IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES N. STRAWSER, et al., )

)

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official 

capacity as Attorney General for 

the State of Alabama, et al.,

)

)

)

)

)

Defendants

ORDER

This matter is before the court on the motion of Judge Don Davis to withdraw 

as Class Representative and for his counsel to withdraw as Class Counsel (Doc. 

130), Plaintiffs’ opposition thereto (Doc. 135), Judge Davis’ amended motion (Doc. 

147), Plaintiffs’ opposition to the amended motion (Doc. 149), Plaintiffs’ motion for 

permanent injunction and final judgment (Doc. 142), opposition to Plaintiffs’ motion 

filed by Attorney General Luther Strange (Doc. 150), Judge Tim Russell (Doc. 151), 

and Judge Davis (Doc. 152), Plaintiffs’ reply (Doc. 159), the motion of Attorney 

General Strange to dismiss (Doc. 166), Plaintiffs’ opposition to dismissal (Doc. 167), 

Attorney General Strange’s reply (Doc. 170), and supplemental authority filed by 

Plaintiffs (Docs. 162, 171, 173, 174, 175). For the reasons explained below, the 

Court finds that the motion of Judge Davis to withdraw and the motion of Attorney 

General Strange to dismiss should be denied and that Plaintiffs’ motion for 

Case 1:14-cv-00424-CG-C Document 179 Filed 06/07/16 Page 1 of 7
2

permanent injunction and final judgment should be granted.

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

Defendant Davis asks to withdraw because he does not want to continue to 

represent the class or pay expenses associated with litigating this case. However, 

as this Court has previously stated, “Rule 23(a)(4) does not require a willing

representative, [but] merely an adequate one.” (Doc. 122, p. 14 (quoting National 

Broadcasting Co., Inc. v. Cleland, 697 F.Supp. 1204, 1217 (N.D. Ga. 1988)). “In 

contrast with representatives of plaintiff classes, named defendants almost never 

choose their role as class champion [as] it is a potentially onerous one thrust upon 

them by their opponents.” Marcera v. Chinlund, 595 F.2d 1231, 1239 (2d Cir.), 

vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S. Ct. 

2833, 61 L. Ed. 2d 281 (1979). “But courts must not readily accede to the wishes of 

named defendants in this area, for to permit them to abdicate so easily would 

utterly vitiate the effectiveness of the defendant class action as an instrument for 

correcting widespread illegality.” Id. This Court previously found that Judge Davis 

is adequate to represent the Defendant Class. After reviewing Judge Davis’ motion 

and amended motion, the Court finds that Judge Davis has not provided any 

justification to reconsider that decision. The Court also finds no justification for 

permitting counsel to withdraw as Defendants’ Class Counsel.

II. Motion to Dismiss as Moot

Attorney General Strange moves to dismiss this case as moot because a 

permanent injunction barring the enforcement of Alabama’s marriage laws have 

Case 1:14-cv-00424-CG-C Document 179 Filed 06/07/16 Page 2 of 7
3

already issued and the Attorney General continues to remain in full compliance 

with it. The Attorney General acknowledges that the Supreme Court’s decision in 

Obergefell v. Hodges 135 S.Ct. 2584(2015) is the law of the land. He contends that 

nothing more remains to be done in this case and that there is no longer a live case 

or controversy between the Attorney General and the Plaintiffs. Defendants 

Russell and Davis also argue that the case is moot in their opposition to Plaintiffs’ 

motion for permanent injunction. Russell contends that he has been issuing 

marriage licenses to same-sex couples on the same priority and in the same manner 

as those licenses are issued to couples of the opposite sex. Davis also argues that 

Alabama probate judges have complied with the reasoning of the Obergefell ruling.

Plaintiffs conversely argue that none of the Defendants’ assurances provide 

Plaintiffs or the members of the Plaintiff Class with a formal, enforceable order 

should the Attorney General (or a future Attorney General) or other Defendants 

violate this Court’s injunction or fail to fully recognize marriages validly entered 

into in Alabama or elsewhere. Current or future state and county officials may 

disagree about Obergefell’s applicability to the challenged Alabama laws or 

otherwise resist the decision. This Court agrees that the need for a permanent 

injunction is clear. As the Northern District of Florida recently explained “a 

government ordinarily cannot establish mootness just by promising to sin no more.” 

Brenner v. Scott, Case No. 14-cv-107-RH/CAS, Order granting summary judgment 

(N.D. Fla. March 30, 2016). “A ‘defendant’s voluntary cessation of allegedly 

unlawful conduct ordinarily does not suffice to moot a case.’ ” Id. (quoting Friends of 

Case 1:14-cv-00424-CG-C Document 179 Filed 06/07/16 Page 3 of 7
4

the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174 (2000)). “A case 

becomes moot only ‘if subsequent events made it absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.’ ” Id. (quoting Laidlaw

supra). “The formidable, heavy burden of persuading the court that the challenged 

conduct cannot reasonably be expected to start up again lies with the party 

asserting mootness.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 

(11th Cir. 2007) (quoting Laidlaw supra). Here the Attorney General and other 

Defendants have not satisfied this burden.

To demonstrate that the case is moot, Defendants must show that both of the 

following conditions are satisfied:

(1) it can be said with assurance that there is no reasonable expectation . . . that 

the alleged violation will recur, and 

(2) interim relief or events have completely and irrevocably eradicated the effects 

of the alleged violation.

Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (citations and internal 

quotations omitted). Courts consider at least three factors in determining whether 

a defendant has unambiguously terminated the challenged conduct:

First, courts consider the timing and content of the decision to terminate the 

conduct. Rich [v. Fla. Dep’t of Corr., 716 F.3d 525, 532 (11th Cir. 2013)]. 

Second, courts consider whether the change in conduct was the result of 

substantial deliberation or was instead an attempt to manipulate the court’s 

jurisdiction. Id. And third, courts consider whether the new policy has been 

consistently applied. Id. If the defendant establishes unambiguous termination, the 

controversy is moot, “in the absence of some reasonable basis to believe that the 

policy will be reinstated if the suit is terminated.” Troiano v. Supervisor of 

Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1285 (11th Cir. 2004).

Brenner v. Scott, Case No. 14-cv-107-RH/CAS, Order granting summary judgment 

(N.D. Fla. March 30, 2016). Given the actions by Alabama state and local officials 

Case 1:14-cv-00424-CG-C Document 179 Filed 06/07/16 Page 4 of 7
5

during this litigation, both before and after the Supreme Court decided Obergefell, 

it cannot be said with assurance that there is no reasonable expectation that 

Alabama’s unconstitutional marriage laws will not again be enforced. Although the 

Attorney General professes that he will continue to abide by the decision in 

Obergefell, like the defendant in Brenner v. Scott, “[t]here has been nothing 

voluntary about the defendants’ change of tack.” The Defendants defended this 

case with vigor from the outset and the challenged statutes remain on the books.

Although Attorney General Strange is already subject to a permanent 

injunction from another case in this Court, Searcy v. Strange, No. 14-cv-208-CG-N, 

the other Defendants in this case are not subject to that injunction and the 

Plaintiffs in this case lack standing to enforce the Searcy injunction. It is also 

apparent that certain Alabama state courts do not view this Court’s ruling in 

Searcy as binding precedent, as demonstrated by the writ of mandamus issued by 

the Alabama Supreme Court on March 3, 2015, requiring probate judges to 

discontinue the issuance of marriage licenses to same-sex couples. Ex parte State ex 

rel. Alabama Policy Inst., 2015 WL 892752, at *43 (Ala. Mar. 3, 2015).

The Court notes that the Supreme Court of Alabama denied the pending 

mandamus petitions and entered judgment in Ex parte State of Alabama ex rel. 

Alabama Policy Institute on March 4, 2016. However, the Alabama Supreme Court 

did not vacate or set aside its earlier writ of mandamus directing Alabama’s probate 

judges to comply with the Alabama laws that were held unconstitutional by this 

Court. Chief Justice Moore specifically stated in his concurrence that the certificate 

Case 1:14-cv-00424-CG-C Document 179 Filed 06/07/16 Page 5 of 7
6

of judgment and the dismissal of the petitions “does not disturb the existing March 

orders in this case or the Court’s holding therein that the Sanctity of Marriage 

Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection 

Act, § 30-1-9, Ala. Code 1975, are constitutional.” Ex parte State ex rel. Alabama 

Policy Inst., 2016 WL 859009, at *5, *39 (Ala. Mar. 4, 2016). Chief Justice Moore 

went further to state that “[t]he Obergefell opinion, being manifestly absurd and 

unjust and contrary to reason and divine law, is not entitled to precedential value.” 

Id. at *28. Chief Justice Moore also stated that the Eleventh Circuit’s finding that 

the Alabama Supreme Court's order was abrogated by the Supreme Court's decision 

in Obergefell “is plainly wrong.” Id. at *34.

This Court is aware that Chief Justice Moore is currently suspended from his 

position and is facing charges before the Alabama Court of the Judiciary. However, 

even if Chief Justice Moore is not reinstated to his position as Chief Justice, the 

concurring opinions of several other Alabama Supreme Court Justices also 

expressed disagreement with Obergefell. Justice Bolin and Justice Parker also 

stated that the Order dismissing the mandamus petitions was not a “decision on the 

merits,” indicating that the mandamus order finding Alabama’s marriage statutes 

constitutional was still in effect. Id. at *40, *47. The failure of the Alabama 

Supreme Court to set aside its earlier mandamus order and its willingness to 

uphold that order in the face of the United States Supreme Court’s ruling in 

Obergefell demonstrate the need for a permanent injunction in this case. It is clear 

that the decision by the United States Supreme Court in Obergefell does not 

Case 1:14-cv-00424-CG-C Document 179 Filed 06/07/16 Page 6 of 7
7

provide certainty that the alleged violations will not recur. Accordingly, the Court 

finds that as long as the Sanctity of Marriage Amendment and the Alabama 

Marriage Protection Act remain on the books, there continues to be a live 

controversy with respect to which the Court can give meaningful relief.

III. Motion for Permanent Injunction and Final Judgment

Plaintiffs move for entry of a permanent injunction based on the Supreme 

Court’s decision in Obergefell, upholding this Court’s findings in its preliminary 

injunction order. The parties have had ample opportunity to respond to the merits 

of Plaintiffs’ claims. The Court is not persuaded that the grant of class certification 

or its other prior rulings should be reconsidered. Having found that this action is 

not moot, the Court also finds that the reasoning in Obergefell is determinative of 

the case. Accordingly, entry of a permanent injunction is appropriate.

CONCLUSION

For the reasons stated above, the motion of Judge Don Davis to withdraw as 

Class Representative and for his counsel to withdraw as Class Counsel (Doc. 130), is 

DENIED, the motion of Attorney General Strange to dismiss (Doc. 166), is 

DENIED and Plaintiffs’ motion for permanent injunction and final judgment (Doc. 

142), is GRANTED. Final Judgment will be entered by separate order. 

DONE and ORDERED this 7th day of June, 2016.

/s/ Callie V. S. Granade 

SENIOR UNITED STATES DISTRICT JUDGE

Case 1:14-cv-00424-CG-C Document 179 Filed 06/07/16 Page 7 of 7