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Memorandum Opinion and Order
Memorandum Opinion and Order
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Rule 12(b) motions must be made before pleading if a responsive pleading is allowed.
Fed. R. Civ. P. 12(b). However, subject-matter jurisdiction is not a waivable 12(b) defense, and
[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action. Fed. R. Civ. P. 12(h)(3). Hence, Governor Bentleys motion must be
considered.
judgment that the provisions of the Marriage Sanctity Laws violate the Due
Process and Equal Protection Clauses of the Fourteenth Amendment to the extent
that they prevent Alabama from recognizing same-sex marriages entered in other
states, and an injunction requiring Alabama state officials to recognize as
marriages the unions of same-sex couples married under the laws of other states.
(Compl. at 1617.)2
Governor Bentley is named as a defendant in his official capacity only. The
Alabama Attorney General, Luther Strange, is also a defendant in his official
capacity, but he has not raised sovereign immunity as a defense, and he has chosen
to defend the State of Alabamas interests in defining marriage as between one
man and one woman. Governor Bentley is alleged to have the supreme executive
power in state government and to maintain and exercise enforcement authority in
connection with the [Marriage] Sanctity Laws of Alabama. (Compl. at 16.) The
Complaint particularly identifies Governor Bentleys announcement in September
2013 that he would defy a federal directive requiring the Alabama National Guard
to provide benefits to same-sex spouses of its members.
(Compl. at 16.)
Since the filing of this suit, a sister federal court has declared Alabamas Marriage
Sanctity Laws unconstitutional under the Fourteenth Amendments Due Process and Equal
Protection Clauses. Searcy v. Strange, ___ F. Supp. 3d ____, No. CIV.A. 14-0208-CG-N, 2015
WL 328728, at *5 (S.D. Ala. Jan. 23, 2015). This court is not bound by Searcy. As that court
acknowledged, see id. at *3 n.1., the constitutionality of marriage laws like Alabamas will be
definitively decided by the end of the current Supreme Court term in an appeal from the Sixth
Circuits opinion in DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014).
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(Ans. at 16.)
However, in his motion to dismiss, Governor Bentley references media reports that
the Alabama National Guard has complied with the Pentagons directives. (Doc.
# 48, at 4.)3
The Complaint also joins as defendants the Alabama State Registrar of Vital
Statistics, the Probate Judge of Montgomery County, and Richard I. Lohr, the
Administrator of the Estate of David Fancher.
voluntarily dismissed by Plaintiff early in this litigation, but Mr. Lohr recently has
appeared and intervened as a defendant for the limited purpose of depositing
wrongful death settlement proceeds into the courts registry pending the courts
resolution of pending cross-motions for summary judgment.
A competing
claimant for the settlement funds, David Fanchers mother, Pat Fancher, has also
been allowed to join this case as an intervenor-defendant.
Governor Bentleys motion to dismiss (Doc. # 48) was filed on July 24,
2014, over four months after he filed his answer, and within weeks of the end of
the period allowed to conduct discovery.
Although Governor Bentley has referenced news stories not identified on the face of
Plaintiffs Complaint to rebut one of the Complaints allegations about the National Guard, (see
Doc. # 48, at 4 n. 1), that news report contradicts Governor Bentleys Answer which admits
Paragraph 16 of the Complaint. For that reason, the court gives no weight to the Governors
reference to the news report, and the motion is treated as a facial attack on subject-matter
jurisdiction rather than a factual attack.
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IV. DISCUSSION
A.
[T]he Eleventh
Amendment prohibits suits against state officials where the state is, in fact, the real
party in interest. Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336 (11th
Cir. 1999).
However, state officials may be sued for prospective injunctive relief to stop
continuing violations of federal law, per the doctrine of Ex parte Young, 209 U.S.
123 (1908). Id. The doctrine is a legal fiction insofar as it creates an imaginary
distinction between the state and its officers, deeming the officers to act without
the states authority, and, hence, without immunity protection, when they enforce
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state laws in derogation of the Constitution. Id. at 133637. But Ex parte Young
requires that the joined state official have some connection with the enforcement
of the [allegedly unconstitutional] act. Ex parte Young, 209 U.S. 123, 157 (1908)
(emphasis added). Therefore,
unless the state officer has some responsibility to enforce the statute
or provision at issue, the fiction of Ex parte Young cannot operate.
Only if a state officer has the authority to enforce an unconstitutional
act in the name of the state can the Supremacy Clause be invoked to
strip the officer of his official or representative character and subject
him to the individual consequences of his conduct.
Summit Med. Assocs., 180 F.3d at 1341 (citing Ex parte Young, 209 U.S. at 159
60).
An examination of cases applying these principles is helpful. In an action
involving several alleged violations of constitutional rights arising from systemic
deficiencies in Georgias criminal justice system, the Eleventh Circuit held that
Georgias governor was a proper defendant because he was, under Georgia law,
responsible for law enforcement, was charged with executing the laws
faithfully, and because he possessed authority to commence criminal
prosecutions and to direct Georgias attorney general to institute and
prosecute actions on the states behalf. Luckey v. Harris, 860 F.2d 1012, 1016
(11th Cir. 1988) (citing various provisions of Georgias Constitution and Code).
But in contrast, in Womens Emergency Network v. Bush, 323 F.3d 937, 94950
(11th Cir. 2003), the Eleventh Circuit held that Floridas governor was not a proper
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Arguments
Governor Bentleys motion to dismiss is based on most of the precedents
discussed supra. Additionally, he argues that Plaintiff lacks standing to sue him
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The plaintiffs in Searcy were represented by different counsel than Plaintiff, and their
arguments and pleading were likely different than Plaintiffs. However, Searcy aligns with the
opinions of several other federal courts faced with sovereign immunity defenses raised by state
governors and attorneys general joined as defendants in constitutional actions for state
recognition of same-sex marriages. See Searcy, 2014 WL 4322396, at *4 n.7.
For example, in Bishop v. Oklahoma, 333 F. Appx 361, 365 (10th Cir. 2009), the court
held that a same-sex couple could not sue Oklahomas governor and attorney general because the
generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging
a constitutional amendment they have no specific duty to enforce. See also Kitchen v. Herbert,
755 F.3d 1193, 1202 (10th Cir. 2014) (distinguishing Bishop on the basis of Bishops facts that
Oklahoma marriage recognitions were within the administration of the judiciary as opposed to
the executive branch of Oklahoma government). The Bishop panel also reasoned that standing
was lacking because the plaintiffs alleged injury was not caused by either the governor or the
attorney general and could not be redressed by an injunction against either of them. 333
F. Appx at 365.
In Harris v. McDonnell, 988 F. Supp. 2d 603, 609 (W.D. Va. 2013), the Western District
of Virginia concluded that Virginias governor was not a proper defendant to a same-sex
marriage constitutional challenge because Virginias marriage laws do not expressly refer to the
Governor, there is no allegation that the Governor has taken steps to enforce the same-sex
marriage ban, and there is no dispute that the suit may continue against another state official
defendant.
In Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 752 (E.D. La. 2013),
reconsideration denied (Jan. 13, 2014), the Eastern District of Louisiana dismissed the state
attorney general from the plaintiffs same-sex marriage action because his sweeping
responsibility to enforce state law did not furnish the Ex parte Young specificity nexus
between [him] and the alleged unconstitutional provisions.
These authorities are persuasive support for Governor Bentleys motion to dismiss, but
the resolution of the motion depends primarily upon Governor Bentleys authority under
Alabama law and his conduct with respect to the Marriage Sanctity Laws as they impact
Plaintiff.
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because Governor Bentley is not the cause of Plaintiffs legal injury and because
Governor Bentley could take no action to redress that injury.
See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 56061 (1992) (requiring the plaintiff to show
that he suffers an injury in fact, causal connection between the plaintiffs injury
and the defendants complained-of conduct, and the likelihood that the injury is
redressable by the courts decision in the plaintiffs favor).
Plaintiff opposes Governor Bentleys request for immunity, arguing that
[f]or the last four years, Governor Bentley has publicly and emphatically stated
. . . that he does have the authority and will exercise that authority to enforce
Alabamas marriage restrictions. (Doc. # 53, at 2.) Plaintiff maintains that he
named Governor Bentley as a defendant not merely because of his supreme
executive power, but because of Governor Bentleys expressed intention to follow
the Marriage Sanctity Laws. Plaintiff cites five instances of public declarations by
Governor Bentley that he will fight this suit and other similar suits challenging
the Marriage Sanctity Laws and that he ha[s] to defend, execute, protect, and
uphold the Constitution and the laws of the state. (Doc. # 53, at 45 (citing
Exhibits AE to Decl. of David Dinielli).)
In response to Governor Bentleys suggestion that Plaintiffs allegations
regarding the Alabama National Guard are unsubstantiated, Plaintiff stresses that
Governor Bentley did not deny the allegations in his Answer. Plaintiff asserts that
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executive order arguably is still in effect and sets a precedent for Governor Bentley
to take similar actions either in favor of or against the recognition of same-sex
marriages in Alabama.
Plaintiff relies on the Tenth Circuits decision in Kitchen v. Herbert, 755
F.3d 1193, 1202 (10th Cir.) cert. denied, 135 S. Ct. 265 (2014), where the court
looked to the state officials actual exercise of supervisory power. (Emphasis
added). In Kitchen, the Governor and the Attorney General of Utah, but not the
Salt Lake County Clerk responsible for issuing marriage licenses, appealed the
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Generals deputies and about any conflicting laws not clearly answered by the
ruling of the federal district court. Id. at 1203.
For all these reasons, the court held that the Governors and the Attorney
Generals actual exercise of supervisory power and their authority to compel
compliance from county clerks and other officials provide[d] the requisite nexus
between them and [the challenged constitutional amendment].
Id. at 1204
(emphasis added). The Tenth Circuit clarified that the Governor and the Attorney
General would be proper parties even if they were not specifically empowered
by statute to act, so long as they had assisted or were assisting in giving effect to a
challenged law.
Id.
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Governor Bentley replies that it is true that [he] personally supports [the
Marriage Sanctity L]aws, and that as Chief Executive[,] he will enforce them to the
same extent that all valid laws are enforced. (Doc. # 56, at 2.)5 However, the
Governor contends that he has not taken any action to prevent the recognition of
same-sex marriages in Alabama, to alter the existing laws, or to otherwise directly
connect him to the States on-the-ground enforcement of the law. (Doc. # 56,
at 12.)
C.
Conclusions
Upon consideration of the parties arguments and relevant case authorities,
the court concludes that Governor Bentley is due to be dismissed from this suit on
grounds of sovereign immunity and because Plaintiff lacks standing to sue him.
First, there is no dispute from Plaintiff that the Governors general authority
as Alabamas chief executive official does not warrant his joinder as a defendant,
and Eleventh Circuit case law precludes any contrary conclusion. See Womens
Emergency Network, 323 F.3d at 94. (A governors general executive power is
not a basis for jurisdiction in most circumstances.).
Second, with respect to Plaintiffs allegation, admitted by Governor Bentley,
that Governor Bentley intended to contradict federal directives to extend benefits
to same-sex spouses of members of the Alabama National Guard, Governor
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Document 56 specifically involves Governor Bentleys motion for protective order, but
the argument cited goes to the merits of his motion to dismiss.
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And events that have transpired in January and February of 2015, and the Governors
response thereto, after the parties briefed the motion to dismiss, confirm that the Governor has
taken no such action other than to state publicly his disagreement with the recognition of samesex marriage.
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V. CONCLUSION
Consistent with the foregoing analysis, it is ORDERED that Governor
Bentleys motion to dismiss (Doc. # 48) is GRANTED and that all claims against
Governor Bentley are DISMISSED with prejudice.
DONE this 10th day of March, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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