Strawser v. Strange

• Decision Date: 07 June 2016
• Docket Number: CIVIL ACTION NO. 14-0424-CG-C
• Citation: 190 F.Supp.3d 1078
• Parties: James N. Strawser, et al., Plaintiffs, v. Luther Strange, in his official capacity as Attorney General for the State of Alabama, et al., Defendants
• Court: U.S. District Court — Southern District of Alabama

190 F.Supp.3d 1078

James N. Strawser, et al., Plaintiffs,

v.Luther Strange, in his official capacity as Attorney General for the State of Alabama, et al., Defendants

CIVIL ACTION NO. 14-0424-CG-C

United States District Court, S.D. Alabama, Southern Division.

Signed June 7, 2016

Order Granting Reconsideration August 22, 2016

Christopher F. Stoll, San Francisco, CA, David Dinielli, Scott D. McCoy, Randall C. Marshall, Aclu of Alabama Foundation, Inc., Montgomery, AL, Heather Rene Fann, Boyd, Fernambucq, Dunn & Fann, P.C., Birmingham, AL, Shannon P. Minter, Ayesha Khan, Gregory M. Lipper, Richard B. Katskee, Americans United for Separation of Church and State, Zachary Alan Dietert, Washington, DC, for Plaintiffs.

James W. Davis, Office of the Attorney General, Laura Elizabeth Howell, Andrew L. Brasher, Jamie Helen Kidd, Kendrick E. Webb, Webb & Eley, P.C., Montgomery, AL, Joseph Michael Druhan, Jr., Harry V. Satterwhite, Satterwhite, Druhan & Tyler, L.L.C., Lee L. Hale, Hale and Hughes, Mobile, AL, Mark S. Boardman, Clay Richard Carr, Boardman, Carr, Bennett, Watkins, Hill & Gamble, P.C., Teresa Bearden Petelos, Chelsea, AL, John David Whetstone, Gulf Shores, AL, for Defendants.

Order on Reconsideration

Callie V. S. Granade, SENIOR UNITED STATES DISTRICT JUDGE

This matter is before the court on the motion of Judge Don Davis to withdraw as Class Representative and for his counsel to withdraw as Class Counsel (Doc. 130), Plaintiffs' opposition thereto (Doc. 135), Judge Davis' amended motion (Doc. 147), Plaintiffs' opposition to the amended motion (Doc. 149), Plaintiffs' motion for permanent injunction and final judgment (Doc. 142), opposition to Plaintiffs' motion filed by Attorney General Luther Strange (Doc. 150), Judge Tim Russell (Doc. 151), and Judge Davis (Doc. 152), Plaintiffs' reply (Doc. 159), the motion of Attorney General Strange to dismiss (Doc. 166), Plaintiffs' opposition to dismissal (Doc. 167), Attorney General Strange's reply (Doc. 170), and supplemental authority filed by Plaintiffs (Docs. 162, 171, 173, 174, 175). For the reasons explained below, the Court finds that the motion of Judge Davis to withdraw and the motion of Attorney General Strange to dismiss should be denied and that Plaintiffs' motion for permanent injunction and final judgment should be granted.

I. Motion to Withdraw as Class Representative and as Class Counsel

Defendant Davis asks to withdraw because he does not want to continue to represent the class or pay expenses associated with litigating this case. However, as this Court has previously stated, "Rule 23(a)(4) does not require a willing representative, [but] merely an adequate one." (Doc. 122, p. 14 (quoting National Broadcasting Co., Inc. v. Cleland, 697 F.Supp. 1204, 1217 (N.D.Ga.1988) ). "In contrast with representatives of plaintiff classes, named defendants almost never choose their role as class champion [as] it is a potentially onerous one thrust upon them by their opponents." Marcera v. Chinlund, 595 F.2d 1231, 1239 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). "But courts must not readily accede to the wishes of named defendants in this area, for to permit them to abdicate so easily would utterly vitiate the effectiveness of the defendant class action as an instrument for correcting widespread illegality." Id. This Court previously found that Judge Davis is adequate to represent the Defendant Class. After reviewing Judge Davis' motion and amended motion, the Court finds that Judge Davis has not provided any justification to reconsider that decision. The Court also finds no justification for permitting counsel to withdraw as Defendants' Class Counsel.

II. Motion to Dismiss as Moot

Attorney General Strange moves to dismiss this case as moot because a permanent injunction barring the enforcement of Alabama's marriage laws have already issued and the Attorney General continues to remain in full compliance with it. The Attorney General acknowledges that the Supreme Court's decision in Obergefell v. Hodges––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) is the law of the land. He contends that nothing more remains to be done in this case and that there is no longer a live case or controversy between the Attorney General and the Plaintiffs. Defendants Russell and Davis also argue that the case is moot in their opposition to Plaintiffs' motion for permanent injunction. Russell contends that he has been issuing marriage licenses to same-sex couples on the same priority and in the same manner as those licenses are issued to couples of the opposite sex. Davis also argues that Alabama probate judges have complied with the reasoning of the Obergefell ruling.

Plaintiffs conversely argue that none of the Defendants' assurances provide Plaintiffs or the members of the Plaintiff Class with a formal, enforceable order should the Attorney General (or a future Attorney General) or other Defendants violate this Court's injunction or fail to fully recognize marriages validly entered into in Alabama or elsewhere. Current or future state and county officials may disagree about Obergefell's applicability to the challenged Alabama laws or otherwise resist the decision. This Court agrees that the need for a permanent injunction is clear. As the Northern District of Florida recently explained "a government ordinarily cannot establish mootness just by promising to sin no more." Brenner v. Scott, Case No. 14–cv–107–RH/CAS, Order granting summary judgment (N.D. Fla. March 30, 2016). "A ‘defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.’ " Id.(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). "A case becomes moot only ‘if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ " Id.(quoting Laidlaw supra). "The formidable, heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir.2007) (quoting Laidlaw supra). Here the Attorney General and other Defendants have not satisfied this burden.

To demonstrate that the case is moot, Defendants must show that both of the following conditions are satisfied:

(1) it can be said with assurance that there is no reasonable expectation ... that the alleged violation will recur, and

(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.

Los Angeles Cty. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations and internal quotations omitted). Courts consider at least three factors in determining whether a defendant has unambiguously terminated the challenged conduct:

First, courts consider the timing and content of the decision to terminate the conduct. Rich [v. Fla. Dep't of Corr., 716 F.3d 525, 532 (11th Cir.2013) ]. Second, courts consider whether the change in conduct was the result of substantial deliberation or was instead an attempt to manipulate the court's jurisdiction. Id. And third, courts consider whether the new policy has been consistently applied. Id. If the defendant establishes unambiguous termination, the controversy is moot, "in the absence of some reasonable basis to believe that the policy will be reinstated if the suit is terminated." Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1285 (11th Cir. 2004).

Brenner v. Scott, Case No. 14–cv–107–RH/CAS, Order granting summary judgment (N.D. Fla. March 30, 2016). Given the actions by Alabama state and local officials during this litigation, both before and after the Supreme Court decided Obergefell, it cannot be said with assurance that there is no reasonable expectation that Alabama's unconstitutional marriage laws will not again be enforced. Although the Attorney General professes that he will continue to abide by the decision in Obergefell, like the defendant in Brenner v. Scott, "[t]here has been nothing voluntary about the defendants' change of tack." The Defendants defended this case with vigor from the outset and the challenged statutes remain on the books.

Although Attorney General Strange is already subject to a permanent injunction from another case in this Court, Searcy v. Strange, No. 14–cv–208–CG–N, the other Defendants in this case are not subject to that injunction and the Plaintiffs in this case lack standing to enforce the Searcy injunction. It is also apparent that certain Alabama state courts do not view this Court's ruling in Searcy as binding precedent, as demonstrated by the writ of mandamus issued by the Alabama Supreme Court on March 3, 2015, requiring probate judges to discontinue the issuance of marriage licenses to same-sex couples. Ex parte State ex rel. Alabama Policy Inst., 200 So.3d 495, 548–49, 2015 WL 892752, at *43 (Ala. Mar. 3, 2015).

The Court notes that the Supreme Court of Alabama denied the pending mandamus petitions and entered judgment in Ex parte State of Alabama ex rel. Alabama Policy Institute on March 4, 2016. However, the Alabama Supreme Court did not vacate or set aside its earlier writ of mandamus directing Alabama's probate judges to comply with the Alabama laws that were held unconstitutional by this Court. Chief Justice Moore specifically stated in his concurrence that the certificate of judgment and the dismissal of the petitions "does not disturb the existing March orders in this case or the Court's holding therein that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30–1–9, Ala. Code 1975, are constitutional." Ex parte State ex rel. Alabama Policy Inst., –––So.3d ––––, ––––, ––––, 2016 WL 859009, at *5, *39 (Ala. Mar. 4, 2016). Chief Justice Moore went...