendant’s position, and the expert was not a factor in the determination of this case, 7) 37.1 hours for work dated after it possibly could have occurred (such as for drafting pleadings that had already been filed),
10

8) 37.5 hours for work unrelated to the claims against the Attorney General, and
9) 4.2 hours for entries with vague descriptions that cannot be assessed. Plaintiffs’ counsel concedes that the reported 28.2 hours in a single day was a mistake. According to Plaintiffs’ counsel that error and the other two date errors are merely clerical mistakes in compiling the bill, with the date column being the source of the error. As stated above, Plaintiffs have the duty of supplying the Court with sufficient evidence from which the Court can determine both the reasonable hourly rate and the reasonable number of hours. In light of counsel’s concession, Plaintiffs have clearly not provided sufficient support for the 52.5 hours objected to in subsection 5 above. Some of the other objections listed above also appear to be valid. Plaintiffs’ counsel argues that audit-proof perfection is not required, because courts may take into account their overall sense of a suit without going line by line to achieve auditing perfection. Defendant agrees that the Court may choose to simply cut the fee award by a percentage rather than conduct a detailed hour-by hour analysis of the billing records. Defendant contends that the fee award should be cut to approximately $50,000.00.
Plaintiffs contend the fee award should not be reduced and point to the amount of fees that have been awarded in other same-sex marriage cases. See Bishop v. Smith, 112 F. Supp. 3d 1231, 1253 (N.D. Okla. 2015) (awarding $296,847.50 in fees and $1,895.27 in costs); Latta v. Otter, 2014 WL 7245631 (D. Idaho Dec. 19, 2014) (awarding $397,300.00 in attorney fees and $4,363.08 in
11

expenses); Wolf v. Walker, Case No. 14-cv-00064-bbc, doc 194 (W.D. Wisc. March 27, 2015) (stipulation by parties that Defendants shall pay Plaintiffs $1,055,000.00 in attorneys fees and costs), see also Hamby v. Walker, 2015 WL 1712634, at *9 (D. Alaska Apr. 15, 2015) (awarding a total of $127,720.90 in attorneys’ fees and costs); McGee v. Cole, 115 F. Supp. 3d 765, 779 (S.D. W.Va. 2015) (awarding $92,125 in attorneys' fees and $7,679.64 in costs); Aguero v. Calvo, 2016 WL 1050251 (D. Guam Mar. 16, 2016) (awarding a total of $82,842.50 in fees and $ 2,575.17 in expenses). The Court notes that the above fee awards range from $82,842.50 to $1,055,000.00. However, none of the cases cited by Plaintiffs or found by this Court proceeded in the state of Alabama or under the same circumstances as this case.
After reviewing all of the above, the Court finds that the requested fee award of $189,310.00 should be reduced, but not to the extent advanced by Defendant. Although it is the Court’s opinion that Plaintiffs’ counsel demonstrated a clear lack of experience in this matter, they undeniably obtained a successful result that served the public interest by vindicating significant constitutional rights. Defendant contends that both the rates and the hours charged are excessive, but to the extent counsel expended more hours due to their lack of knowledge or experience, a reduction in both rate and hours is not justified. An inexperienced attorney is expected to work longer hours to accomplish the same task as an experienced attorney and an attorney’s hourly rate should reflect that difference. In the instant case, the Court finds that a reasonable fee results by reducing the claimed amount by 1/3 to $126,206.66.
12

As to the requested costs in the amount of $8,400.00, Plaintiffs have not offered any accounting or description of what the total cost figure encompasses. Plaintiffs have failed to provide adequate documentation to support their claimed expenses. “The party seeking costs must not only show that the costs claimed are recoverable, but must also provide sufficient detail and sufficient documentation regarding those costs in order to permit challenges by opposing counsel and meaningful review by the Court.” Doria v. Class Action Servs., LLC, 261 F.R.D. 678, 685 (S.D. Fla. 2009) (citation omitted). However, the Court will allow Plaintiffs to submit an amended motion for costs with the appropriate documentation.
CONCLUSION For the reasons stated above, Plaintiffs’ motion for attorneys’ fees and costs (Doc. 76), is GRANTED in part and DENIED in part to the extent that Plaintiffs are awarded attorneys’ fees in the amount of $126,206.66. Plaintiffs are ORDERED to file on or before June 10, 2016, an accounting of the costs claimed with sufficient detail to permit meaningful review. Any response from Defendant is due no later than June 17, 2016. DONE and ORDERED this 27th day of May, 2016.
/s/ Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE
13

 </s> Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 1 of 9
APPEAL,CLOSED2015
U.S. District Court Southern District of Alabama (Mobile) CIVIL DOCKET FOR CASE #: 1:14−cv−00208−CG−N

Searcy et al v. Strange Assigned to: Senior Judge Callie V. S. Granade Referred to: Magistrate Judge Katherine P. Nelson Case in other court: 11th Cir. USCA, 14−14061, 15−12508, Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 05/06/2014 Date Terminated: 01/23/2015 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Cari D. Searcy individually and as parent and next friend of K.S., a minor

represented by Christine Cassie Hernandez P.O. Box 66174 Mobile, AL 36660 251−479−1477 Email: christine@equalizingjustice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Graham Kennedy P.O. Box 556 Mobile, AL 36601 251−338−9805 Email: david@kennedylawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kimberly McKeand

represented by Christine Cassie Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Graham Kennedy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Robert Bentley individually and in his official capacity as the Governor of the State of Alabama TERMINATED: 08/28/2014
Defendant

represented by James W. Davis Office of the Attorney General 501 Washington Ave. Montgomery, AL 36130−0152 334−353−1356 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Elizabeth Howell 501 Washington Avenue Montgomery, AL 36104 334−242−7432 Email: lhowell@ago.state.al.us ATTORNEY TO BE NOTICED

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 2 of 9

Luther Strange in his capacity as the Attorney General of the State of Alabama

represented by James W. Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew L. Brasher 501 Washington Ave. Montgomery, AL 36103 334−242−7300 Email: abrasher@ago.state.al.us ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) ATTORNEY TO BE NOTICED

Defendant
Don Davis individually and in his capacity as the Judge of Probate for Mobile County, Alabama TERMINATED: 07/25/2014

represented by Jason Kirk Hagmaier Johnston Druhan, LLP P.O. Box 154 Mobile, AL 36601 (251) 432−0738 Fax: 2514324874 Email: jkh100@bellsouth.net ATTORNEY TO BE NOTICED

Defendant
Catherine M. Donald individually and in her official capacity as the State Registrar of Vital Statistics for the State of Alabama TERMINATED: 08/28/2014

Defendant
Nancy T. Buckner individually and in her official capacity as the Commissioner of the Department of Human Resources for the State of Alabama TERMINATED: 08/28/2014

represented by Felicia Marshea Brooks State of Alabama, Department of Human Resources Legal Office P. O. Box 304000 50 North Ripley Montgomery, AL 36130 334−242−9330 Fax: 334−242−0689 Email: felicia.brooks@dhr.alabama.gov ATTORNEY TO BE NOTICED

Amicus
Alabama Probate Judges Association, Judge Greg Norris, President Monroe County Probate Judge 65 N. Alabama Avenue Monroeville, AL 36460−1809

represented by Algert S. Agricola , Jr. 60 Commerce Street, Suite 1400 Montgomery, AL 36104 334−834−5290 Fax: 334−834−5297 Email: aagricola@rdafirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph Lenn Ryals 60 Commerce Street, Suite 1400 Montgomery, AL 36104 334−834−5290 Email: lryals@rdafirm.com ATTORNEY TO BE NOTICED

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 3 of 9

Date Filed 05/07/2014
05/07/2014 05/07/2014 05/08/2014
05/13/2014
05/13/2014 05/13/2014 05/20/2014
05/20/2014
05/20/2014 05/30/2014 05/31/2014 05/31/2014 06/02/2014
06/03/2014 06/03/2014 06/04/2014
06/06/2014 06/10/2014

# Docket Text
1 COMPLAINT For Declaratory and Injunctive Relief against All Defendants ( Filing fee $400 receipt number 1128−1578041, Online Credit Card Payment), filed by Cari D. Searcy, Kimberly McKeand. (Hernandez, Christine) (Additional attachment(s) added on 6/13/2014: # 1 Civil Cover Sheet) (mab). (Entered: 05/07/2014)
2 Notice of Assignment to Magistrate Judge for trial. (Attachments: # 1 request for reassignment) (srr) (Entered: 05/07/2014)
4 NOTICE of Filing Proposed Summons by Kimberly McKeand, Cari D. Searcy (Hernandez, Christine) (Entered: 05/07/2014)
5 Summons Issued as to Robert Bentley, Nancy T. Buckner, Don Davis, Catherine M. Donald, Luther Strange. Note to Counsel: The Summons have been issued. Please print copies necessary for service. (srr) (Main Document 5 replaced on 5/13/2014) (srr). (Entered: 05/08/2014)
6 AFFIDAVIT of Service for Summons & Complaint served on Don Davis on 05/09/2014, filed by Kimberly McKeand, Cari D. Searcy. (Hernandez, Christine) (Entered: 05/13/2014)
7 NOTICE of Appearance by David Graham Kennedy on behalf of Kimberly McKeand, Cari D. Searcy (Kennedy, David) (Entered: 05/13/2014)
Answer due from Don Davis on 5/30/2014. (srr) (Entered: 05/13/2014)
8 AFFIDAVIT of Service for Complaint & Summons served on Luther Strange, III on 05/16/2014, filed by Kimberly McKeand, Cari D. Searcy. (Hernandez, Christine) (Entered: 05/20/2014)
9 AFFIDAVIT of Service for Complaint & Summons served on Robert Bentley on 05/16/2014, filed by Kimberly McKeand, Cari D. Searcy. (Hernandez, Christine) (Entered: 05/20/2014)
Answer due from Robert Bentley on 6/6/2014; Luther Strange on 6/6/2014. (srr) (Entered: 05/20/2014)
10 MOTION to Dismiss by Don Davis. (Attachments: # 1 Brief) (Hagmaier, Jason) (Entered: 05/30/2014)
11 NOTICE of Appearance by Felicia Marshea Brooks on behalf of Nancy T. Buckner (Brooks, Felicia) (Entered: 05/31/2014)
12 NOTICE by Nancy T. Buckner Discloser Statement (Brooks, Felicia) (Entered: 05/31/2014)
13 Order re: 10 MOTION to Dismiss filed by Don Davis; Response to Motion due by 6/16/2014, Replies due by 6/23/2014. Signed by Magistrate Judge Katherine P. Nelson on 6/2/2014. (srr) (Entered: 06/02/2014)
14 MOTION to Dismiss for Lack of Jurisdiction by Nancy T. Buckner. (Brooks, Felicia) (Entered: 06/03/2014)
15 Brief filed by Nancy T. Buckner re 14 MOTION to Dismiss for Lack of Jurisdiction . (Brooks, Felicia) (Entered: 06/03/2014)
16 Order re: 14 MOTION to Dismiss for Lack of Jurisdiction filed by Nancy T. Buckner; Response to Motion due by 6/18/2014, Replies due by 6/25/2014. Signed by Magistrate Judge Katherine P. Nelson on 6/4/2014. (srr) (Entered: 06/04/2014)
17 MOTION to Dismiss by Robert Bentley, Luther Strange. (Davis, James) (Entered: 06/06/2014)
18 AFFIDAVIT of Service for Complaint served on Nancy T. Buckner on 06−05−2014, filed by Kimberly McKeand, Cari D. Searcy. (Hernandez, Christine) (Entered: 06/10/2014)

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 4 of 9

06/10/2014 06/10/2014
06/12/2014 06/12/2014
06/13/2014 06/13/2014
06/13/2014 06/13/2014 06/13/2014 06/24/2014 06/27/2014 07/14/2014 07/15/2014 07/18/2014 07/28/2014 07/30/2014

19 AFFIDAVIT of Service for Complaint served on Catherine M. Donald on 06−05−2014, filed by Kimberly McKeand, Cari D. Searcy. (Hernandez, Christine) (Entered: 06/10/2014)
20 Order that the briefing schedules entered as to the motions filed by Judge Davis and Commissioner Buckner [13,16] are VACATED; plaintiffs to file an omnibus response by 6/24/14 to all pending motions to dismiss re: 14 MOTION to Dismiss for Lack of Jurisdiction filed by Nancy T. Buckner, 10 MOTION to Dismiss filed by Don Davis, 17 MOTION to Dismiss filed by Luther Strange, Robert Bentley; replies due by 7/1/14. Clerk is directed to send a Consent to exercise jurisdiction by Magistrate Judge form; consent form due by 7/1/2014. If parties do not consent the Clerk is directed to reassign this matter to a District Judge. Signed by Magistrate Judge Katherine P. Nelson on 6/10/2014. (Attachments: # 1 consent) (srr) (Entered: 06/10/2014)
21 MOTION for Summary Judgment by Kimberly McKeand, Cari D. Searcy. (Hernandez, Christine) (Entered: 06/12/2014)
22 Brief filed by Kimberly McKeand, Cari D. Searcy re 21 MOTION for Summary Judgment filed by Kimberly McKeand, Cari D. Searcy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Text of Proposed Order, # 11 Text of Proposed Order) (Hernandez, Christine) (Entered: 06/12/2014)
23 NOTICE of Appearance by Laura Elizabeth Howell on behalf of Robert Bentley, Luther Strange (Howell, Laura) (Entered: 06/13/2014)
24 This action has been transferred from the docket of Magistrate Judge Katherine P. Nelson and is now assigned to the docket of Judge Callie V. S. Granade. To insure that your pleadings are referred to the proper Judge and Magistrate Judge with as little delay as possible, please use the letter suffix CG−N after the case number on all future pleadings. (srr) (Entered: 06/13/2014)
Answer due from Catherine M. Donald on 6/30/2014 pursuant to Doc. 19 . (mab) (Entered: 06/13/2014)
25 Order, finding Plaintiffs' 21 MOTION for Summary Judgment to be premature. The Court will enter an appropriate response order and address this motion after it has adjudicated the pending motions to dismiss. Signed by Magistrate Judge Katherine P. Nelson on 6/13/2014. (mab) (Entered: 06/13/2014)
26 PRELIMINARY SCHEDULING ORDER entered. Rule 26 Meeting Report due by 7/28/2014. Signed by Magistrate Judge Katherine P. Nelson on 6/13/2014. (mab) (Entered: 06/13/2014)
27 RESPONSE in Opposition re 14 MOTION to Dismiss for Lack of Jurisdiction , 10 MOTION to Dismiss , 17 MOTION to Dismiss filed by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) (Entered: 06/24/2014)
28 REPLY Brief filed by Defendants Robert Bentley, Luther Strange re: 27 Response in Opposition to Motion, 17 MOTION to Dismiss filed by Robert Bentley, Luther Strange. (Davis, James) (Entered: 06/27/2014)
29 STIPULATION of Dismissal of Judge Don Davis by Cari D. Searcy, Kimberly McKeand. (Kennedy, David) (Entered: 07/14/2014)
30 NOTICE of Endorsement by Don Davis re: 29 Stipulation of Dismissal (Hagmaier, Jason) (Entered: 07/15/2014)
31 Order re: 29 Joint Stipulation of Dismissal filed by Plf & Dft Don Davis. Unless an objection is filed on or before 7/25/2014, Plf's claims against Dft Davis will be deemed to be dismissed w/prejudice as of 7/25/14 without further order from the court. Signed by Judge Callie V. S. Granade on 7/18/2014. (tot) (Entered: 07/18/2014)
32 REPORT of Rule 26(f) Planning Meeting . (Davis, James) (Entered: 07/28/2014)
33 SCHEDULING ORDER: Amended Pleadings due by 9/15/2014. Discovery cutoff 10/15/2014. Dispositive Motions due from plaintiffs by 10/15/2014. Dispositive Motions due from defendants by 11/17/2014. Signed by Magistrate Judge Katherine P. Nelson on 7/30/2014. copies to parties. (sdb) (Entered: 07/30/2014)

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 5 of 9

07/30/2014
08/13/2014 08/14/2014 08/14/2014
08/15/2014 08/15/2014 08/15/2014
08/20/2014 08/22/2014 08/28/2014 08/28/2014
08/28/2014
09/04/2014

34 REPORT AND RECOMMENDATIONS: It is RECOMMENDED that Commissioner Buckner's motion to dismiss (Doc. 14 ) and Governor Bentley and Attorney General Strange's motion to dismiss (Doc. 17 ) be GRANTED; and that Judge Davis's motion to dismiss (Doc. 10 ) be DENIED as MOOT. Accordingly, it is RECOMMENDED that this case proceed solely against Attorney General Strange in his official capacity. Objections to R&R due by 8/13/2014. Signed by Magistrate Judge Katherine P. Nelson on 7/30/2014. copies to parties. (sdb) (Entered: 07/30/2014)
35 Unopposed MOTION to Stay Scheduling Order by Nancy T. Buckner. (Brooks, Felicia) Modified on 8/14/2014 (tot). (Entered: 08/13/2014)
MOTIONS REFERRED: 35 Unopposed MOTION to Stay Scheduling Order referred to Judge Katherine P. Nelson. (tot) (Entered: 08/14/2014)
36 ENDORSED ORDER granting 35 motion to stay scheduling order obligations as to Defendant Nancy Buckner. Although Defendant Buckner's motion to dismiss remains pending, plaintiffs have agreed to voluntarily dismiss all claims against her; the undersigned has, accordingly, recommended that her motion to dismiss be granted; and no timely objections have been filed regarding that recommendation. Should the Court not adopt the report and recommendation, to the extent the claims against Defendant Buckner are not dismissed, she is ordered to provide Rule 26(a)(1) initial disclosures within 7 days of the Court's final order as to her motion to dismiss. Signed by Magistrate Judge Katherine P. Nelson on 8/14/2014. (tmm) (Entered: 08/14/2014)
37 MOTION for Disclosure Initial Disclosure by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) (Entered: 08/15/2014)
38 MOTION for Extension of Time to File Expert Disclosures by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) (Entered: 08/15/2014)
39 ENDORSED ORDER finding as moot 37 Plaintiffs' motion for disclosure (which is not a motion, but simply Plaintiffs' Rule 26(a)(1) initial disclosures); and granting 38 unopposed motion to extend the deadline to disclose expert testimony. All deadlines as to expert testimony in paragraph 4 of the Rule 16(b) scheduling order are extended by one week; accordingly, Rule 26(a)(2)(B) and (C) expert testimony shall be disclosed by Plaintiffs no later than 8/22/2014 and by Defendants no later than 9/22/2014. Signed by Magistrate Judge Katherine P. Nelson on 8/15/2014. (tmm) (Entered: 08/15/2014)
40 ORDER ADOPTING 34 REPORT AND RECOMMENDATION as the opinion of this Court. Signed by Judge Callie V. S. Granade on 8/19/2014. (mab) (Entered: 08/20/2014)
41 Notice of Filing Expert Disclosure filed by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) (Entered: 08/22/2014)
MOTIONS REFERRED: 21 MOTION for Summary Judgment Referred to Judge Callie V. S. Granade. (see doc. 25) (srr) (Entered: 08/28/2014)
42 Order, in accordance w/ 40 Order Adopting Report and Recommendation, Plfs' claims against Dfts Bentley, Donald & Buckner in their individual & official capacities are DISMISSED w/prejudice as set out, & Plfs' claims against Luther Strange, III, in his individual capacity are DISMISSED w/prejudice as set out. The parties are directed to use style as set out. Signed by Judge Callie V. S. Granade on 8/28/2014. (tot) (Entered: 08/28/2014)
43 Order re: 21 MOTION for Summary Judgment setting response time as follows:Response to S/J due by 9/18/2014; Replies to Response to S/J due by 10/2/2014. Motion to be taken under submission on 10/3/2014. The court will allow Plfs' brief to exceed the page limitation by 5 pages as set out. Counsel for Dft may exceed the page limitation in his responsive brief by 5 pages. Signed by Judge Callie V. S. Granade on 8/28/2014. (tot) (Entered: 08/28/2014)
44 Joint MOTION to Amend Scheduling Order 43 Order on Summary Judgment (Response Time), and to Amend the Deadlines for Disclosure of Expert Witnesses by Luther Strange. (Davis, James) (Entered: 09/04/2014)

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 6 of 9

09/04/2014 09/05/2014
09/08/2014 10/17/2014 10/17/2014 10/17/2014 10/17/2014 10/31/2014 11/13/2014 11/20/2014 01/23/2015 01/23/2015
01/23/2015

REFERRAL OF 44 Joint MOTION to Amend Summary Judgment Briefing Schedule and to Amend the Deadlines for Disclosure of Expert Witnesses to Judge Granade. (tot) (Entered: 09/04/2014)
45 Endorsed Order GRANTING parties' 44 Joint MOTION to Amend Summary Judgment Briefing Schedule and to Amend Deadlines for Disclosure of Expert Witnesses. Plfs shall submit any amended expert report to Dft by 9/17/14. Dft shall disclose experts to Plfs by 10/17/14. Dft shall file a response to Plfs' 21 Motion for Summary Judgment by 10/17/2014. Any cross−motion for summary judgment should be filed by Dft by 10/17/2014. Plfs shall file a reply brief addressing both Plfs' motion & Dft's motion by 10/31/2014. Dft shall file a surreply addressing both motions by 11/14/2014. Signed by Judge Callie V. S. Granade on 9/5/2014. (tot) (Entered: 09/05/2014)
46 NOTICE of Endorsement by Cari D. Searcy, Kimberly McKeand re Doc. 44 (Hernandez, Christine) (Entered: 09/08/2014)
47 MOTION for Summary Judgment by Luther Strange. (Davis, James) (Entered: 10/17/2014)
48 Memorandum in Support of 47 MOTION for Summary Judgment & Opposition to 21 MOTION for Summary Judgment filed by Luther Strange. (Attachments: # 1 Exhibit A − Baker v. Nelson, Jurisdictional Statement No. 71−1027 (Oct. Term 1972), # 2 Exhibit B − What About the Children? Liberal Cautions on Same−Sex Marriage,) (Davis, James) Modified on 10/20/2014 (tot). (Entered: 10/17/2014)
49 NOTICE of Filing Exhibits referenced in Defendant's Motion for Summary Judgment by Luther Strange re: 47 MOTION for Summary Judgment , 48 Memorandum in Support, filed by Luther Strange. (Attachments: # 1 Exhibit B − Attorney General Opinion 83−206, # 2 Exhibit C − Voting results for referendum adopting Ala. Const. (1901) Art. I, Section 36.03) (Davis, James) (Entered: 10/17/2014)
50 NOTICE of Filing Proposed Order by Luther Strange Notice of Filing of Proposed Order and Proposed Findings of Facts and Conclusions of Law (Davis, James) (Entered: 10/17/2014)
51 RESPONSE in Opposition to 47 MOTION for Summary Judgment and REPLY in support of 21 MOTION for Summary Judgment, filed by Kimberly McKeand, Cari D. Searcy. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Kennedy, David) (Entered: 10/31/2014)
52 SUR−REPLY in Support of 47 MOTION for Summary Judgment, and in Opposition to the Plaintiffs' 21 Motion for Summary Judgment filed by Luther Strange. (Attachments: # 1 Exhibit A − Declaration of Loren Marks, Ph.D.) (Davis, James) (Entered: 11/13/2014)
REFERRAL OF 21 MOTION for Summary Judgment, and 22 Brief in Support; and 47 MOTION for Summary Judgment, 48 Memorandum in Support, 51 Response in Opposition to Motion, 50 Notice of filing Proposed Order, 49 Notice of Filing Exhibits, 52 Sur−Reply in Support of 47 M/SJ and in Opposition to 21 M/SJ to Judge Callie V. S. Granade. (mab) (Entered: 11/20/2014)
53 MEMORANDUM OPINION AND ORDER, GRANTING Plaintiffs' 21 Motion for Summary Judgment; DENYING Defendant's 21 Motion for Summary Judgment; finding that Ala. Const. Art. I Section 36.03 (2006) and Ala. Code 1975 Section 30−1−19 to be unconstitutional; and enjoining defendant from enforcing those laws. Signed by Judge Callie V. S. Granade on 1/23/2015. (mab) (Entered: 01/23/2015)
54 JUDGMENT entered in favor of plaintiffs, Cari D. Searcy and Kimberly McKeand and against defendant, Luther Strange, in his capacity as Attorney General for the State of Alabama. ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30−1−19 are hereby DECLARED to be unconstitutional, and defendant is hereby ENJOINED from enforcing those laws. Costs are to be taxed against the defendant. Signed by Judge Callie V. S. Granade on 1/23/2015. (mab) (Entered: 01/23/2015)
55 MOTION to Stay re 54 Judgment, 53 Order on Motion for Summary Judgment,,, by Luther Strange. (Davis, James) (Entered: 01/23/2015)

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 7 of 9

01/25/2015
01/25/2015 01/25/2015 01/25/2015
01/26/2015 01/26/2015
01/26/2015 01/26/2015 01/27/2015 01/28/2015
01/28/2015 01/28/2015 01/29/2015 02/03/2015 02/03/2015 02/03/2015 02/03/2015 02/03/2015 02/03/2015

56 Plaintiffs' Objection and Response to Defendants' 55 Motion to Stay and MOTION for Clarification re 54 Judgment, 53 Order on Motion for Summary Judgment, filed by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) Modified on 1/28/2015 (mab). (Entered: 01/25/2015)
57 NOTICE of Appearance by Andrew L. Brasher on behalf of Luther Strange (Brasher, Andrew) (Entered: 01/25/2015)
58 MOTION for Leave to Appear Amicus Curiae by Alabama Probate Judges Association, Judge Greg Norris, President. (Ryals, Joseph) (Entered: 01/25/2015)
59 ORDER entered re: 55 Motion to Stay. IT IS HEREBY ORDERED that the Courts Order of Injunction and Judgment (Docs. 53 & 54 ) are STAYED FOR 14 DAYS. If no action is taken by the Eleventh Circuit Court of Appeals to extend or lift the stay within that time period, this courts stay will be lifted on February 9, 2105 as further set out. Signed by Judge Callie V. S. Granade on 1/25/2015. (jlr) (Entered: 01/25/2015)
60 NOTICE OF APPEAL as to 54 Judgment, 53 Order on Motion for Summary Judgment,,, by Luther Strange. (Brasher, Andrew) (Entered: 01/26/2015)
61 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re: 60 Notice of Appeal, 59 Order on Motion to Stay, 54 Judgment, 53 Order on Motion for Summary Judgment, Judge Appealed:,Granade Court Reporter: No Hearings, Fee Paid: Pending (e−mailed to USCA) (jal) (Entered: 01/26/2015)
REFERRAL OF 58 MOTION for Leave to Appear Amicus Curiae to Judge Granade. (tot) (Entered: 01/26/2015)
62 NOTICE of Docketing Record on Appeal from USCA re 60 Notice of Appeal filed by Luther Strange. USCA Case Number 15−10295 (jal) (Entered: 01/26/2015)
63 USCA Appeal Fees received $ 505 receipt number 33953 re 60 Notice of Appeal filed by Luther Strange ; USCA Case Number 15−10295 (jal) (Entered: 01/27/2015)
64 ENDORSED ORDER, GRANTING 58 Motion of Alabama Probate Judges Association for Leave to Appear as Amicus Curiae in Support of Motion for Entry of Stay of Order Entered January 23, 2015 (Doc. 53 ). Signed by Judge Callie V. S. Granade on 1/28/2015. (mab) (Entered: 01/28/2015)
MOTIONS REFERRED: 56 Plaintiffs' MOTION for Clarification Referred to Judge Callie V. S. Granade. (mab) (Entered: 01/28/2015)
65 ORDER, GRANTING 56 Request for Clarification contained in 56 Objection and Response, and clarifying judgment as set forth in Order. Signed by Judge Callie V. S. Granade on 1/28/2015. (mab) (Entered: 01/28/2015)
66 TRANSCRIPT INFORMATION FORM filed by Luther Strange re: 60 Notice of Appeal. (Davis, James) (Entered: 01/29/2015)
67 MOTION to Lift Stay by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) (Entered: 02/03/2015)
REFERRAL OF 67 MOTION to Lift Stay to Judge Granade. (tot) (Entered: 02/03/2015)
68 RESPONSE in Opposition re 67 MOTION to Lift Stay filed by Luther Strange. (Davis, James) (Entered: 02/03/2015)
REFERRAL OF 68 Response in Opposition to Motion to Lift Stay to Judge Granade. (tot) Modified on 2/3/2015 (tot). (Entered: 02/03/2015)
69 ORDER DENYING Plfs' 67 Motion to Lift Stay as set out. Signed by Judge Callie V. S. Granade on 2/3/2015. (tot) (Entered: 02/03/2015)
70 ORDER of USCA as to 60 Notice of Appeal filed by Luther Strange, USCA consolidate the appeals 15−10295 and 15−10313. Motion of the Alabama Probate Judges Association and Robert J. Bentley, Governor of Alabama, "for Leave to Appear as Amicus Curiae in Support of Motions of Attorney General Luther Strange for Stay" are Granted, The Attorney General of the State of Alabama's Motions for stay pending appeal are DENIED. (jal) (Entered: 02/03/2015)

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 8 of 9

02/09/2015 02/09/2015 02/09/2015 02/11/2015 02/12/2015 08/20/2015
08/20/2015 08/31/2015
08/31/2015 09/30/2015 10/09/2015 10/09/2015 10/13/2015
10/21/2015 10/22/2015 10/28/2015

71 MOTION for Contempt and Request for Immediate Relief by Kimberly McKeand, Cari D. Searcy. (Hernandez, Christine) (Entered: 02/09/2015)
REFERRAL OF 71 MOTION for Contempt & Request for Immediate Relief to Judge Granade. (tot) (Entered: 02/09/2015)
72 ORDER DENYING Plfs' 71 Motion for Contempt & Immediate Relief as set out. Signed by Judge Callie V. S. Granade on 2/9/2015. (tot) (Entered: 02/09/2015)
73 MOTION for Extension of Time to file Petition for Attorneys fees and costs by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) (Entered: 02/11/2015)
74 ENDORSED ORDER granting 73 Motion to Extend Deadline to Petition for Attorneys' Fees and Costs. Signed by Judge Callie V. S. Granade on 2/12/2015. (tot) (Entered: 02/12/2015)
75 ORDER (MANDATE): In light of the United States Supreme Court's decision in Obergefell v. Hodges, we hereby SUMMARILY AFFIRM the January 23, 2015, order and final judgment that are the subject of appeal. no. 15−10295. In appeal no. 15−10295, the "Motion to Transfer Consideration of Attorneys' Fees and Costs on Appeal to the District Court" is GRANTED. In appeal no. 15−10313, we construe Appellant's July 17, 2015, "Response to this Court's Order of February 4, 2015" as a voluntary motion to dismiss appeal no. 15−10313 without prejudice. The construed motion to dismiss the appeal without prejudice is GRANTED. Any questions of mootness and attorneys' fees should be addressed by the district court in the first instance subject to final judgment appeal. [15−10295, 15−10313, MANDATE of USCA re: 60 Notice of Appeal filed by Luther Strange, Mandate issued 8/20/15 ; USCA Case Number 15−10295−CC (jal) (Entered: 08/20/2015)
Appeal Remark re 60 Notice of Appeal : USCA Case Number 15−12508, 15−90014, The Appeal will remain open pending these additional appeals. (jal) (Entered: 08/20/2015)
76 MOTION for Attorney Fees by Kimberly McKeand, Cari D. Searcy. (Attachments: # 1 Brief in support of fees, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F) (Kennedy, David) (Entered: 08/31/2015)
REFERRAL OF 76 MOTION for Attorney Fees to Judge Granade. (tot) (Entered: 08/31/2015)
77 Order re: Plf's 76 MOTION for Reasonable Attorney Fees. Any response in opposition should be filed on or before 10/14/2015. Plfs may file a reply NLT 10/21/2015. Signed by Judge Callie V. S. Granade on 9/30/2015. (tot) (Entered: 10/01/2015)
78 Unopposed MOTION to Continue Briefing Schedule for Seven Days by Luther Strange. (Davis, James) (Entered: 10/09/2015)
REFERRAL OF 78 Unopposed MOTION to Continue Briefing Schedule for Seven Days to Judge Granade. (tot) (Entered: 10/09/2015)
79 ENDORSED ORDER, GRANTING 78 Unopposed MOTION to Continue Briefing Schedule for Seven Days. Response to 76 Plaintiffs' Motion for Reasonable Attorneys Fees and Expenses due by 10/21/2015. Reply due by 10/28/2015. Signed by Judge Callie V. S. Granade on 10/13/2015. (mab) (Entered: 10/13/2015)
80 RESPONSE to Motion re: 76 MOTION for Attorney Fees filed by Luther Strange. (Attachments: # 1 Exhibit A − List of Hour Reductions by date, # 2 Exhibit B − List of Hour Reductions by category) (Davis, James) (Entered: 10/21/2015)
REFERRAL OF 80 Response to Motion for Attorneys' Fees to Judge Granade. (tot) (Entered: 10/22/2015)
81 REPLY Brief filed by Plaintiffs Kimberly McKeand, Cari D. Searcy re: 77 Order Setting Motion Deadline/Hearing, 80 Response to Motion Motion for Reasonable Attorneys Fee and Costs filed by Kimberly McKeand, Cari D. Searcy. (Kennedy, David) (Entered: 10/28/2015)

Case: 1:14-cv-208 As of: 11/26/2018 02:37 PM CST 9 of 9

10/28/2015 05/27/2016
06/10/2016 06/10/2016 06/17/2016 06/20/2016 06/28/2016

REFERRAL OF 81 Reply Brief in Support of Motion for Reasonable Attorneys' Fee to Judge Granade. (tot) (Entered: 10/28/2015)
82 ORDER GRANTING in part & DENYING in part Plfs' 76 Motion for Attorney Fees & Costs as set out. Plfs are awarded attorneys' fees in the amount of $126,206.66. Plfs are to file, on or before 6/10/16, an accounting of the costs claimed w/sufficient detail to permit meaningful review. Any response from Dft due NLT 6/17/16. Signed by Senior Judge Callie V. S. Granade on 5/27/2016. (tot) (Entered: 05/27/2016)
83 Response to Court's Order Requesting Expense Detail, by Cari D. Searcy. (Attachments: # 1 Exhibit) (Hernandez, Christine) Modified on 6/10/2016 (mab). (Entered: 06/10/2016)
REFERRAL OF 83 Response to Court's 82 Order Requesting Expense Detail to Senior Judge Granade. (mab) (Entered: 06/10/2016)
84 RESPONSE to 83 Bill of Costs filed by Luther Strange. (Davis, James) (Entered: 06/17/2016)
REFERRAL OF 84 Response to Plf's Brief Regarding Plf's Bill of Costs to Judge Granade. (tot) (Entered: 06/20/2016)
85 Order GRANTING in part & DENYING in part Plf's 76 83 MOTION for Costs to the extent that Plfs are awarded $500.98 in costs as set out. Signed by Senior Judge Callie V. S. Granade on 6/28/2016. (tot) (Entered: 06/29/2016)

 </s> Cite as: 574 U. S. ____ (2015)

1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES _________________
No. 14A840
_________________
LUTHER STRANGE, ATTORNEY GENERAL OF ALABAMA, v. CARI D. SEARCY, ET AL.
ON APPLICATION FOR STAY
[February 9, 2015]
The application for stay presented to JUSTICE THOMAS and by him referred to the Court is denied.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting from denial of the application for a stay.
The Attorney General of Alabama asked us to stay a federal injunction preventing him from enforcing several provisions of Alabama law defining marriage as a legal union of one man and one woman pending our consideration of Obergefell v. Hodges, No. 14–556; Tanco v. Haslam, No. 14–562; DeBoer v. Snyder, No. 14–571; and Bourke v. Beshear, No. 14–574. Those cases are scheduled to be argued this Term and present the same constitutional question at issue here: Whether the Fourteenth Amendment requires States to recognize unions between two people of the same sex as a marriage under state law.
When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. See, e.g., Herbert v. Kitchen, 571 U. S. ___ (2014); see also San Diegans for Mt. Soledad Nat. War Memorial v. Paulson, 548 U. S. 1301 (2006) (KENNEDY, J., in chambers) (staying an injunction requiring a city to remove its religious memorial). Although a stay is not a matter of right, this practice reflects the particularly strong showing that States are often able to make in favor of such a stay. Because States are required

2

STRANGE v. SEARCY

THOMAS, J., dissenting
to comply with the Constitution, and indeed take care to do so when they enact their laws, it is a rare case in which a State will be unable to make at least some showing of a likelihood of success on the merits. States also easily meet the requirement of irreparable injury, for “ ‘[a]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.’ ” Maryland v. King, 567 U. S. ___, ___ (2012) (slip op., at 2–3) (ROBERTS, C. J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The equities and public interest likewise generally weigh in favor of enforcing duly enacted state laws.
It was thus no surprise when we granted a stay in similar circumstances a little over a year ago. See Herbert v. Kitchen, supra. Nor was it a surprise when we granted a stay in similar circumstances less than six months ago. McQuigg v. Bostic, 573 U. S. ___ (2014). Those decisions reflected the appropriate respect we owe to States as sovereigns and to the people of those States who approved those laws.
This application should have been treated no differently. That the Court more recently denied several stay applications in this context is of no moment. Those denials followed this Court’s decision in October not to review seven petitions seeking further review of lower court judgments invalidating state marriage laws. Although I disagreed with the decisions to deny those applications, Armstrong v. Brenner, ante, p. ___; Wilson v. Condon, ante, p. ___; Moser v. Marie, ante, p. ___, I acknowledge that there was at least an argument that the October decision justified an inference that the Court would be less likely to grant a writ of certiorari to consider subsequent petitions. That argument is no longer credible. The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. The Attorney General of

Cite as: 574 U. S. ____ (2015)

3

THOMAS, J., dissenting
Alabama is thus in an even better position than the applicant to whom we granted a stay in Herbert v. Kitchen.
Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013) (slip op., at 25–26). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is.
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. See, e.g., Maricopa County v. Lopez-Valenzuela, 574 U. S. ___, ___ (2014) (slip op., at 2) (THOMAS, J., joined by SCALIA, J., respecting denial of application for stay) (collecting cases). It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
I respectfully dissent from the denial of this application. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.


[CONTENT] May 7, 2014 | California | the U.S. District Court | the Southern District | 1983 | Alabama ||| One ||| Alabama |||  |||  ||| Alabama | the Due Process, Equal Protection | Full Faith and Credit Clauses |||  ||| June 12, 2014 ||| The next day | the District Court | the Southern District | Callie V. S. Granade ||| August 20, 2014 | Granade | Alabama ||| January 23, 2015 | Granade | Alabama | the Due Process | the Equal Protection Clauses ||| Constitution ||| Alabama |||  |||  ||| Two days later | February 9 | the U.S. Court of Appeals for | the Eleventh Circuit ||| January 28 | Granade ||| The Alabama Probate Judges Association | Alabama ||| Court | Alabama ||| the U.S. Constitution | Alabama ||| February 3, 2015 | the Eleventh Circuit | Strawser v. Strange | Clearinghouse | Alabama ||| U.S. Supreme Court | Clarence Thomas | the Circuit Justice | the Eleventh Circuit ||| That same day | the District Court ||| February 8, 2015 | the Alabama Supreme Court | Roy Moore ||| Alabama | Alabama ||| February 9, 2015 | the U.S. Supreme Court | Clarence Thomas | Antonin Scalia ||| 135 | 940 | 2015 ||| Granade | Alabama ||| Alabama | Justice Moore's |||  |||  ||| Mobile County Probate | Don Davis | that day ||| Granade |||  ||| Mobile County Probate | Don Davis | Decree | Court | the United States Supreme Court | the Marriage Act |||  ||| Searcy v. Davis | Clearinghouse | Davis ||| Searcy v. Bentley ||| February 12, 2015 | Granade | 30 days | the U.S. Supreme Court's | Obergefell | Clearinghouse ||| August 31, 2015 ||| May 27, 2016 | 126,206.66 ||| 500.98 | June 28, 2016 |||  [SUMMARY] On May 7, 2014, a same-sex couple, who were legally married in California, filed this lawsuit in the U.S. District Court for the Southern District of Alabama, under 42 U.S.C. § 1983, against the state of Alabama. One plaintiff had given birth to a child, whom the other plaintiff wanted to adopt. Under Alabama law, non-biological parents may adopt their "spouse's child." The plaintiffs were not considered spouses, however, because the state did not recognize same-sex marriages. As a result, their adoption petition was denied and the couple filed suit. The plaintiffs, represented by private counsel, asked the court to declare Alabama's same-sex marriage ban unconstitutional, under the Due Process, Equal Protection, and Full Faith and Credit Clauses. They also asked for an injunction, ordering the defendants to recognize same-sex marriages from other jurisdictions and to grant the plaintiffs' adoption petition.

On June 12, 2014, the plaintiffs filed a motion for summary judgment. The next day, the District Court for the Southern District of Alabama (Judge Callie V. S. Granade) found the motion to be premature. On August 20, 2014, Judge Granade adopted the magistrate judge's recommendation and granted several parties' motions to dismiss: the Alabama Attorney General was now the only defendant.

On January 23, 2015, Judge Granade granted the plaintiff's motion for summary judgment, finding that Alabama's same-sex marriage ban violated the Due Process and the Equal Protection Clauses and enjoining the state attorney general from enforcing that ban. The freedom to marry was a fundamental right, the court held, protected by the Constitution. In order for Alabama to restrict that right, its same-sex marriage ban had to be narrowly tailored and it had to serve a compelling state interest. The court rejected the state's purported interests as either not compelling or overly broad. Thus, the ban was unconstitutional. Two days later, the district court stayed its injunction until February 9, giving the defendant time to seek a further stay pending appeal before the U.S. Court of Appeals for the Eleventh Circuit.

On January 28, at plaintiffs' request, Judge Granade clarified her order.  The Alabama Probate Judges Association had stated to the press that, despite the ruling, they were bound by Alabama law and could not issue same-sex marriage licenses. The Court stated that because the judgment was stayed, the Alabama probate courts were not required to follow the judgment.  However, if the stay were lifted, the U.S. Constitution would require the probate judges to issue same-sex marriage licenses, because the court's order had found that Alabama's marriage laws were unconstitutional.

On February 3, 2015, the Eleventh Circuit <i>sua sponte</i> consolidated the appeals in this case and in Strawser v. Strange (<a href="http://www.clearinghouse.net/detail.php?id=14439">PB-AL-0010</a> in this Clearinghouse),  and denied the Alabama Attorney General's motions for a stay pending appeal. In response, the Attorney General filed an application for a stay with U.S. Supreme Court Justice Clarence Thomas, the Circuit Justice for the Eleventh Circuit. That same day, the District Court denied plaintiffs' request to lift the stay.

Late on February 8, 2015, with the district court's stay set to expire, the Chief Justice of the Alabama Supreme Court, Roy Moore, sent an order to probate judges and state employees, threatening them with legal action by the governor if they issued or recognized same-sex marriage licenses. The chief justice claimed that the district court orders bound only the Alabama Attorney General and his employees and not Alabama's probate judges.

On February 9, 2015, the U.S. Supreme Court denied the application for stay, with Justice Clarence Thomas, joined by Justice Antonin Scalia, dissenting from the denial. <i>Strange v. Searcy</i>, 135 S. Ct. 940 (2015). As a result, Judge Granade's orders took effect: the ban on same-sex marriage was now illegal in Alabama, at least according to the federal courts. Alabama's probate judges faced competing orders: the district court's would allow same-sex marriage, but Chief Justice Moore's would not. The result was legal chaos. Some probate judges followed the federal court order and issued same-sex marriage licenses but most probate judges refused and many ceased issuing marriage licenses entirely.

In the plaintiffs' county, Mobile County Probate Judge Don Davis refused to issue any licenses that day. Plaintiffs responded by filing a motion to hold him in contempt, which Judge Granade rejected because the probate judge was not a party to the case.

That same day the plaintiffs re-filed their adoption petition. Mobile County Probate Judge Don Davis issued an initial adoption decree but he added language saying "that this Decree is qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it." The non-biological parent brought a new lawsuit against the probate judge for including this language. Searcy v. Davis (<a href=" http://www.clearinghouse.net/detail.php?id=14445">PB-AL-0011</a> in this Clearinghouse) Probate Judge Davis eventually removed the qualified wording from the adoption petition and the court dismissed that suit.

In this case, Searcy v. Bentley, the only remaining issue involves attorneys' fees. On February 12, 2015, Judge Granade granted the plaintiffs' motion extending the time to file a petition for attorneys' fees until 30 days after the U.S. Supreme Court's decision in Obergefell v. Hodges (<a href="http://www.clearinghouse.net/detail.php?id=12787">PB-OH-0003</a> in this Clearinghouse). Plaintiffs moved for attorneys' fees on August 31, 2015. The court granted the motion in part and denied it in part on May 27, 2016, awarding attorneys' fees of $126,206.66 and allowing plaintiffs to file further documentation in support of the remainder of their costs. The court additionally granted plaintiffs $500.98 in costs on June 28, 2016. The case is now closed.