Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 1 of 17

UNITED STATE$LUSflUCT COURT FOR THE MIDDLE]AST RIC'tO'AJABAMA

PAUL HARD;

Plaintiff,
V.

lb r 3r-
1L0fl NON

ROBERT BENTLEY, in his official capacity as Governor of the State of Alabama; LUTHER JO] . SON STRANGft III in his official capacity as Attorney General of the State of Alabama; CATHERINE M. DONALD in her official capacity as the State Registrar of Vital Statistics; STEVEN L. REED in his official capacity as Probate Judge for the County of Moutgonry; RICHARD I. LOHR, II, Administrator of the ESTATE of DAVID FANCHER;

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Claim of Unconstitutionality of Marriage Protection Act and Constitutional Amendment 774 (Sanctity of Marriage Amendment)

Defendants.

PRELIMINARY STATEMENT

1. Plaintiff seeks a declaration that Alabama's refusal to recognize same-sex marriages

entered out of state violates the United States Constitution. Plaintiff also seeks injunctive relief

necessary to recognize him to be a rightful beneficiary, as surviving spouse, to proceeds

anticipated from a wrongful death action now pending in this Court (Lchf v, Zëhner, No.. 2 1 2

cv-00533-MHT) that arises Out of a 2011 car, accident in Which Plaintiff's husband was killed.

2

Plaintiff Paul Hard ('Paul") lives in Montgomery, Alabama and is a widower.

3. His husband, Charles David Fancher ("David"), was killed in a traffic accident on

Interstate 65 during the night of August 1, 2011. David's car slammed into a UPS truck that had

overturned and was blocking the North-bound lanes of the highway. David died with ten

minutes of impact.

1

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 2 of 17
4. Paul is the "surviving spouse" and therefore should receive proceeds from a wrongful death action that now is pending in this Court. 5. Certain provisions of Alabama law and the Alabama Constitution prevent this result, however. 6. Proceeds from a wrongful death action in Alabama must be distributed pursuant to the laws of intestate succession. Those laws require that the majority of the proceeds should go to the surviving spouse. 7. But Ala. Code § 30-1-19 ("Marriage Protection Act") and Ala. Const. Amend. No. 774 ('4Sanctity of Marriage Amendment") prevent that from happening in this case. Under the Marriage Protection Act, and the Sanctity of Marriage Amendment (collectively referred to as the "Sanctity Laws"), Paul cannot be deemed a surviving "spouse," even though he and David were
lwfillv n,cirripd nt flip fini p nfflivid'Q dpfl,
8. The Sanctity Laws provide that "[t]he 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." 9. These restrictions have no legitimate basis. They create two, unequal, classes of married couples living in the State of Alabama: those married couples who enjoy all the protections afforded to people who are married, including the right of a surviving spouse to recover proceeds in a wrongful death action, and those married couples, like Paul and David, who do not .. The obvious purpose of the Sanctity Laws is to punish and demean citizens who have entered one type of marriage, but not the other. 10. The United States Supreme Court recently held that the U.S. Constitution does not permit laws that single out a particular class of marriages for disfavored treatment. But that is precisely
2

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 3 of 17
what the Sanctity Laws do: they single out same-sex marriages and deny to those marriages the same lights and dignity that Alabania affords other marriages. 11. In doing so, the Sanctity Laws violate the right to equal protection and due process, as protected by the Fourteenth Amendment to the U.S. Constitution. 12. Paul therefore seeks a judgment to that effect, as well as an order requiring the Registrar of Vital Statistics to correct David's death certificate to indicate that Paul is the surviving spouse, an order requiring the administrator of David's estate, who currently is prosecuting the wrongful death action, to distribute any proceeds that are owing to Paul as the "surviving spouse," and an order invalidating those provisions of the Sanctity Laws that prohibit recognition of lawful samesex marriages and preventing their enforcement.
JURISDICTION AND VENUE 13. This is an action under 28 U.S.C. § 2201-2202 challenging Alabama's Sanctity Laws as violations of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. This Court therefore has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and 1343. 14. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because one or more defendants resides in this District, and because a substantial patt of the events giving rise to Plaintiff's claims occurred in this District.
PARTIES 15. Plaintiff Paul Hard is an individual who lives in Montgomery, Alabama. 16. Defendant Robert Bentley is the Governor of the State of Alabama. Under the state constitution, he holds the "supreme executive power" of the state and is charged to "take care that the laws be faithfully executed." See Ala. Const. § 113, 120. By virtue of his position,
3

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 4 of 17
Governor Bentley maintains, and has exercised, enforcement authority in connection with the Sanctity Laws. As an example, he announced in September 2013 that he would not permit the Alabama National Guard to provide benefits to same-sex spouses, despite a federal directive to do so. According to news reports, Governor Bentley stated: "When they're under my command we will obey Alabama state law." The Governor maintains an office and official residence in Montgomery. Governor Bentley is sued in his official capacity. 17. Defendant Luther Johnson Strange, III is the Attorney General of the State of Alabarna Attorney General Strange is the state officer who "shall appear in the courts of. . . the United States, in any case in which the state may be interested in the result." See Ala Code § 36-151(2). He has a statutory duty to give his opinion On any question of law connected with the interests of the state or with the duties of any of the departments, and also his opinion on questions of law relating to the duties of certain county and city officers, including court clerks and probate judges. See Ala. Code § 36-15-1(1)(b). He therefore maintains enforcement authority with respect to the Sanctity Laws and their application to conduct of the State and its subdivisions and court system. Indeed, a former Attorney General has exercised this statutory authority in connection with the question whether Alabama must recognize out-of-state same-sex unions, issuing a formal opinion in 2000 directing that Alabama and its subdivisions should not recognize civil unions entered into in Vermont. See Ala. Op. Att'y Gen. 2000-129 (Ala. A.G. 2000). Defendant Strange maintains his office in Montgomery, Alabama. Attorney General Strange is sued in his official capacity. 18. Catherine M Donald is the State Registrar of Vital Statistics ("Registrar"). Alabama law requires that the Registrar direct and supervise the system of vital statistics and the Office of Vital Statistics. That office, located in Montgomery, Alabama, maintains and registers
4

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 5 of 17
certificates of death, and retains the power to amend death certificates that contain errors. See Ala. Code § 22-9A-3; 22-9A-2; 22-9A-14(a); Alabama Admin. Coder. 420-7-1-17. Ms. Donald therefore has an enforcement connection to the Sanctity Laws because she has the power to correct David Fancher's death certificate, which incorrectly indicates that David was "Never Married" at the time of his death, and that he had no surviving spouse. Ms. Donald is sued in her official capacity. 19. Steven L, Reed is the probate judge for the County of Montgomery. In Case No. 1200288, the Probate Court of Montgomery County admitted David's will into the County record and issued Certified Letters Testamentary to Richard Loh, II appointing him the Personal Representative of David's estate. Judge Reed has jurisdiction over certain matters related to David Fancher' s estate, including the power to determine whether Paul is a surviving spouse for purposes of applying the laws of intestate succession. See, e.g., Melton v. Jenkins, 92 So. 3d 105 (2012) (reviewing probate court determination, after trial, whether a purported husband Was in fact a "surviving spouse"). Judge Reed therefore has an enforcement connection to the Sanctity Laws. Judge Reed is sued in his official capacity, for declaratory relief only. 20. Defendant Richard I. Lohr, II is an individual who lives in Pinson, Alabama. Lohr is the administrator of David's estate. Under Alabama law, he, and he alone, is authorized to bring an action for wrongful death against those persons who caused David's death. He currently is pursuing such an action., under color of state law. The action now is pending in this Court, and is designated Case 2:12-cv-00533-MHT-SRW (M.D. Ala.). Loht is named in his official capacity.
5

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 6 of 17
FACTUAL BACKGROUND 21. David and Paul met on July 4th, 2004 for a first date. They became a couple soon thereafter. Throughout their time together, David occasionally asked Paul to marry him. Paul demurred at first, but Paul eventually, and enthusiastically, agreed to marry David and the couple was lawfully married on .a beach on Cape Cod, in Massachusetts, on May 20, 2011. A copy of the marriage certificate is attached as Exhibit A. 22.. The wedding ceremony featured a loving cup ceremony, adopted from their shared Scottish heritage. The cup is engraved with quotation from the Song of Solomon: "I am by beloved's and my beloved is mine." The tradition is to drink frOm the cup on the wedding day and on every anniversary, each drinking three times, to the love that was, the love that is, and the love that will be. 23. Paul reports that hugging David was "like coming home." David and Paul were a support to each other, traversing illness and adding joy to each other's lives. 24. Both men had been raised as Southern Baptists; Paul was a minister in earlier years. Eventually, both became active with an Episcopal church, David serving as a greeter as well as in the pastoral ministry committee of the church and Paul in the choir. 25. The couple made their life together in Alabama. Their home was in Montgomery. David worked as a director of information technology for a company in Birmingham and Paul is an associate professor at a university in Montgomery. 26. David made Paul the sole beneficiary Of his will. 27. Paul had said goodbye to David in the early, dark morning of August 1, 2011 as David left to Birmingham for work. Paul received a call later that morning from Prattville Baptist Hospital informing him that David had been in an accident.
on

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 7 of 17
28. The complaint in the wrongful death case pending in this Court states that defendants in that case, truck drivers and a shipping company, were
traveling North on Interstate 65. . . in rum! Autauga County, Alabama. Defendants' vehicle negligently and wantonly collided with another vehicle. . causing Defendants' vehicle to overturn in the highway, blocking both Northbound lanes of Interstate 65. At said time and place. . . Charles David Fancher, was also operating a motor vehicle, traveling North on Interstate 65. . . . Due to the negligence and wanton operation of the Defendants' vehicle and the nighttime lighting conditions and lack of adequate emergency reflectors, tape, and emergency warning lights and devices in place by Defendants, Plaintiffs decedent, Charles David Fancher, was caused to collide with the 2009 Sterling TK UPS tractor trailer truck being driven by [the Defendants]. 29. Paul rushed to the hospital carrying the marriage license and other papers such as a power of attorney. Paul asked to see his husband or learn of his condition, but a hospital employee initially refused, telling Paul, "T can't release that information to you; we don't recognize samesex marriage." Paul pleaded for information, but no doctor or nurse from Prattville Baptist Hospital ever spoke to Paul, despite Paul's desperate attempt to learn the condition of his husband. 30. After about a half hour, Paul eventually was permitted beyond the nurse's station to go see David. Paul still had no idea of David's condition at this point. 31. An attendant arrived and walked Paul down the hall towards an examining room. Paul asked if David was badly hurt. The attendant turned to Paul, and said, "Well, he's dead." 32. Paul lost strength in his legs, falling to the ground. He reached to the attendant who stood to the side, offering no support as Paul collapsed. 33. Paul made arrangements and paid for David's burial services at Highland Memorial Gardens, in Bessemer, Alabama. By law, the funeral director must note certain biographical information about the deceased on the death certificate. The Highland Memorial funeral director indicated on the death certificate that David was "Never Married." He left blank the space for
VA

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 8 of 17
the name of the "Surviving Spouse." When Paul saw the inaccurate information, he asked that it be changed, but the funeral director refused. A copy of the Death Certificate, signed by Defendant Catherine M. Donald and registered with the State of Alabama, is attached as Exhibit B.
Alabama Wrongful Death Actions & Laws Of Intestate Succession 34. An action for wrongful death in Alabama has several unusual features. First, the only person who may bring an action for wrongful death is the administrator of the decedent's estate. See Ala. Code § 6-5-410(a). 35. Second, the administrator must distribute any damages recovered pursuant to Alabama's laws of intestate succession, even if the decedent died with a will. See Ala. Code § 6-5-410(c); see also Steele v. Steele, 623 So. 2d 1140, 1141 (Ala. 1993) ("The damages from a wrongful death award pass as though the decedent died without a will"). 36. As a result, Defendant Lohr - the administrator - must distribute any proceeds from the now-pending wrongful death action in accordance with the laws of intestate succession, even though David died with a will in which he named Paul his sole beneficiary. 37. The intestacy laws specify the portion of the estate, or in this case, of the damages award, to be distributed to various family members of the deceased. 38. Ala. Code § 43-841, for example, sets forth the "share of the spouse" under various circumstances. 39. Specifically, the provision provides that if there are no children but there is a surviving parent or parents, the "surviving spouse" is to receive "the first $100,000 in value plus one-half of the balance of the intestate estate."
8

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 9 of 17
40. Under Alabama law and the Alabama Constitution, however, Paul cannot be deemed a surviving "spouse." 41. The Sanctity Laws, prohibit the State of Alabama from recognizing the validity of Paul and David's marriage, and therefore prohibit recognizing Paul as the surviving "spouse." 42. At least one court has concluded that these provisions require Alabama courts to read the word "spouse" when used in an Alabama statute to exclude a same-sex spouse. See In re Adoption ofKR.S., 109 So. 3d 176, 178 (Ala. Civ. App. 2012) (Sanctity Laws require court to interpret the word "spouse" as used in adoption laws to exclude same-sex spouse). 43. Under the Sanctity Laws, Lohr is required to distribute the proceeds from the wrongful death action as if Paul is not the surviving spouse; and upon information and belief, he intends to do so absent court order.
Alabama's Disapproval of Lawful SameSex Marriage 44.. Marriage is a legal status. Two people become married when, after obtaining a license from the state, a person authorized by state law solemnizes their union. See, e.g., Ala. Code § 30-1-7. 45. Being married confers numerous rights and protections, and imposes numerous obligations, recognized by the state. 46. Alabama, for example, provides that one spouse may not be compelled to testify against another in a criminal trial. See Ala. Code § 12-21-227. 47. One spouse generally may not sell real estate in Alabama without the assent of the other. See Ala. Code § 30-4-12. 48. Historically, husbands have been required to support their wives, and Alabama considers the failure to do so a crime. See Ala. Code § 30-4-50.

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 10 of 17
49. Married couples, but not unmarried couples, may petition jointly to adopt children in Alabama. See Ala. Code § 26-1 OA-5. 50. And, of special importance to this case, when one spouse dies Without a will, the surviving spouse is entitled to a substantial share of the decedent's estate. See Ala. Code § 43-841(2). 51. In short, Alabama confers a host of benefits, and imposes numerous responsibilities, on people who are married. This collection of benefits and responsibilities provides official recognition of the dignity and legitimacy of the married couple's union, and the unique status of maried persons under law. 52. Alabama, like all other states, generally recognizes people within its boundaries to be "married" even if they became married in another state. The Supreme Court of Alabama, for instance, has declared the general rule that "a marriage valid where celebrated is valid everywhere." SeeKrugv. Krug, 296 So. 2d 715, 711 (Ala. 1974). 53. Notwithstanding this general rule, however, Alabama has twice determined to den recognition to Same-sex couples who have married in another state. 54. In 1998, the Alabama Legislature enacted the Alabama Marriage Protection Act. See Ala. Code § 30=149. That law prohibits, among other things, the recoition of "any mariage of patties of the same sex that occurred or was alleged to have occurred as a resul(of the law of any jurisdiction." 55. Soon thereafter, the Office of the Attorney General issued an opinion concluding that the Marriage Protection Act would prevent the state or any of its . subdivisions or businesses within the state from recognizing out-of-state marriages or unions between people of'the same sex, and
10

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 11 of 17
that no provision of the U.S. Constitution would require a different result. See Ala. Op. Att'y Geri. 2000-129 (Ala. A.G. 2000). 56. Notwithstanding the Attorney General's opinion that the Marriage Protection Act adequately protected Alabama from out-of-state same-sex unions, the legislature took additional action just years later to further safeguard Alabama from the specter of same-sex unions. 57. In 2005, the Alabama Legislature proposed a constitutional amendment, entitled the Sanctity of Marriage Amendment. This amendment utilized language nearly identical to the language of the Marriage Protection Act seeking to ensure, as a matter of state constitutional law, that Alabama will not recognize out-of-state same-sex marriages. 58. The Legislature submitted the proposed amendment to voters on June 6, 2006. The voters approved it, and it was proclaimed ratified on June 28, 2006.
Alabama's Refusal to Recognize Lawful Same-Sex Marriages Is Unconstitutional 59. The effect of the Sanctity Laws is to deny to same-sex married couples the rights and obligations of marriage that are available to all other married couples within the State of Alabama. 60. Plaintiff contends that those provisions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. 61. Notwithstanding state power to regulate marriage, states lack authority to deny guarantees of liberty and equality protected by the Fourteenth Amendment. 62. The class of persons harmed by the Sanctity Laws— married same-sex couples - is substantial yet discrete. 2010 census data reveal that 1,704 of the 6,528 same-sex couples in Alabama identify as spouses, according to reporting by the Williams Institute. See hftp://williamsinstitute.law.ucla.edul uncategorized/alabamal. On information and belief, a
11

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 12 of 17
significant portion of these couples who identify as spouses have been legally married out of state. 63. The U.S. Supreme Court recently addressed the constitutionality of a similar restriction, and found it to be unconstitutional. United States v. Windsor, 133 S. Ct. 2675 (2013), addressed Section 2 of the federal "Defense of Marriage Act" (DOMA). DOMA precluded the federal government from recognizing the validity of same-sex marriages validly entered in jurisdictions permitting them, 64. The Supreme Court concluded that (1) "DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal"; (2) "DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life"; and (3) "the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful sarnesex marriage." Windsor, 133 5. Ct. at 2694, 2695. 65. For these reasons, the Supreme Court concluded that DOMA's prohibition of federal recognition of lawful same-sex marriages deprived people in those marriages of due process and equal protection. 66. Alabama's prohibitions on the recognition of lawful same-sex marriages have precisely the same unconstitutional purpose and effect as did the DOMA provision found to be unconstitutional in Windsor. The Sanctity Laws (1) identify lawful sameLsex marriages and make them unequal; (2) divest from Alabama same-sex married couples numerous tights and responsibilities (including the right to inherit from an intestate spouse); and (3) demean Alabamians who lawfully have entered into same-sex marriages.
The Current Dispute Regarding the Constitutionality of the Sanctity Laws and Distribution of Wrongful Death Proceeds
12

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 13 of 17
67. There exists an actual controversy between Plaintiff Paul Hard, on one hand, and the Defendants on the other, regarding the constitutionality of those provisions of the Sanctity Laws that purport to prevent recognition of Paul as David's "surviving spouse" and to prevent distribution to Paul of proceeds from the wrongful death action that Lohr currently is prosecuting. 68. On information and belief, the Defendants apart from Lohr contend that these provisions are consistent with the U.S. Constitution. 69. On information and belief, Defendant Lohr takes no position on the constitutionality of the marriage restrictions, but understands that they preclude him from recognizing Paul as a "surviving spouse" or from distributing to Paul any proceeds from the wrongful death action Lohr now is prosecuting. 70. This dispute is concrete, live, and immediate. 71. This Court has set trial in the wrongful death, action for the summer of 2014. On information and belief, the parties to that action have engaged in settlement discussions, and settlement may be imminent. 72. Absent the issuance of declaratory and injunctive relief including an order that Defendant Lohr should distribute any proceeds owing to Paul as the surviving spouse, Paul will suffer a particularized injury in that he will not receive any proceeds (by way of settlement or verdict) to. which he would be entitled but for the unconstitutional Sanctity Laws. 73. Paul will Suffer irreparable harm including loss of proceeds from the wrongful death suit and continuing harms related to Alabama's refusal to recognize his marriage unless injunctive relief is granted. Such harm to Plaintiff outweighs any purported harm to the Defendants
13

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 14 of 17
resulting from their treating out-of-state marriages of all Alabama citizens equally. Granting injunctive relief will not disserve the public interest.
COUNT I (Declaratory and Injunctive Relief Pursuant to the Declaratory Judgment Act -
Violation of Equal Protection Fourteenth Amendment) 74. Plaintiff incorporates all prior paragraphs. 75. If Plaintiff were in a different-sex marriage, he would be treated as a spouse for all purposes under State law, including under the laws of intestate succession. 76. Solely because Plaintiff is gay and married a person of the same sex, the Sanctity Laws treat his marriage as a legal nullity, unconstitutionally creating a second-tier class of citizens and marriages. 77. Defendants' failure to recognize marriages of same-sex couples validly entered in other jurisdictions is unconstitutional under the Equal Protection Clause because it categorically denies the benefits of marriage to that class of citizens and marriages on the basis of sexual orientation. 78. The Sanctity Laws' prohibition is similarly unconstitutional because it denies Paul recognition as a surviving spouse with respect to the wrongful death action because he is gay and because he married a man rather than a woman, without any legitimate basis. 79. The purpose and effect of the marriage restrictions is to single out one class of marriages - same-sex marriages and make them unequal. The marriage restrictions exclude the people in those marriages from the benefits and burdens available to all other married persons in the State of Alabama. 80. "The principal purpose [of the Sanctity Laws] is to impose inequality, not for other reasons like governmental efficiency." See Windsor, 133 S. Ct. at 2694.
14

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 15 of 17
81. The Sanctity Laws are invalid for lack of any legitimate purpose that could overcome the Sanctity Laws' purpose and effect to disparage and to injure those who are due equal personhood and dignity under law. 82. The Sanctity Laws similarly harm Plaintiff and other married, same-sex couples by telling them that their otherwise valid marriages are unworthy of state recognition. 83. "The Constitution's guarantee of equality 'must at the very least mean that a bare [governmental] desire to harm a politically unpopular group cannot' justify disparate treatment of that group." Windsor, 133 S. Ct. at 2693 (quoting Department ofAgriculture v. Moreno, 413 U.S. 528, 534 (1973)). 84. Plaintiff has fulfilled his duties as a surviving spouse and state citizen, yet he is afforded none of the rights taken for granted by different-sex married couples, including the right to a death certificate of his husband that does not indicate "Never Married." 85. The Sanctity Laws target lesbian, gay, and bisexual people, by prohibiting recognition of their marriages, consistent with a long history of governmental disfavored treatment of that class. 86. The Sanctity Laws write "inequality into the entire [Alabama] Code." See Windsor, 133 S. Ct. at 2694. 87. Defendants' failure to recognize Plaintiff's marriage is under color of law.
COUNT II (Declaratory and Injunctive Relief Pursuant to the Declaratory Judgment Act - Denial of
Due Process - Deprivation of Liberty). 88. Plaintiff incorporates all prior paragraphs. 89. The Sanctity Laws injure lesbian, gay, and bisexual citizens of Alabama who enter lawful marriages in other jurisdictions and by doing so violate basic due process principles applicable to Alabama and the Defendants under the Fourteenth Amendment.
15

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 16 of 17
90. Under the Sanctity Laws, "same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By [their] great reach, [the Sanctity Laws] touch[] many aspects of married and family life, from the mundane to the profound." See Windsor, 133 S. Ct. at 2694. 91. The "principal purpose and the necessary effect" of the Sanctity Laws "are to demean those persons who are in a lawful same-sex marriage." Id. at 2695. Therefore, the Sanctity Laws are unconstitutional as a deprivation of the liberty of the person protected by the Due Process Clause under the Fourteenth Amendment. 92. "Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State." Id. at 2692 (citing Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472 (2003)). Yet the Sanctity Laws do precisely that. 93. The Sanctity Laws unconstitutionally demean same-sex couples, "whose moral and sexual choices the Constitution protects." Id., 133 S. Ct. at 2694.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays that this Court enter judgment in his favor and against Defendants, providing the following relief:
(a) Issue ajudgmnt pursuant to 28 U.S.C. § 2201 declaring that those provisions of the Marriage Protection Act and the Sanctity of Marriage Amendment that prevent Alabama from recognizing the validity of lawful same-sex marriages violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment;
(b) Issue an injunction pursuant to 28 U.S.C. § 2202 requiring Alaban.a state officials to recognize marriages of same-sex couples entered in other jurisdictions on an equal basis as the marriages of different-sex couples;
(c) Issue an injunction pursuant to 28 U.S.C. § 2202 that Defendant Lohr distribute to Plaintiff any proceeds from the wrongftil death action that are owing to Plaintiff
16

Case 2:13-cv-00922-WKW-SRW Document 1 Filed 12/16/13 Page 17 of 17

as "surviving spouse," and without regard to the Marriage Protection Act or the Sanctity of Marriage Amendment;
(d) Issue an injunction pursuant to 28U.S.C. § 2202 that Caththne M. Donald correct David Fancher's death certificate to indicate that David was married at the time of death and that Paul Hard is his surviving spouse;
(e) Award costs and fees as permitted by law; and
(f) Provide such further relief as the Court deems proper.

December 16, 2013

Respectfully submitted,

d hJ" SOUTHERN POVERTY LAW CENTER

By:

/740

David C. Dinielli* (California Bar No. 177904) Samuel E. Wolfe (ASB-2945-E63W)
400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 956-8200 Facsimile: (334) 856-8481 david.dinielli@splcenter.org sain.wolfe@splcenter.org *Application for admission pro hac vice forthcoming

(Attorneys for Plaintiff)

17

 
 Case 2:13-cv-00922-WKW-SRW Document 75 Filed 02/24/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

PAUL HARD,

)

)

Plaintiff,

)

)

v.

)

)

ROBERT BENTLEY and

)

LUTHER JOHNSON STRANGE, III )

)

Defendants,

)

)

PAT FANCHER, RICHARD I.

)

LOHR, II, and BEASLEY, ALLEN, )

CROW, METHVIN, PORTIS AND )

MILES, P.C.,

)

)

Intervenor-Defendants. )

CASE NO. 2:13-CV-922-WKW

ORDER

Before the court is a motion to intervene for limited purposes, filed by

Richard I. Lohr, II, the Administrator of the Estate of David Fancher (“the Estate”),

and the law firm of Beasley, Allen, Crow, Methvin, Portis and Miles, P.C.

(“Beasley Allen”). (Doc. # 74.) A brief narration of the posture of this case is in

order.

Plaintiff Dr. Paul Hard and David Fancher obtained a marriage license under

the laws of Massachusetts and had a ceremony there. They subsequently made a

life together in Alabama. David Fancher died in a tragic accident in Alabama in

Case 2:13-cv-00922-WKW-SRW Document 75 Filed 02/24/15 Page 2 of 4
August 2011. Mr. Lohr brought a wrongful death suit on behalf of the Estate that eventually settled. Meanwhile, Dr. Hard brought this action seeking, among other things, declaratory relief that the laws of Alabama preventing the recognition of same-sex marriage violate the U.S. Constitution and injunctive relief directing Mr. Lohr to distribute any proceeds to which Dr. Hard would be entitled under Alabama law as the surviving spouse of David Fancher. (See Compl. at 16–17.)
Under Alabama law, the proceeds of wrongful death litigation are distributed according to Alabama’s law of intestate succession. See Ala. Code § 6-5-410(c). The proper distribution of the settlement funds depends upon whether Dr. Hard is the surviving spouse under Alabama law. See Ala. Code §§ 43-8-41–43-8-42. Hence, Intervenor-Defendant Pat Fancher, David Fancher’s mother, has a competing claim to the settlement funds, and she opposes Dr. Hard’s request for recognition as the surviving spouse. There are pending cross-motions for summary judgment filed by the Attorney General, Ms. Fancher, and Dr. Hard.
Mr. Lohr was formerly a named defendant in this action, but was dismissed voluntarily by Dr. Hard. (Doc. # 7.) Since the wrongful death suit settled, Beasley Allen has been holding the settlement proceeds in trust until this court determines whether Dr. Hard is the surviving spouse under Alabama law. (See Doc. # 74-2 (Letter from Beasley Allen to the attorneys for Paul Hard and Pat Fancher).)
2

Case 2:13-cv-00922-WKW-SRW Document 75 Filed 02/24/15 Page 3 of 4
Earlier this month, Dr. Hard received an amended death certificate for David
Fancher from the Alabama Center for Health Statistics recognizing Dr. Hard as the
surviving spouse. The certificate was issued by the State of Alabama following a
ruling from the United States District Court for the Southern District of Alabama
that found that Alabama’s laws prohibiting the recognition of same-sex marriage
offend the Due Process and Equal Protection Clauses of the U.S. Constitution.
Searcy v. Strange, No. CIV.A. 14-0208-CG-N, 2015 WL 328728, at *1 (S.D. Ala. Jan. 23, 2015).1 Upon receipt of the amended death certificate, Dr. Hard’s attorney
requested that Beasley Allen release the share of funds due him as surviving
spouse pursuant to Alabama Code § 43-8-41(2). (Doc. # 74-3.)
Hence, Beasley Allen and Mr. Lohr jointly request to intervene in this action
for the limited purpose of paying the funds into the court’s registry to be held
pending this court’s decision concerning Dr. Hard’s entitlement to a spousal share
under Alabama law. (Doc. # 74, at ¶ 6.)
“On timely motion, the court may permit anyone to intervene who . . . has a
claim or defense that shares with the main action a common question of law or
1 On January 16, 2015, the United States Supreme Court granted certiorari in a consolidated appeal from the United States Court of Appeals for the Sixth Circuit. DeBoer v. Snyder, ___ S. Ct. ____, No. 14-571, 2015 WL 213650, at *1 (Jan. 16, 2015). The Supreme Court thereby manifested its intention to resolve for lower courts the question whether the Fourteenth Amendment requires a state to license marriages between two people of the same sex, or to recognize a marriage between two people of the same sex that is obtained lawfully in another state, or both. Notwithstanding this indication that binding guidance would be coming from the Supreme Court, the Southern District of Alabama proceeded to rule on the question in Searcy v. Strange.
3

Case 2:13-cv-00922-WKW-SRW Document 75 Filed 02/24/15 Page 4 of 4
fact.” Fed. R. Civ. P. 24(b). Upon consideration of the motion to intervene (Doc. # 74) and Rule 24(b), it is ORDERED that the motion is GRANTED and that Mr. Lohr and Beasley Allen are JOINED as Intervenor-Defendants for the limited purpose of paying the settlement proceeds into this court’s registry.
It is further ORDERED that the Clerk of the Court is DIRECTED to receive from Beasley Allen the settlement proceeds in the sum of $552,956.69 and to place these funds in an appropriate interest-bearing account until further order of the court.
DONE this 24th day of February, 2015. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

PAUL HARD, Plaintiff,
v. ROBERT BENTLEY, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:13-CV-922-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Governor Robert Bentley’s motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(1), to which Plaintiff has responded. (Docs. # 48, 53.)1 Upon consideration of the parties’ arguments, the

Complaint, and relevant law, the court finds that the motion to dismiss is due to be

granted.

I. JURISDICTION AND VENUE

The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331

and 1343. Personal jurisdiction and venue are uncontested.

1 Rule 12(b) motions “must be made before pleading if a responsive pleading is allowed. Fed. R. Civ. P. 12(b). However, subject-matter jurisdiction is not a waivable 12(b) defense, and “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Hence, Governor Bentley’s motion must be considered.

II. STANDARD OF REVIEW A motion to dismiss under Rule 12(b)(1) may assert either a factual attack or a facial attack to jurisdiction. McElmurray v. Consol. Gov’t of Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial attack, the court examines whether the complaint “sufficiently allege[s] a basis of subject matter jurisdiction.” Id. As when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, on a Rule 12(b)(1) facial attack the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pleaded facts in the complaint as true. Id.
III. BACKGROUND This suit challenges the constitutionality of two provisions of Alabama law – the “Marriage Protection Act,” Ala. Code § 30-1-19, and the “Sanctity of Marriage Amendment,” Ala. Const. Amend. No. 774 (collectively the “Marriage Sanctity Laws”). (Compl. at 7.) Plaintiff Paul Hard alleges he married David Fancher under the laws of Massachusetts, and the two made a life together in Alabama. When David passed away in a tragic accident in 2011, his Estate became entitled to the proceeds of a wrongful death suit. Under Alabama law, the proceeds of wrongful death actions are distributed without respect to the decedent’s will and according to the laws of intestate succession. Plaintiff is not a surviving spouse under Alabama law. Plaintiff therefore seeks, among other relief, a declaratory
2

judgment that the provisions of the Marriage Sanctity Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent Alabama from recognizing same-sex marriages entered in other states, and an injunction requiring “Alabama state officials” to recognize as marriages the unions of same-sex couples married under the laws of other states. (Compl. at 16–17.)2
Governor Bentley is named as a defendant in his official capacity only. The Alabama Attorney General, Luther Strange, is also a defendant in his official capacity, but he has not raised sovereign immunity as a defense, and he has chosen to defend the State of Alabama’s interests in defining marriage as between one man and one woman. Governor Bentley is alleged to have the supreme executive power in state government and to maintain and exercise “enforcement authority in connection with the [Marriage] Sanctity Laws” of Alabama. (Compl. at ¶ 16.) The Complaint particularly identifies Governor Bentley’s announcement in September 2013 that he would defy a federal directive requiring the Alabama National Guard to provide benefits to same-sex spouses of its members. (Compl. at ¶ 16.)
2 Since the filing of this suit, a sister federal court has declared Alabama’s Marriage Sanctity Laws unconstitutional under the Fourteenth Amendment’s Due Process and Equal Protection Clauses. Searcy v. Strange, ___ F. Supp. 3d ____, No. CIV.A. 14-0208-CG-N, 2015 WL 328728, at *5 (S.D. Ala. Jan. 23, 2015). This court is not bound by Searcy. As that court acknowledged, see id. at *3 n.1., the constitutionality of marriage laws like Alabama’s will be “definitively decided by the end of the current Supreme Court term” in an appeal from the Sixth Circuit’s opinion in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).
3

Governor Bentley admitted these allegations in his Answer. (Ans. at ¶ 16.) However, in his motion to dismiss, Governor Bentley references media reports that the Alabama National Guard has complied with the Pentagon’s directives. (Doc. # 48, at 4.)3
The Complaint also joins as defendants the Alabama State Registrar of Vital Statistics, the Probate Judge of Montgomery County, and Richard I. Lohr, the Administrator of the Estate of David Fancher. Those three defendants were voluntarily dismissed by Plaintiff early in this litigation, but Mr. Lohr recently has appeared and intervened as a defendant for the limited purpose of depositing wrongful death settlement proceeds into the court’s registry pending the court’s resolution of pending cross-motions for summary judgment. A competing claimant for the settlement funds, David Fancher’s mother, Pat Fancher, has also been allowed to join this case as an intervenor-defendant.
Governor Bentley’s motion to dismiss (Doc. # 48) was filed on July 24, 2014, over four months after he filed his answer, and within weeks of the end of the period allowed to conduct discovery.
3 Although Governor Bentley has referenced news stories not identified on the face of Plaintiff’s Complaint to rebut one of the Complaint’s allegations about the National Guard, (see Doc. # 48, at 4 n. 1), that news report contradicts Governor Bentley’s Answer which admits Paragraph 16 of the Complaint. For that reason, the court gives no weight to the Governor’s reference to the news report, and the motion is treated as a facial attack on subject-matter jurisdiction rather than a factual attack.
4

IV. DISCUSSION A. Legal Basis and Standard for Granting Sovereign Immunity
Governor Bentley, who is sued in his official capacity only, argues that he should be dismissed as a defendant on the basis of Alabama’s sovereign immunity. The Eleventh Amendment states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “While the Amendment by its terms does not bar suits against a State by its own citizens, th[e Supreme] Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). “[T]he Eleventh Amendment prohibits suits against state officials where the state is, in fact, the real party in interest.” Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999).
However, state officials may be sued for prospective injunctive relief to stop continuing violations of federal law, per the doctrine of Ex parte Young, 209 U.S. 123 (1908). Id. The doctrine is a “legal fiction” insofar as “it creates an imaginary distinction between the state and its officers, deeming the officers to act without the state’s authority, and, hence, without immunity protection, when they enforce
5

state laws in derogation of the Constitution.” Id. at 1336–37. But Ex parte Young requires that the joined state official “have some connection with the enforcement of the [allegedly unconstitutional] act.” Ex parte Young, 209 U.S. 123, 157 (1908) (emphasis added). Therefore,
unless the state officer has some responsibility to enforce the statute or provision at issue, the ‘fiction’ of Ex parte Young cannot operate. Only if a state officer has the authority to enforce an unconstitutional act in the name of the state can the Supremacy Clause be invoked to strip the officer of his official or representative character and subject him to the individual consequences of his conduct. Summit Med. Assocs., 180 F.3d at 1341 (citing Ex parte Young, 209 U.S. at 159– 60). An examination of cases applying these principles is helpful. In an action involving several alleged violations of constitutional rights arising from systemic deficiencies in Georgia’s criminal justice system, the Eleventh Circuit held that Georgia’s governor was a proper defendant because he was, under Georgia law, “responsible for law enforcement,” was “charged with executing the laws faithfully,” and because he possessed authority “to commence criminal prosecutions” and to direct Georgia’s attorney general “to ‘institute and prosecute’” actions on the state’s behalf. Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir. 1988) (citing various provisions of Georgia’s Constitution and Code). But in contrast, in Women’s Emergency Network v. Bush, 323 F.3d 937, 949–50 (11th Cir. 2003), the Eleventh Circuit held that Florida’s governor was not a proper
6

defendant to a suit challenging the constitutionality of a state law authorizing “Choose Life” specialty license plates and providing for the distribution of fees collected from the license plate sales. The governor’s purported connection to the license plate program was through his responsibility over the Department of Highway Safety and Motor Vehicles, but the court found this connection “too attenuated to establish” his responsibility for the distribution of revenue generated by the specialty license plates. Id. at 949. The court explained further that “[a] governor’s ‘general executive power’” does not provide a sufficient connection to a state law to permit a federal court to exercise jurisdiction over him or her, particularly “[w]here the enforcement of a statute is the responsibility of parties other than the governor.” Id. at 949–50 (citing Harris v. Bush, 106 F. Supp. 2d 1272, 1276–77 (N.D. Fla. 2000)).
In C.M. ex rel. Marshall v. Bentley, 13 F. Supp. 3d 1188, 1205–06 (M.D. Ala. 2014), this court granted Governor Bentley’s motion to dismiss on sovereign immunity grounds after finding that his asserted connection to the enforcement of the Alabama Accountability Act of 2013, through the oversight of state education funds and budgets, was too attenuated to support his joinder as a defendant. And in Searcy, a similar same-sex marriage case in the Southern District of Alabama, the court found that the plaintiffs “failed to allege, specifically, that Governor Bentley is responsible for the challenged action of enforcing or implementing the
7

Marriage Sanctity Laws.” Searcy v. Strange, No. CIV.A. 14-0208-CG-N, 2014
WL 4322396, at *4 (S.D. Ala. Aug. 28, 2014) (internal quotation marks and
alterations omitted).4
B. Arguments
Governor Bentley’s motion to dismiss is based on most of the precedents
discussed supra. Additionally, he argues that Plaintiff lacks standing to sue him
4 The plaintiffs in Searcy were represented by different counsel than Plaintiff, and their arguments and pleading were likely different than Plaintiff’s. However, Searcy aligns with the opinions of several other federal courts faced with sovereign immunity defenses raised by state governors and attorneys general joined as defendants in constitutional actions for state recognition of same-sex marriages. See Searcy, 2014 WL 4322396, at *4 n.7.
For example, in Bishop v. Oklahoma, 333 F. App’x 361, 365 (10th Cir. 2009), the court held that a same-sex couple could not sue Oklahoma’s governor and attorney general because the “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.” See also Kitchen v. Herbert, 755 F.3d 1193, 1202 (10th Cir. 2014) (distinguishing Bishop on the basis of Bishop’s facts that Oklahoma marriage recognitions were “within the administration of the judiciary” as opposed to the executive branch of Oklahoma government). The Bishop panel also reasoned that standing was lacking because the plaintiffs’ alleged injury was not caused by either the governor or the attorney general and could not be redressed by an injunction against either of them. 333 F. App’x at 365.
In Harris v. McDonnell, 988 F. Supp. 2d 603, 609 (W.D. Va. 2013), the Western District of Virginia concluded that Virginia’s governor was not a proper defendant to a same-sex marriage constitutional challenge because “Virginia’s marriage laws do not expressly refer to the Governor, there is no allegation that the Governor has taken steps to enforce the same-sex marriage ban, and there is no dispute that the suit may continue against” another state official defendant. In Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013), reconsideration denied (Jan. 13, 2014), the Eastern District of Louisiana dismissed the state attorney general from the plaintiff’s same-sex marriage action because his “sweeping responsibility to enforce” state law did not furnish the “Ex parte Young specificity nexus between [him] and the alleged unconstitutional provisions.”
These authorities are persuasive support for Governor Bentley’s motion to dismiss, but the resolution of the motion depends primarily upon Governor Bentley’s authority under Alabama law and his conduct with respect to the Marriage Sanctity Laws as they impact Plaintiff.
8

because Governor Bentley is not the cause of Plaintiff’s legal injury and because Governor Bentley could take no action to redress that injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (requiring the plaintiff to show that he suffers an injury in fact, causal connection between the plaintiff’s injury and the defendant’s complained-of conduct, and the likelihood that the injury is redressable by the court’s decision in the plaintiff’s favor).
Plaintiff opposes Governor Bentley’s request for immunity, arguing that “[f]or the last four years, Governor Bentley has publicly and emphatically stated . . . that he does have the authority and will exercise that authority to enforce Alabama’s marriage restrictions.” (Doc. # 53, at 2.) Plaintiff maintains that he named Governor Bentley as a defendant not merely because of his supreme executive power, but because of Governor Bentley’s expressed intention to follow the Marriage Sanctity Laws. Plaintiff cites five instances of public declarations by Governor Bentley that he “will fight” this suit and other similar suits challenging the Marriage Sanctity Laws and that he “ha[s] to defend,” “execute,” “protect,” and “uphold” the Constitution” and “the laws of the state.” (Doc. # 53, at 4–5 (citing Exhibits A–E to Decl. of David Dinielli).)
In response to Governor Bentley’s suggestion that Plaintiff’s allegations regarding the Alabama National Guard are unsubstantiated, Plaintiff stresses that Governor Bentley did not deny the allegations in his Answer. Plaintiff asserts that
9

Governor Bentley’s admission of his allegation concerning the denial of benefits to same-sex spouses in the Alabama National Guard “at the very least, make[s] ‘plausible’ the proposition that Plaintiff will be able to prove his claims against Governor Bentley.” (Doc. # 53, at 2 (citing Ashcroft v. Iqbal, 556 U.S. 662, 682 2009)).) Further, Plaintiff says that Governor Bentley’s change of mind only confirms his exercise of authority and discretion to defend the Marriage Sanctity Laws.
Plaintiff also argues that former Governor Fob James entered an executive order in 1996 prohibiting probate judges in Alabama from issuing marriage licenses to same-sex couples, declaring that same-sex marriages entered under the laws of other states must be disregarded, and directing the divisions of the Alabama executive branch to enforce his order. According to Plaintiff, that executive order arguably is still in effect and sets a precedent for Governor Bentley to take similar actions either in favor of or against the recognition of same-sex marriages in Alabama.
Plaintiff relies on the Tenth Circuit’s decision in Kitchen v. Herbert, 755 F.3d 1193, 1202 (10th Cir.) cert. denied, 135 S. Ct. 265 (2014), where the court looked to the state official’s “actual exercise of supervisory power.” (Emphasis added). In Kitchen, the Governor and the Attorney General of Utah, but not the Salt Lake County Clerk responsible for issuing marriage licenses, appealed the
10

district court’s order declaring unconstitutional Utah’s amendment defining marriage as between couples of the opposite sex. The Tenth Circuit sought to ensure that the Governor and Attorney General were proper appellants in the absence of the County Clerk. Id.
The Tenth Circuit distinguished the facts in Kitchen from the facts in Bishop, noting that marriage licenses are issued in Utah not by court clerks – who are part of the judicial branch of state government – but by executive branch “county clerks.” The Governor and Attorney General of Utah “ha[d] explicitly taken the position in th[e] litigation that they ‘have ample authority to ensure that’ the Salt Lake County Clerk” complied with the traditional practice of limiting the issuance of marriage licenses to opposite-sex couples. Id. The Tenth Circuit found that the defendants’ position was supported by Utah’s statutes, which charged the Governor with “supervising the official conduct of all executive and ministerial officers” and “seeing that all offices are filled and the duties thereof performed.” Id. (citations and alterations omitted). The court further found that the Attorney General could direct a deputy state attorney to prosecute a county clerk for a misdemeanor offense of knowingly issuing a prohibited marriage license, and the Governor could direct the Attorney General to participate in such a prosecution. Id. at 1202–03. Finally, the court observed that Utah cabinet officials overseeing state agencies had been directed by the Governor to consult with the Attorney
11

General’s deputies and about any conflicting laws not clearly answered by the ruling of the federal district court. Id. at 1203.
For all these reasons, the court held “that the Governor’s and the Attorney General’s actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide[d] the requisite nexus between them and [the challenged constitutional amendment]. Id. at 1204 (emphasis added). The Tenth Circuit clarified that the Governor and the Attorney General would be proper parties even if they were not “specifically empowered” by statute to act, so long as they had assisted or were assisting in giving effect to a challenged law. Id. On this authority, Plaintiff asks this court to exercise jurisdiction over Governor Bentley because he, and a predecessor, Governor James, have actually exerted their authority to enforce Alabama’s marriage laws.
Plaintiff acknowledges that his standing is implicated if the Governor’s arguments in favor of immunity are accepted. Plaintiff contends that “if Governor Bentley can be named as a Defendant under Ex parte Young, Plaintiff has standing to name him as a Defendant.” (Doc. # 53, at 10 n.4.) And so Plaintiff admits the converse is likewise true. If Governor Bentley is entitled to immunity, the reasons supporting his sovereign immunity undercut Plaintiff’s standing to sue Governor Bentley.
12

Governor Bentley replies that “it is true that [he] personally supports [the Marriage Sanctity L]aws, and that as Chief Executive[,] he will enforce them to the same extent that all valid laws are enforced.” (Doc. # 56, at 2.)5 However, the Governor contends that he has not taken any action to prevent the recognition of same-sex marriages in Alabama, to alter the existing laws, or to otherwise directly connect him to the State’s “on-the-ground enforcement” of the law. (Doc. # 56, at 1–2.) C. Conclusions
Upon consideration of the parties’ arguments and relevant case authorities, the court concludes that Governor Bentley is due to be dismissed from this suit on grounds of sovereign immunity and because Plaintiff lacks standing to sue him.
First, there is no dispute from Plaintiff that the Governor’s general authority as Alabama’s chief executive official does not warrant his joinder as a defendant, and Eleventh Circuit case law precludes any contrary conclusion. See Women’s Emergency Network, 323 F.3d at 94. (“A governor’s ‘general executive power’ is not a basis for jurisdiction in most circumstances.”).
Second, with respect to Plaintiff’s allegation, admitted by Governor Bentley, that Governor Bentley intended to contradict federal directives to extend benefits to same-sex spouses of members of the Alabama National Guard, Governor
5 Document 56 specifically involves Governor Bentley’s motion for protective order, but the argument cited goes to the merits of his motion to dismiss.
13

Bentley’s oversight of the Alabama National Guard has no direct relation to Plaintiff’s desire for state recognition as the surviving spouse of David Fancher. Even if Governor Bentley had followed through with his public statement and defied the Pentagon’s directives with respect to the members of the Alabama National Guard, Plaintiff would be unaffected. Plaintiff is not affiliated with the Alabama National Guard, nor is this an action to receive spousal employment benefits from any other state entity. By Plaintiff’s own allegations in the Complaint, the state officials possessing authority to redress Plaintiff’s situation are the State Registrar for Vital Statistics and the Montgomery County Probate Judge. (See Compl. at ¶¶ 18–19.) Plaintiff’s injury is not directly caused by Governor Bentley or redressable by Governor Bentley.
Third, with respect to Governor Bentley’s public comments cited in opposition to Governor Bentley’s motion that he supports the defense and enforcement of Alabama’s Marriage Sanctity Laws and that he opposes Plaintiff’s suit, these comments reflect Governor Bentley’s personal convictions and constitute commentary on litigation impacting the State he governs, but his words have not been accompanied by official actions. Plaintiff has not alleged or shown that Governor Bentley has taken any actual actions in his capacity as Governor to prohibit the recognition of same-sex marriages in Alabama. Plaintiff has not alleged or demonstrated that Governor Bentley has intervened in, directed, or
14

superintended the work of the Alabama officials who would be capable of providing Plaintiff (or persons similarly situated) with the legal recognition of same-sex marriage that is requested in the Complaint.
Further, Plaintiff has not shown that Governor Bentley has specific statutory or constitutional responsibility to provide relief to Plaintiff. Plaintiff offers no statute authorizing Governor Bentley’s involvement in matters of marriage or responsibility to superintend or command probate judges or the state registrar of vital statistics.6 Governor James’s nineteen-year-old executive order concerning same-sex marriages is not a sufficient justification for joining Governor Bentley as a party in the absence of Governor Bentley’s reliance upon that order, enforcement of that order, or promulgation of his own similar directive to state officials and agencies.
For all these reasons, this court finds that Governor Bentley lacks the connection required by Ex parte Young to support joinder as a defendant to this suit. Governor Bentley’s motion to dismiss is due to be granted on the basis of his entitlement to sovereign immunity and because Plaintiff lacks Article III standing to sue the Governor.
6 And events that have transpired in January and February of 2015, and the Governor’s response thereto, after the parties briefed the motion to dismiss, confirm that the Governor has taken no such action other than to state publicly his disagreement with the recognition of samesex marriage.
15

V. CONCLUSION Consistent with the foregoing analysis, it is ORDERED that Governor Bentley’s motion to dismiss (Doc. # 48) is GRANTED and that all claims against Governor Bentley are DISMISSED with prejudice. DONE this 10th day of March, 2015.
/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
16

 
 Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 1 of 11
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:13−cv−00922−WKW−SRW

CLOSED

Hard v. Strange et al Assigned to: Chief Judge William Keith Watkins Referred to: Honorable Judge Susan Russ Walker Related Case: 2:12−cv−00533−MHT−SRW
Case in other court: USDC, 15−13836−C Cause: 28:2201 Declaratory Judgement
Plaintiff

Date Filed: 12/16/2013 Date Terminated: 07/29/2015 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Paul Hard

represented by David Carter Dinielli Southern Poverty Law Center 400 Washington Ave Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: david.dinielli@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Eugene Wolfe Southern Poverty Law Center 400 Washington Ave. Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: sam.wolfe@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Robert Bentley in his official capacity as Governor of the State of Alabama TERMINATED: 03/10/2015

represented by David Bryson Byrne , Jr. State of Alabama, Governor's Office 600 Dexter Avenue; Room NB−05 Montgomery, AL 36130 334−242−7120 Fax: 334−242−2335 Email: david.byrne@governor.alabama.gov TERMINATED: 03/10/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Davis State of Alabama Office of the Attorney General P O Box 300152 Montgomery, AL 36130−0152 334−353−1356 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us TERMINATED: 03/10/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Elizabeth Howell Office of the Alabama Attorney General

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 2 of 11

501 Washington Ave Montgomery, AL 36130 334−353−1018 Fax: 334−353−8440 Email: lhowell@ago.state.al.us TERMINATED: 03/10/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Luther Johnson Strange, III in his official capacity as Attorney General of the State of Alabama

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

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

Defendant
Catherine M. Donald in her official capacity as the State Registrar of Vital Statistics TERMINATED: 03/07/2014

Defendant
Steven L. Reed in his official capacity as Probate Judge for the County of Montgomery TERMINATED: 04/22/2014

represented by Tyrone Carlton Means Means Gillis Law LLC P.O. Box 5058 Montgomery, AL 36103−5058 334−270−1033 Fax: 334−260−9396 Email: tcmeans@meansgillislaw.com TERMINATED: 04/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard I. Lohr, II Administrator of the Estate of David Fancher (terminated 2−13−2014); added as Intervenor Defendant per [75] order

represented by Richard Duane Morrison Beasley Allen Law Firm 218 Commerce Street P. O. Box 4160 Montgomery, AL 36104 334−269−2343 Fax: 334−954−7555 Email: rick.morrison@beasleyallen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Defendant Pat Fancher

represented by Gabriel Joseph Smith Foundation For Moral law 1 Dexter Ave Opelika, AL 36103 334−262−1245 Email: gabrieljoseph.smith@gmail.com TERMINATED: 07/02/2015 LEAD ATTORNEY

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 3 of 11

ATTORNEY TO BE NOTICED

Matthew Kidd 1 Dexter Avenue Montgomery, AL 36104 334−262−1245 Fax: 334−262−1708 Email: kidd.matthew@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Beasley, Allen, Crow, Methvin, Portis, & Miles, P.C.

represented by Richard Duane Morrison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/16/2013
12/16/2013 12/17/2013
01/07/2014
01/09/2014
02/12/2014 02/12/2014 02/13/2014
02/13/2014 02/13/2014 02/13/2014 02/13/2014 02/14/2014 03/06/2014

# Docket Text
1 COMPLAINT for declaratory and injunctive relief against Robert Bentley, Catherine M. Donald, Richard I. Lohr, II, Steven L. Reed, Luther Johnson Strange, III ( Filing fee $ 400.00 receipt number 4602029354.), filed by Paul Hard. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 fee receipt)(djy, ) (Entered: 12/19/2013)
2 Corporate/Conflict Disclosure Statement by Paul Hard. (djy, ) (Entered: 12/19/2013)
3 Summons Issued as to Robert Bentley, Catherine M. Donald, Richard I. Lohr, II, Steven L. Reed, Luther Johnson Strange, III and returned to counsel for personal service on defendants. (djy, ) (Entered: 12/19/2013)
4 Motion for David Carter Dinielli to Appear Pro Hac Vice for plaintiff ( Filing fee $ 50.00 receipt number 4602029498.) by Paul Hard. (Attachments: # 1 certificates of good standing, # 2 Text of Proposed Order, # 3 fee receipt)(djy, ) (Entered: 01/08/2014)
5 ORDER granting 4 Motion for David Carter Dinielli Leave to Appear Pro Hac Vice, as further set out in order. Signed by Chief Judge William Keith Watkins on 1/9/14. (djy, ) (Entered: 01/09/2014)
6 NOTICE by Paul Hard Notice of Filing of Stipulation (Attachments: # 1 Exhibit Exhibit A to Notice of Filing of Stipulation)(Wolfe, Samuel) (Entered: 02/12/2014)
7 NOTICE by Paul Hard Notice of Dismissal Without Prejudice (Wolfe, Samuel) (Entered: 02/12/2014)
8 CLERK'S NOTICE of Voluntary Dismissal of defendant Richard I. Lohr, II (Administrator of the Estate of David Fancher) dismissing this defendant without prejudice from this case. (djy, ) (Entered: 02/13/2014)
9 SUMMONS Returned Executed by Paul Hard. Robert Bentley served on 2/13/2014, answer due 3/6/2014. (Dinielli, David) (Entered: 02/13/2014)
10 SUMMONS Returned Executed by Paul Hard. Luther Johnson Strange, III served on 2/13/2014, answer due 3/6/2014. (Dinielli, David) (Entered: 02/13/2014)
11 SUMMONS Returned Executed by Paul Hard. Catherine M. Donald served on 2/13/2014, answer due 3/6/2014. (Dinielli, David) (Entered: 02/13/2014)
12 SUMMONS Returned Executed by Paul Hard. Steven L. Reed served on 2/13/2014, answer due 3/6/2014. (Dinielli, David) (Entered: 02/13/2014)
13 NOTICE of Appearance by Tyrone Carlton Means on behalf of Steven L. Reed (Means, Tyrone) (Entered: 02/14/2014)
14 NOTICE by Paul Hard of Filing of Stipulation Between Plaintiff Paul Hard and Defendant Catherine M. Donald, State Registrar of Vital Statistics (Attachments: # 1 Exhibit Stipulation and Agreement)(Dinielli, David) (Entered: 03/06/2014)

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 4 of 11

03/06/2014 03/07/2014 03/07/2014 03/10/2014 03/10/2014 03/11/2014 03/11/2014 03/12/2014 03/12/2014
03/12/2014
03/14/2014 03/19/2014 03/20/2014 03/20/2014 03/20/2014 03/24/2014 03/27/2014 03/28/2014
03/30/2014 03/31/2014

15 NOTICE by Paul Hard of Dismissal Without Prejudice of Catherine M. Donald (Dinielli, David) (Entered: 03/06/2014)
16 CLERK'S NOTICE of Voluntary Dismissal of defendant Catherine M. Donald dismissing this defendant without prejudice from this case. (djy, ) (Entered: 03/07/2014)
17 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Steven L. Reed; Corporate Disclosures due by 3/17/2014. (Attachments: # 1 standing order & format)(djy, ) (Entered: 03/07/2014)
18 ANSWER to 1 Complaint, by Robert Bentley, Luther Johnson Strange, III.(Davis, James) (Entered: 03/10/2014)
***Attorney Laura Elizabeth Howell,David Bryson Byrne, Jr for Robert Bentley,Laura Elizabeth Howell for Luther Johnson Strange, III added pursuant to 18 answer (NO PDF document attached to this notice). (djy, ) (Entered: 03/11/2014)
19 Corporate/Conflict Disclosure Statement by Robert Bentley. (Davis, James) (Entered: 03/11/2014)
20 Corporate/Conflict Disclosure Statement by Luther Johnson Strange, III. (Davis, James) (Entered: 03/11/2014)
21 ORDER TO SHOW CAUSE by defendant Reed why he has not responded to the complaint; Show Cause Response due by 3/21/2014. Signed by Chief Judge William Keith Watkins on 3/12/14. (djy, ) (Entered: 03/12/2014)
22 ORDER directing that the Rule 26(f) Report containing the discovery plan shall be filed as soon as practicable but not later than 4/2/2014, as further set out in order. Signed by Chief Judge William Keith Watkins on 3/12/14. (djy, ) (Entered: 03/12/2014)
23 GENERAL BRIEFING ORDER for any motions to remand, motions to dismiss, motions for judgment on the pleadings, motions for summary judgment, and Daubert motions setting briefing schedule, as further set out in order. Signed by Chief Judge William Keith Watkins on 3/12/14. (djy, ) (Entered: 03/12/2014)
24 ANSWER to Complaint by Steven L. Reed.(Means, Tyrone) (Entered: 03/14/2014)
25 Corporate/Conflict Disclosure Statement by Steven L. Reed re 17 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Means, Tyrone) (Entered: 03/19/2014)
26 First MOTION to Intervene by Pat Fancher. (Smith, Gabriel) (Entered: 03/20/2014)
27 ORDERED that on or before 3/28/2014, the parties shall show cause, if any there be, why Pat Fancher's 26 Motion to Intervene should not be granted. Signed by Chief Judge William Keith Watkins on 3/20/2014. (wcl, ) (Entered: 03/20/2014)
***Attorney Gabriel Joseph Smith for Pat Fancher added pursuant to the 26 motion. (No pdf attached to this entry) (wcl, ) (Entered: 03/20/2014)
28 NOTICE by Paul Hard re 27 Order to Show Cause (Dinielli, David) (Entered: 03/24/2014)
29 RESPONSE TO ORDER TO SHOW CAUSE by Robert Bentley, Luther Johnson Strange, III re 27 Order to Show Cause. (Davis, James) (Entered: 03/27/2014)
30 RESPONSE to Motion re 26 First MOTION to Intervene filed by Robert Bentley. (Means, Tyrone) Modified on 3/31/2014 to clarify text to reflect that this RESPONSE is filed by Steven Reed as shown in PDF document not Robert Bentley (qc/djy, ). (Entered: 03/28/2014)
31 MOTION to Continue Rule 26 Filing Deadline by Robert Bentley, Luther Johnson Strange, III. (Davis, James) (Entered: 03/30/2014)
NOTICE of Docket Text Correction re 30 Response to Motion to clarify text to reflect that this RESPONSE is filed on behalf of Steven Reed as shown in PDF document (NO PDF Document attached to this notice). (djy, ) (Entered: 03/31/2014)

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 5 of 11

03/31/2014 03/31/2014 04/11/2014 04/11/2014 04/16/2014 04/17/2014
04/21/2014 04/22/2014 04/22/2014 04/22/2014
04/28/2014
04/30/2014 05/02/2014
07/16/2014 07/18/2014 07/18/2014

32 TEXT ORDER GRANTING 31 MOTION for extension of time and extending the Rule 26(f) report deadline to 4/16/2014. Signed by Chief Judge William Keith Watkins on 3/31/14. (NO PDF Document attached to this notice).(djy, ) (Entered: 03/31/2014)
33 ORDER granting Pat Fancher's 26 Motion to Intervene as a defendant; directing the Clerk to add Ms. Fancher to the case as an intervenor defendant, as further set out in order. Signed by Chief Judge William Keith Watkins on 3/31/2014. (djy, ) (Entered: 03/31/2014)
34 NOTICE by Paul Hard of Filing of Stipulation between Plaintiff Paul Hard and Defendant Steven L. Reed (Attachments: # 1 Exhibit Executed Stipulation and Agreement)(Wolfe, Samuel) (Entered: 04/11/2014)
35 NOTICE of Voluntary Dismissal by Paul Hard (Attachments: # 1 Exhibit Stipulation of Dismissal of Judge Reed)(Wolfe, Samuel) (Entered: 04/11/2014)
36 REPORT of Rule 26(f) Planning Meeting. (Wolfe, Samuel) (Entered: 04/16/2014)
37 ORDER setting on−the−record Scheduling Conference for 4/22/2014 @ 01:30 PM before Chief Judge William Keith Watkins, in Courtroom 2B, FMJ USCC, Montgomery, AL; directing the Clerk to provide a court reporter for the conference. Signed by Chief Judge William Keith Watkins on 4/17/14. Furnished to calendar group & AR.(djy, ) (Entered: 04/17/2014)
38 ANSWER to 1 Complaint, by Pat Fancher.(Smith, Gabriel) (Entered: 04/21/2014)
39 CLERK'S NOTICE of Voluntary Dismissal of defendant Steven L. Reed; dismissing this defendant without prejudice from this case. (djy, ) (Entered: 04/22/2014)
40 Minute Entry for proceedings held before Chief Judge William Keith Watkins: Scheduling Conference held 4/22/2014 (PDF available for court use only). (Court Reporter Risa Entrekin.) (ajr, ) (Entered: 04/22/2014)
41 ORDER directing the plaintiff to file, on or before 4/28/2014, his written notice identifying other federal cases addressing state marriage laws and the scope of the issues requiring discovery in those cases; Defendants may also file a similar notice on or before April 28, 2014, if they wish to do so. Signed by Chief Judge William Keith Watkins on 4/22/14. (djy, ) (Entered: 04/22/2014)
42 NOTICE by Paul Hard re 41 Order, of Plaintiff's Compilation of Post−Windsor Decisions Finding Marriage Restrictions Unconstitutional (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11)(Dinielli, David) (Entered: 04/28/2014)
43 NOTICE by Robert Bentley, Luther Johnson Strange, III re 42 Notice (Other), Response to Notice (Davis, James) (Entered: 04/30/2014)
44 SCHEDULING ORDER directing plf's motion for summary judgment is due on or before 8/29/2014; defendants' opposition briefs and cross motions for summary judgment are due on or before 10/1/2014; plf's reply brief is due on or before 10/22/2014; defendants' surreply briefs are due on or before 10/29/2014, as further set out in order; Mediation Notice due by 9/14/2014; Amended Pleadings due by 5/30/2014; Discovery shall be completed on or before 8/15/2014, as further set out in order. Signed by Chief Judge William Keith Watkins on 5/2/14. (djy, ) (Entered: 05/02/2014)
45 NOTICE by Paul Hard re 42 Notice (Other), of Supplement of Plaintiff's Compilation of Post−Windsor Decisions Finding Marriage Restrictions Unconstitutional (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Dinielli, David) (Entered: 07/16/2014)
46 First MOTION to Compel Defendant Bentley's and Defendant Strange's Response to Interrogatory 2 in Plaintiff's First Set of Interrogatories by Paul Hard. (Dinielli, David) (Entered: 07/18/2014)
MEMORANDUM of LAW in Support re 46 First MOTION to Compel Defendant Bentley's and Defendant Strange's Response to Interrogatory 2 in Plaintiff's First Set

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 6 of 11

07/22/2014 07/24/2014 07/28/2014 07/29/2014 07/30/2014
07/31/2014 08/04/2014
08/07/2014
08/07/2014 08/08/2014 08/14/2014 08/15/2014 08/29/2014 08/29/2014

of Interrogatories filed by Paul Hard. (NO PDF Document attached to this notice−see as contained in Docket entry 46 ). (djy, ) (Entered: 07/22/2014)
47 ORDER directing the plaintiffs file a response to the 46 First MOTION to Compel on or before close of business on 7/28/2014. Signed by Honorable Judge Susan Russ Walker on 7/22/14. (djy, ) (Entered: 07/22/2014)
48 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Robert Bentley, Luther Johnson Strange, III. (Davis, James) (Entered: 07/24/2014)
49 RESPONSE to Motion re 46 First MOTION to Compel Defendant Bentley's and Defendant Strange's Response to Interrogatory 2 in Plaintiff's First Set of Interrogatories filed by Robert Bentley, Luther Johnson Strange, III. (Davis, James) (Entered: 07/28/2014)
50 ORDER directing that plaintiffs shall file a reply to the response to the 46 MOTION to Compel on or before 8/7/2014. Signed by Honorable Judge Susan Russ Walker on 7/29/14. (djy, ) (Entered: 07/29/2014)
51 MOTION for Protective Order Concerning the Requested Deposition of Governor Robert Bentley by Robert Bentley, Luther Johnson Strange, III. (Attachments: # 1 Exhibit A − Bentley Deposition Notice, # 2 Exhibit B − Letter re Deposition, # 3 Exhibit C − State Defendants Responses to Plaintifffs Interrogatories, # 4 Exhibit D − Searcy Report and Recommendation)(Davis, James) (Entered: 07/30/2014)
52 ORDER directing that plaintiff respond to the 51 MOTION for Protective Order on or before 8/7/2014. Signed by Honorable Judge Susan Russ Walker on 7/31/14. (djy, ) (Entered: 07/31/2014)
53 RESPONSE in Opposition re 48 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Paul Hard. (Attachments: # 1 Declaration of David C. Dinielli in Opposition to Governor Bentley's Motion to Dismiss, # 2 Exhibit A − Robert Bentley for Governor 2010 − Family and Social Values, # 3 Exhibit B − "Alabama Man Files Federal Lawsuit Seeking Recognition of Same−Sex Marriage Performed in Massachusetts", # 4 Exhibit C − "Gov. on AL Gay Marriage Ban: 'This is How the People Feel'", # 5 Exhibit D − "'Marriage Says We Are Family': Birmingham Women Fight to Force Alabama to Recognize Their Massachusetts Marriage", # 6 Exhibit E − "How Do Robert Bentley and Parker Griffith Compare?", # 7 Exhibit F − Executive Order)(Dinielli, David) (Entered: 08/04/2014)
54 REPLY to 53 OPPOSITION re 46 First MOTION to Compel Defendant Bentley's and Defendant Strange's Response to Interrogatory 2 in Plaintiff's First Set of Interrogatories filed by Paul Hard. (Attachments: # 1 Exhibit A − Bentley and Strange's Responses to Plaintiff's Interrogatories)(Wolfe, Samuel) Modified on 8/8/2014 to clarify text to reflect as a REPLY to 53 Opposition (qc/djy, ). (Entered: 08/07/2014)
55 RESPONSE in Opposition re 51 MOTION for Protective Order Concerning the Requested Deposition of Governor Robert Bentley filed by Paul Hard. (Wolfe, Samuel) (Entered: 08/07/2014)
56 BRIEF/MEMORANDUM in Support Of Their Motion For A Protective Order filed by Robert Bentley, Luther Johnson Strange, III. (Davis, James) (Entered: 08/08/2014)
57 (STRICKEN pursuant to Local Rules re: Non−Filing of Civil discovery) Objection to Plaintiff's Rule 45 Subpoena for Deposition and the Production of Documents filed by Gerald Allen (non−party). (Ayers, Marc) Modified on 8/15/2014 to clarify text to reflect Allen as a non−party (qc/djy, ). (Entered: 08/14/2014)
58 NOTICE of Non−Compliance re 57 Objection to Subpoena by Gerald Allen which is hereby STRICKEN pursuant to Local Rules re: Non−Filing of Civil Discovery (Attachments: # 1 Local Rule 26.3)(djy, ) (Entered: 08/15/2014)
59 MOTION for Summary Judgment by Paul Hard. (Wolfe, Samuel) (Entered: 08/29/2014)
60 AFFIDAVIT in Support re 59 MOTION for Summary Judgment of Paul Hard filed by Paul Hard. (Wolfe, Samuel) (Entered: 08/29/2014)

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 7 of 11

08/29/2014 09/15/2014 10/01/2014
10/01/2014
10/01/2014
10/01/2014 10/01/2014 10/03/2014 10/13/2014 10/21/2014 10/21/2014 10/29/2014
10/29/2014 10/29/2014 10/29/2014
11/07/2014 12/16/2014

61 AFFIDAVIT in Support re 59 MOTION for Summary Judgment of David Dinielli filed by Paul Hard. (Wolfe, Samuel) (Entered: 08/29/2014)
62 Notice of Mediation and Settlement Conference by Robert Bentley, Luther Johnson Strange, III (Davis, James) (Entered: 09/15/2014)
63 MOTION for Summary Judgment by Robert Bentley, Luther Johnson Strange, III. (Attachments: # 1 Exhibit A − Declaration of Sherif Girgis, # 2 Exhibit B − AG Opinion 83−206, # 3 Exhibit C − Election Results − Constitutional Amendment)(Davis, James) (Entered: 10/01/2014)
64 BRIEF/MEMORANDUM in Support re 63 MOTION for Summary Judgment filed by Robert Bentley, Luther Johnson Strange, III. (Attachments: # 1 Exhibit A − Baker v. Nelson jurisdictional statement, # 2 Exhibit B − What About the Children − Kin Altruism article)(Davis, James) (Entered: 10/01/2014)
65 MOTION for Summary Judgment on 10/3/2014 by Pat Fancher. (Attachments: # 1 Supplement Memorandum of Law in Support of Motion for Summary judgment)(Smith, Gabriel). Modified 10/3/2014 to clarify to reflect as a MOTION for summary judgment as set out in main PDF document (qc/djy, ). (Entered: 10/01/2014)
BRIEF/MEMORANDUM in Opposition re 59 MOTION for Summary Judgment filed by Robert Bentley, Luther Johnson Strange, III. (NO PDF Document attached to this notice−See Docket Entry 64 ). (djy, ) (Entered: 10/03/2014)
BRIEF/MEMORANDUM in Opposition re 59 MOTION for Summary Judgment filed by Pat Fancher. (NO PDF Document attached to this notice−See docket entry 65 −attachment 1). (djy, ) (Entered: 10/03/2014)
NOTICE of Docket Correction regarding docketing error to reflect that docket entry 65 is a MOTION for Summary Judgment as shown in main PDF document (NO PDF Document attached to this notice). (djy, ) (Entered: 10/03/2014)
66 RESPONSE in Opposition re 48 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Supplement to Response ECF No. 53 ) filed by Paul Hard. (Wolfe, Samuel) Modified on 10/14/2014 to create link to Doc. 53 . (dmn, ) (Entered: 10/13/2014)
67 REPLY BRIEF re 59 MOTION for Summary Judgment , 65 MOTION for Summary Judgment, 63 MOTION for Summary Judgment filed by Paul Hard. (Wolfe, Samuel) (Entered: 10/21/2014)
68 AFFIDAVIT in Support re 59 MOTION for Summary Judgment Wolfe Declaration filed by Paul Hard. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolfe, Samuel) (Entered: 10/21/2014)
69 BRIEF/MEMORANDUM in Support re 64 BRIEF/MEMORANDUM in Support, 63 MOTION for Summary Judgment (Defendants' Sur−Reply in Support of Their Motion for Summary Judgment (Doc. 63, 64) and in Opposition to the Plaintiff's Motion for Summary Judgment (Doc. 59)) filed by Robert Bentley, Luther Johnson Strange, III. (Davis, James) (Entered: 10/29/2014)
70 Second MOTION for Judgment as a Matter of Law by Pat Fancher. (Smith, Gabriel) (Entered: 10/29/2014)
RESPONSE in Opposition re 59 MOTION for Summary Judgment by Robert Bentley, Luther Johnson Strange, III. (NO PDF Document attached to this notice−see Docket Entry 69 ). (djy, ) (Entered: 10/30/2014)
SUR−REPLY in Support of 65 MOTION for Summary Judgment; AND in Opposition to the plf's 59 MOTION for Summary Judgment by Pat Fancher. (NO PDF Document attached to this notice−See Docket Entry 70 , which was erroneously entered on the docket as a MOTION). (djy, ) (Entered: 10/30/2014)
71 NOTICE by Robert Bentley, Luther Johnson Strange, III (Notice of Additional Authority) (Davis, James) (Entered: 11/07/2014)
72 NOTICE by Paul Hard re 42 Notice (Other), of Second Supplement of Plaintiff's Compilation of Post−Windsor Marriage Decisions (Dinielli, David) (Entered: 12/16/2014)

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 8 of 11

02/06/2015 02/23/2015 02/24/2015
03/10/2015 03/10/2015 03/19/2015 06/30/2015 06/30/2015
07/01/2015 07/01/2015
07/01/2015 07/01/2015 07/02/2015 07/02/2015

73 NOTICE by Pat Fancher of Order entered in Searcy v. Bentley (Attachments: # 1 Exhibit Searcy v. Strange Ruling, # 2 Exhibit Searcy v. Strange Clarifying Order)(Smith, Gabriel) (Entered: 02/06/2015)
74 MOTION to Intervene Motion to Intervene by Richard I. Lohr, II. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Morrison, Richard) (Entered: 02/23/2015)
75 ORDER granting 74 Motion to Intervene; Mr. Lohr and Beasley Allen are JOINED as Intervenor−defendants for the limited purpose of paying the settlement proceeds into this court's registry; further ORDERING that the Clerk is to receive from Beasley Allen the settlement proceeds in the sum of $552,956.69 and to place these funds in an appropriate interest−bearing account until further order of the court. Signed by Chief Judge William Keith Watkins on 2/24/15. Furnished to finance & cashier. (djy, ) (Entered: 02/24/2015)
76 MEMORANDUM OPINION AND ORDER: It is ORDERED that Governor Bentley's 48 Motion to Dismiss is GRANTED and that all claims against Governor Bentley are DISMISSED with prejudice as further set out in the opinion and order. Signed by Chief Judge William Keith Watkins on 3/10/2015. (dmn, ) Modified on 6/29/2015 to correct a typographical error in the docket text (wcl, ). (Entered: 03/10/2015)
77 ORDER: It is ORDERED that this case is STAYED until further order of this court as further set out in the order. Signed by Chief Judge William Keith Watkins on 3/10/2015. (dmn, ) (Entered: 03/10/2015)
78 ORDER denying plf's 46 first Motion to Compel and defendants' 51 Motion for Protective Order without prejudice, with leave to renew the motions after entry of an order by the District Judge lifting the stay. Signed by Honorable Judge Susan Russ Walker on 3/19/15. (djy, ) (Entered: 03/19/2015)
79 MOTION to Lift Stay , MOTION for Summary Judgment , MOTION for Disbursement of Funds to Plaintiff Paul Hard by Paul Hard. (Wolfe, Samuel) (Entered: 06/30/2015)
80 AFFIDAVIT in Support re 79 MOTION to Lift Stay MOTION for Summary Judgment MOTION for Disbursement of Funds to Plaintiff Paul Hard filed by Paul Hard. (Attachments: # 1 Exhibit A − Amended Certificate of Death)(Wolfe, Samuel) (Additional attachment(s) added on 7/1/2015: # 2 Certificate of Service) (wcl, ). (Additional attachment(s) added on 7/1/2015 to redact personal information contained in original filing pursuant to the E−government rules: # 3 Exhibit Amended Certificate of Death (Redacted)) (wcl, ). Modified on 7/1/2015 (wcl, ). (Entered: 06/30/2015)
81 NOTICE of Appearance by Matthew Kidd on behalf of Pat Fancher (Kidd, Matthew) (Main Document 81 replaced on 7/1/2015) (wcl, ). Modified on 7/1/2015 to attach a corrected PDF document of the notice of appearance to rotate the document right side up and to include a certificate of service (wcl, ). (Entered: 07/01/2015)
82 First MOTION to Substitute Attorney Gabriel Smith by Pat Fancher. (Attachments: # 1 Appendix Addendum to: Substitution of Counsel and Appearance of Counsel)(Kidd, Matthew) (Additional attachment(s) added on 7/1/2015 to attach the consent order as an attachment: # 2 Text of Proposed Order) (wcl, ). (Main Document 82 replaced on 7/1/2015) (wcl, ). Modified on 7/1/2015 to attach a correct PDF document of a motion to substitute which was previously omitted in error (wcl, ). (Entered: 07/01/2015)
83 First MOTION to Withdraw as Attorney by Pat Fancher. (Attachments: # 1 Appendix Motion to Substitute Attorney)(Smith, Gabriel) (Entered: 07/01/2015)
84 NOTICE of Correction re 81 Notice of Appearance and 82 First MOTION to Substitute Attorney Gabriel Smith, to attach corrected pdf documents. (Attachments: # 1 Corrected Main PDF Document to Docket Entry 81 , # 2 Correct Main PDF Document to Docket Entry 82 )(wcl, ) (Entered: 07/01/2015)
85 TEXT ORDER granting 82 Motion to Substitute Attorney. Signed by Chief Judge William Keith Watkins on 7/2/2015. (No pdf attached to this entry) (wcl, ) (Entered: 07/02/2015)
86 TEXT ORDER granting 83 Motion to Withdraw as Attorney. Signed by Chief Judge William Keith Watkins on 7/2/2015. (No pdf attached to this entry) (wcl, ) (Entered:

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 9 of 11

07/02/2015 07/14/2015 07/14/2015 07/14/2015
07/15/2015 07/20/2015 07/20/2015 07/20/2015 07/27/2015 07/29/2015 07/29/2015
07/29/2015
08/26/2015

07/02/2015)
***Attorney Gabriel Joseph Smith terminated pursuant to the Court's Text Order (Doc # 86). (No pdf attached to this entry) (wcl, ) (Entered: 07/02/2015)
87 MOTION to Dismiss by Luther Johnson Strange, III. (Davis, James) (Entered: 07/14/2015)
88 RESPONSE to Motion re 79 MOTION to Lift Stay MOTION for Summary Judgment MOTION for Disbursement of Funds to Plaintiff Paul Hard filed by Luther Johnson Strange, III. (Davis, James) (Entered: 07/14/2015)
89 ORDERED as followed: 1. Plaintiff's motion to lift stay and disburse funds (Doc. # 79 ) is GRANTED and the stay of this case is LIFTED; 2. Attorney General Strange's motion to dismiss (Doc. # 87 ) is GRANTED; 3. Plaintiff's motion for entry of summary judgment (Doc. # 79 ) is DENIED, and the parties' cross−motions for summary judgment (Docs. # 59 , 63 , 65 ) are DENIED; 4. Counsel for Plaintiff and for the Estate of David Fancher are DIRECTED to file a statement on or before July 20, 2015, advising the court how the Clerk of the Court should disburse the funds. Signed by Chief Judge William Keith Watkins on 7/14/2015. (kh, ) (Entered: 07/14/2015)
90 First MOTION to Set Aside Order of Dismissal by Pat Fancher. (Kidd, Matthew) (Entered: 07/15/2015)
91 Response to Order re 89 Order on Motion for Summary Judgment,,, Order on Motion for Miscellaneous Relief,, Order on Motion for Disbursement of Funds, Order on Motion to Dismiss,,,,,,,,,,,,,, Statement Regarding Disbursement of Funds by Beasley, Allen, Crow, Methvin, Portis, & Miles, P.C., Paul Hard. (Wolfe, Samuel) (Entered: 07/20/2015)
92 ORDERED that on or before July 24, 2015, Plaintiff shall file a response to Intervenor Defendant Pat Fancher's 90 motion to set aside the order of dismissal. Defendant Attorney General Luther Strange is not required to respond to the motion, but he may file a response if he chooses. Signed by Chief Judge William Keith Watkins on 7/20/2015. (kh, ) (Entered: 07/20/2015)
93 RESPONSE in Opposition re 90 First MOTION to Set Aside Order of Dismissal filed by Paul Hard. (Wolfe, Samuel) (Entered: 07/20/2015)
94 BRIEF/MEMORANDUM in Support re 90 First MOTION to Set Aside Order of Dismissal filed by Pat Fancher. (Kidd, Matthew) (Entered: 07/27/2015)
95 ORDERED that the 90 motion to set aside is DENIED. Signed by Chief Judge William Keith Watkins on 7/29/2015. (kh, ) (Entered: 07/29/2015)
96 ORDERED that: 1. The Clerk of the Court is DIRECTED to issue a check drawn on ServisFirst Bank where the funds are deposited in a money market account for the principal amount of $552,956.69, plus ninety percent of all interest earned to date that is due for distribution to Plaintiff Paul Hard, as further set out in order; 2. The Clerk of the Court is DIRECTED to pay into the U.S. Treasury an amount equal to ten percent of the earned interest as a fee for handling the funds, as further set out in order; 3. The Clerk of the Court is DIRECTED to mail the check via Certified Mail, with a return receipt, to Samuel Wolfe, Esq., Southern Poverty Law Center,as further set out in order. Signed by Chief Judge William Keith Watkins on 7/29/2015.(furn: Finance) (kh) (Entered: 07/29/2015)
97 FINAL JUDGMENT: ORDERED that this case is DISMISSED with prejudice. Costs are TAXED against Defendant Attorney General Luther Strange, for which let execution issue. The Clerk of the Court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the FRCP. Signed by Chief Judge William Keith Watkins on 7/29/2015. (Attachments: # 1 Civil Appeals Checklist)(kh, ) (Entered: 07/29/2015)
98 NOTICE OF APPEAL as to 92 Order, 97 Judgment, 96 Order,,, 89 Order on Motion for Summary Judgment,,, Order on Motion for Miscellaneous Relief,, Order on Motion for Disbursement of Funds, Order on Motion to Dismiss,,,,,,,,,,,,,, 95 Order on Motion to Set Aside by Pat Fancher (Kidd, Matthew) (Entered: 08/26/2015)

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 10 of 11

08/26/2015 08/26/2015 08/26/2015 08/27/2015
08/27/2015
08/28/2015
08/31/2015 09/01/2015 09/01/2015 09/03/2015
09/04/2015
09/22/2015
11/17/2015
04/11/2016 04/19/2016 04/20/2016

99 First MOTION for Bond or other relief by Pat Fancher. (Kidd, Matthew) (Entered: 08/26/2015)
102 USCA Appeal Fees received $ 505.00 receipt number 4602038102 re 98 Notice of Appeal, filed by Pat Fancher. (ydw, ) (Entered: 08/27/2015)
MOTION Injunction, Restraining Order, Equitable Relief, or Extraordinary Relief re 98 Notice of Appeal. No PDF with this document. See document 99 First MOTION for Bond by Pat Fancher for PDF. (ydw, ) (Entered: 08/28/2015)
100 Appeal Instructions sent to Attorney Matthew Kidd counsel for Intervening Defendant Patricia Fancher re 98 Notice of Appeal. A copy of the Transcript Information Form must be mailed to each court reporter from whom you are requesting a transcript. (ydw) (Entered: 08/27/2015)
101 Transmission of Notice of Appeal, 79 MOTION to Lift Stay, MOTION for Summary Judgment, MOTION for Disbursement of Funds, 87 MOTION to Dismiss, 96 Order, 97 Judgment, and Docket Sheet to US Court of Appeals re 98 Notice of Appeal. (Attachments: # 1 APPEAL PACKAGE) (ydw) (Entered: 08/27/2015)
103 ORDER Upon consideration of Intervening Defendant/Appellants Request for Injunction, Restraining Order, Equitable Relief, or Extraordinary Relief Pending Appeal, (Doc. # 99), it is ORDERED that Plaintiff and Defendants file a response to the request on or before September 2, 2015. Signed by Chief Judge William Keith Watkins on 08/28/2015. (ydw, ) (Entered: 08/28/2015)
104 USCA Case Number 15−13836−C for 98 Notice of Appeal, filed by Pat Fancher. (ydw, ) (Entered: 08/31/2015)
105 RESPONSE in Opposition re 99 First MOTION for Bond or other relief filed by Paul Hard. (Wolfe, Samuel) (Entered: 09/01/2015)
106 RESPONSE to Motion re 99 First MOTION for Bond or other relief (Intervenor's Request for Injunction, Etc.) filed by Luther Johnson Strange, III. (Davis, James) (Entered: 09/01/2015)
107 REPLY to Response to Motion re MOTION Injunction, Restraining Order, Equitable Relief, or Extraordinary Relief re 98 Notice of Appeal, 99 First MOTION for Bond or other relief, 99 First MOTION for Bond or other relief filed by Pat Fancher. (Kidd, Matthew) (Entered: 09/03/2015)
108 TRANSCRIPT INFORMATION FORM by Pat Fancher (Kidd, Matthew) (Main Document 108 replaced on 9/8/2015, to make correction − document need to be flatten) (ydw, ). Modified on 9/8/2015, to advise that document was not flatten and if you don't flatten a form, you lose the information. (Entered: 09/04/2015)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Middle District of Alabama certifies that the record is complete for purposes of this appeal re: 98 Notice of Appeal,, Appeal No. 15−13836−C. The entire record on appeal is available electronically.(ydw, ) (Entered: 09/22/2015)
109 MEMORANDUM OPINION AND ORDER: it is ORDERED that the Request for Injunction, Restraining Order, Equitable Relief, or Extraordinary Relief Pending Appeal (Doc. # 99 ) is DENIED. Signed by Chief Judge William Keith Watkins on 1/17/2015. (kh, ) (Entered: 11/17/2015)
110 MOTION to Substitute Attorney by Paul Hard. (Dinielli, David) (Entered: 04/11/2016)
111 ORDER that Plf's 110 Motion to Substitute Attorneys of Record is DENIED for lack of jurisdiction. Signed by Chief Judge William Keith Watkins on 4/19/2016. (wcl, ) (Entered: 04/19/2016)
112 Per Curiam Opinion received from USCA Eleventh Circuit of Opinion Entered on 11th Circuit Appeal No. 15−13836−CC; Opinion issued by court as to Appellant Pat Fancher. Decision: Affirmed. Opinion type: Non−Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. (ydw, ) (Entered: 04/20/2016)

Case: 2:13-cv-922 As of: 02/12/2018 11:17 PM CST 11 of 11

06/29/2016

113 JUDGMENT ISSUED AS MANDATE 06/29/2016 of USCA as to 98 Notice of Appeal, filed by Pat Fancher, 11th Circuit Appeal No. 15−13836−CC; We affirm the district courts final judgment and orders dismissing the case, denying the motion to set aside the dismissal, and directing the disbursement offunds. AFFIRMED. See 112 USCA Per Curiam Opinion entered on 04/20/2016. (ydw, ) (Entered: 06/29/2016)