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E-Filed 04:40:06 PM Honorable Julia Jordan Weller Clerk Of The Court No IN THE SUPREME COURT OF ALABAMA Ex parte State of Alabama ex rel. Alabama Policy Institute And Alabama Citizens
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E-Filed 04:40:06 PM Honorable Julia Jordan Weller Clerk Of The Court No IN THE SUPREME COURT OF ALABAMA Ex parte State of Alabama ex rel. Alabama Policy Institute And Alabama Citizens Action Program (In re: Alan L. King, in his official capacity as Judge Of Probate for Jefferson County, Alabama, et al.) APPLICATION FOR REHEARING AND BRIEF BY RESPONDENT, MONTGOMERY COUNTY PROBATE JUDGE STEVEN L. REED Robert D. Segall (SEG003) Copeland, Franco, Screws & Gill, P.A. P.O. Box 347 Montgomery, AL Phone: (334) Fax: (334) Thomas T. Gallion (GAL010) Constance C. Walker (WAL144) Haskell Slaughter & Gallion 8 Commerce Street, Suite 1200 Montgomery, AL Phone: (334) Fax: (334) Tyrone C. Means (MEA003) H. Lewis Gillis (GIL011) Kristen Gillis (GIL078) Means Gillis Law, LLC P.O. Box 5058 Montgomery, AL Phone: (334) Fax: (334) John Mark Englehart (ENG007) 9457 Alysbury Place Montgomery, AL Phone: (334) Fax: (334) Samuel H. Heldman (HEL009) The Gardner Firm, PC st St NW Washington, DC Phone: (202) Fax: (202) TABLE OF CONTENTS Table of Authorities... ii Application for Rehearing by Respondent, Montgomery County Probate Judge Steven L. Reed... 1 Brief in Support of Application The relevant proceedings, in federal courts and in this Court, leading to the present posture of this case The Supreme Court of the United States will almost certainly decide, in late June, whether same-sex couples have the right to marry under the United States Constitution. It is quite possible, even likely, that the Court will hold that couples do have that right Conclusion... 8 Certificate of Service i TABLE OF AUTHORITIES CASE Page Ex parte State of Alabama (In re Riley v. Cornerstone Community Outreach, Inc.), 57 So.2d 704, (Ala. 2010)... 4 Johnson v. Jefferson County Racing Ass'n, 1 So. 3d 960, 964 n.5 (Ala. 2008)... 7 Nationwide Retirement Solutions v. PEBCO, So.3d, 2014 Ala. LEXIS 124 (Ala. 2014)... 4 Obergefell v. Hodges... 5,6 State ex rel. Chilton County v. Butler, 142 So. 531, 532, 533 (Ala. 1932)... 4 Strange v. Searcy, 135 S.Ct. 940, 2015 U.S. LEXIS 912, *3 (2015)... 5 ii APPLICATION FOR REHEARING BY RESPONDENT, MONTGOMERY COUNTY PROBATE JUDGE STEVEN L. REED Montgomery County Probate Judge Steven L. Reed applies for rehearing from this Court s decision of March 3, While respectfully disagreeing with this Court s decision, Judge Reed requests that the Court add a further provision to its order. The Court has ordered that he discontinue the issuance of marriage licenses to same-sex couples. (Slip Opinion p. 133). The Court should further provide: This order shall be in force and effect, until and unless the Supreme Court of the United States issues an opinion which holds that a state law denying marriage to same-sex couples is unconstitutional. s/robert D. Segall Robert D. Segall (SEG003) Copeland, Franco, Screws & Gill, P.A. P.O. Box 347 Montgomery, AL Phone: (334) Samuel H. Heldman (HEL009) The Gardner Firm, PC st St NW Washington, DC Phone: (202) Fax: (202) Tyrone C. Means (MEA003) H. Lewis Gillis (GIL011) Kristen Gillis (GIL078) Means Gillis Law, LLC P.O. Box 5058 Montgomery, AL Phone: (334) Fax: (334) John Mark Englehart (ENG007) 9457 Alysbury Place Montgomery, AL Phone: (334) Fax: (334) Thomas T. Gallion (GAL010) Constance C. Walker (WAL144) Haskell Slaughter & Gallion, LLC 8 Commerce Street, Suite 1200 Montgomery, AL Phone: (334) Fax: (334) BRIEF IN SUPPORT OF APPLICATION 1. The relevant proceedings, in federal courts and in this Court, leading to the present posture of this case. Earlier this year, the United States District Court for the Southern District of Alabama held that Alabama s marriage laws violate the Constitution of the United States, insofar as Alabama refuses to permit and recognize same-sex marriages. Both the United States Court of Appeals for the Eleventh Circuit, and the Supreme Court of the United States, denied motions to stay that ruling. (Slip Opinion, pp. 4-7). Judge Reed, and various other Probate Judges in the State, began issuing marriage licenses to same-sex couples out of respect for the federal court s ruling and in light of the higher courts refusal to stay that ruling. (Slip Opinion, pp. 7-8). In this case, this Court issued a writ of mandamus to Judge Reed and other Probate Judges. The Court ordered Judge Reed and other named respondents, who had been issuing marriage licenses to same-sex couples, to discontinue the issuance of marriage licenses to same-sex 3 couples. (Slip Opinion p. 133). The Court issued a similar order to other Probate Judges as well The Supreme Court of the United States will almost certainly decide, in late June, whether same-sex couples have the right to marry under the United States Constitution. It is quite possible, even likely, that the Court will hold that couples do have that right. 1 Judge Reed opposed the Petition for Writ of Mandamus, and respectfully disagrees with this Court s opinion and order. See Slip Opinion pp (Shaw, J., dissenting) (reasons why Court s exercise of jurisdiction, including its findings of standing, improper); State ex rel. Chilton County v. Butler, 142 So. 531, 532, 533 (Ala. 1932)(sovereign rights of state enforceable by Attorney General or Governor only); cf. Ex parte State of Alabama (In re Riley v. Cornerstone Community Outreach, Inc.), 57 So.2d 704, (Ala. 2010)( [t]he core power of the executive branch is the enforcement of [the] laws ; under the supreme executive authority of Governor to take care that the laws be faithfully executed, Governor is empowered constitutionally and statutorily to sue in the name of the State)(quotations omitted). Judge Reed also respectfully suggests that it was unfortunate that this Court decided issues of federal constitutional law, when the Petitioners had not presented any such issue for decision, when Petitioners made no argument on any such issue, and when Judge Reed relied on these facts in his response to the petition. See Slip Opinion pp (Shaw, J., dissenting). But given this Court s instructions in Nationwide Retirement Solutions v. PEBCO, So.3d, 2014 Ala. LEXIS 124 (Ala. 2014), on the range of issues that can be raised on rehearing, and notwithstanding that Judge Reed could not reasonably have anticipated and raised this objection in his opposition to the Petition, Judge Reed does not seek to re-argue his disagreements with the Court s decision in this rehearing application. 4 The Supreme Court of the United States will hear arguments on April 28 in Obergefell v. Hodges and three other cases. The issues in those cases include whether state laws refusing to permit and recognize same-sex marriages are unconstitutional. Pursuant to the Supreme Court s nearly unbroken practice of issuing all decisions before taking its summer recess, a decision in those cases is expected by the end of June. See Strange v. Searcy, 135 S.Ct. 940, 2015 U.S. LEXIS 912, *3 (2015) (Thomas, J., dissenting from denial of stay) ( The Court has now granted a writ of certiorari to review these important issues and will do so by the end of the Term. ). There is a substantial chance that the Supreme Court of the United States will hold that same-sex couples do have the right to marry, under the United States Constitution. Many sophisticated legal observers expect this outcome; all recognize that it is a distinct possibility. And indeed, the Supreme Court s refusal to stay the order from the Alabama federal court is seen by many as a strong clue suggesting such an outcome. See Strange v. Searcy, 135 S.Ct. 940, 2015 U.S. LEXIS 912, *3-4 (Thomas, J., dissenting from denial of stay) (noting that the denial of 5 stay in the Alabama case may well be seen as a signal of the Court s intended resolution of the questions presented in Obergefell and related cases). 3. It is important that Judge Reed (and other Probate Judges) be permitted to immediately obey the decisions of the Supreme Court of the United States about constitutional rights. If the Supreme Court of the United States issues an opinion holding that same-sex couples have the constitutional right to marry, then it is a practical certainty that one or more such couples will apply to Judge Reed for marriage licenses quickly probably that very day. The modification of this Court s order, which Judge Reed seeks here, would allow him to issue such licenses. If this Court declined to modify its order in this way, and if the Supreme Court of the United States ruled in favor of same-sex marriage, then Judge Reed would be in an untenable position. He would be under order from this Court to keep doing something (i.e., denying licenses) that violates the United States Constitution as interpreted by the United States Supreme Court. He would be torn between this Court s order and his oath of office. Judge Reed could move this Court to lift its order, after the Supreme 6 Court of the United States rules. But this would entail expense, delay, further complication, and the denial of constitutional rights to citizens of Montgomery County, for no good reason. Judge Reed does not wish to flout a decision of the United States Supreme Court, especially on a matter involving constitutional rights, for any time. He believes in the rule of law, which under our Constitution includes adherence to decisions of the Supreme Court of the United States on matters of federal law. See, e.g., Johnson v. Jefferson County Racing Ass'n, 1 So. 3d 960, 964 n.5 (Ala. 2008) ( This Court is bound by decisions of the Supreme Court of the United States. ). 2 Judge Reed also respectfully suggests that it is important for this Court to demonstrate that Alabama is committed to the rule of law: that Alabama would not engage 2 Moreover, if this Court required Judge Reed to flout such a decision even for a temporary period, it would place him at risk of civil liability. Couples who were denied licenses following a decision of the Supreme Court of the United States could sue Judge Reed in federal court, and could argue that he was personally liable for damages for violating clearly established constitutional law. Denial of licenses after a Supreme Court decision could also lead to monetary liability on the county, for damages, attorneys fees, and costs. 7 in foot-dragging or other forms of resistance to decisions of the Supreme Court of the United States about matters of constitutional rights. Alabama s judicial branch should be a leader in this respect; the judiciary should make clear that it will not seek to delay the ability of Alabama citizens to exercise their constitutional rights as they are declared by the Supreme Court of the United States. In light of Alabama s history, and for the sake of Alabama s future, it is important that Alabama be willing to honor constitutional rights under holdings of the Supreme Court of the United States. Judge Reed is committed to doing so, and trusts that this Court is committed to that as well. Conclusion For the reasons stated herein, Judge Reed respectfully requests that this Court modify its order as stated above, by adding this provision: This order shall be in force and effect, until and unless the Supreme Court of the United States issues an opinion which holds that a state law denying marriage to same-sex couples is unconstitutional. Respectfully submitted this 17 th day of March, s/robert D. Segall Robert D. Segall (SEG003) 8 Copeland, Franco, Screws & Gill, P.A. P.O. Box 347 Montgomery, AL Phone: (334) Samuel H. Heldman (HEL009) The Gardner Firm, PC st St NW Washington, DC Phone: (202) Fax: (202) Tyrone C. Means (MEA003) H. Lewis Gillis (GIL011) Kristen Gillis (GIL078) Means Gillis Law, LLC P.O. Box 5058 Montgomery, AL Phone: (334) Fax: (334) John Mark Englehart (ENG007) 9457 Alysbury Place Montgomery, AL Phone: (334) Fax: (334) Thomas T. Gallion (GAL010) Constance C. Walker (WAL144) Haskell Slaughter & Gallion, LLC 8 Commerce Street, Suite 1200 Montgomery, AL Phone: (334) Fax: (334) CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT I efiled the foregoing with the Clerk of the Court on this 17th day of March, 2015 and I have served the following counsel of record by , or U.S. Mail, postage prepaid and properly addressed: Attorneys for State Of Alabama Mathew D. Staver Horatio G. Mihet Roger K. Gannam Liberty Counsel P.O. BOX Orlando, FL A. Eric Johnston Suite Corporate Drive Birmingham, AL Samuel J. McLure The Adoption Law Firm PO Box 2396 Montgomery, AL James W. Davis Laura E. Howell Office of the Attorney General P.O. Box Montgomery, AL Attorney for Clark County Probate Judge Valerie B. Davis Albert L. Jordan Wallace Jordan Ratliff & Brandt, LLC P.O. Box Birmingham, AL Attorneys for Judge Robert M. Martin Kendrick Webb Jamie H. Kidd Fred L. Clements Webb & Eley, PC P.O. Box Montgomery, AL Attorneys for Judge Alan King Jeffrey Sewell French McMillan Sewell, Sewell, McMillan, LLC nd Ave., Ste. 214 Jasper, AL Greg Hawley G. Douglas Jones Christopher J. Nicholson Jones & Hawley, PC 2001 Park Place, Suite 830 Birmingham, AL Attorneys for Judge Tommy Ragland George W. Royer, Jr. Brad A. Chynoweth Lanier Ford Shaver & Payne, P.C. P.O. Box West Clinton Avenue, Suite 102 (35805) Huntsville, AL Hon. John E. Enslen, Pro Se John Enslen, Esq. Probate Judge of Elmore County P.O. Box 10 Wetumpka, AL Attorneys for Amicus Curiae Eagle Forum of Alabama Education Foundation and Eagle Forum Education and Legal Defense Fund L. Dean Johnson L. Dean Johnson, PC 4030 Balmoral Drive, SW Huntsville, AL Attorneys for Amicus Curiae Equality of Alabama Ayesha Khan AM. United for Separation of Church and State 1301 K Street, NW Washington, DC Christopher F. Stoll National Center for Lesbian Rights 1100 H St., NW Ste. 540 Washington, DC Attorneys for Judge Don Davis Teresa B. Petelos Mark S. Boardman Clay R. Carr Boardman Carr Bennett Watkins Hill & Gamble, PC 400 Boardman Drive Chelsea, AL Lee L. Hale Hale and Hughes 501 Church St. Mobile, AL Harry V. Satterwhite J. Michael Druhan, Jr. Satterwhite Druhan Gaillard & Tyler LLC 1325 Dauphin St. Mobile, AL Amicus Curiae J. Stanton Glasscox, Pro Se J. Stanton Glasscox Glasscox Law Firm, LLC P.O. Box 2646 Birmingham, AL J. Richard Cohen David Dinielli Southern Poverty Law Center 400 Washington Ave. Montgomery, AL Attorneys for Amicus Curiae Equality of Alabama (cont d) Shannon P. Minter Christopher F. Stoll National Center for Lesbian Rights 870 Market St., Ste 370 San Francisco, CA Heather Fann Boyd Fernambucq Dunn & Fann PC 3500 Blue Lake Dr. Ste 220 Birmingham, AL Randall C. Marshall ACLU of Alabama Foundation P.O. Box 6179 Montgomery, AL Probate Judges as Respondents Per Court s March 3, 2015 Opinion: Hon. Alfred Booth Autauga Co. 176 W. Fifth St. Prattville, AL Hon. Susan Shorter Barbour Co. P.O. Box 758 Eufaula, AL Hon. Tim Russell Baldwin Co. P.O. Box 459 Bay Minette, AL Hon. Chris Green Blount Co. 220 Second Ave. E Room 101 Oneonta, AL Hon. James Tatum Bullock Co. P.O. Box 71 Union Springs, AL Hon. Jerry Pow, Bibb Co. 8 Court Square W. Ste A Centreville, AL Hon. Dianne Branch Clay Co. P.O. Box 1120 Ashland, AL Hon. Ryan Robertson Cleburne Co. 120 Vickery St., Room 101 Heflin, AL 36264 Hon. Steve Norman Butler Co. P.O. Box 756 Greenville, AL Hon Alice K. Martin Calhoun Co Noble St., Ste. 102 Anniston, AL Hon. Brandy Easlick Chambers Co. 2 South Lafayette St. Lafayette, AL Hon. Kirk Day Cherokee Co. 260 Cedar Bluff Rd., Ste 10 Centre, AL Hon. Michael Armistead Choctaw Co. 117 S. Mulberry Butler, AL Hon. Tammy Brown Cullman Co. P.O. Box 970 Cullman, AL Hon. Sharon A. Michalic Dale Co. P.O. Box 580 Ozark, AL Hon. Kim Ballard Dallas Co. P.O. Box 987 Selma, AL Hon. Steve Blair Coffee Co. P.O. Box Enterprise, AL Hon Rogene Booker. Conecuh Co. P.O. Box 149 Evergreen, AL Hon. Terry Mitchell Coosa Co. P.O. Box 218 Rockford, AL Hon. Benjamin M. Bowden Covington Co. P.O. Box 789 Andalusia, AL Hon. James V. Perdue Crenshaw Co. P.O. Box 328 Luverne, AL Hon. Barry Moore Franklin Co. P.O. Box 70 Russellville, AL Hon Fred Hamic Geneva Co. P.O. Box 430 Geneva, AL Hon. Earlean Isaac Greene Co. P.O. Box 656 Eutaw, AL Hon. Ronnie Osborn DeKalb So. 300 Grand Ave. SW Ste. 100 Fort Payne, AL Hon. David Money Henry Co. 101 Court Square, Ste. A Abbeville, AL Hon. William Oswalt Fayette Co. P.O. Box 670 Fayette, AL Hon. Patrick Davenport Houston Co. P.O. Box 6406 Dothan, AL Hon. Arthur Crawford Hale Co Main St. Greensboro, AL Hon. Doug Agerton Escambia Co. P.O. Box 557 Brewton, AL Hon. Bobby M. Junkins Etowah Co. P.O. Box 187 Gadsden, AL Hon. Victor Manning Jackson Co. P.O. Box 128 Scottsboro, AL Hon. Sherri Friday Jefferson Co. 716 Richard Arrington, Jr. Blvd Birmingham, AL Hon. Johnny Rogers Lamar Co. P.O. Box 338 Vernon, AL Hon. James Hall Lauderdale Co. P.O. Box 1059 Florence, AL Hon. Michael Praytor Lawrence Co Court St., Ste 102 Moulton, AL Hon. Alfonza Menefee Macon Co. 101 East Northside St. Tuskegee, AL Hon. Laurie S. Hall Marengo Co. P.O. Box Linden, AL Hon. Rocky Ridings Marion Co. P.O. Box 1687 Hamilton, AL Hon. Tim Mitchell Marshall Co. 425 Gunter Ave. Ste. 110 Guntersville, AL Hon. Greg Norris Monroe Co. P.O. Box 665 Monroeville, AL 36461 Hon. Bill English Lee Co. P.O. Box 2266 Opelika, AL Hon. Charles Woodroof Limestone Co. 100 S Clinton St. Athens, AL Hon. John Hulett Lowndes Co. P.O. Box 5 Hayneville, AL Hon. John E. Paluzzi Pickens Co. P.O. Box 370 Carrollton, AL Hon. Wes Allen Pike Co. 120 W. Church St. Troy, AL Hon. Willie Pearl Rice Sumter Co. P. O. Box 1040 Livingston, AL Hon. Billy Atkinson Talladega Co. P. O. Box 737 Talladega, AL Hon. Greg Cain Morgan Co. P.O. Box 848 Decatur, AL Hon. Eldora Anderson Perry Co. P.O. Box 478 Marion, AL Hon. George Diamond Randolph Co. P.O. Box 249 Wedowee, AL Hon. Alford Harden Russell Co. P.O. Box 700 Phenix City, AL Hon. James W. Fuhrmeister Shelby Co. P. O. Box 825 Columbiana, AL Hon. Mike Bowling, Jr. St. Clair Co. P. O. Box 220 Ashville, AL Hon. W. Hardy McCollum Tuscaloosa Co. P. O. Box Tuscaloosa, AL Hon. Leon Archer Tallapoosa Co. 125 N. Broadnax St. Room 12 Dadeville, AL Hon. Nick Williams Washington Co. P. O. Box 549 Chatom, AL Hon. Rick Allison Walker Co. P. O. Box 502 Jasper, AL Hon. Sheila Moore Winston Co. P.O. Box 27 Double Springs, AL Hon. Jerry Boggan Wilcox Co. P. O. Box 668 Camden, AL s/robert D. Segall Of Counsel 16
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