Case 2:11-cv-00979-WKW-WC Document 1 Filed 11/17/11 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

D

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

L NU1 I 1 A U: 05

CHARELLE LODER; JACK DOE; JANE DOE; and JAMES DOE, on behalf of themselves and all others similarly situated,

LTT, C:Li

Plaintiffs, v.

Civil Action File No.

REESE McKINNEY, JR., Probate Judge of Montgomery County, in his official capacity and as representative of the class of probate judges in the State of Alabama similarly situated,
Defendant.

CLASS ACTION COMPLAINT

PRELIMINARY STATEMENT 1. This is a class action brought by two couples: Charelle Loder, a United States citizen, and her fiancé, Jack Doe, a Haitian citizen, and Jane Doe, a Mexican citizen, and her fiancé James Doe, a Mexican citizen, on behalf of themselves and a class of all couples unable to obtain a marriage license in Alabama because one or both of its members is undocumented. 2. Plaintiffs Loder and Jack Doe have been in a committed relationship for over five years and have lived together the past four years. They now wish to marry. Plaintiff Jack Doe provides companionship and financial support to his fiancée, a United States citizen, and his family, including the young daughter that he and his fiancée care for. It is important to their religious faiths that the couple marry. 3. Plaintiffs Jane Doe and James Doe have lived together in a committed relationship for ten years and have long desired to be married. They have worked hard to

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provide for their two young children who are United States citizens. It is important to their religious faiths that the couple marry.
4. Both couples desire to express their love for and commitment to one another by getting married and obtaining the economic, emotional, and psychological benefits of marriage, including the satisfaction that would come from obeying their religions' tenets concerning marriage.
5. The right to marry is a fundamental right guaranteed under the United States Constitution to all persons regardless of immigration status. The Plaintiffs in this case, along with the class they represent, cannot exercise their fundamental right to marry solely because they, or their desired spouse, are undocumented immigrants.
6. Defendant McKinney, Jr., acting as the Probate Judge of Montgomery County, has adopted, and implements and enforces, a policy that categorically denies a marriage license to any couple where one or both of its members is undocumented. Defendant's policy requires non-citizens of the United States who are seeking to obtain a marriage license to provide proof of their legal presence in the United States through a green card, visa, or similar immigration document. Defendant's policy also requires all applicants to provide a Social Security card in order to obtain a marriage license - a requirement that undocumented persons cannot satisfy. Defendant's policy acts to bar all undocumented persons, including Plaintiffs Jack Doe, Jane Doe, and James Doe, from obtaining a marriage license in Montgomery County. Moreover, Defendant's policy acts to bar Plaintiff Loder, a United States citizen, and all similarly situated persons, from marrying the person she loves solely because her fiancé is an undocumented immigrant.
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7. Defendant's policy is not required by any federal or state law, including the recently passed law known as "NB 56", and indeed, conflicts with guidance issued by Alabama's Attorney General.
Defendant McKinney, Jr.'s policy is indicative of the policies and practices of 40 other probate judges in Alabama that purposefully or effectively prohibit undocumented immigrants or persons whose intended spouse is undocumented from obtaining a marriage license. Defendant McKinney, Jr.'s policy, and similar policies of the class of probate judges in which he is sought to represent, directly interferes with Plaintiffs' fundamental right to marry and right to equal protection under the law, as guaranteed under the United States Constitution. This litigation is brought pursuant to 42 U.S.C. § 1983. Plaintiffs seek declaratory and injunctive relief, and costs and attorneys' fees and expenses as provided under 42 U.S.C. § 1988.
PARTIES Named PIaintffs/CIass Representatives 9. Plaintiff Charelle Loder ("Ms. Loder") is a citizen of the United States and is currently a resident of Alabama. Ms. Loder is 27 years old, not currently married, and wholly unrelated to her fiancé, Jack Doe, by blood. Ms. Loder has an original Social Security card, an Alabama birth certificate, and an Alabama Non-Driver Identification card. She meets all the lawful requirements under Alabama law to be issued a marriage license. Plaintiff Loder sues on her own behalf and on behalf of those similarly situated. 10. Plaintiff Jack Doe is a Haitian national who currently lives in Alabama. He is 29 years old, not currently married, and wholly unrelated to his fiancée, Charelle Loder, by blood. Jack Doe and Charelle Loder have lived together in Alabama in a committed relationship since 2006. Jack Doe does not have a Social Security number and cannot show proof of his legal

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presence in this country. He is ineligible to receive a marriage license in Montgomery County because he does not have proof of his legal presence in the United States and does not have a Social Security card due to his immigration status.
11. Jack Doe does have several forms of identification, including a Haitian birth certificate, an Alabama Resident Identification Card, and other identification issued by the Haitian government. He meets all the lawful requirements under Alabama law to be issued a marriage license. Plaintiff Jack Doe sues on his own behalf and on behalf of those similarly situated.
12. Plaintiff Jane Doe is a Mexican national who currently lives in Alabama. She is 27 years old, not currently married, and wholly unrelated to her fiancé, James Doe, by blood. Jane Doe has lived in Alabama with her fiancé, James Doe, since 2001. Jane Doe does not have a Social Security number and cannot show proof of her legal presence in this country. She is ineligible to receive a marriage license in Montgomery County because she does not have proof of her legal presence in the United States and does not have a Social Security card due to her immigration status.
13. Jane Doe does have several forms of identification, including a Mexican passport, birth certificate, a Mexican Consulate Identification Card, an Alabama Resident Identification Card, and other identification issued by the Mexican government. Plaintiff Jane Doe meets all the lawful requirements under Alabama law to be issued a marriage license. Plaintiff Jane Doe sues on her own behalf and on behalf of those similarly situated.
14. Plaintiff James Doe is a Mexican national who currently lives in Alabama. He is 28 years old, not currently married, and wholly unrelated to his fiancée, Jane Doe, by blood. James Doe does not have a Social Security number and cannot show proof of his legal presence
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in this country. He is ineligible to receive a marriage license in Montgomery County because he does not have a proof of his legal presence in the United States and does not have a Social Security card due to his immigration status.
15. James Doe has several forms of identification, including a Mexican passport, Mexican Consulate Identification Card, Alabama Resident Identification Card, birth certificate, and picture identification issued by the Mexican government. Plaintiff James Doe meets all the lawful requirements under Alabama law to be issued a marriage license. Plaintiff James Doe sues on his own behalf and on behalf of those similarly situated.
Named Defendant/C/ass Representative 16. Defendant Reese McKinney, Jr. is the Probate Judge of Montgomery County. In that position, he is responsible for, among other things, the issuance of marriage licenses. Ala. Code § 30-1-9, 22-9A-17(b). He maintains an office at the Montgomery County Courthouse Annex I, 100 South Lawrence Street, Montgomery, Alabama. Defendant McKinney, Jr. is sued in his official capacity and as a representative of a class of all probate judges in Alabama with a policy that has the effect of categorically denying marriage licenses to a couple, where one or both of the individuals is undocumented. 17. Prior to filing this suit, a representative for Plaintiffs called probate offices in Alabama to inquire whether a person who does not have a Social Security card or proof of his lawful presence in the United States could obtain a marriage license. 18. At the time of the filing this Complaint, Plaintiffs are aware of 41 counties, including Montgomery County, that are enforcing an unlawful policy or practice prohibiting marriage licenses to couples where one or both of its members is undocumented.

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JURISDICTION AND VENUE 19. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the U.S. constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343 because this action seeks to redress the deprivation, under color of state law, of Plaintiffs' civil rights and to secure equitable or other relief for the violation of those rights. 20. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § 2201 and 2202, and Federal Rule of Civil Procedure Rule 57. 21. This Court has personal jurisdiction over the Defendant who is located in the Middle District of Alabama. 22. Venue is proper in the Middle District of Alabama pursuant to 28 U.S.C. § 139 1(b) in that Defendant McKinney, Jr. resides within the Middle District of Alabama, and "a substantial part of the events or omissions giving rise to the claim[s] occurred" within this District and Division, including the enforcement of the unlawful policy and practice that are the subject of this lawsuit.
CLASS ACTION ALLEGATIONS Plaintiff Class Allegations
23. Plaintiffs Loder, Jack Doe, Jane Doe, and James Doe (collectively "Named Plaintiffs") bring this suit on their own behalf and on behalf of all persons in Alabama that desire to obtain a marriage license, where the person or the person's intended spouse is undocumented.
24. Numerosity: The proposed class is so numerous and geographically dispersed that joinder of all members of this class is impracticable. Although the precise size of the class cannot be determined at this time, statistical evidence shows that the class is so numerous that

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joinder of all members is impracticable. Alabama is home to an estimated 100,000 —200,000 immigrants without lawful status. Pew Hispanic Center, A Portrait of Unauthorized Immigrants in the United States, April 14, 2009, at 13, http://pewhispanic.org/files/reports/107.pdf. The class also includes future members whose names are not known pursuant to Fed. R. Civ. P. 23(a)(1).
25. Commonality: There are questions of law and fact common to all plaintiff class members, including whether a policy or practice that has the purpose or effect of categorically denying marriage licenses to couples where one or both of its members is undocumented violates the plaintiff class members' fundamental right to marry as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and violates the plaintiff class members' rights to Equal Protection as guaranteed by the Fourteenth Amendment to the United States Constitution.
26. Typicality: The claims asserted by the Named Plaintiffs are typical of the claims of all members of the proposed plaintiff class because the policies and practices challenged in this action apply with the same force to the Named Plaintiffs as they do to all other members of the class. The entire plaintiff class will benefit from the relief sought.
27. Adequacy of Representation: The Named Plaintiffs will fairly and adequately protect the interests of the class. Both couples serving as class representatives possess a strong personal interest in the subject matter of this lawsuit and the claims raised. They are represented by experienced counsel with expertise in class action litigation and litigation involving the constitutional rights of immigrants. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action.
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28. This case may be maintained as a class action under Rule 23(b)(2) because in enforcing policies that have the effect or purpose of categorically denying marriage licenses to couples where one or both of the parties is undocumented, the Defendant has acted and refused to act on grounds generally applicable to the class. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
Defendant Class Allegations 29. Plaintiffs also bring this action as a defendant class action under Fed. R. Civ. P. 23(b)(2). Plaintiffs seek to certify a defendant class represented by Defendant McKiimey, Jr. in his official capacity as Probate Judge of Montgomery County. The proposed defendant class consists of all Alabama probate judges whose policy or practices have the purpose or effect of categorically denying marriage licenses to couples where one or both of them are undocumented. 30. Numerosity: The number and geographic dispersion of defendant class members makes their joinder impractical. The proposed class includes probate judges from approximately 41 of Alabama's 67 counties whose offices confirmed via telephone that it is their policy and/or practice to deny a marriage license to persons who are undocumented pursuant to a requirement that applicants provide proof of legal status, or pursuant to a requirement that applicants provide Social Security cards without exception. Members of the proposed defendant class are located throughout the State of Alabama, with some members in each of the three federal judicial districts in Alabama. 31. Commonality: This suit poses questions of law and fact that are common to the proposed defendant class representative, Defendant McKiimey, Jr., and the proposed class members that he would represent. These include whether a policy or practice that has the purpose or effect of categorically denying marriage licenses to couples where one or both of its
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members is undocumented violates the plaintiff class members' fundamental right to marry as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and whether such a policy or practice violates the plaintiff class members' rights to Equal Protection as guaranteed by the Fourteenth Amendment to the United States Constitution.
32. Typicality: The defenses of Defendant McKiimey, Jr. will be typical of the defenses of the proposed defendant class. Defendant McKinney, Jr., and all of the other members of the proposed class operate under the same state statutory framework. As a probate judge in Alabama, Defendant McKinney, Jr., is responsible for the issuance of marriage licenses. Ala. Code § 30-1-9, 22-9A-17(b). In this action challenging whether a policy or practice that has the purpose or effect of categorically denying marriage licenses to couples where one or both of its members is undocumented, the defenses asserted by Defendant McKinney, Jr. will be based on legal and factual theories that are applicable to the entire proposed defendant class.
33. Adequacy of Representation: Defendant McKinney, Jr. will fairly and adequately protect the interests of the proposed defendant class. His position as the Probate Judge of Montgomery County places him in the same position with respect to this challenge as all of the other probate judges in the proposed defendant class. Because the policy and practice of Defendant McKinney, Jr. with respect to the issuance of marriage licenses to undocumented persons are substantially the same as the other 40 probate judges in Alabama who fall within the proposed defendant class, Defendant McKinney, Jr. will be able to adequately represent the proposed class. On information and belief, Defendant McKinney, Jr. has no interests antagonistic to or in conflict with the interests of other members of the proposed class, and as Probate Judge of Montgomery County, he is qualified and competent to represent the proposed defendant class.

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FACTS Issuance of Marriage Licenses in Alabama 34. In Alabama, no person may marry without a license. Ala. Code § 30-1-9. 35. The requirements for marriage licenses are set forth in chapter 1 of title 30 in the Alabama Code. The only restrictions set forth in this chapter are for persons under the age of 16, Ala. Code § 30-1-4, and for persons under the age of 18 whose parents or guardians do not consent. Ala. Code § 30-1-5. 36. Alabama Code § 22-9A-17 requires the probate judge to prepare and forward a completed marriage license form to the Bureau of Vital Statistics. The probate judge shall complete it "upon the basis of information obtained from the parties to be married." Ala. Code § 22-9A-17(b). There is no requirement that identification be submitted or that the information on the form be verified. 37. A probate judge's issuance of a marriage license is a ministerial, not judicial, act. 38. Alabama law does not condition issuance of a marriage license upon proof of legal residency or any other proof of immigration status. Neither the Code of Alabama nor the Alabama Constitution requires marriage license applicants to provide proof of legal presence in the United States to secure a marriage license. 39. The Alabama Attorney General has explicitly stated that "a marriage license can be issued to an applicant who is not a United States citizen." Opinion of the Attorney General to the Honorable Pam Wilson, Acting Judge of Probate, Fort Payne, Alabama, dated July 13, 2004, No. 2004-176, 2004 Ala. AG LEXIS 125.
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40. No provision of the Code of Alabama or the Alabama Constitution requires marriage license applicants to provide proof of their legal presence in the United States in order to secure a marriage license.
41. Alabama Code § 30-3-194(c) states that "the Social Security number of both parties to the marriage shall be collected by those parties issuing a marriage license and shall appear on the license and certificate sent to the Office of Vital Statistics." Ala. Code § 3 0-3194(c).
42. Tn 2008, the Alabama Attorney General issued an opinion that addressed whether a Social Security number is a required element for a person to receive a marriage license. The Office of the Attorney General concluded that a "social security number is not a required element for a person to receive a marriage license." Opinion of the Attorney General to the Honorable Luke Cooley, Houston County Judge of Probate, dated June 25, 2008, No. 2008-100, 2008 Ala. AG LEXTS 70. The Attorney General's Office instructed probate offices to allow persons without a Social Security number to submit an affidavit to the probate office attesting to the fact that he or she was never issued a Social Security number. Id. at *11.
Obtainin2 a Marriage License in Montomerv County 43. The Montgomery County Probate Office lists the requirements to obtain a marriage license on its website, which are appended to this Complaint as Exhibit A and incorporated herein. 44. Under the heading, "Requirements For Persons 18 years or older," the website reads: "Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport." Marriage Licenses, http ://www.mc-ala.org/ElectedOfficials/ProbateJudge/ProbateDivisions/Licenses/Pages/Marriag
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eLicenses.aspx (last accessed November 17, 2011). The website continues, Each applicant must provide one of the following: 1. An official Picture ID (passport, military ID, State issued ID, Driver's License). 2. An original certified copy of the state issued birth certificate (hospital copy not acceptable) and original social security card. 3. U. S. Government issued Immigration Services Picture ID Card (green card, visa, alien resident card, etc.).
45. Plaintiffs Jack Doe, Jane Doe, and James Doe are non-citizens of the United States and cannot satisfy Defendant's requirements to obtain a marriage license in Montgomery County because they do not have proof of their legal presence or a Social Security card.
46. Without a validly issued marriage license, Plaintiffs cannot marry their desired spouse.
Plaintiffs' Intent to Marry 47. Plaintiffs Loder and Jack Doe have lived together for over four years in a committed relationship. With the money he earns working odd jobs, Jack Doe helps to pay the rent and utilities at their home. He also helps to pay for the clothes and basic needs of Plaintiff Loder's nine-year-old daughter. 48. Although Plaintiffs Loder and Jack Doe understand that their marriage will not entitle Jack Doe to immediate legal status in the United States, Defendant's unlawful policy and similar policies by probate judges state-wide - effectively acts to bar Plaintiffs Loder and Jack Doe from petitioning for legal status for Jack Doe as a spouse of a United States citizen. But for Defendant's unlawful policy and practice, Plaintiffs Loder and Jack Doe would obtain a marriage license from Montgomery County and get married. 49. Plaintiffs Jane Doe and James Doe have lived together for ten years in a committed relationship. James Doe works construction and Jane Doe has worked in the
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restaurant industry. Together, they are raising their two young children. But for Defendant's unlawful policy and practice, Plaintiffs Jane Doe and James Doe would obtain a marriage license from Montgomery County and get married.
50. The Named Plaintiffs want to express their love for and commitment to their desired spouse by getting married and obtaining official sanction for their family from the State. The Named Plaintiffs are also anxious to marry to solemnize their relationship and to obtain the economic, emotional, and psychological benefits for their family that inure from marriage.
51. Any attempt by the Named Plaintiffs to obtain a marriage license in Montgomery County, and in the vast majority of counties in Alabama, would be futile.
52. Defendant's policy and practice requiring that Jack Doe, Jane Doe, and James Doe provide proof of their legal presence and provide a Social Security card, a requirement that they cannot possibly meet because they are undocumented, denies the Named Plaintiffs their fundamental right to marry in violation of the Due Process Clause and their right to Equal Protection under the United States Constitution.
FIRST CAUSE OF ACTION Fourteenth Amendment Substantive Due Process Clause;
42 U.S.C. 1983 (Plaintiffs, and those similarly situated, against Defendant, and those similarly situated)
53. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as though set forth at length herein.
54. By requiring Plaintiffs Jack, Jane, and James Doe and other members of the class who are not United States citizens to present proof of their legal presence in the United States and/or a Social Security card, Defendant McKinney, Jr. and defendant class members
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substantially and directly interferes with Plaintiffs' and other class members' fundamental right to marry.
55. The policies of Defendant McKinney, Jr. and defendant class members absolutely prevent non-U.S. citizens, such as Jack Doe, Jane Doe, James Doe, and other plaintiff class members who are undocumented, from getting married.
56. Defendant McKinney, Jr.'s policy and defendant class members' similar policies absolutely prevent persons such as Charelle Loder and other plaintiff class members, from manying non-U.S. citizens who are undocumented.
57. Defendant McKinney, Jr.'s policy, and defendant class members' similar policies, is not narrowly tailored to achieve a compelling government interest, and cairnot meet any level of scrutiny.
58. The policy adopted by Defendant McKinney, Jr., and similar policies adopted by the defendant class members, violates Plaintiffs' and class members' constitutional right to due process under the Fourteenth Amendments to the United States Constitution.
59. Plaintiffs move for relief on this claim under 42 U.S.C. § 1983 as an action seeking to redress the deprivation of statutory rights under the color of law.
60. Plaintiffs, and the class they seek to represent, are entitled to declaratory relief, pursuant to 28 U.S.C. § 2201 and 2202, and injunctive relief against Defendant McKinney, Jr., and the defendant class members.
SECOND CAUSE OF ACTION Fourteenth Amendment Equal Protection Clause;
42 U.S.C. 1983 (Plaintiffs, and those similarly situated, against Defendant, and those similarly situated)
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61. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as though set forth at length herein.
62. The policies adopted, implemented, and enforced by Defendant McKinney, Jr. and defendant class members require a non-U.S. citizen who applies for a marriage license to produce proof of his/her legal presence in the United States andlor Social Security card as a condition of obtaining a marriage license.
63. These policies deny undocumented persons like Jack Doe, Jane Doe, and James Doe and other plaintiff class members, of the equal protection of laws in that it deprives them of the fundamental right to marry solely because of their alienage.
64. Defendant's policy, and the similar policies of the defendant class members, denies persons like Charelle Loder, and other plaintiff class members, their right to equal protection of laws in that it deprives them of the fundamental right to marry solely because of the alienage of their intended spouse.
65. The policy adopted by Defendant McKinney, Jr., and the similar policies of the defendant class members, is not narrowly tailored to achieve a compelling state-government interest, and cannot meet any level of scrutiny.
66. The policy adopted by Defendant McKinney, Jr., and the similar policies of the defendant class members, violates Plaintiffs' and plaintiff class members' constitutional right to equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution.
67. Plaintiffs move for relief on this claim directly under the Constitution and pursuant to 42 U.S.C. § 1983 as an action seeking to redress the deprivation of statutory rights under the color of state law.
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68. Plaintiffs, and the class they seek to represent, are entitled to declaratory relief, pursuant to 28 U.S.C. § 2201 and 2202, and injunctive relief against Defendant McKinney, Jr., and the defendant class members.
PRAYER FOR RELIEF WHEREFORE, in light of the foregoing, Plaintiffs respectfully request that the Court: (a) Assume jurisdiction over this matter; (b) Certify this case as a bilateral class action pursuant to Fed. R. Civ. P. 23;
including certifying a Rule 23(b)(2) plaintiff class consisting of all persons in Alabama who desire to obtain a marriage license, where the person or the person's intended spouse is undocumented; and a Rule 23(b)(2) defendant class, to be represented by Defendant McKinney, Jr., and consisting of all probate judges in Alabama whose policy or practice has the purpose or effect of categorically denying a marriage license to a couple where one or both of its members is undocumented; (c) Declare, pursuant to 28 U.S.C. § 2201 and 2202 and 42 U.S.C. § 1983, that Defendant's policy, and the policies of the defendant class members, requiring non-U.S. citizens to provide proof of their legal presence in the United States and/or to provide a Social Security card in order to obtain a marriage license is void and unenforceable because it violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment; (d) Enjoin Defendant, and the defendant class members, from enforcing any regulation, policy, or practice that hinders the ability of individuals to enter into
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marriage solely because one or both of the persons who desire to marry lacks legal presence in the United States; (e) Grant Plaintiffs' costs of suit, and reasonable attorneys' fees and expenses pursuant to 42 U.S.C. § 1988; and (f) Grant such other relief as the Court deems just and proper.

Dated: November 17, 2011

Respectfully submitted,

Mary Bauer
On behalf ofAttorneys for Plaint ffs
Mary Bauer (ASB-1 181-R76B) Samuel Brooke (ASB-1 172-L6OB) SOUTHERN POVERTY LAW CENTER 400 Washington Ave. Montgomery, Alabama 36104 T: (334)956-8200 F: (334)956-8481 mary.bauersplcenter.org samuel.brookesplcenter.org
Daniel Werner* (GSB-422070) James Knoepp* (GSB-366241) SOUTHERN POVERTY LAW CENTER 233 Peachtree St., NE, Suite 2150 Atlanta, Georgia 30303 T: (404) 521-6700 F: (404)221-5857 daniel. wernersplcenter.org jim.knoepp@splcenter.org
* Motion for admission pro hac vice forthcoming
Freddy Rubio (ASB-5403-D62R) Rubio Law Firm, P.C. 438 Carr Avenue, Suite I Birmingham, AL 35209
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Case 2:11-cv-00979-WKW-WC Document 1 Filed 11/17/11 Page 18 of 18 T: (205) 443-7858 F: (205) 443-7853 frubio@rubio/Irrn. corn ATTORNEYS FOR PLAINTIFFS
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 Case 2:11-cv-00979-WKW-WC Document 36 Filed 09/25/12 Page 1 of 2

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

CHARELLE LODER, et al., Plaintiffs,
v. REESE MCKINNEY, JR.,
Defendant.

) ) ) ) ) CASE NO. 2:11-CV-979-WKW ) ) ) )

ORDER

For the reasons stated on the record during the status conference held on

September 25, 2012, it is ORDERED that:

1. Plaintiffs’ Motion for Class Certification (Doc. # 16) is DENIED with

leave to file new, separate m otions for certification of a plaintiff class

and a defendant classon or before October 25, 2012. Plaintiffs are not

required to provide additional briefing on the topic of class certification;

they may refer to the arguments set out in the original brief (Doc. # 16).

2. The parties shall confer to discussthe implications of Defendant’s Notice

(Doc. # 34) on or before October 5, 2012.

3. Plaintiffs shall file a response to Defendants’ Notice (Doc. # 34) on or

before October 9, 2012.

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DONE this 25th day of September, 2012. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

 
 Case 2:11-cv-00979-WKW-WC Document 51 Filed 12/07/12 Page 1 of 19

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

CHARELLE LODER; JACK DOE; JULIE DOE; and JONATHAN DOE, on behalf of themselves and all others similarly situated,

Plaintiffs, v.

Case No. 2:11-cv-979-WKW

REESE MCKINNEY, JR., Probate Judge of Montgomery County, and GLORIA SINCLAIR, Probate Judge of Tallapoosa County, in their official capacities and on behalf of themselves and all other Alabama probate judges similarly situated,

FIRST AMENDED COMPLAINT
CLASS ACTION

Defendants.

PRELIMINARY STATEMENT 1. This is a class action brought by two couples: Charelle Loder, a United States citizen, and her fiancé Jack Doe, a Haitian citizen, and Julie Doe, a Mexican citizen, and her fiancé Jonathan Doe, a Mexican citizen, on behalf of themselves and a class of all individuals who are unable to obtain a marriage license in Alabama because they or their intended spouses lack proof of lawful immigration status, including lacking a social security number. 2. Plaintiffs Loder and Jack Doe have been in a committed relationship for over five years and have lived together the past five years. They wish to get a marriage license in Montgomery County, and to marry. Plaintiff Jack Doe provides companionship and financial support to his fiancée, a United States citizen, and his family, including the young daughter that he and his fiancée care for. It is important to their religious faiths that the couple marry.

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3. Plaintiffs Julie Doe and Jonathan Doe have known each other since childhood and have been in a committed relationship for over 15 years. They have two children, a thirteenyear-old son and a ten-year-old son. They wish to get a license to marry, and to get married, in Tallapoosa County. It is important to their religious faiths that the couple marry.
4. Both couples desire to express their love for and commitment to one another by getting married and obtaining the economic, emotional, and psychological benefits of marriage, including the satisfaction that would come from obeying their religions’ tenets concerning marriage.
5. The right to marry is a fundamental right guaranteed under the United States Constitution to all persons regardless of immigration status. The Plaintiffs in this case, along with the other class members they seek to represent, cannot exercise their fundamental right to marry solely because they, or their desired spouse, lack proof of lawful immigration status, including lacking a social security number.
6. At the time of filing Plaintiffs’ original complaint in November, 2011, Defendant McKinney, Jr., acting as the Probate Judge of Montgomery County, had adopted, implemented, and enforced a policy and practice that categorically denied a marriage license to any couple where one or both of its members lack proof of lawful immigration status, including lacking a social security number. Defendant McKinney, Jr.’s policy and practice acted to bar all persons who lack proof of lawful immigration status, including Plaintiffs Jack Doe, from obtaining a marriage license in Montgomery County. Moreover, Defendant’s policy acted to bar Plaintiff Loder, a United States citizen, and all similarly situated persons, from marrying the person she loves, because her fiancé lacks proof of lawful immigration status.
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7. Defendant McKinney now maintains that he has changed his policy. However, since the policy was purportedly changed, his office staff has continued to represent to the public that proof of lawful immigration status is a requirement to obtain a marriage license.
8. Defendant Gloria Sinclair, acting as the Probate Judge of Tallapoosa County, has adopted and implements and enforces a policy and practice that categorically denies a marriage license to any couple where one or both of its members lack proof of lawful immigration status. Defendant Sinclair’s policy and practice acts to bar all persons who lack proof of lawful immigration status, including Plaintiffs Julie Doe and Jonathan Doe, from obtaining a marriage license in Tallapoosa County. Moreover, Defendant Sinclair’s policy acts to bar United States citizens and all similarly situated persons from marrying the person they love where their fiancé lacks proof of lawful immigration status.
9. Defendants’ policies are not required by any federal or state law. Indeed, the recent immigration law adopted by the State Legislature, Act 2011-535 (commonly known by its house bill number, “H.B. 56”), which was subsequently amended by the Legislature through Act 2012-491 (commonly known as (H.B. “658”), specifically exempts marriage licenses from a list of activities which require proof of lawful immigration status.
10. Defendants’ policies also conflict with opinions issued by Alabama’s Attorney General.
11. Defendants’ policies are indicative of the policies and practices of forty other probate judges in Alabama that purposefully or effectively prohibit persons who lack proof of lawful immigration status or persons whose intended spouse lacks proof of immigration status from obtaining a marriage license. Defendants’ policies, and similar policies of the class of probate judges which they are sought to represent, directly interferes with Plaintiffs’ fundamental
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right to marry and right to equal protection under the law, as guaranteed under the United States Constitution.
12. Plaintiffs seek declaratory and injunctive relief, and costs and attorneys’ fees and expenses as provided under 42 U.S.C. § 1988.
PARTIES Named Plaintiffs / Plaintiff Class Representatives 13. Plaintiff Charelle Loder (“Ms. Loder”) is a citizen of the United States and is currently a resident of Alabama. Ms. Loder is 27 years old, not currently married, and wholly unrelated to her fiancé, Jack Doe, by blood. Ms. Loder has an original Social Security card, an Alabama birth certificate, and an Alabama Non-Driver Identification card. She meets all the lawful requirements under Alabama law to be issued a marriage license, but she may not obtain a marriage license because her intended spouse, Plaintiff Jack Doe, lacks proof of lawful immigration status. 14. Plaintiff Jack Doe is a Haitian national who currently lives in Alabama. He is 29 years old, not currently married, and wholly unrelated to his fiancée, Charelle Loder, by blood. Jack Doe and Charelle Loder have lived together since 2006. Jack Doe does not have a Social Security number, nor identification issued by the State of Alabama, and cannot show proof of his lawful immigration status. He has several other forms of identification, including a Haitian birth certificate and other identification issued by the Haitian government. Plaintiff Jack Doe meets all the lawful requirements under Alabama law to be issued a marriage license. However, he is ineligible to receive a marriage license in Montgomery County because he does not have proof of his lawful immigration status.
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15. Plaintiff Julie Doe is a Mexican national who currently lives in Alabama. She is 32 years old, not currently married, and wholly unrelated to her fiancé, Jonathan Doe, by blood. Julie Doe has lived in Alabama with her fiancé, Jonathan Doe, since 1997. Julie Doe does not have a Social Security number, nor identification issued by the State of Alabama, and cannot show proof of her lawful immigration status. She does have several other forms of identification, including a Mexican passport, Mexican birth certificate, and a Mexican Consulate Identification Card. Plaintiff Julie Doe meets all the lawful requirements under Alabama law to be issued a marriage license. However, she is ineligible to receive a marriage license in Tallapoosa County because she does not have proof of her lawful immigration status.
16. Plaintiff Jonathan Doe is a Mexican national who currently lives in Alabama. He is 33 years old, not currently married, and wholly unrelated to his fiancée, Julie Doe, by blood. Jonathan Doe does not have a Social Security number, nor identification issued by the State of Alabama, and cannot show proof of his lawful immigration status. He does have other forms of identification, including a Mexican birth certificate, and a Mexican passport and Consulate Identification Card, which are currently expired, but which he intends to renew this month. Plaintiff Jonathan Doe meets all the lawful requirements under Alabama law to be issued a marriage license. However, he is ineligible to receive a marriage license in Tallapoosa County because he does not have a proof of his legal presence in the United States and does not have a Social Security card due to his immigration status.
17. Plaintiffs Charelle Loder, Jack Doe, Julie Doe, and Jonathon Doe sue on their own behalves and on behalf of those similarly situated.
Named Defendants / Defendant Class Representatives
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18. Defendant Reese McKinney, Jr., is the Probate Judge of Montgomery County. In that position, he is responsible for, among other things, the issuance of marriage licenses. Ala. Code §§ 30-1-9, 22-9A-17(b). He maintains an office in Montgomery County, Alabama.
19. Defendant Gloria Sinclair is the Probate Judge of Tallapoosa County. In that position, she is responsible for, among other things, the issuance of marriage licenses. Ala. Code §§ 30-1-9, 22-9A-17(b). She maintains an office in Tallapoosa County, Alabama.
20. Defendants McKinney and Sinclair are sued in their official capacities, and as representatives of a class of all probate judges in Alabama with a policy or practice that has the effect of categorically denying marriage licenses to a couple, where one or both of the individuals lack proof of lawful immigration status, including possessing a Social Security card.
21. Prior to initiating this action, a representative for Plaintiffs called probate offices in Alabama to inquire whether a person who does not have a Social Security card or does not have proof of lawful immigration status could obtain a marriage license. Forty-one county probate offices stated that it would be impossible for such a person to obtain a marriage license, either because the office required presentation of a Social Security card, or because the office required other proof of lawful immigration status. One other probate office—the Houston County Probate Office—refused to answer these questions over the telephone. However, the Houston County Probate Office’s website states that both proof of lawful immigration status and a Social Security number are required to obtain a marriage license.
22. The forty-two counties are: (1) Autauga County, (2) Baldwin County, (3) Bibb County, (4) Blount County, (5) Bullock County, (6) Calhoun County, (7) Chambers County, (8) Cherokee County, (9) Choctaw County, (10) Clarke County, (11) Colbert County, (12) Conecuh County, (13) Cullman County, (14) Dale County, (15) DeKalb County, (16) Escambia County,
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(17) Fayette County, (18) Franklin County, (19) Geneva County, (20) Greene County, (21) Hale County, (22) Henry County, (23) Houston County, (24) Lamar County, (25) Lauderdale County, (26) Lawrence County, (27) Lee County, (28) Limestone County, (29) Lowndes County, (30) Macon County, (31) Madison County, (32) Marion County, (33) Marshall County, (34) Montgomery County, (35) Morgan County, (36) Pike County, (37) Randolph County, (38) Russell County, (39) Shelby County, (40) Talladega County, (41) Tallapoosa County, and (42) Washington County.
JURISDICTION AND VENUE 23. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the U.S. Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343 because this action seeks to redress the deprivation, under color of state law, of Plaintiffs’ civil rights and to secure equitable or other relief for the violation of those rights. 24. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 25. This Court has personal jurisdiction over the Defendants, who are located in the Middle District of Alabama. 26. Venue is proper in the Middle District of Alabama, Northern Division, pursuant to 28 U.S.C. § 1391(b). Defendant McKinney, Jr., resides within the Middle District and Northern Division, and “a substantial part of the events or omissions giving rise to the claim[s] occurred” within this District and Division, including the enforcement of the unlawful policy and practice that are the subject of this lawsuit. Defendant Sinclair also resides within this District.
CLASS ACTION ALLEGATIONS
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Plaintiff Class Allegations 27. Plaintiffs Charelle Loder, Jack Doe, Julie Doe, and Jonathan Doe (collectively “Named Plaintiffs”) bring this suit on their own behalf and on behalf of all persons in Alabama that desire to obtain a marriage license, where the person or the person’s intended spouse lacks proof of lawful immigration status, including but not limited to lacking a Social Security number. 28. Numerosity: The proposed class involves more than 40 individuals. The class is also geographically dispersed throughout the state, and involves individuals who would be difficult to identify and who may have a limited ability to exercise their legal rights on their own, such that joinder of all members of this class is impracticable. The class also includes future members whose names are not known. 29. Commonality: There are questions of law and fact common to all plaintiff class members, including whether a policy or practice that has the purpose or effect of categorically denying marriage licenses to couples where one or both of its members lacks proof of lawful immigration status violates the plaintiff class members’ fundamental right to marry as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and violates the plaintiff class members’ rights to Equal Protection as guaranteed by the Fourteenth Amendment to the United States Constitution. 30. Typicality: The claims asserted by the Named Plaintiffs are typical of the claims of all members of the proposed plaintiff class because the policies and practices challenged in this action apply with the same force to the Named Plaintiffs as they do to all other members of the class. The entire plaintiff class will benefit from the relief sought. 31. Adequacy of Representation: The Named Plaintiffs will fairly and adequately protect the interests of the class. Both couples serving as class representatives possess a strong
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personal interest in the subject matter of this lawsuit and the claims raised. They are represented by experienced counsel with expertise in class action litigation and litigation involving the constitutional rights of immigrants. Counsel has the legal knowledge and resources to fairly and adequately represent the interests of all class members in this action.
32. This case may be maintained as a class action under Rule 23(b)(2) because in enforcing policies that have the effect or purpose of categorically denying marriage licenses to couples where one or both of the parties lacks proof of lawful immigration status, the Defendants have acted and refused to act on grounds generally applicable to the class. Accordingly, final injunctive and declaratory relief is appropriate to the class as a whole.
Defendant Class Allegations 33. Plaintiffs also bring this action as a defendant class action under Fed. R. Civ. P. 23(b)(2). Plaintiffs seek to certify a defendant class represented by Defendant McKinney, Jr., and Defendant Gloria Sinclair in their official capacities as Probate Judges of Montgomery and Tallapoosa Counties, respectively. The proposed defendant class consists of all Alabama probate judges whose policy or practices have the purpose or effect of categorically denying marriage licenses to couples where one or both of them lack proof of lawful immigration status, including but not limited to lacking a Social Security number. 34. Numerosity: The proposed class involves more than 40 individuals. The class is also geographically dispersed throughout the state. 35. Commonality: This suit poses questions of law and fact that are common to the proposed defendant class representatives, Defendant McKinney, Jr., and Defendant Gloria Sinclair, and the proposed class members that they would represent. These include whether a policy or practice that has the purpose or effect of categorically denying marriage licenses to
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couples where one or both of its members lack proof of lawful immigration status violates the plaintiff class members’ fundamental right to marry as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and whether such a policy or practice violates the plaintiff class members’ rights to Equal Protection as guaranteed by the Fourteenth Amendment to the United States Constitution.
36. Typicality: The defenses of Defendant McKinney, Jr., and Defendant Sinclair will be typical of the defenses of the proposed defendant class. Defendant McKinney, Jr., Defendant Sinclair, and all of the other members of the proposed class operate under the same state statutory framework. As probate judges in Alabama, Defendant McKinney, Jr., and Defendant Sinclair are responsible for the issuance of marriage licenses. Ala. Code §§ 30-1-9, 22-9A-17(b). In this action challenging whether a policy or practice that has the purpose or effect of categorically denying marriage licenses to couples where one or both of its members lacks proof of lawful immigration status, including lacking a social security number, the defenses asserted by Defendant McKinney, Jr., and Defendant Sinclair will be based on legal and factual theories that are applicable to the entire proposed defendant class.
37. Adequacy of Representation: Defendant McKinney, Jr., and Defendant Sinclair will fairly and adequately protect the interests of the proposed defendant class. Their position as the Probate Judges of Montgomery County and Tallapoosa County places them in the same position with respect to this challenge as all of the other probate judges in the proposed defendant class. Because the policy and practice of Defendant McKinney, Jr., and Defendant Sinclair with respect to the issuance of marriage licenses to persons who lack proof of lawful immigration status are substantially the same as the other defendant class members, Defendant McKinney, Jr., and Defendant Sinclair will be able to adequately represent the proposed class.
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38. On information and belief, Defendant McKinney, Jr., and Defendant Sinclair have no interests antagonistic to or in conflict with the interests of other members of the proposed class, and as Probate Judges of Montgomery and Tallapoosa Counties, they are each qualified and competent to represent the proposed defendant class.
FACTS Issuance of Marriage Licenses in Alabama 39. In Alabama, no person may marry without a license. Ala. Code § 30-1-9. 40. The requirements for marriage licenses are set forth in chapter 1 of title 30 in the Alabama Code. The only restrictions set forth in this chapter are for persons under the age of 16, Ala. Code § 30-1-4, and for persons under the age of 18 whose parents or guardians do not consent. Ala. Code § 30-1-5. 41. Alabama Code § 22-9A-17 requires the probate judge to prepare and forward a completed marriage license form to the Bureau of Vital Statistics. The probate judge shall complete it “upon the basis of information obtained from the parties to be married.” Ala. Code § 22-9A-17(b). There is no requirement that identification be submitted or that the information on the form be verified. 42. A probate judge’s issuance of a marriage license is a ministerial, not judicial, act. 43. Alabama law does not condition issuance of a marriage license upon proof of lawful immigration status. Neither the Code of Alabama nor the Alabama Constitution requires marriage license applicants to provide proof of lawful immigration status in the United States to secure a marriage license, and the Code of Alabama specifically exempts applying for a marriage license from a list of activities which do require proof of lawful immigration status. Ala. Code § 31-13-29.
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44. The Alabama Attorney General has stated that “a marriage license can be issued to an applicant who is not a United States citizen.” Ala. Att’y Gen. Op. No. 2004-176, 2004 WL 1639475, at *2, 2004 Ala. AG LEXIS 125 (July 13, 2004).
45. Alabama Code § 30-3-194(d) states that “the Social Security number of both parties to the marriage shall be collected by those parties issuing a marriage license and shall appear on the license and certificate sent to the Office of Vital Statistics.”
46. To receive a social security card, an applicant must establish that he or she is a U.S. Citizen, or possesses a lawful immigration status. However, only a subset of those who have a lawful immigration status may obtain a social security card.
47. In 2008, the Alabama Attorney General issued an opinion stating that a “social security number is not a required element for a person to receive a marriage license.” Ala. Att’y Gen. Op. No. 2008-100, 2008 WL 2662000, at *4, 2008 Ala. AG LEXIS 70 (June 25, 2008). The Attorney General’s Office instructed probate offices to allow persons without a Social Security number to submit an affidavit to the probate office attesting to the fact that he or she was never issued a Social Security number. Id.
Obtaining a Marriage License in Montgomery County 48. To obtain a marriage license from the Montgomery County Probate Office, an applicant must show proof of lawful immigration status. 49. Plaintiff Charelle Loder is a U.S. citizen, and her fiancé Jack Doe is a non-citizen. Plaintiffs Charelle Loder and Jack Doe cannot satisfy Defendant McKinney Jr.’s requirements to obtain a marriage license in Montgomery County because they do not have proof of Jack’s lawful immigration status.
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50. Without a validly issued marriage license, Plaintiffs Charelle Loder and Jack Doe cannot marry.
Obtaining a Marriage License in Tallapoosa County 51. To obtain a marriage license from the Tallapoosa County Probate Office, an applicant must show proof of lawful immigration status. 52. Plaintiffs Julie Doe and Jonathan Doe are non-citizens of the United States and cannot satisfy Defendant Sinclair’s requirements to obtain a marriage license in Tallapoosa County because they do not have proof of their lawful immigration status. 53. Without a validly issued marriage license, Plaintiffs Julie Doe and Jonathon Doe cannot marry.
Plaintiffs’ Intent to Marry 54. Plaintiffs Loder and Jack Doe have lived together for over five years in a committed relationship. They are raising Loder’s daughter together, and would like to marry to solidify their relationship, and to allow Jack Doe to be officially recognized as his daughter. Plaintiffs are also anxious to marry to solemnize their relationship and to obtain the economic, emotional, and psychological benefits for their family that inure from marriage. 55. Although Plaintiffs Loder and Jack Doe understand that their marriage will not entitle Jack Doe to immediate legal status in the United States, Defendant’s unlawful policy— and similar policies by probate judges state-wide—effectively acts to bar Plaintiffs Loder and Jack Doe from petitioning for legal status for Jack Doe as a spouse of a United States citizen. 56. But for Defendant McKinney Jr.’s unlawful policy and practice, Plaintiffs Charelle Loder and Jack Doe would obtain a marriage license from Montgomery County and get married.
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57. It would be futile for Plaintiffs Charelle Loder and Jack Doe to request a marriage license in Montgomery County, and in the vast majority of counties in Alabama, in person.
58. Plaintiffs Julie Doe and Jonathan Doe have lived together for over fifteen years in a committed relationship. Together, they are raising their two children. Plaintiffs Julie Doe and Jonathan Doe want to express their love for and commitment to their desired spouse by getting married and obtaining official sanction for their family from the State. Plaintiffs are also anxious to marry to solemnize their relationship and to obtain the economic, emotional, and psychological benefits for their family that inure from marriage.
59. But for Defendant Sinclair’s unlawful policy and practice, Plaintiffs Julie Doe and Jonathan Doe would obtain a marriage license from Tallapoosa County and get married.
60. Plaintiffs Julie Doe and Jonathon Doe contacted the Tallapoosa County Probate Office through a representative by telephone, and were told that they could not obtain a marriage license without proof of lawful immigration status.
61. It would be futile for Plaintiffs Julie Doe and Jonathon Doe to request a marriage license in Tallapoosa County, and in the vast majority of counties in Alabama, in person.
62. Defendants’ policies and practice requiring that Jack Doe, Julie Doe and Jonathan Doe provide proof of their lawful immigration status denies the Named Plaintiffs their fundamental right to marry in violation of the Due Process Clause and their right to Equal Protection under the United States Constitution.
FIRST CAUSE OF ACTION Fourteenth Amendment Substantive Due Process Clause;
42 U.S.C. § 1983 (Plaintiffs, and those similarly situated, against Defendants, and those similarly situated)
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63. Plaintiffs incorporate by reference the allegations of paragraphs 1-62 as though set forth at length herein.
64. By requiring Plaintiffs Jack Doe, Julie Doe, Jonathan Doe, and other plaintiff class members to present proof of their lawful immigration status, Defendants McKinney, Jr., Defendant Sinclair, and defendant class members, substantially and directly interfere with Named Plaintiffs’ and other plaintiff class members’ fundamental right to marry.
65. The policies and practice of Defendant McKinney, Jr., Defendant Sinclair, and defendant class members absolutely prevent Named Plaintiffs and plaintiff class members from getting married.
66. The policies and practice of Defendant McKinney, Jr., Defendant Sinclair, and defendant class members is not narrowly tailored to achieve a compelling government interest, and cannot meet any level of scrutiny.
67. The policies and practice adopted by Defendant McKinney, Jr., Defendant Sinclair, and the defendant class members violates Named Plaintiffs’ and plaintiff class members’ constitutional right to due process under the Fourteenth Amendments to the United States Constitution.
68. Plaintiffs move for relief on this claim under 42 U.S.C. § 1983 as an action seeking to redress the deprivation of statutory and Constitutional rights under the color of law.
69. Plaintiffs, and the class they seek to represent, are entitled to declaratory relief, pursuant to 28 U.S.C. §§ 2201 and 2202, and injunctive relief against Defendant McKinney, Jr., Defendant Sinclair, and the defendant class members.
SECOND CAUSE OF ACTION Fourteenth Amendment Equal Protection Clause;
42 U.S.C. § 1983
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(Plaintiffs, and those similarly situated, against Defendants, and those similarly situated) 70. Plaintiffs incorporate by reference the allegations of paragraphs 1-62 as though
set forth at length herein. 71. The policies and practice adopted, implemented, and enforced by Defendant
McKinney, Jr., Defendant Sinclair, and defendant class members require a non-U.S. citizen who applies for a marriage license to produce proof of his/her lawful immigration status as a condition of obtaining a marriage license.
72. These policies and practices of Defendant McKinney, Defendant Sinclair, and other defendant class members deny Named Plaintiffs and other plaintiff class members who lack proof of their lawful immigration status, or whose intended spouses lack proof of their lawful immigration status, of the equal protection of laws in that it deprives them of the fundamental right to marry solely because of their or their intended spouse’s proof of immigration status.
73. The policies and practices adopted by Defendant McKinney, Jr., Defendant Sinclair, and the similar policies and practices of the defendant class members are not narrowly tailored to achieve a compelling state-government interest, and cannot meet any level of scrutiny.
74. The policies and practices adopted by Defendant McKinney, Jr., Defendant Sinclair, and the similar policies of the defendant class members violates Named Plaintiffs’ and plaintiff class members’ constitutional right to equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution.
75. Plaintiffs move for relief on this claim under 42 U.S.C. § 1983 as an action seeking to redress the deprivation of statutory and Constitutional rights under the color of law.
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76. Plaintiffs, and the class they seek to represent, are entitled to declaratory relief, pursuant to 28 U.S.C. §§ 2201 and 2202, and injunctive relief against Defendant McKinney, Jr., Defendant Sinclair, and the defendant class members.
PRAYER FOR RELIEF WHEREFORE, in light of the foregoing, Plaintiffs respectfully request that the Court: (a) Assume jurisdiction over this matter; (b) Certify this case as a bilateral class action pursuant to Fed. R. Civ. P. 23; including certifying a Rule 23(b)(2) plaintiff class consisting of all persons in Alabama who desire to obtain a marriage license, where the person or the person’s intended spouse lacks proof of lawful immigration status, including but not limited to lacking a Social Security number; and a Rule 23(b)(2) defendant class, to be represented by Defendant McKinney, Jr., and Defendant Sinclair, and consisting of all probate judges in Alabama whose policy or practice has the purpose or effect of categorically denying marriage licenses to couples where one or both of them lacks proof of lawful immigration status, including but not limited to lacking a Social Security number. (c) Declare, pursuant to 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. § 1983, that Defendants’ policies and practices, and the policies and practices of the defendant class members, requiring non-U.S. citizens to provide proof of their lawful immigration status in order to obtain a marriage license, is void and unenforceable because it violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment; (d) Enjoin Defendants, and the defendant class members, from enforcing any regulation, policy, or practice that hinders the ability of individuals to enter into marriage solely because one or both of the persons who desire to marry lacks proof of lawful immigration status;
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(e) Grant Plaintiffs’ costs of suit, and reasonable attorneys’ fees and expenses pursuant to 42 U.S.C. § 1988; and
(f) Grant such other relief as the Court deems just and proper.

Dated: December 7, 2012

Respectfully submitted,

/s/ Samuel Brooke On behalf of Attorneys for Plaintiffs
Mary Bauer (ASB-1181-R76B) Samuel Brooke (ASB-1172-L60B) SOUTHERN POVERTY LAW CENTER 400 Washington Ave. Montgomery, Alabama 36104 T: (334) 956-8200 F: (334) 956-8481 mary.bauer@splcenter.org samuel.brooke@splcenter.org
Daniel Werner* (GSB-422070) James Knoepp* (GSB-366241) SOUTHERN POVERTY LAW CENTER 233 Peachtree St., NE, Suite 2150 Atlanta, Georgia 30303 T: (404) 521-6700 F: (404) 221-5857 daniel.werner@splcenter.org jim.knoepp@splcenter.org
Freddy Rubio (ASB-5403-D62R) Rubio Law Firm, P.C. 438 Carr Avenue, Suite 1 Birmingham, AL 35209 T: (205) 443-7858 F: (205) 443-7853 frubio@rubiofirm.com
* Admitted pro hac vice
ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I hereby certify that on December 7, 2012, I electronically filed the foregoing with the Clerk
of Court using the CM/ECF system, which will automatically send e-mail notification to the
following attorneys for Defendant McKinney, Jr.:
H. Lewis Gillis Tyrone C. Means THOMAS, MEANS, GILLIS & SEAY, P.C. 3121 Zelda Court Montgomery, Alabama 36103-5058 Telephone: (334) 270-1033 Facsimile: (334) 260-9396 hlgillis@tmgslaw.com tcmeans@tmgslaw.com
Frederic A. Bolling THOMAS, MEANS, GILLIS & SEAY, P.C. 505 20th Street N., Suite 400 Birmingham, Alabama 35203 Telephone: (205) 328-7915 Facsimile: (205) 214-6160 fabolling@tmgslaw.com
Mark Englehart ENGLEHART LAW OFFICES 9457 Alysbury Place Montgomery, Alabama 36117 Telephone: (334) 782-5258 Facsimile: (334) 270-8390 jmenglehart@gmail.com
I further certify that the foregoing, and accompanying attachments, will be served on Defendant Sinclair after filing, through a summons.
/s/ Samuel Brooke
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 Case 2:11-cv-00979-WKW-WC Document 77 Filed 06/11/13 Page 1 of 5

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

CHARELLE LODER, et al., Plaintiffs,
v. STEVEN L. REED, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:11-CV-979-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

Plaintiffs Charelle Loder and Jack Doe hope to marry.

They filed this lawsuit to challenge analleged policy andpractice of Defendant

Steven Reed, the probate judge of Montgomery County, regarding marriage licenses.

According to the amended complaint, Judge Reed will not issue a marriage license to

a couple unless both of themcan provide proof of lawful immigration status. Because

Mr. Doe cannot meet that requirement, he and Ms. Loder believe they cannot wed.

(That belief is unsupported, however, by a failed attempt to obtain a license from

Judge Reed.)

Judge Reed moves to dismiss, and his motion is due to be granted.

I. JURISDICTION AND VENUE

Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343,

and 2201–02. Personal jurisdiction and venue are uncontested.

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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 C ir. 2007); Fed. R. Civ. P. 12(b)(1). In a facial attack, the court examines whether the co mplaint “sufficiently allege[s] a basis of subject matter jurisdiction.” Id. As when considering a Rule 12(b)(6) m otion to dismiss for failure to state aclaim, on a Rule 12(b)(1) facialattack 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. FACTUAL BACKGROUND Plaintiffs Charelle Loder and her fiancéJack Doe want to get married. But they do not think Defendant Steven L. Reed, the probate judge of Montgomery County, will allow it. According to the complaint, Judge Reed’s office has a policy of denying marriage licenses to couples when one or both would-be spouses lack proof of legal presence in the United States. That m eans Mr. Doe, a Haitian national who lacks proof of legal presence in this country,cannot get a marriage license in Montgomery County. But Judge Reed says he is willing to issue a marriage license to Ms. Loder and Mr. Doe – all they have to do is submit a proper application. Judge Reed denies that
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his office requires proof of immigration status before it issues marriage licenses, and he says Ms. Loder and Mr. Doe would know that if they had applied for one.
Judge Reed moves to dismiss the claims against him for lack of standing. IV. DISCUSSION
Although the parties disagree on quite a few points of law and fact, the court will only address one: Judge Reed says Ms. Loder and Mr. Doe lack standing to sue him for refusing to issue them a marriage license because they never applied for one in the first place.
And he is right. Federal courts are only empowered to decide “cases” and “controversies.” U.S. Const. art. III, § 2. At an irreducible constitutional minimum, that means a plaintiff cannot maintain a lawsuit in federal court unless she can show, among other things, that she has “suffered an injury in fact.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81 (2000) (quotations omitted). In the context of lawsuits challengnig official policies, that means a plaintiff must “submit to the challenged policy before pursuing anaction to dispute it.” Davis v. Tarrant Cnty., 565 F.3d 214, 220 (5th Cir. 2009); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166–71 (1972) (holding thata plaintiff who had never applied for membership lacked standing to challenge fraternal organization’s discriminatory membership policies). All this to say, M.sLoder and Mr. Doe must actually apply for
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a marriage license before they can sue Judge Reed for denyin g their application; otherwise, they have not suffered an injury in fact.
The amended complaint does not allege that Ms. Loder and Mr. Doe applied for a marriage license, and they admit they have not. They argue instead that they should not have to apply because application would be futile.
That argument has worked once before during this litigation. When Plaintiffs filed this lawsuit, Judge McKinney (JudgeReed’s predecessor, and the original named defendant) had an official policy of requiring non-citizens who wanted a m arriage license to “provide proof of legal presen ce in the United States.” (Doc. # 1 ¶ 44.) Under that policy, the court concluded that Ms. Loder and Mr. Doe had “adequately pleaded that applying for marriage licenses would have been a futile gesture and ha[d] sufficiently demonstrated that the failure toapply should be properly excused.” (Doc. # 32 at 12.)
That conclusion, however, was “[b]as ed on the plain reading of [Judge McKinney’s] policy.” (Doc. # 32 at 12.) That policy has since been repealed, and its language is nowhere to be found in the amended complaint. The basis of the court’s ruling on the first motion to dismiss has no bearing here, and the amended complaint (the one Judge Reed now moves to dismiss) is notably devoid of any facts that suggest
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application for a marriage license would be futile.1 If Ms. Loder and Mr. Doe apply for a marriage license and are denied one
because Mr. Doe lacks proof oflawful presence in the United States, they might have a federal cause of action. Until then, and asbent any factual allegations demonstrating the futility of such an application, they ha ve not suffered an injury in fact fairly attributable to Judge Reed.
V. CONCLUSION It is therefore ORDERED that Judge Reed’s motion to dismiss (Doc. # 59) is GRANTED and that the claims of Plain tiffs Charelle Loder and Jack Doe are DISMISSED for lack of standing. This order does not affect the claims Plaintiffs Julie and Jonathan Doe have against Defendant Leon Archer, the Probate Judge of Tallapoosa County. DONE this 11th day of June, 2013.
/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
1 The amended complaint does allege, without elaboration, that “[i]t would be futile for Plaintiffs Charelle Loder and Jack Doe to request a marriage license in Montgomery County.” (Doc. # 51 ¶ 57.) But that statement amounts to little more than a legal conclusion, one that finds no support in any of the amended complaint’s factual allegations.
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A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:11-cv-00979-WKW-WC Document 77-1 Filed 06/11/13 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case 2:11-cv-00979-WKW-WC Document 74 Filed 06/03/13 Page 1 of 9

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

CHARELLE LODER, et al., Plaintiffs, v.
STEVEN L. REED, et al., Defendants.

) ) ) ) ) CASE NO. 2:11-cv-979-WKW ) ) ) )

STIPULATED PROTECTIVE ORDER

Pursuant to the provisions of Federal Rule of Civil Procedure 26(c), the Court enters

this Protective Order upon joint motion of all plaintiffs and all defendants (collectively,

“Parties”), for the purpose of assuring the confidentiality of certain information disclosed by

the Parties.

It is ORDERED that the following procedures will govern the production and/or use

of such information in this action:

1. For the purpose of this Order, “Confidential Information” shall mean any document

produced, any oral or written statement made, and/or any oral or written answer given during

the course of discovery that contains, discloses, or reveals:

a. Social Security numbers, Individual Taxpayer Identification Numbers

(“ITINs”), drivers’ license numbers, Alien identification numbers (“A-numbers”), passport

and visa numbers, or other identifying codes or numbers assigned to persons by government

agencies;

Case 2:11-cv-00979-WKW-WC Document 74 Filed 06/03/13 Page 2 of 9
b. the immigration status, alienage, or national origin of any individual, with the exception of Charelle Loder, Jack Doe, Julie Doe, and Jonathan Doe;
c. contact information, including telephone numbers and addresses, of any individual; and
d. information regarding the identity of any Party or individual granted permission by the Court to proceed anonymously.
2. Nothing in this Order shall be construed as preventing any Party from proposing that other categories of information be included within the future coverage of this or any other protective order. Should a Party wish to add a category of information to that deemed “Confidential Information” by this Protective Order that Party shall first negotiate in good faith with the other Parties. If the Parties are unable to reach agreement on the proposed additions, or if a Party consulted has not responded to the proposing Party’s request within a reasonable amount of time dependent on the circumstances, but not to exceed ten (10) business days, the requesting Party shall have a right to seek an expanded or separate protective order from the Court relating to confidential information.
3. Any Party furnishing documents that contains or discloses Confidential Information, may designate such material as subject to this Protective Order by marking each page of the document as “Confidential.” In the event the producing Party elects to make documents available for inspection (as opposed to simply producing the documents), no marking need be made by the producing Party in advance of the initial inspection. After the
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inspecting Party has selected documents or things for copying or reproducing, the producing Party may designate as “Confidential” those documents that the producing Party believes to contain Confidential Information prior to producing copies of the selected documents.
4. Regarding depositions, if any Party believes that Confidential Information is disclosed, the transcript of the deposition will be marked as “Confidential.” Counsel for any Party also shall have fourteen (14) days following the mailing of any deposition transcript to designate the transcript as “Confidential.”
5. If any Party objects to the designation of any information, material or document as “Confidential,” the objecting Party may notify the designating Party in writing at any time, but no later than thirty (30) calendar days after production or designation, whichever is later, and the objecting Party must also notify all other parties of the objection. Within ten (10) business days after service of any such notice, and after consultation and a good-faith effort to resolve the disagreement with the other parties, the designating Party may apply to the Court for a ruling that the material objected to shall be treated as “Confidential.” Notice of such application shall be provided to all other parties. Until this Court enters an order determining the status of the Confidential Information being objected to, such material shall be treated as confidential and protected as provided in this Order, unless the Parties otherwise agree by written stipulation.
6. In the event that counsel for any Party determines to file with or submit to this Court—by way of pleadings, motions, briefs, or other papers or submissions—any document
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Case 2:11-cv-00979-WKW-WC Document 74 Filed 06/03/13 Page 4 of 9
containing Confidential Information, such counsel will redact the Confidential Information prior to filing. The counsel filing documents containing Confidential Information will notify opposing counsel that the document is being filed, as well as the manner in which it is being redacted. The counsel filing the document(s) will strive to inform opposing counsel of the intended redactions at least two (2) days prior to filing, and will always notify opposing counsel no later than the day of the filing. Whenever a document with redacted Confidential Information is filed with the Court, a copy of the unredacted document will also be filed under seal.
7. Material designated “Confidential” pursuant to this Order shall be used by a Party only for purposes related to this action and for no other purpose, and under other restrictions as explained elsewhere in this Order. Under no circumstances, other than those specifically provided for in this or a subsequent Order of this Court, shall any Party disclose it to persons or entities other than the following:
a. The United States District Court for the Middle District of Alabama, and any court of competent appellate jurisdiction, as well as Court personnel, including stenographic reporters regularly employed by the Court;
b. Counsel of record for a Party to this action; c. Parties and agents of Parties, provided counsel of record for that Party deems the disclosure reasonably necessary for the conduct of this litigation; d. Secretarial, clerical, paralegal personnel, or other attorneys employed
4

Case 2:11-cv-00979-WKW-WC Document 74 Filed 06/03/13 Page 5 of 9
fulltime or part-time by counsel of record for a Party, provided such counsel deems the disclosure reasonably necessary for the conduct of this litigation;
e. Any court reporter or other stenographic reporter who is called upon to record or transcribe deposition testimony or other testimony in this case;
f. Experts or consultants who have been retained by a Party for the purpose of assisting in the conduct of this action;
g. Fact witnesses during their deposition, or in preparation for their deposition, provided that counsel of record for a Party deems the disclosure reasonably necessary for the conduct of this litigation and that no disclosure is made to persons outside the authorization of this Order;
h. Other persons upon order of this Court or upon stipulation of the Party who designated the Confidential Information in question as “Confidential”; and
i. Any mediator who is engaged to assist the Parties in settlement negotiations on a confidential basis.
Before any materials subject to this Protective Order are disclosed to a Party, all counsel of record for that Party shall sign and serve the “Acknowledgment of Protective Order,” attached to this Protective Order as Exhibit A, on all counsel of record for all Parties. Unless otherwise specified by a counsel of record for a Party, service of the signed “Acknowledgment of Protective Order” may be completed by e-mail or fax.
Prior to disclosing materials subject to the Protective Order to any other individuals
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designated in subsections (c) - (h), counsel for a Party must have these individuals sign the “Acknowledgment of Protective Order,” attached to this Protective Order as Exhibit A. The original signed “Acknowledgment of Protective Order” completed by any individual designated in subsections (c) - (h) shall be retained by counsel seeking to disclose materials to such individual until the conclusion of this litigation (as that point in time is defined in paragraph 11 below).
8. Each person given access to material designated as “Confidential” is hereby advised that such material and/or information is being disclosed pursuant and subject to the terms of this Order; may not be disclosed other than pursuant to the terms hereof; and may be used only for purposes related to this action and for no other purposes. Materials designated “Confidential” may be disclosed to and discussed with a person identified in subparagraphs 7(c) - (h) only after such person has executed a copy of Exhibit A, attached hereto.
9. No one subject to this Order shall give, show, disclose, make available, or communicate Confidential Information to any person, firm, agency, corporation, or other entity not expressly authorized by this Order to receive such Confidential Information. No one subject to this Order shall use Confidential Information outside of the context of this case or for any purpose other than the litigation of this case. No one subject to this Order shall use Confidential Information obtained in this litigation to retaliate against, intimidate, discriminate against, or harass any individual. No one subject to this Order shall use Confidential Information obtained in this litigation to report or refer an individual to any
6

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governmental authorities. Nothing contained in this Order, however, shall be construed as restricting or limiting any Party with respect to that Party’s own designation of Confidential Information.
10. Confidential Information shall not be disclosed to any law enforcement agency, including, but not limited to, the Department of Homeland Security and Immigration and Customs Enforcement.
11. Within three (3) months of the conclusion of this litigation (commencing from the date on which the time for filing an appeal from entry of judgment has expired with no Party taking an appeal, or in the event an appeal is taken, from the date of exhaustion of any and all appeals), all materials designated as “Confidential” and all copies thereof shall either be returned to the disclosing Party or destroyed. A Party who elects to destroy the copies shall submit a certification to the disclosing Party, attesting that all copies were destroyed, within fourteen (14) days of the destruction of the copies. All documents shall be kept in the possession of the Party to whom the document was produced, except in the limited circumstances described above.
12. The inadvertent or unintentional disclosure of any Confidential Information by any Party shall not be construed to be a waiver, in whole or in part, of that Party’s claims of confidentiality either as to the specific Confidential Information disclosed or as to any other related information.
13. This Order shall not: (a) prejudice in any way the right of a Party to object to the
7

Case 2:11-cv-00979-WKW-WC Document 74 Filed 06/03/13 Page 8 of 9
production of documents it considers not subject to discovery; or (b) prejudice in any way the right of a Party to seek a Court determination (i) whether discovery material should be produced, or (ii) if produced whether such material should be subject to the terms of this Order; or (c) prejudice in any way the right of a Party to apply to the Court for a further protective order relating to any confidential material or information or for any other purpose.
14. This Order may be modified if the Parties to this Order agree to such modification or if such modification is ordered by the Court. Any Party may at any time move, on notice to all Parties, for modification of, or other relief from, this Order.
15. Neither the termination of this litigation, nor the termination of the employment, engagement, or agency of any person who had access to any protected information or protected documents covered by this Order, shall relieve any person from the obligation of maintaining both the confidentiality and the restrictions on use of the protected information and/or documents.
16. The Parties consent to jurisdiction of this Court for purposes of enforcement of this Order, and the Court shall retain jurisdiction to enforce the terms of this Order.
Done this 3rd day of June, 2013.
/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE
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Case 2:11-cv-00979-WKW-WC Document 74 Filed 06/03/13 Page 9 of 9

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

CHARELLE LODER, et al., Plaintiffs, v.
STEVEN L. REED, et al., Defendants.

) ) ) ) ) CASE NO. 2:11-cv-979-WKW ) ) ) )

ACKNOWLEDGMENT OF PROTECTIVE ORDER I, ___________________________________, hereby acknowledge, under penalty of perjury, that I have read or have had read to me the Stipulated Protective Order entered by this Court on ___________________, 2013. I am familiar with the specific terms of the Order and agree to be bound by its terms. I further understand that by agreeing to be bound by its terms, I have consented to this Court exercising jurisdiction over me for the purpose of enforcing the Order; and understand that I am subject to the contempt powers of this Court if I am found to have violated the Order.

Date: _________________

_________________________________ Signature

 
 Case 2:11-cv-00979-WKW-WC Document 82 Filed 08/19/13 Page 1 of 1

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

JONATHAN DOE, et al., Plaintiffs,
v. LEON ARCHER,
Defendant.

) ) ) ) ) CASE NO. 2:11-CV-979- WKW ) ) ) )
ORDER

Upon consideration of the parties’ Joint Stipulation of Dismissal (Doc. # 81),

which comports with Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure,

this action has been dismissed by operation of Rule 41, on the terms agreed to and

set out by the parties. Accordingly, all pending motions in this case are DENIED

as moot. The Clerk of the Court is ORDERED to close this case.

DONE this 19th day of August, 2013.

/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE

Case 2:11-cv-00979-WKW-WC Document 81 Filed 08/16/13 Page 1 of 5

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

JONATHAN DOE, et al., on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Case No. 2:11-cv-979-WKW

LEON ARCHER, in his official capacity and as representative of the class of probate judges in the State of Alabama similarly situated,

Defendant.

STIPULATION OF DISMISSAL

Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the parties

hereby stipulate to dismissal of this action. As a basis for this stipulation, the parties state as

follows:

1. Plaintiffs Jonathon Doe and Julie Doe commenced a suit against Defendant Gloria

Sinclair, Probate Judge of Tallapoosa County, on December 7, 2012, suing Judge Sinclair in her

official capacity. Plaintiffs challenged the Tallapoosa Probate Office’s marriage license policy,

which Plaintiffs alleged required affirmative proof of lawful immigration status in order to obtain

a marriage license, in violation of the Equal Protection Clause and the Substantive Due Process

Clause of the Fourteenth Amendment to the United States Constitution. (First Am. Compl., ECF No. 51.)1

1 Former plaintiffs Charelle Loder and Jack Doe also sued former Defendant Reese McKinney, Probate Judge of Montgomery County, based on his office’s policy requiring affirmative proof of lawful immigration status in order to obtain a marriage license. (Compl., ECF No. 1; First Am. Compl., ECF No. 51.) These claims were dismissed after the Montgomery County Probate Office changed its policy. (Order, ECF No. 77.)
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Case 2:11-cv-00979-WKW-WC Document 81 Filed 08/16/13 Page 2 of 5
2. Defendant Judge Leon Archer succeeded Judge Sinclair as the Tallapoosa County
Probate Judge after the November 2012 elections, and answered the first amended complaint.
(Answer, ECF No. 68.)
3. Defendant Judge Archer subsequently reviewed and amended the Tallapoosa
County Probate Office’s marriage policy, a copy of which is attached to this stipulation as
Exhibit A. The new policy provides, in part, the following:
Under Alabama law, marriage licenses issuance is purely ministerial and probate judges have no discretion when carrying out this duty. Accordingly, it is the policy of the Judge of Probate of Tallapoosa County to issue marriage licenses in strict compliance with and as legally required under Alabama law. The information contained herein is purely informational and should not be considered reflective of any personal opinions or beliefs of the Judge of Probate, Tallapoosa County, or any persons under their employ.
The Tallapoosa County Probate Officer further provides the following regarding identification
requirements:
All marriage license applicants must provide their correct and entire legal name. Photographic identification is strongly recommended as it would avoid any unnecessary delays in verifying information required for issuance of the license. Acceptable identification should be official government-issued identification that provides sufficient proof that the applicant is who the applicant represents he or she is. Acceptable forms of identification include, but are not limited to the following: driver's license, passport, military ID, original certified copy of state issued birth certificate, other state issued ID, U.S. Government issued ID (including Permanent Resident Card ("Green Card"), Employment Authorization Card, etc.), or other identification issued by a state of the United States, by a foreign country or state, or by an agency or a subdivision of a state of the United States or of a foreign country or state.
The Tallapoosa County Probate Officer further provides the following in a Frequently Asked
Questions section:
Q: Is a social security number required to receive a marriage license? A: No. Opinion Number 2008-100 of the Office of the Attorney General states that a social security number is not required. The Opinion states that in instances where an applicant does not have a social security number, the applicant can instead submit an affidavit attesting to the fact that he or she was never issued a
2

Case 2:11-cv-00979-WKW-WC Document 81 Filed 08/16/13 Page 3 of 5

social security number. Alternatively, an applicant could also submit a current letter from the Social Security Administration documenting that he or she was never issued a social security number.

Q: Can a marriage license be issued to an applicant who is not a United States citizen? A: Yes. Opinion Number 2004-176 of the Office of the Attorney General states that citizenship is not a requirement under Alabama law. The Opinion of the Attorney General further concludes that a lack of legal status is not a bar to issuance of a marriage license.

4. Pursuant to this policy and guidance adopted by the Tallapoosa County Probate

Office, the parties stipulate to the dismissal of Plaintiff Jonathon Doe’s and Julie Doe’s claims.

Dated: August 16, 2013

Respectfully Submitted,

s/ Samuel Brooke Samuel Brooke (ASB-1172-L60B) SOUTHERN POVERTY LAW CENTER 400 Washington Ave. Montgomery, Alabama 36104 T: (334) 956-8200 F: (334) 956-8481 samuel.brooke@splcenter.org

Daniel Werner* (GSB-422070) James Knoepp* (GSB-366241) SOUTHERN POVERTY LAW CENTER 233 Peachtree St., NE, Suite 2150 Atlanta, Georgia 30303 T: (404) 521-6700 F: (404) 221-5857 daniel.werner@splcenter.org jim.knoepp@splcenter.org *Admitted pro hac vice

Freddy Rubio (ASB-5403-D62R) Rubio Law Firm, P.C. 438 Carr Avenue, Suite 1 Birmingham, AL 35209 T: (205) 443-7858 F: (205) 443-7853 frubio@rubiofirm.com

COUNSEL FOR PLAINTIFFS

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Case 2:11-cv-00979-WKW-WC Document 81 Filed 08/16/13 Page 4 of 5 s/ Fred L. Clements, Jr. KENDRICK E. WEBB (WEB022) FRED L. CLEMENTS, JR. (CLE044) Attorneys for Defendant Stubbs WEBB & ELEY, P.C. 7475 Halcyon Pointe Drive (36117) Post Office Box 240909 Montgomery, Alabama 36124 (334) 262-1850 T (334) 262-1772 F fclements@webbeley.com COUNSEL FOR DEFENDANT ARCHER
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CERTIFICATE OF SERVICE I hereby certify that on August 16, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will automatically send e-mail notification to the following attorneys for Defendants:
Kendrick E. Webb Fred L. Clements, Jr. WEBB & ELEY, P.C. 7475 Halcyon Pointe Drive (36117) Post Office Box 240909 Montgomery, Alabama 36124 (334) 262-1850 T (334) 262-1772 F fclements@webbeley.com s/ Samuel Brooke
5

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

CHARELLE LODER, et al., Plaintiffs,
v. REESE MCKINNEY, JR.,
Defendant.

) ) ) ) ) CASE NO. 2:11-CV-979-WKW [WO] ) ) ) )

MEMORANDUM OPINION AND ORDER

This case is brought by several individuals who challenge Defendant Probate

Judge Reese McKinney’s marriage license policy. Plaintiffs contend that the policy

requires applicants to present proof of legal residence in the United States and a valid

Social Security card in order to receive a marriage license. Plaintiffs allege that this

denies the right of marriage to certain non-citizens and to United States citizens

whose intended spouse is unable to provide the required documentation. Plaintiffs

seek prospective relief through 42 U.S.C. § 1983 for denial of their Fourteenth

Amendment rights to substantive due process and equal protection. Defendant has

moved to dismiss the complaint, alleging that Plaintiffs do not have standing to

challenge the policy. The case is pending on Defendant’s Motion to Dismiss (Doc.

# 19), which is opposed (Doc. # 24). Defendant has replied (Doc. # 26). The motion

has been fully briefed and is ready for resolution. After careful consideration of the

parties’ briefs, arguments, and the applicable law, the Motion to Dismiss is due to be denied.
I. JURISDICTION AND VENUE Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, and 2201–02. Personal jurisdiction and venue are not contested, and there are adequate allegations in support of both.
II. STANDARD OF REVIEW Defendant challenges the court’s subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that Plaintiffs do not have standing to challenge his policy regarding marriage licenses. A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction asserts either a facial or factual challenge to the complaint. McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007) (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. May 20, 1981)1); accord Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990). Defendant has made a facial attack on the Complaint, asserting that Plaintiffs have not alleged an adequate basis for subject matter jurisdiction because they lack standing to challenge his policy. See Fla. Ass’n of
1 In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit issued prior to October 1, 1981. See 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
2

Rehab. Facilities, Inc. v. State of Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1227 n.14 (11th Cir. 2000) (noting that standing “raises an even more basic question of jurisdiction that cannot be waived and goes to the very heart of the ‘case or controversy’ requirement of Article III”).
A facial attack challenges the complaint on its face and “require[s] the court merely to look [to] see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” McElmurray, 501 F.3d at 1251 (quoting Lawrence, 919 F.2d at 1529). In deciding a motion to dismiss for lack of standing pursuant to Rule 12(b)(1), courts must accept all factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. See, e.g., Kendall v. Thaxton Rd. LLC, No. 10-14634, 2011 WL 3903400, at *3 (11th Cir. Sept. 7, 2011) (unpublished); cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 & n.21 (1982) (distinguishing between the motion to dismiss stage, at which well-pleaded allegations establishing injury in fact, causation, and redressability suffice, and a plaintiff’s burden of proof at trial). The Supreme Court of the United States has said in the context of a standing determination that “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” United States v. Baxter Int’l, Inc., 345 F.3d
3

866, 881 (11th Cir. 2003) (quoting Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994)).
III. BACKGROUND In Alabama, no person may formally marry without a license. Ala. Code § 30-1-9. Alabama Code § 22-9A-17 requires the probate judge to prepare and forward a completed marriage license form to the Bureau of Vital Statistics. The probate judge must complete the marriage license “upon the basis of information obtained from the parties to be married.” Ala. Code § 22-9A-17(b). The Complaint alleges that as Probate Judge of Montgomery County, Defendant has adopted and implemented a marriage licensing policy that states in relevant part: “Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.” (Doc. # 1 (“Compl.”) at 11–12.) Neither the Code of Alabama nor the Alabama Constitution requires applicants to provide proof of legal presence in the United States to secure a marriage license. The Alabama Attorney General has explicitly stated that “a marriage license can be issued to an applicant who is not a United States citizen.” (Compl. at 10.) This lawsuit was filed by couples who reside in Alabama and desire to obtain a license to marry in Montgomery County, but are barred from doing so based on an
4

inability to provide the required documentation. Plaintiffs argue that Defendant has adopted a policy that requires applicants for marriage licenses to show proof of legal residence in the United States before they can receive a marriage license. Plaintiffs allege that they are otherwise qualified to receive a marriage license and intend to be married. Plaintiffs request to represent a putative class of all persons in Alabama who seek a marriage license, but who cannot receive one based on an inability to provide the documentation required by the probate court. Plaintiffs seek declaratory and injunctive relief against Defendant for violations of their Fourteenth Amendment rights to due process and equal protection. In response to the Complaint, Defendant filed the instant Rule 12(b)(1) Motion to Dismiss.
IV. DISCUSSION Defendant makes three arguments in support of his Rule 12(b)(1) Motion to Dismiss, all of which involve Plaintiffs’ standing to bring this suit. First, Defendant contends that the lawsuit should be dismissed because Plaintiffs’ characterization of the policy is erroneous. Defendant urges the court to adopt a reading of the policy that would not require non-citizen applicants to show proof of legal presence in the United States. Defendant argues that under this reading, Plaintiffs have not been denied the right to marry and, thus, have not been injured and have no standing to challenge the policy. Defendant further contends that Plaintiffs lack standing because
5

they have not applied for a marriage license in Montgomery County and therefore have not been injured. Finally, Defendant argues that because common-law marriages are recognized in Alabama, Plaintiffs have not suffered an injury in fact.
The requirement of Article III standing is both a constitutional limitation on federal court jurisdiction and a prudential limitation on its exercise. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). This case concerns constitutional standing. Constitutional standing requires that Plaintiffs have a “‘personal stake in the outcome’ in order to ‘assure that concrete adverseness which sharpens the presentation of issues’ necessary for the proper resolution of constitutional questions.” Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
The test for evaluating constitutional standing includes three elements. First, the plaintiff must have suffered an “injury in fact.” Lujan, 504 U.S. at 560 (internal quotation marks omitted); see also Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1537 (11th Cir. 1994) (citing E. F. Hutton & Co. v. Hadley, 901 F.2d 979, 984 (11th Cir. 1990)). An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal citations and quotation marks omitted). “Second, there must be a causal connection between the injury and the
6

conduct complained of – the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.’” Id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). “Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Id. (quoting Simon, 426 U.S. at 38, 43). The burden is on the party invoking federal jurisdiction to demonstrate each element of standing. Bischoff v. Osceola Cnty., Fla., 222 F.3d 874, 878 (11th Cir. 2000).
Plaintiffs have alleged each of the three elements of Article III standing: (1) actual injury, in that they are barred from obtaining a marriage license under Defendant’s policy; (2) that their injury is traceable to Defendant’s policy; and (3) that their injury would be redressed by the relief requested, namely an injunction against enforcement of Defendant’s policy and a declaration that the policy is unenforceable. A. Interpretation of the Policy
Defendant first argues that Plaintiffs’ characterization of the policy is incorrect. (Doc. # 19 at 5.) Defendant claims that his policy does not bar non-citizens who are in the country illegally from obtaining a marriage license. The challenged policy in effect when the Complaint was filed provided as follows:
7

Non-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.
Each applicant must provide one of the following:
1. An official Picture ID (passport, military ID, State issued ID, Driver’s License).
2. An original certified copy of the state issued birth certificate (hospital copy not acceptable) and original social security card.
3. U. S. Government issued Immigration Services Picture ID Card (green card, visa, alien resident card, etc.).
(Compl. ¶ 44 (emphasis added); see also Compl., Ex. A (printout of policy on Def.’s
website, dated Nov. 17, 2011).)
Notwithstanding the word “must” in the first paragraph of the policy,
Defendant asserts that the policy does not require non-citizens to provide proof of legal presence in the United States.2 (Doc. # 19 at 6.) Defendant claims that the
requirement set forth in paragraph one may be disregarded if the applicant satisfies
paragraph two with any form of identification that would fall within one of the
enumerated categories. (Doc. # 19 at 6–7.)
While Defendant seems utterly sincere in his reading of his own policy, for his
interpretation to control, the entire first paragraph would be rendered superfluous.
In other words, there would be absolutely no purpose to the first paragraph if an
2 The bolded sentence of the policy will be referred to as “paragraph one,” and the remainder of the policy will be referred to as “paragraph two.”
8

applicant merely had to satisfy the second paragraph. Nor does the policy contain any language in the second paragraph that creates a condition to avoid the requirement of proof of legal presence in the United States or that serves as an alternative means of satisfying the requirements in the first paragraph. Indeed, the second paragraph imposes additional requirements of what kinds of acceptable identification are required for the issuance of a license.
“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted); see also Gonzales v. McNary, 980 F.2d 1418, 1420 (11th Cir. 1993) (“A statute should be construed so that effect is given to all its provisions, so that no part of it will be inoperative or superfluous, void or insignificant.”). While Defendant’s policy is not a state statute, the court deems it appropriate to construe the policy according to this recognized principle of statutory construction, absent any contrary argument or authority having been offered by the parties.
The second paragraph of the policy is not redundant of the first paragraph because the second paragraph applies to all applicants, while the first paragraph applies to non-citizen applicants. There is nothing inconsistent between the first and
9

second paragraphs. The second paragraph requires applicants to provide proof of their identity through at least one document that reflects lawful immigration status, a requirement that is wholly consistent with paragraph one’s legal presence mandate. Giving the first paragraph of the policy its full and plain meaning, that non-citizens must show proof of legal presence, is entirely consistent with the second paragraph. The second paragraph of the policy imposes additional, not alternative, requirements and explains what forms of identification are sufficient for applicants. There is no reason to read the second paragraph of the policy as altering the express requirement for non-citizens of the United States to provide proof of legal presence in the United States in the form of valid immigration documents or passport. Defendant’s argument cannot stand against the plain language of the policy and must be rejected.
Finally, Defendant asserts that the Plaintiffs who are not United States citizens have identification that would satisfy the marriage license requirements. But speculation about an ambiguous reference to an Alabama Resident Identification Card held by one of the Plaintiffs, which Defendant argues might be sufficient to demonstrate legal presence in the United States, would require analyzing documents and evidence outside of the complaint, and is not appropriate on a Rule 12(b)(1) facial attack. Plaintiffs have sufficiently pled that the policy bars certain non-citizens from successfully securing a marriage license.
10

B. Actual Injury and Futility Defendant also seeks to dismiss the Complaint because Plaintiffs have not
applied and been rejected for a marriage license in Montgomery County. But “[c]ourts have long recognized circumstances in which a failure to apply may be overcome by facts which demonstrate the futility of such application.” Terry v. Cook, 866 F.2d 373, 378 (11th Cir. 1989); see also LeClerc v. Webb, 419 F.3d 405, 413 (5th Cir. 2005) (noting that “strict adherence to the standing doctrine may be excused when a policy’s flat prohibition would render submission futile”); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365 (1977) (“If an employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs.”); Long v. Aronov Realty Mgmt., 645 F. Supp. 2d 1008, 1025 n.35 (M.D. Ala. 2009) (recognizing the futile gesture doctrine in the context of employment and housing discrimination).
Here, the Complaint has adequately pleaded facts which demonstrate the futility of Plaintiffs’ applications for marriage licenses. Each Plaintiff has pleaded that at least one member of the couple is a non-citizen and cannot provide proof of legal presence in the United States. All Plaintiffs have pled that, but for Defendant’s policy, they would obtain a marriage license from Montgomery County and get
11

married. The policy requires that “[n]on-citizens of the United States must provide proof of legal presence in the United States in the form of valid immigration documents or passport.” Because of the use of the word “must” and Plaintiffs’ allegations that they lack the required documentation, the policy facially prevents Plaintiffs from obtaining a marriage license. Under the doctrine of futility, a plaintiff need not have applied for a right if the defendant’s policy would have made such a gesture futile or even if the policy merely discouraged the plaintiff from applying. Terry, 866 F.2d at 378; Long, 645 F. Supp. 2d at 1025. Based on the plain reading of Defendant’s policy, and the reading most favorable to Plaintiffs as non-moving parties, Plaintiffs adequately have pleaded that applying for marriage licenses would have been a futile gesture and have sufficiently demonstrated that the failure to apply should be properly excused. C. Common Law Marriage and Injury in Fact
Defendant argues that Plaintiffs have not suffered an injury in fact because the affected couples could simply enter into a common-law marriage. Defendant contends that once the evidentiary requirements of establishing a common-law marriage are satisfied, a common-law marriage has “all the rights, and [is] subject to all the duties, flowing from a marriage in strict conformity to the statute.” Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978). Defendant is correct that a common-law
12

marriage is equivalent in bare validity to a solemnized, licensed marriage. However, Defendant’s argument fails to address meaningfully the authorities raised by Plaintiffs regarding the injuries that result from being unable to pursue a solemnized marriage through the licensing process.
Denial of a permit or a license pursuant to a state or federal administrative scheme is an Article III injury. See Parker v. District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007), aff’d sub nom District of Columbia v. Heller, 554 U.S. 570 (2008). The law is clear that plaintiffs affected by a discriminatory policy have suffered an injury in fact sufficient to confer standing, despite the ability to overcome the challenged barrier. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1352 (11th Cir. 2009). The relevant inquiry on standing is whether Plaintiffs have suffered unlawful treatment under Defendant’s policy, not whether the unlawful treatment is insurmountable or the benefit can be realized through alternative means. As the Supreme Court of the United States has explained,
When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. Ne. Fla. Chapter of Ass’n Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666 (1993). The injury in fact is the “denial of equal treatment resulting
13

from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id.; see also Common Cause/Georgia, 554 F.3d at 1351 (“For purposes of standing, a denial of equal treatment is an actual injury even when the complainant is able to overcome the challenged barrier[.]”); Virdi v. Dekalb Cnty. Sch. Dist., 216 F. App’x 867, 872 (11th Cir. 2007) (noting that the injury caused by discrimination is not the inability to obtain the sought-after benefit, “but rather the barrier set up by the illicit condition”). For purposes of standing, a plaintiff need only adequately allege that the challenged policy or act creates an unlawful barrier, not that the barrier is insurmountable. Plaintiffs have succeeded in passing that threshold.
Additionally, common-law marriage does not enjoy the same presumption of validity, and consequently the same level of certainty to the parties, as a solemnized marriage. A solemnized marriage enjoys a “strong presumption [that] immediately arises in favor of its validity,” Fuquay v. State, 114 So. 892, 894 (Ala. Ct. App. 1927), rev’d on other grounds, 114 So. 898 (Ala. 1927), but “[t]here is no presumption in favor of a common-law marriage.” Id. at 893. Instead of enjoying the presumption of validity, parties seeking recognition of their common-law marriage or who find their common-law marriage challenged must provide “clear and convincing” evidence of their marriage. See, e.g., Lofton v. Estate of Weaver, 611 So. 2d 335, 336 (Ala. 1992). The Alabama Supreme Court has warned that “[c]ourts of this state closely
14

scrutinize claims of common law marriage and require clear and convincing proof thereof.” Id. (quoting Baker v. Townsend, 484 So. 2d 1097, 1098 (Ala. Civ. App. 1986)); see also Reese v. Holston, 67 So. 3d 109, 112 (Ala. Civ. App. 2011) (rejecting claim of common-law marriage where the evidence was “insufficient to show by clear and convincing evidence that the parties’ relationship” met the required common law elements). The differences between the elements of proof deny Plaintiffs a real and tangible benefit: the additional security that arises from the presumption of validity that attaches to a solemnized marriage.
Finally, Defendant admits that the inability to secure a marriage license prevents solemnization of the marriage. (See Doc. # 19 at 10); see also Ala. Code § 30-1-9 (“No marriage shall be solemnized without a license.”). This has the effect of denying Plaintiffs a wedding ceremony performed by an officiant. Weddings can, and very often do, hold great levels of religious and personal significance for couples and their families. Common-law marriage provides no alternative avenue for a traditional wedding. In fact, without a license, conducting a wedding is against the law. The policy denies certain non-citizen individuals the ability to take marriage vows legally in a house of worship, in front of friends, family, an officiant, and God. Common-law marriage offers no alternative to being able to legally experience one of the most important events in the lives of many people.
15

On the Complaint’s allegations, Plaintiffs have demonstrated that they have suffered an injury in fact based upon Defendant’s policy that bars them from obtaining marriage licenses. Common-law marriage does not negate that injury in fact.
V. CONCLUSION For the foregoing reasons, the court finds that Plaintiffs have standing to proceed on their claims challenging the constitutionality of Defendant’s policy that precludes non-citizens without proof of legal presence in the United States from obtaining a marriage license. Accordingly, it is ORDERED that Defendant’s Rule 12(b)(1) Motion to Dismiss (Doc. # 19) is DENIED. DONE this 13th day of September, 2012.
/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
16

 
 Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 1 of 12
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:11−cv−00979−WKW−WC

CLOSED

Loder, et al v. McKinney, et al Assigned to: Chief Judge William Keith Watkins Referred to: Honorable Judge Wallace Capel, Jr Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/17/2011 Date Terminated: 08/19/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Charelle Loder on behalf of herself and all others similarly situated TERMINATED: 06/11/2013

represented by Sigfredo Rubio Rubio Law Firm, PC 438 Carr Ave − Ste 1 Birmingham, AL 35209 205−443−7858 Fax: 205−443−7853 Email: frubio@rubiofirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan B Howard Dewey &LeBoeuf LLP 1301 Avenue of the Americas New York, NY 10019 212−259−8594 Email: ahoward@dl.com TERMINATED: 10/04/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel Werner Southern Poverty Law Center 233 Peachtree St.. NE, Suite 2150 Atlanta, GA 30303 404−521−6700 Email: daniel.werner@splcenter.org TERMINATED: 06/11/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

James M Knoepp Southern Poverty Law Center 233 Peachtree Street NE, Ste 2150 Atlanta, GA 30303 404−221−5836 Fax: 404−221−5857 Email: jim.knoepp@splcenter.org TERMINATED: 06/11/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Mary C Bauer Southern Poverty Law Center 400 Washington Ave Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: mary.bauer@splcenter.org TERMINATED: 06/07/2013 ATTORNEY TO BE NOTICED

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 2 of 12

Samuel J Brooke Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: samuel.brooke@splcenter.org TERMINATED: 06/11/2013 ATTORNEY TO BE NOTICED

Plaintiff
Jack Doe on behalf of himself and all others similarly situated TERMINATED: 06/11/2013

represented by Sigfredo Rubio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan B Howard (See above for address) TERMINATED: 10/04/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel Werner (See above for address) TERMINATED: 06/11/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

James M Knoepp (See above for address) TERMINATED: 06/11/2013 PRO HAC VICE ATTORNEY TO BE NOTICED

Mary C Bauer (See above for address) TERMINATED: 06/07/2013 ATTORNEY TO BE NOTICED

Samuel J Brooke (See above for address) TERMINATED: 06/11/2013 ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe on behalf of herself and all others similarly situated TERMINATED: 12/07/2012

represented by Sigfredo Rubio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan B Howard (See above for address) TERMINATED: 10/04/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel Werner (See above for address) TERMINATED: 12/07/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

James M Knoepp (See above for address)

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 3 of 12

TERMINATED: 12/07/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Mary C Bauer (See above for address) TERMINATED: 12/07/2012 ATTORNEY TO BE NOTICED

Samuel J Brooke (See above for address) TERMINATED: 12/07/2012 ATTORNEY TO BE NOTICED

Plaintiff
James Doe on behalf of himself and all others similarly situated TERMINATED: 12/07/2012

represented by Sigfredo Rubio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan B Howard (See above for address) TERMINATED: 10/04/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel Werner (See above for address) TERMINATED: 12/07/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

James M Knoepp (See above for address) TERMINATED: 12/07/2012 PRO HAC VICE ATTORNEY TO BE NOTICED

Mary C Bauer (See above for address) TERMINATED: 12/07/2012 ATTORNEY TO BE NOTICED

Samuel J Brooke (See above for address) TERMINATED: 12/07/2012 ATTORNEY TO BE NOTICED

Plaintiff Jonathon Doe

represented by Daniel Werner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James M Knoepp (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sigfredo Rubio (See above for address) LEAD ATTORNEY

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 4 of 12

ATTORNEY TO BE NOTICED

Mary C Bauer (See above for address) TERMINATED: 06/07/2013 ATTORNEY TO BE NOTICED

Samuel J Brooke (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Julie Doe

represented by Daniel Werner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

James M Knoepp (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sigfredo Rubio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary C Bauer (See above for address) TERMINATED: 06/07/2013 ATTORNEY TO BE NOTICED

Samuel J Brooke (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Reese McKinney, Jr. Probate Judge of Montgomery County, in his official capacity and as representative of the class of probate judges in the State of Alabama similarly situated TERMINATED: 02/01/2013

represented by John Mark Englehart Englehart Law Offices 9457 Alysbury Place Montgomery, AL 36117−6005 334−782−5258 Fax: 334−270−8390 Email: jmenglehart@gmail.com TERMINATED: 02/01/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frederic Allen Bolling Thomas Means Gillis &Seay PC 505 20th Street North Suite 400 Birmingham, AL 35203 205−328−7915 Fax: 205−214−6160 Email: fabolling@tmgslaw.com TERMINATED: 02/01/2013 ATTORNEY TO BE NOTICED

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 5 of 12

Henry Lewis Gillis Thomas Means Gillis &Seay PC 3121 Zelda Court PO Drawer 5058 Montgomery, AL 36106 334−270−1033 Fax: 334−260−9396 Email: hlgillis@meansgillislaw.com TERMINATED: 02/01/2013 ATTORNEY TO BE NOTICED

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: 02/01/2013 ATTORNEY TO BE NOTICED

Defendant
Gloria Sinclair Probate Judge of Tallapoosa County, Alabama TERMINATED: 04/02/2013

represented by Fred Lee Clements , Jr. Webb &Eley, PC PO Box 240909 Montgomery, AL 36124 334−262−1850 Fax: 334−262−1772 Email: fclements@webbeley.com TERMINATED: 04/02/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kendrick Emerson Webb Webb &Eley PO Box 240909 Montgomery, AL 36124−0909 334−262−1859 Fax: 334−262−1889 Email: kwebb@webbeley.com TERMINATED: 04/02/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Steven L. Reed Probate Judge of Montgomery County, in his official capacity TERMINATED: 06/11/2013

represented by Frederic Allen Bolling (See above for address) TERMINATED: 06/11/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Lewis Gillis (See above for address) TERMINATED: 06/11/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Mark Englehart (See above for address) TERMINATED: 06/11/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tyrone Carlton Means

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 6 of 12

(See above for address) TERMINATED: 06/11/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Leon Archer Probate Judge of Tallapoosa County, Alabama

represented by Fred Lee Clements , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kendrick Emerson Webb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/17/2011 11/17/2011 11/17/2011
11/17/2011 11/17/2011 11/17/2011 11/17/2011 11/17/2011 11/17/2011 11/17/2011 11/18/2011
11/18/2011
11/21/2011

# Docket Text
1 CLASS ACTION COMPLAINT against Reese McKinney, Jr (Filing fee $ 350.00 receipt number 4602020604), filed by Charelle Loder, Jack Doe, Jane Doe, James Doe. (Attachments: # 1 Exhibit A, # 2 Receipt)(br, ) (Entered: 11/17/2011)
2 MOTION for Leave to Proceed Under Pseudonyms by Jack Doe, James Doe, Jane Doe. (Attachments: # 1 Text of Proposed Order)(br, ) (Entered: 11/17/2011)
3 MEMORANDUM in Support re 2 MOTION for Leave to Proceed Under Pseudonyms filed by Jack Doe, James Doe, Jane Doe. (Attachments: # 1 Declaration of Heidi Beirich, # 2 Declaration of Jack Doe, # 3 Declaration of Jane Doe, # 4 Declaration of James Doe)(br, ) (Entered: 11/17/2011)
4 Summons Issued; summons and complaint returned to the plaintiffs for personal service of Reese McKinney, Jr. (br, ) (Entered: 11/17/2011)
5 Corporate/Conflict Disclosure Statement by Jack Doe. (Bauer, Mary) Modified on 11/17/2011 to clarify text (br, ). (Entered: 11/17/2011)
6 Corporate/Conflict Disclosure Statement by James Doe. (Bauer, Mary) Modified on 11/17/2011 to clarify text (br, ). (Entered: 11/17/2011)
7 Corporate/Conflict Disclosure Statement by Jane Doe. (Bauer, Mary) Modified on 11/17/2011 (br, ). (Entered: 11/17/2011)
8 Corporate/Conflict Disclosure Statement by Charelle Loder. (Bauer, Mary) Modified on 11/17/2011 to clarify text (br, ). (Entered: 11/17/2011)
9 CERTIFICATE OF SERVICE re 2 Motion and 3 Memorandum by Jack Doe, James Doe, Jane Doe, Charelle Loder (Bauer, Mary) Modified on 11/17/2011 to link to documents (br, ). (Entered: 11/17/2011)
10 SUMMONS Returned Executed by Charelle Loder, Jack Doe, Jane Doe, James Doe. Reese McKinney, Jr served on 11/17/2011, answer due 12/8/2011. (Bauer, Mary) (Entered: 11/17/2011)
11 Motion fir James M. Knoepp to Appear Pro Hac Vice by Jack Doe, James Doe, Jane Doe, Charelle Loder. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order)(Bauer, Mary) Modified on 11/21/2011 to add movant name (br, ). (Entered: 11/18/2011)
12 Motion for Daniel Werner to Appear Pro Hac Vice by Jack Doe, James Doe, Jane Doe, Charelle Loder. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order)(Bauer, Mary) Modified on 11/21/2011 to add movant name (br, ). (Entered: 11/18/2011)
13 Pro hac vice admission fees received for James M. Knoepp and Daniel Werner: $ 100.00, receipt number 4602020636 (br, ) (Entered: 11/22/2011)

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 7 of 12

11/23/2011 12/01/2011 12/01/2011
12/01/2011 12/09/2011 12/09/2011 12/09/2011 12/15/2011
01/05/2012 01/06/2012
01/17/2012
01/17/2012 01/23/2012
02/01/2012 02/21/2012
02/21/2012 02/23/2012 02/27/2012

14 ORDER granting 11 12 Motions for James M. Knoepp and Daniel Werner to Appear Pro Hac Vice. Signed by Honorable Judge Mark E. Fuller on 11/23/2011. (br, ) (Entered: 11/23/2011)
15 MOTION to Certify Class by Jack Doe, James Doe, Jane Doe, Charelle Loder. (Bauer, Mary) (Entered: 12/01/2011)
16 BRIEF/MEMORANDUM in Support of Plaintiffs' 15 Motion for Class Certification filed by Jack Doe, James Doe, Jane Doe, Charelle Loder. (Attachments: # 1 Exhibit Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Bauer, Mary) [Modified on 12/2/2011 to create link to Doc. 15 .−DMN] (Entered: 12/01/2011)
17 Case reassigned to Chief Judge William Keith Watkins. Honorable Judge Mark E. Fuller no longer assigned to the case. (br, ) (Entered: 12/01/2011)
18 NOTICE of Appearance by John Mark Englehart on behalf of Reese McKinney, Jr (br, ) (Entered: 12/09/2011)
19 MOTION to Dismiss by Reese McKinney, Jr. (br, ) (Entered: 12/09/2011)
***Attorneys Henry Lewis Gillis, Tyrone Carlton Means, Frederic Allen Bolling added for Reese McKinney, Jr pursuant to 19 Motion to Dismiss. (br, ) (Entered: 12/09/2011)
20 BRIEFING ORDER: Plaintiffs shall file a response to the 19 Motion to Dismiss which shall include a brief on or before January 11, 2012. The Defendant may file a reply brief on or before January 25, 2012. Signed by Chief Judge William Keith Watkins on 12/15/2011. (br, ) (Entered: 12/15/2011)
21 Consent MOTION for Extension of Time to File Response/Reply (Unopposed) by Jack Doe, James Doe, Jane Doe, Charelle Loder. (Brooke, Samuel) (Entered: 01/05/2012)
22 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Reese McKinney, Jr.. Corporate Disclosures due by 1/17/2012. (Attachments: # 1 Standing Order and Sample Format)(scn, ) (Entered: 01/06/2012)
23 ORDER granting the 21 Motion for Extension of Time as follows: (1.) The Plaintiffs' deadline for filing a response is EXTENDED from January 11, 2012, to January 17, 2012; (2.) The Defendant's deadline for filing a response is EXTENDED from January 25, 2012, to January 31, 2012. Signed by Chief Judge William Keith Watkins on 1/17/12. (scn, ) (Entered: 01/17/2012)
24 RESPONSE in Opposition re 19 MOTION to Dismiss filed by Jack Doe, James Doe, Jane Doe, Charelle Loder. (Bauer, Mary) (Entered: 01/17/2012)
25 SECOND NOTICE OF DEFICIENCY requiring filing of Corporate Disclosure/Conflict Statement sent to Reese McKinney, Jr.. Corporate Disclosures due by 2/2/2012. (Attachments: # 1 Standing order and sample format)(scn, ) (Entered: 01/23/2012)
26 REPLY to 24 Response to Motion re 19 MOTION to Dismiss filed by Reese McKinney, Jr. (Englehart, John) (Entered: 02/01/2012)
27 Motion for Allan Bruce Howard to Appear Pro Hac Vice, by Jack Doe, James Doe, Jane Doe, and Charelle Loder. (Attachments: # 1 Certificate of Good Standing, # 2 Text of Proposed Order Proposed Order)(Bauer, Mary) Modified on 2/22/2012 to add attorney name (scn, ). (Entered: 02/21/2012)
***Attorney Alan Howard added as counsel for Jack Doe, James Doe, Jane Doe, and Charelle Loder pursuant to 27 Motion. (scn, ) (Entered: 02/22/2012)
28 Pro Hac Vice Filing fee received re 27 Motion: $ 50.00, receipt number 4602021779. (wcl, ) (Entered: 02/24/2012)
29 ORDER granting 27 Motion for Leave for Alan Howard to Appear Pro Hac Vice. Signed by Chief Judge William Keith Watkins on 2/27/12. (scn, ) (Main Document 29 replaced on 2/27/2012) (scn, ). Modified on 2/27/2012 to reflect change to title

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 8 of 12

02/27/2012 09/07/2012
09/13/2012 09/18/2012
09/25/2012 09/25/2012 09/25/2012
10/02/2012 10/04/2012 10/04/2012 10/09/2012 10/22/2012 10/22/2012 10/23/2012 10/23/2012 10/23/2012

of document (scn, ). (Entered: 02/27/2012)
30 NOTICE of PDF Correction re 29 Order on Motion to reflect correction to title of Order. (Attachments: # 1 Corrected main document of Docket Entry 29 )(scn, ) (Entered: 02/27/2012)
31 ORDER directing that, upon consideration of Plaintiffs' 2 motion for leave to proceed under pseudonyms, and for good cause shown, it is ORDERED that the motion is GRANTED, and Plaintiffs Jack Doe, James Doe, and Jane Doe are granted leave to proceed under those pseudonyms. Signed by Chief Judge William Keith Watkins on 9/7/12. (scn, ) (Entered: 09/07/2012)
32 MEMORANDUM OPINION AND ORDER directing that Defendant's 19 Rule 12(b)(1) Motion to Dismiss is DENIED, as further set out. Signed by Chief Judge William Keith Watkins on 9/13/12. (scn, ) (Main Document 32 replaced on 9/13/2012) (scn, ). (Entered: 09/13/2012)
33 ORDER directing that a status conference, to be held on the record, is set on September 25, 2012, at 11:00 a.m., in Courtroom 2B to discuss the 15 Motion for Class Certification, scheduling, and other procedural matters. Signed by Chief Judge William Keith Watkins on 9/18/12. (Furnished to Calendar/AR)(scn, ) (Entered: 09/18/2012)
34 NOTICE by Reese McKinney, Jr of Clarification and Amendment of Marriage License Policy; Suggestion of Mootness; etc. (Englehart, John) (Entered: 09/25/2012)
35 Minute Entry for STATUS CONFERENCE held before Chief Judge William Keith Watkins on 9/25/2012 (PDF available for court use only). (Court Reporter Risa Entrekin.) (ajr, ) (Entered: 09/25/2012)
36 ORDER directing that: (1) Plaintiffs' 16 Motion for Class Certification is DENIED with leave to file new, separate motions for certification of a plaintiff class and a defendant class on or before October 25, 2012, as further set out; (2) The parties shall confer to discuss the implications of Defendant's 34 Notice on or before October 5, 2012; (3) Plaintiffs shall file a response to Defendants' 34 Notice on or before October 9, 2012. Signed by Chief Judge William Keith Watkins on 9/25/12. (scn, ) (Entered: 09/25/2012)
37 MOTION to Withdraw as Attorney ALAN B. HOWARD by Jack Doe, James Doe, Jane Doe, Charelle Loder. (Brooke, Samuel) (Entered: 10/02/2012)
38 ORDER granting 37 Motion for Alan B. Howard to Withdraw as Attorney. Signed by Chief Judge William Keith Watkins on 10/4/12. (scn, ) (Entered: 10/04/2012)
*** Attorney Alan B Howard terminated as counsel of record for Plaintiffs Jack Doe, James Doe, Jane Doe, and Charelle Loder pursuant to 38 Order. (scn, ) (Entered: 10/04/2012)
39 NOTICE by Charelle Loder re 34 Notice (Other) Plaintiffs' Opposition to Defendant's Notice (Attachments: # 1 Brooke Decl, # 2 Long Decl)(Brooke, Samuel) (Entered: 10/09/2012)
40 NOTICE by James Doe, Jane Doe of Dismissal of Claims (Brooke, Samuel) (Entered: 10/22/2012)
41 First MOTION to Amend/Correct (Motion to Amend Complaint and Incorporated Memorandum of Law) by Jack Doe, Charelle Loder. (Attachments: # 1 Ex. A − Proposed FAC)(Brooke, Samuel) (Entered: 10/22/2012)
42 Amended MOTION to Certify Class (Plaintiffs' Amended Motion for Certification of a Plaintiff Class) by Charelle Loder. (Brooke, Samuel) (Entered: 10/23/2012)
43 Amended MOTION to Certify Class (Plaintiffs' Amended Motion for Certification of a Defendant Class) by Charelle Loder. (Brooke, Samuel) (Entered: 10/23/2012)
44 BRIEF/MEMORANDUM in Support re 42 Amended MOTION to Certify Class (Plaintiffs' Amended Motion for Certification of a Plaintiff Class), 43 Amended MOTION to Certify Class (Plaintiffs' Amended Motion for Certification of a

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10/26/2012 11/06/2012 11/06/2012 11/06/2012 11/07/2012 12/06/2012
12/07/2012 12/07/2012 12/07/2012 12/07/2012 12/07/2012 12/10/2012 12/10/2012

Defendant Class) filed by Charelle Loder. (Attachments: # 1 Brooke Decl &Exs. A to P−2, # 2 Bustabad Decl, # 3 Jack Doe Decl, # 4 Jonathon Doe Decl, # 5 Julie Doe Decl, # 6 Loder Decl, # 7 Long Decl, # 8 Ratliff Decl, # 9 Rodriguez Decl, # 10 Samper Decl, # 11 Smiley Decl)(Brooke, Samuel) (Entered: 10/23/2012)
45 ORDER directing that, upon consideration of the 41 motion to amend, it is ORDERED that Defendant file a response on or before November 5, 2012. Signed by Chief Judge William Keith Watkins on 10/26/12. (scn, ) (Entered: 10/26/2012)
46 RESPONSE to Motion re 41 First MOTION to Amend/Correct (Motion to Amend Complaint and Incorporated Memorandum of Law) filed by Reese McKinney, Jr. (Englehart, John) (Entered: 11/06/2012)
47 AFFIDAVIT in Opposition re 41 First MOTION to Amend/Correct (Motion to Amend Complaint and Incorporated Memorandum of Law) Declaration of Wells Robinson filed by Reese McKinney, Jr. (Attachments: # 1 Exhibit 1 and 2)(Englehart, John) (Entered: 11/06/2012)
48 MOTION for Leave to File Out−of−Time Defendant's Response to Plaintiffs' Motion to Amend Complaint by Reese McKinney, Jr. (Englehart, John) (Entered: 11/06/2012)
49 ORDER directing that, upon consideration of Defendant's unopposed 48 Motion for Leave to File Out−Of−Time, and for good cause shown, it is ORDERED that the motion is GRANTED. Signed by Chief Judge William Keith Watkins on 11/7/12. (scn, ) (Entered: 11/07/2012)
50 ORDER directing that (1) Plaintiffs shall file their First Amended Complaint on or before December 7, 2012; (2) Defendant Reese McKinney, Jr., shall answer or otherwise respond on or before January 4, 2013; (3) Defendant Gloria Sinclair shall answer or otherwise respond in accordance with Rule 12(a) of the Federal Rules of Civil Procedure. Signed by Chief Judge William Keith Watkins on 12/6/12. (scn, ) (Entered: 12/06/2012)
51 FIRST AMENDED COMPLAINT against Reese McKinney, Jr, Gloria Sinclair, filed by Charelle Loder, Jack Doe, Jonathon Doe, Julie Doe.(Brooke, Samuel) Modified on 12/10/2012 to correct docket text to match PDF document (scn, ). (Entered: 12/07/2012)
First AMENDED COMPLAINT against Reese McKinney, Jr. and Gloria Sinclair, filed by Julie Doe, Charelle Loder, Jonathon Doe, Jack Doe, Jane Doe, James Doe.(No PDF document attached to this entry; see 51 Amended Complaint.)(scn, ) (Entered: 12/10/2012)
NOTICE of Docket Text Correction re 51 Amendment to Complaint to reflect docket text being changed to "First Amended Complaint" pursuant to PDF document. (No PDF document attached to this entry.) (scn, ) (Entered: 12/10/2012)
*** Attorneys James M Knoepp, Sigfredo Rubio, Daniel Werner, Mary C Bauer, and Samuel J Brooke terminated as cousel for James Doe and Jane Doe pursuant to 51 First Amended Complaint. (scn, ) (Entered: 06/04/2013)
***Attorney Daniel Werner,James M Knoepp,Sigfredo Rubio for Jonathon Doe,Daniel Werner,James M Knoepp,Sigfredo Rubio for Julie Doe added pursuant to 51 Amended Complaint. (scn, ) (Entered: 06/12/2013)
52 MOTION Leave to Proceed Under Pseudonyms by Jonathon Doe and Julie Doe. (Brooke, Samuel) Modified on 12/11/2012 TO REMOVE NON−FILERS PURSUANT TO PDF DOCUMENT (scn, ). (Entered: 12/10/2012)
53 BRIEF/MEMORANDUM in Support re 52 MOTION Leave to Proceed Under Pseudonyms filed by Jonathon Doe and Julie Doe. (Attachments: # 1 Exhibit Declaration of Jonathon Doe, # 2 Exhibit Declaration of Julie Doe, # 3 Exhibit Declaration of Heidi Beirich, # 4 Exhibit Conflict Disclosure Statement of Jonathon Doe, # 5 Exhibit Conflict Disclosure Statement of Julie Doe)(Brooke, Samuel) Modified on 12/11/2012 TO REMOVE NON−FILERS PURSUANT TO PDF DOCUMENT (scn, ). (Entered: 12/10/2012)

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 10 of 12

12/10/2012 12/10/2012 12/11/2012 12/13/2012
12/17/2012
01/04/2013 01/05/2013 01/07/2013 01/08/2013 02/01/2013 02/07/2013
02/11/2013 02/28/2013 03/09/2013

54 Corporate/Conflict Disclosure Statement by Jonathon Doe re 52 MOTION Leave to Proceed Under Pseudonyms . (Brooke, Samuel) Modified on 12/11/2012 TO REMOVE NON−FILERS PURSUANT TO PDF DOCUMENT (scn, ). (Entered: 12/10/2012)
55 Corporate/Conflict Disclosure Statement by Julie Doe re 52 MOTION Leave to Proceed Under Pseudonyms . (Brooke, Samuel) Modified on 12/11/2012 TO REMOVE NON−FILERS PURSUANT TO PDF DOCUMENT (scn, ). (Entered: 12/10/2012)
56 ORDER directing that the 52 Motion for Leave to Proceed Under Pseudonyms is GRANTED, as further set out. Signed by Chief Judge William Keith Watkins on 12/11/12. (scn, ) (Entered: 12/11/2012)
57 Summons Issued as to Gloria Sinclair; mailed CMRRR with copy of 51 Amended Complaint, 55 Corporate/Conflict Disclosure Statement by Julie Doe, 54 Corporate/Conflict Disclosure Statement by Jonathon Doe, 53 BRIEF/MEMORANDUM in Support, 52 MOTION Leave to Proceed Under Pseudonyms by Jonathon Doe and Julie Doe, 44 BRIEF/MEMORANDUM in Support, 43 Amended MOTION to Certify Class, and 42 Amended MOTION to Certify Class. (scn, ) (Entered: 12/13/2012)
58 Return Receipt Card showing service of 51 Amended Complaint, 55 Corporate/Conflict Disclosure Statement by Julie Doe, 54 Corporate/Conflict Disclosure Statement by Jonathon Doe, 53 BRIEF/MEMORANDUM in Support, 52 MOTION Leave to Proceed Under Pseudonyms by Jonathon Doe and Julie Doe, 44 BRIEF/MEMORANDUM in Support, 43 Amended MOTION to Certify Class, and 42 Amended MOTION to Certify Class signed by Melanie C for Gloria Sinclair served on 12/14/2012, answer due 1/4/2013. (scn, ) (Entered: 12/17/2012)
59 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim − Amended Complaint by Reese McKinney, Jr. (Englehart, John) (Entered: 01/05/2013)
60 AFFIDAVIT re 59 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim − Amended Complaint (Supporting Affidavit of Wells Robinson) by Reese McKinney, Jr. (Englehart, John) (Additional attachment(s) added on 1/7/2013: # 1 Affidavit with certificate of service) (scn, ). (Entered: 01/05/2013)
61 NOTICE of PDF Correction re 60 Affidavit to reflect addition of certificate of service. (Attachments: # 1 Affidavit with certificate of service)(scn, ) (Entered: 01/07/2013)
62 NOTICE by Reese McKinney, Jr re 60 Affidavit, (Notice of Filing of Exhibits to Declaration of Wells Robinson) (Englehart, John) Modified on 1/9/2013 to remove relationship to 61 NOTICE of PDF Correction re 60 Affidavit to reflect addition of certificate of service (scn, ). (Entered: 01/08/2013)
63 NOTICE by Reese McKinney, Jr of Substitution of Public Officer Defendant (Englehart, John) (Entered: 02/01/2013)
64 BRIEF/MEMORANDUM in Support re 59 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim − Amended Complaint Supplement to Motion to Dismiss Amended Complaint filed by Steven L. Reed. (Attachments: # 1 Affidavit of Steven Reed)(Englehart, John) (Additional attachment(s) added on 2/11/2013 to reflect correction to style of case: # 2 Corrected main document, # 3 Corrected Reed declaration) (scn, ). (Entered: 02/07/2013)
65 NOTICE of PDF Correction re 64 Brief to reflect correction to style of the case. (Attachments: # 1 Corrected main document of docket entry 64 , # 2 Corrected exhibit of docket entry 64 )(scn, ) (Entered: 02/11/2013)
66 RESPONSE in Opposition re 59 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim − Amended Complaint filed by Jack Doe, Charelle Loder. (Knoepp, James) (Entered: 02/28/2013)
67 REPLY BRIEF re 59 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim − Amended Complaint filed by Steven L. Reed. (Attachments: # 1

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04/02/2013 04/02/2013 04/02/2013 04/02/2013 04/03/2013 04/03/2013 04/17/2013
06/03/2013 06/03/2013
06/03/2013
06/03/2013 06/04/2013 06/07/2013 06/07/2013 06/11/2013
06/11/2013
06/12/2013

Affidavit Malcolm Richard)(Englehart, John) (Entered: 03/09/2013)
68 ANSWER to Amendment to Complaint by Gloria Sinclair.(Clements, Fred) (Additional attachment(s) added on 4/3/2013: # 1 Corrected certificate of service) (scn, ). (Entered: 04/02/2013)
***Attorney Kendrick Emerson Webb for Gloria Sinclair added pursuant to 68 Answer. (scn, ) (Entered: 04/03/2013)
***Attorney Kendrick Emerson Webb and Fred Lee Clements, Jr for Leon Archer added pursuant to 68 Answer. (scn, ) (Entered: 04/03/2013)
*** Attorney Fred Lee Clements, Jr and Kendrick Emerson Webb terminated as counsel for Gloria Sinclair pursuant to 68 Answer. (scn, ) (Entered: 04/03/2013)
69 Corporate/Conflict Disclosure Statement by Leon Archer. (Webb, Kendrick) Modified on 4/3/2013 to correct FILING PARTY (scn, ). (Entered: 04/03/2013)
70 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Steven L. Reed. Corporate Disclosures due by 4/15/2013. (Attachments: # 1 Standing ORDER and sample format)(scn, ) (Entered: 04/03/2013)
71 Corporate/Conflict Disclosure Statement by Steven L. Reed re 70 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Steven L. Reed. (Englehart, John) Modified on 4/18/2013 to create relationship to 70 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Steven L. Reed (scn, ). (Entered: 04/17/2013)
72 REPORT of Rule 26(f) Planning Meeting. (Brooke, Samuel) (Entered: 06/03/2013)
73 Joint MOTION for Protective Order by Jack Doe, Jonathon Doe, Julie Doe, Charelle Loder, Steven L. Reed, and Leon Archer. (Attachments: # 1 (Propsoed) Stipulated Protective Order)(Brooke, Samuel) Modified on 6/3/2013 to add JOINT FILERS pursuant to PDF document (scn, ). (Entered: 06/03/2013)
NOTICE of Docket Text Correction re 73 Joint MOTION for Protective Order to reflect addition of Steven L. Reed and Leon Archer as JOINT FILERS pursuant to PDF document. (No PDF document attached to this entry.) (scn, ) (Entered: 06/03/2013)
74 STIPULATED PROTECTIVE ORDER. Signed by Honorable Judge Wallace Capel, Jr on 6/3/13. (scn, ) (Entered: 06/03/2013)
75 MOTION to Withdraw as Attorney MARY BAUER by Jack Doe, Jonathon Doe, Julie Doe, Charelle Loder. (Bauer, Mary) (Entered: 06/04/2013)
76 ORDER directing that Mary C. Bauer's 75 motion to withdraw as counsel is granted. Signed by Chief Judge William Keith Watkins on 6/7/13. (scn, ) (Entered: 06/07/2013)
*** Attorney Mary C Bauer terminated as counsel for Jack Doe, Jonathon Doe, Julie Doe, and Charelle Loder pursuant to 76 Order. (scn, ) (Entered: 06/07/2013)
77 MEMORANDUM OPINION AND ORDER directing that Judge Reed's 59 motion to dismiss is GRANTED and that the claims of Plaintiffs Charelle Loder and Jack Doe are DISMISSED for lack of standing, as further set out. Signed by Chief Judge William Keith Watkins on 6/11/13. (Attachments: # 1 Civil Appeals Checklist)(scn, ) (Entered: 06/11/2013)
*** Attorneys John Mark Englehart, Henry Lewis Gillis, Tyrone Carlton Means, and Frederic Allen Bolling terminated as counsel for defendant Steven L. Reed pursuant to 77 Memorandum Opinion and Order; Attorneys Daniel Werner, James M Knoepp, Sigfredo Rubio, and Samuel J Brooke terminated as counsel for plaintiffs Charelle Loder and Jack Doe pursuant to 77 Memorandum Opinion and Order.(scn, ) (Entered: 06/11/2013)
78 RULE 26(f) ORDER directing that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable but not later than July 3, 2013, as further set out. Signed by Chief Judge William Keith Watkins on 6/12/13. (scn, ) (Entered:

Case: 2:11-cv-979 As of: 03/19/2014 08:31 AM CDT 12 of 12

07/02/2013 07/03/2013
08/16/2013 08/19/2013

06/12/2013)
79 Joint MOTION to Stay Proceedings Until August 16, 2013 by Leon Archer, Jonathon Doe, Julie Doe. (Brooke, Samuel) (Entered: 07/02/2013)
80 ORDER directing that the 79 Joint Motion to Stay Proceedings is GRANTED, and that proceedings in this case are STAYED until August 16, 2013, on which date the parties are ORDERED to file a Rule 26(f) report in accordance with the court's previous 78 order. Signed by Chief Judge William Keith Watkins on 7/3/13. (scn, ) (Entered: 07/03/2013)
81 STIPULATION of Dismissal (Jointly Filed) by Jonathon Doe, Julie Doe. (Attachments: # 1 Ex A − Tallapoosa County Policy)(Brooke, Samuel) (Entered: 08/16/2013)
82 ORDER directing that all pending motions in this case are DENIED as moot; the Clerk of the Court is ORDERED to close this case. Signed by Chief Judge William Keith Watkins on 8/19/13. (Attachments: # 1 Civil Appeals Checklist)(scn, ) (Entered: 08/19/2013)