Searcy et al v. Bentley et al

Filing 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)

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,
vs.

Plaintiffs,

LUTHER STRANGE, in his capacity
as Attorney General for the State of
Alabama,
Defendant.

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) CIVIL ACTION NO. 14-0208-CG-N
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ORDER
This matter is before the court on Plaintiffs’ motion for contempt and request
for immediate relief. (Doc. 71). Plaintiffs report that “the Honorable Don Davis has
failed to comply with this Court’s January 23, 2015 Order.” According to the
motion:
On this date, at 10:10 a.m. CST, Honorable Don Davis, Probate Judge
in Mobile County, Alabama, had not opened the marriage license
division of the Mobile County Probate Court. The Honorable Don
Davis has not given a reason why the marriage license division is
closed on this particular day, and he has not stated as to when the
office will reopen.
(Doc. 71, p. 1-2). Plaintiffs request that this court hold Davis in contempt, to order
law enforcement to open the marriage license division of Mobile County Probate
Court, and to impose sanctions.
After reviewing the Plaintiffs’ motion, the court finds that Plaintiffs have not
shown that Davis has failed to comply with this court’s order. On January 23, 2015,
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this court declared that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 301-19 are unconstitutional and enjoined defendant Luther Strange, in his capacity as
Attorney General for the State of Alabama, from enforcing those laws. (Doc. 54).
Upon motion by the Plaintiffs, this court further clarified the January 23, 2015
order stating that:
… [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.
(Doc. 65, p. 3 quoting Brenner v. Scott, 2015 WL 44260 at *1 (N.D. Fla. Jan 1,
2015)). Probate Judge Don Davis is not a party in this case1 and the Order of
January 23, 2015, did not directly order Davis to do anything. Judge Davis’s
obligation to follow the Constitution does not arise from this court’s Order. The
Clarification Order noted that actions against Judge Davis or others who fail to
follow the Constitution could be initiated by persons who are harmed by their
failure to follow the law. However, no such action is before the Court at this time.
Plaintiffs have also offered no affidavit or other evidence to show that they
have been prevented from applying for the adoption or that their adoption
application was wrongfully denied after this court’s January 23, 2015, Order.
Judge Davis was originally named as a defendant, but by stipulation of the parties
(Doc. 29) was dismissed from the case.
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Nothing in Plaintiffs’ motion would compel this court to order law enforcement to
open the marriage license division of Mobile County Probate Court or impose
sanctions. Plaintiffs have offered no authority by which this court can hold Davis in
contempt or order any of the relief sought by Plaintiffs. Accordingly, Plaintiffs’
motion for contempt and immediate relief (Doc. 71), is DENIED.
DONE and ORDERED this 9th day of February, 2015.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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