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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 and DON 

DAVIS in his official capacity as 

Probate Judge of Mobile County, 

Alabama,

)

)

)

)

)

)

)

Defendants.

ORDER

This matter is before the court on the emergency verified motion of Jefferson 

County Probate Judge Alan King for leave to intervene as a party (Doc. 58), Judge 

King’s motion for preliminary injunction (Doc. 59) and Attorney General Strange’s 

opposition to the motion to intervene (Doc. 61). For the reasons explained below, 

the court finds that Judge King’s motion to intervene should be denied. 

Accordingly, the court will not entertain King’s motion for preliminary injunction.

BACKGROUND

This case was brought by four same-sex couples in committed relationships 

who reside in Mobile, Alabama, and were denied the right to a legal marriage under 

the laws of Alabama. The Defendants in this case consist of the Alabama Attorney 

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General Luther Strange and Mobile County Probate Judge Don Davis. The court 

previously issued preliminary injunctions in this case prohibiting the Alabama 

Attorney General and Judge Davis and their “officers, agents, servants and 

employees, and others in active concert or participation with any of them who would 

seek to enforce the marriage laws of Alabama that prohibit same-sex marriage”

from enforcing the Alabama laws which prohibit same-sex marriage. (Docs. 29, 55). 

More specifically, Judge Davis was enjoined from refusing to issue marriage 

licenses to the Plaintiffs due to the Alabama laws which prohibit same-sex 

marriage. (Doc. 55). Attorney General Strange has appealed the preliminary 

injunction against him to the Eleventh Circuit Court of Appeals. (Doc. 31). All of 

the named plaintiffs in this case reportedly obtained marriage licenses following the 

entry of the preliminary injunction against Judge Davis. Jefferson County Probate 

Judge King now moves for leave to intervene in this matter and for a preliminary 

injunction to be entered against Attorney General Strange.

DISCUSSION

Judge King moves for leave to intervene as of right or, in the alternative, by 

permission. Intervention by right is permitted upon timely application by anyone 

who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the 

subject of the action, and is so situated that disposing of the action 

may as a practical matter impair or impede the movant's ability to 

protect its interest, unless existing parties adequately represent that 

interest. 

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FED. R. CIV. P. 24(a). Judge King has not alleged that a federal statute confers an 

unconditional right to intervene. Thus, to intervene by right, Judge King must 

satisfy 24(a)(2) by demonstrating: (1) he has an interest relating to the property or 

transaction which is the subject of the action, (2) that King’s ability to protect that 

interest may be impaired or impeded by the disposition of the action, and (3) that 

King is inadequately represented by the existing parties.

Attorney General Strange opposes King’s intervention asserting that the 

motion is untimely and that there is no case or controversy between King and the 

parties in this case. While final judgment has not been entered in this case, 

Strange is correct that the Plaintiffs have already achieved what they sought from a 

probate judge.1 All of the Plaintiff couples in this case reside in Mobile County and 

sought marriage licenses from Mobile County Probate Judge Don Davis. This court 

enjoined Judge Davis from refusing to issue marriage licenses to Plaintiffs due to 

the Alabama laws prohibiting same-sex marriage. None of the parties in this case 

have a claim against Judge King and there is no indication that they will have any 

claim against Judge King in the future. Thus, Judge King does not appear to have 

an interest in the subject matter of this action.

Judge King asserts that he faces imminent risk of being subjected to a state 

court order that will put him in the position of having to choose either to disregard 

 1 The court notes that even if plaintiffs have all obtained marriage licenses, they 

have not obtained complete and final relief. Plaintiffs seek more than an official 

piece of paper that says they are married. Plaintiffs want their marriages to be 

recognized as valid going forward so that they can receive the legal protections that 

arise from marriage. 

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the United States Constitution, which he is sworn to uphold, thereby subjecting him 

to liability, or to disregard a state court order. The state court action King is 

referring to is the Writ of Mandamus petition filed in the Supreme Court of 

Alabama which names all Alabama probate judges, including Judge King, as 

respondents. Ex parte State of Alabama v. Alan L. King, et al., Supreme Court Case 

No. 1140460. However, as stated by Judge King, his risk of conflict is between a 

potential state court ruling and the United States Constitution, not the preliminary 

injunctions entered in this case.

Additionally, there is already a party to this case that represents the same 

interests as Judge King. Defendant Judge Don Davis faces the same risk of being 

subjected to conflicting federal and state orders regarding the issuance of marriage 

licenses to same-sex couples.2 There is a “presumption of adequate representation 

where an existing party seeks the same objective as the interveners.” Stone v. First 

Union Corp, 371 F.3d 1305, 1311 (11th Cir. 2004). Judge Davis is in the same 

position as Judge King and is represented by counsel in this matter. Thus, the 

court finds that Judge King may not intervene by right.

 2 Judge Davis, in his brief filed with the Alabama Supreme Court concerning the 

petition, takes the position that the petition does not apply to him (Doc. 65, Exhibit 

4, pp. 2-3). The petition names as respondents four Probate Judges, and “Judge 

Does #1 – 63”, each of whom “is a Judge of Probate in Alabama who may issue, or 

may have issued, marriage licenses to same-sex couples in Alabama as a result of 

the Searcy or Strawser Injunction, in violation of the Marriage Amendment, the 

Marriage Act, and [Chief Justice Moore’s] Administrative Order.” (Doc. 60, Exhibit 

1). As there are only 67 Probate Judges in Alabama, Judge Davis is certainly among 

the “Judge Does #1 -63”.

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In the alternative to intervention by right, Judge King seeks permissive 

intervention. Permissive intervention is permitted upon timely motion to anyone 

who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common 

question of law or fact.

FED. R. CIV. P. 24(b)(1). “In exercising its discretion, the court must consider 

whether the intervention will unduly delay or prejudice the adjudication of the 

original parties’ rights.” FED. R. CIV. P. 24(b)(3). Again, Judge King does not 

suggest that any federal statute provides him a right to intervene. Thus, for 

permissive intervention Judge King must have a claim or defense with a common 

question of law or fact as the main action. The decision whether to allow permissive 

intervention is “wholly discretionary with the court.” Purcell v. BankAtlantic 

Financial Corp., 85 F.3d 1508, 1513 (11th Cir. 1996). 

The court agrees that Judge King’s circumstances present some common 

questions of law. However, since relief has already been granted to Plaintiffs 

against Judge Davis and none of the parties seek anything from Judge King, the 

court does not find King’s intervention is warranted. At this point in the litigation 

the addition of Judge King as a party will add nothing to the adjudication of the 

claims presented and may only serve to complicate the matter. Judge King’s 

participation in this case is neither necessary nor desired by the parties. No parties 

in this case have any claims against Judge King and Judge King has not suggested 

that he would assert any claims against any of the parties in this case. If allowed to 

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intervene, Judge King would move for a preliminary injunction to require Attorney 

General Strange to appear in the State Supreme Court Mandamus action and move 

to dismiss the petition. There is already a preliminary injunction entered against 

Attorney General Strange and Plaintiffs have also moved for the same relief sought

by Judge King if he is allowed to intervene. Plaintiffs have moved to enforce the 

injunction previously entered against the Attorney General by seeking an order

from this court requiring the Attorney General to appear in the Alabama Supreme 

Court Mandamus action and move for its dismissal. Thus, Judge King’s proposed 

parallel motion would serve little purpose. In addition, since none of the parties in 

this case seek to have Judge King issue a marriage license, it is unclear what other 

basis Judge King would have for preliminary injunctive relief. After considering all 

of the above, the court, in its discretion, declines to allow Judge King to intervene.

CONCLUSION

The emergency verified motion of Jefferson County Probate Judge Alan King 

for leave to intervene as a party (Doc. 58), is DENIED and Judge King’s motion for 

preliminary injunction (Doc. 59), is STRICKEN.

DONE and ORDERED this 20th day of February, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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