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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CARI D. SEARCY, )

)Plaintiff, )

)

v. ) Case No. 15-00104-CG

)

HON. DON DAVIS, )

individually and in his official )

capacity as Probate Judge for )

Mobile County, Alabama, )

)

Defendant. )

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO

DISMISS

COMES NOW the Plaintiff, Cari D. Searcy, by and through undersigned counsel, pursuant to

Federal Rule of Civil Procedure 12 and this Court’s Order of March 2, 2015, and files this her

Response in Opposition to Defendant’s Motion to Dismiss:

INTRODUCTION

Defendant’s Motion to Dismiss is due to be denied because the Defendant has not met,

and cannot meet, the high burden the law imposes on him when seeking a Motion to Dismiss

under Rule 12. Fed. R. Civ. P. 12.

Many judges, historians, philosophers, and lawyers have remarked that the United States

is a nation of laws and not of men and women. The American people and the people of Alabama

depend upon the rule of law. There can be no doubt that stare decisis and federalism form the

foundation upon which our entire legal system rests.

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It is terribly unfortunate that numerous state judges and state courts have done a

disservice to all residents of Alabama by attacking well-established notions of stare decisis,

comity, and federalism.

While the Alabama Supreme Court has issued a mandamus order and Judge Moore has

previously issued Administrative directives, there can be no doubt that Defendant is bound by the

Orders of this Court. Moreover, the Defendant (and all local and state officials) are bound by

rulings of the Supreme Court of the United States. This Court held that the Alabama Sanctity

Laws were void and unenforceable for any purpose beginning on February 9, 2015. The Supreme

Court of the United States upheld that date and effectively ruled that same-sex marriage and out-

of-state same-sex marriage recognition was to commence throughout Alabama beginning on

February 9, 2015. That should resolve this case. Additionally, the injunction that currently binds

Defendant should resolve it as well.1

Defendant’s arguments are largely premised on the notion that whether or not same-sex

marriage and recognition of existing same-sex marriages somehow remain open questions.

Worse, the Defendant offers arguments to this Court without ever specifically mentioning the

fact that he has been directly enjoined by this Court from enforcing the now void Alabama

Sanctity Laws.

Despite being specifically enjoined by this Court from enforcing the Alabama Sanctity

Laws, Davis is doing just that—he is refusing to grant this adoption, or even set it for hearing,

premised upon the Alabama Sanctity Laws and Judge Roy Moore’s void Order of February 8,

But, the orders of numerous state courts and state judges have squarely pushed our state “through the1

looking glass,” in violation of our most basic American jurisprudential concepts regarding federalism,comity, and stare decisis.

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2015. (Doc. 8-1). This Court could not have been clearer: “This injunction binds Judge Don

Davis and all his 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 which

prohibit or fail to recognize same-sex marriage.” (Strawser v. Strange & Davis, CV-14-0424,

Doc. 55, p. 8)(emphasis added). That Order and injunction issued to Davis on February 12,

2015.

Nonetheless, eight days later, Davis issued an Interlocutory Order that states “It is further

ORDERED by the Court that this Decree is qualified in nature, and the Court will not issue a

final adoption order until a final ruling is issued in the United States Supreme Court on the

Marriage Act cases before it.” (Exhibit C to Plaintiff’s Complaint—Doc. 1-1, p. 26).

Defendant mischaracterizes and, in places, flatly misstates the current state of the law in

Alabama. Likewise, Defendant’s Motion to Dismiss contains arguments and contentions that

directly contradict previous Orders of this Court. Significantly, Davis also makes arguments that

run afoul of binding precedent from the 11th Circuit Court of Appeals, and, notably, the Supreme

Court of the United States.

As was discussed during oral argument before this Court on February 12, 2015, at which

Davis was represented by the same attorneys representing him in this matter, the Supreme Court

of the United States has effectively ruled that Alabama’s bans on same-sex marriage and

recognition of out-of-state same-sex marriages ended on February 9, 2015. Simply put, this

Court held that same-sex marriage, including legal recognition of same-sex marriages performed

in other states, would be lawful in Alabama for all purposes beginning on February 9, 2015. The

11th Circuit upheld that Order as did the Supreme Court of the United States. That fact resolves

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the question, and there is no just, legal reason for Davis to single out Cari D. Searcy and her

family for separate, unequal treatment in the form of indefinitely delaying this adoption until

some undefinable later date.

Plaintiff respectfully requests that the Court deny the Defendant’s Motion to Dismiss

because (1) the Defendant is obviously infringing on the Plaintiff’s defined constitutional rights

and (2) the Defendant is actively and directly violating the lawful injunction imposed on him by

this Court. Worse yet, Davis does not even attempt to articulate a reason for doing so, and

Plaintiff would submit that failure is due to the fact that there is no just, articulable reason behind

Davis’s actions.

STANDARD OF REVIEW

This Court has aptly stated the standard for evaluating a Motion to Dismiss:

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. A court may

dismiss a complaint only if it is clear that no relief could be granted under any set

of facts that could be proven consistent with the allegations. See Hishon v. King

& Spalding , 467 U.S. 69, 73 (1984); see also Chepstow Ltd. v. Hunt , 381 F.3d

1077, 1080 (11th Cir. 2004). In other words, a motion to dismiss only requires a

court to determine whether a plaintiff's allegations, if proven, are sufficient to

state a recognized claim at law upon which relief can be granted. In analyzing a

motion to dismiss, the court must view the complaint in the light most favorable

to the plaintiff. Jenkins v. McKeithen , 395 U.S. 411, 421-22 (1969); Hishon v.

King & Spalding , 467 U.S. 69, 73 (1984) (The court must, "[a]t this stage of the

litigation, ... accept [plaintiff's] allegations as true."); Stephens v. HHS , 901 F.2d

1571, 1573 (11th Cir. 1990); cf. South Florida Water Mgmt. Dist. v. Montalvo , 84

F.3d 402, 409 n. 10 (11th Cir. 1996) (conclusory allegations and unwarranted

deductions of fact are not deemed true on a motion to dismiss). The rules of

pleading require only that a complaint contain "a short and plain statement of theclaim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). The

court's inquiry at this stage focuses on whether the challenged pleadings "give the

defendant fair notice of what the plaintiff's claim is and the grounds upon which it

rests." Conley v. Gibson , 355 U.S. 41, 47 (1957).

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Stoddard v. Hawsey, Civil Action 05-0287-CG (S.D. Ala. July 26, 2007).

Likewise, the Court has correctly noted that:

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a defendant's

liability, it stops short of the line between possibility and plausibility of

entitlement to relief.

Johnson v. Penton Ashworth, CV-11-0228-CG-C (September 14, 2012, S.D. Ala.)(quoting and

citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)).

ARGUMENT

I. PLAINTIFF’S COMPLAINT IS WELL PLED AND MEETS ALL PLEADING

REQUIREMENTS OF IQBAL AND TWOMBLY .

A. Plaintiff’s Complaint makes numerous factual allegations that indicate that she not only has a“plausible” lawsuit against Defendant, she has a substantial likelihood of success on the merits of

this lawsuit and is entitled to the relief sought.2

At the risk of being overly duplicative, the Plaintiff makes the following factual

allegations in her Complaint which do sufficiently state facts that, at a bear minimum

demonstrate that she has met the “plausibility” standard of pleading:

(a) That she is an adult resident citizen of Alabama and the United States, and, thereforeis endowed with certain inalienable rights including being treated justly and equally

under the laws of the United States and Alabama;

Most importantly being the injunctive relief that would compel Judge Don Davis from continuing to2

interfere with the adoption thereby allowing the Plaintiff to protect her family.

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(b) That Defendant is the Probate Judge of Mobile County and is responsible for hearing

and granting adoptions in Mobile County;

(c) This Court held that the Alabama Sanctity Laws violate the Equal Protection and Due

Process Clauses of the 14th Amendment to the United States Constitution;

(d) That Defendant has already been specifically enjoined from enforcing the Sanctity

Laws;

(e) That the State of Alabama has been specifically enjoined from enforcing the Sanctity

Laws;

(f) That the Defendant continues to enforce the Alabama Sanctity Laws;

(g) That the Plaintiff is married to Kimberly McKeand having been so since they were

married in California in 2008;

(h) That the minor child of McKeand was born on December 30, 2005;

(i) That the minor child was conceived via a sperm donor;

(j) That the sperm donor has no parental rights under Alabama law;

(k) That the sperm donor consents to the adoption;

(l) That Searcy and McKeand having a loving stable home and they jointly provide the

minor child with a nurturing, supportive home and have done so since his birth. They

each attend to the needs of the minor child and will continue to do so;

(m) Searcy and McKeand are the only two parents the minor child has ever known or will

ever know;

(n) That Davis Ordered that he would not issue a final adoption unless and until the

Supreme Court of the United States issues an Order legalizing gay marriage nationwide

arising from unrelated cases from the 6th Circuit Court of Appeals;

(o) That this Court previously held that the Sanctity Laws were unconstitutional and that

the laws were enjoined from enforcement beginning February 9, 2015;

(p) That the 11th Circuit Court of Appeals denied the State of Alabama’s request to

extend that stay beyond February 9, 2015; and

(q) That the Supreme Court of the United States denied the State of Alabama’s request to

extend the stay beyond February 9, 2015.

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Defendant makes no argument as to whether the Complaint is adequately pled otherwise,

and he has not filed a Motion for More Definite Statement under Rule 12(e). Therefore, Plaintiff

assumes that Defendant makes no complaint as to the actual mechanics of the Complaint, and

that, other than his expressed arguments, Defendant is not otherwise attacking the sufficiency of

Plaintiff’s Complaint.

B. Defendant’s argument suggesting that Plaintiff’s allegation that Davis is continuing to uphold

and enforce the Alabama Sanctity Laws amounts to an “unfounded assertion” is due to be denied.

Such a claim by the Defendant is demonstrably false, and the truth of Plaintiff’s allegations are

and again will be made demonstrably true.

In his Brief, Davis states as follows:

The Complaint specifically seeks relief based on an impermissible conclusory

statement of liability - the allegation that Judge Davis is ‘continuing to enforce

and uphold’ the ‘enjoined Alabama Sanctity Laws.’ However, the only factual

allegation offered in support of the Plaintiff’s claim is that Judge Davis qualified

his interlocutory order that ‘the Court will not issue a final adoption order until a

final ruling is issued in the United States Supreme Court on the Marriage Actcases before it.’ There is no mention of or stated reliance on the ‘Alabama

Sanctity Laws’ in Judge Davis’ order, and in fact his order clearly states that the

decision was made due to the pending U.S. Supreme Court case. The Plaintiffs

cannot make unfounded assertions in an attempt to impute a motive to the Mobile

County Probate Court, and these are certainly not enough to meet the plausibility

standard.

(Doc. 9, pp. 16-17).

Defendant’s assertion that Plaintiff is somehow incorrectly alleging that Davis is relying

on the now void Alabama Sanctity Laws defies the plain truth that is apparent from the

circumstances. Plaintiff offers that there simply is no other conclusion that a reasonable person

could reach. The answer to the rhetorical question of “what else could he possibly be relying

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upon?” stands in obviousness—nothing else. Equally apparent is the reality that Davis’s order

would not be qualified if Cari Searcy was a man as opposed to a woman; further there are no

Mobile Probate qualified interlocutory orders that indicate heterosexual adoptions are being

subjected to the presumptive speculation a future order of the Supreme Court of the United

States with regard to the “Marriage Act.”

There can be no other conclusion that only the Alabama Sanctity Laws, which are now

void, are the only impediments to this adoption. After all, those laws were cited as sole reason

why Davis denied the adoption in the first place. Defendant’s contention is not only wrong, but it

is also disingenuous at best and downright dishonest at worst.

The fact that Davis is upholding the Alabama Sanctity Laws is further evidenced by

recent events. Premised on Judge Moore’s void Administrative Opinion of February 8, 2015,

Davis closed the marriage license office rather than be confronted with the decision as to whether

to (1) issue heterosexual marriage licenses but not same-sex marriage licenses or (2) whether to

issue marriage licenses to heterosexual and same-sex couples beginning on February 9, 2015,

and continuing until this Court specifically enjoined him from enforcing the Alabama Sanctity

Laws on February 12, 2015. (Strawser v. Strange, 1:14-cv-00424-CG-C, Doc. 55). The last

sentence of this Court’s Order states: This injunction binds Judge Don Davis and all his 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 which prohibit or fail to recognize

same-sex marriage.” Id. (emphasis added).

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Now, following an order of the Alabama Supreme Court designed to have the same effect

of Judge Moore’s void order of February 8, 2015, Davis is doing the same thing. As the Court3

may be aware, the Alabama Supreme Court issued an Order on February 3, 2015, directing

judges across Alabama to continue to uphold the Alabama Sanctity Laws. However, there is

nothing new in that Order in the Alabama Supreme Court has previously ruled that same-sex

marriage and out-of-state same-sex marriage recognition were illegal. Likewise, Davis’s initial

closing of the marriage license office was premised upon Judge Moore’s Opinion and Orders of

February 8, 2015. Now, it is the Alabama Supreme Court itself issuing an Order with the same

effect based upon the same premise—that the Alabama Sanctity Laws are still enforceable under

Alabama law. Nonetheless, Davis is specifically enjoined from enforcing those same laws just as

he was notwithstanding Judge Moore’s Opinion and Orders to the contrary.

Worse yet, Davis’s refusal to issue a final adoption in this matter was made known by his

Order of February 20, 2015, a full week-and-a-half prior to the Alabama Supreme Court Order of

This notice is currently posted in the Probate Court of Mobile County and on its website:3

IMPORTANTNOTICE TO ALLINTERESTED PERSONS

RULING OF THE ALABAMA SUPREMET COURT RELATING TO ISSUANCE OF MARRIAGELICENSES

Attached is the March 3, 2015, ruling of the Alabama Supreme Court on a petition for writ of mandamusrequesting that Alabama probate judges be instructed to not issue marriage licenses to persons of the samesex. The Court and its legal counsel are currently evaluating this opinion and its effect on the MobileCounty Probate Court, given recent rulings of the United States District Court for the Southern District ofAlabama.

Until said analysis is complete, the Court will not issue any marriage licenses to any applicants. We regrethaving to take this action, but feel it is necessary given the unprecedented circumstances that exist. It isthe Courts intent to comply will all law governing its operations and to not discriminate in any manneragainst any person. We regret any inconvenience this action may cause any party.

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March 3, 2015. He was attempting to enforce the Alabama Sanctity Laws by refusing to grant

this adoption premised only upon the facts and circumstances existing at the time he was

specifically enjoined from enforcing those very same laws—he violated the Plaintiff’s rights and

violated the injunction of this Court ten days before the Alabama Supreme Court did anything.

The plain language of Davis’s interlocutory Order of February 20, 2015, makes clear that

he was qualifying that Order and delaying the adoption so that he could “wait and see” what the

Supreme Court of the United States does with the 6th Circuit cases that it will hear later this year.

He does so despite the fact that there is no just reason for him to delay this adoption because (1)

the Alabama Sanctity Laws are unconstitutional and unenforceable beyond February 9, 2015, by

Order of this Court, the 11th Circuit Court of Appeals, and the Supreme Court of the United

States and (2) he is enjoined from enforcing the very same Alabama Sanctity Laws for any

purpose.

II. PLAINTIFF’S CLAIMS ARE SUFFICIENTLY RIPE.

Davis’s Motion to Dismiss and Brief, together with his Order, administrative decisions,

and judicial decisions are replete with contradictory positions that lead to contradictory

outcomes. For instance, Davis spends considerable briefing outlining that he believes the law is

not clearly established as applied to him because of the effect he chooses to place on (1) Judge

Moore’s February 8, 2015 Order, (2) the fact that litigation affecting other aspects of same-sex

marriage is pending in other courts, and (3) his correct prediction that the Alabama Supreme

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Court would be issuing a mandamus directing judges to disregard this Court’s Orders that were

affirmed relative to a stay on the Alabama Sanctity Laws becoming void by the Supreme Court

of the United States. Despite all that, Defendant contradicts himself.

Ultimately, Davis chose to not comply with the injunction this Court entered against him

which prevents him from refusing to issue same-sex marriage licenses and certificates and from

refusing to recognize same-sex marriage for other purposes of which this adoption is one. Rather,

his actions of closing the marriage license office again at the direction of the Alabama Supreme

Court and conditioning final adoption in this matter within the February 20. 2015, Interlocutory

Order. Again, this Court specifically enjoined him from “enforc[ing] the marriage laws of

Alabama which prohibit or fail to recognize same-sex marriage.” (Strawser , Doc. 55, February

12, 2015).

In other words, Davis is refusing to issue same-sex marriage licenses by closing the

marriage license office (much as he did between February 9-12, 2015 leading to injunction levied

against him) and still conditioning the final adoption in this matter on future rulings of the

Supreme Court of the United States.

As applied to this adoption, he simply chose to condition his compliance with this Court’s

Injunction upon conditions and future events that are extraneous to his compliance with this

Court’s Injunction against him.

Despite all evidence to the contrary, including the words of his Interlocutory Order

indicating conditions of a future ruling(s) Supreme Court of the United States in cases from the

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6th Circuit, Defendant now claims that he was only premising that on an assumption “that the

United States Supreme Court would rule before the dispositional hearing.” (Doc. 8, p. 11).

Defendant seems to suggest that he is not really conditioning and refusing to comply with this

Court’s Injunction and Orders despite doing the same things that led to the Injunction in the first

place—closing the marriage license office so as to prevent same sex-marriage licenses from

issuing. Likewise, by qualifying his Interlocutory Order and conditioning the adoption on a

future ruling of the Supreme Court of the United States, he is “fail[ing] to recognize same-sex

marriage” just as he held in previously denying the former adoption petition.

Defendant claims that his Interlocutory Order has not harmed and does not continue to

harm the Plaintiff. Requiring Ms. Searcy and her family to wait for an indefinite and unknown

period of time having to guess and worry about how the Supreme Court of the United States will

fashion its decision in the 6th Circuit Cases and how that future decision will then impact Judge

Davis’s determinations as to whether to grant this adoption or not has and does cause harm. It

also unconstitutionally and unconscionably infringes upon Ms. Searcy's and her families’

constitutional rights in violation of this Court’s Injunction and Orders.

Defendant’s claims simply dispute the reasoning of this Court and the plain terms of its

Order finding that

same-sex couples face harm by not having their marriages recognized and not

being allowed to marry. The harms entailed in having their constitutional rights

violated are irreparable…As long as a stay is in place, same-sex couples and their

families remain in a state of limbo with respect to adoption, child care and

custody, medical decisions, employment and health benefits, future tax

implications, inheritance and many other rights associated with marriage. The

court concludes that these circumstances constitute irreparable harm.

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(Searcy v. Strange, 1:14-cv-00208, Doc. 59 (January 25, 2015)).

This Court similarly held that the denying and delaying adoptions

also brings harm to children of same-sex couples because it denies the families of

these children a panoply of benefits that the State and the federal government

offer to families who are legally wed. Additionally, these laws further injures

those children of all couples who are themselves gay or lesbian, and who will

grow up knowing that Alabama does not believe they are as capable of creating a

family as their heterosexual friends.

Id., Doc. 53 (January 23, 2015).

Also of significance, the Supreme Court of the United States agreed and affirmed this

Court’s decision when it upheld this Court’s January 25, 2015, Order quoted above. After all, the

Supreme Court was deciding whether to uphold this Court’s decision to lift the stay beginning on

February 9, 2015, upon the same factors which include “irreparable harm” to the Plaintiff and her

family. Strange v. Searcy, 574 U.S. ____ (2015)(holding “The application for stay presented to

Justice Thomas and by him referred to the Court is denied.”). Again, Plaintiff submits that in

effect, the Supreme Court of the United States has already held that the Alabama laws banning

same-sex marriage and out-of-state same-sex marriage recognition expired and became void on

February 9, 2015, premised in part upon a finding that a stay causes irreparable harm to same-sex

couples and their children.

Singling out Cari Searcy’s adoption petition for different treatment than Defendant would

provide if Cari Searcy was a man has already caused harm to her and her family and continues to

do so as of this very moment.

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For the immediate purposes of this Response, Plaintiff submits that because Cari Searcy

(and her family) has been harmed by the Defendant and continue to be, the Defendant’s Motion

to Dismiss is due to be denied because the Plaintiff’s claims are more than sufficiently ripe. She

has been trying to adopt this child so as to better be able to protect this child and her family for

almost the entirety of this nine-year-old boy’s life. This family should not have to wait-and-see

what the Defendant will do any longer, and it is unfortunate that the Defendant’s decisions have

caused additional harm and delay necessitating Plaintiff and her family bearing the burden of this

present lawsuit.

Defendant makes a passing allegation that Plaintiff has not fully complied with all

procedural requirements incumbent on her at this point. Plaintiff has met all qualifications

necessary to receive an unqualified Interlocutory Order that does not include language indicating

that the Probate Court will not grant final adoption (no matter what) until the Supreme Court of

the Untied States rules on the 6th Circuit cases pending before it at some future point in time.

The fact that Plaintiff has met all such qualifications are not disputed by the Defendant. (Doc. 8,

p. 4, ! 8)(“The Mobile County Probate Court’s practice and procedure is to enter the

interlocutory decree upon the filing of the following….The Plaintiff has met this requirement.”).

Because she has met all the requirements to receive an unqualified Interlocutory Order in

this step-parent adoption petition, Davis’s Order qualifying the same in such a manner as to be

limited and qualifying the same to state that he will not issue a final adoption until the Supreme

Court of the United States does something at some future, undefined point in time violates the

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constitutional rights of the Plaintiff and violates the Injunction entered against him by this Court.

Davis’s faulty argument directly contradicts previous Orders of this Court.

III. PLAINTIFF’S CLAIMS ARE NOT BARRED BY THE RES JUDICATADOCTRINE.

Plaintiff’s Complaint is sufficiently clear: “This current lawsuit challenges Hon. Don

Davis’s refusal to grant final adoption in the matter despite being specifically enjoined by this

Court from enforcing the Sanctity Laws for any purpose.” (Doc. 1, p. 4). In qualifying his

Interlocutory Order and by conditioning final adoption in this matter for an indefinite period of

time, Davis has exhibited new and different behavior than the claims made in the previous

lawsuit.

The timing bears this out—Plaintiff’s claims in this lawsuit are based upon actions of

Defendant that began on February 20, 2015, and are continuing to the present moment. Searcy v.

Strange was decided by this Court on January 23, 2015. This case arises from different facts and

circumstances than the Searcy v. Strange case, and, therefore, are not barred by the res judicata

doctrine.

Davis’s contentions are akin to claiming that Driver could not sue Train Company arising

from a train-wreck because Driver had previously sued Train Company in a prior, unrelated

train-wreck. In other words, Davis has further harmed the Plaintiff (and her family) since the last

case was decided by this Court, vis-a-vis his Qualified Interlocutory Order. While it may involve

similar issues and facts, it is separate and distinct as a matter of fact and law.

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Because the Plaintiff’s claims in this lawsuit are not barred by the res judicata doctrine,

the Defendant’s Motion to Dismiss is due to be denied.

IV. DEFENDANT IS NOT ENTITLED TO SOVEREIGN IMMUNITY FORVIOLATIONS OF 42 U.S.C. §1983. DEFENDANT IS NOT ENTITLED TO QUALIFIED

IMMUNITY FOR VIOLATIONS OF 42 U.S.C. §1983 EITHER.

In his Motion to Dismiss and Brief, Defendant argues that his Court is equivalent to the

State of Alabama and that he, in his official capacity as Judge of Probate, is a state official, and

that, therefore, both are entitled to sovereign immunity. Defendant goes so far as to claim that

“Judge Davis is a state official created by the Judicial Article of the Alabama

Constitution.” (Doc. 9, p. 18). Davis also claims that he is entitled to Eleventh Amendment

immunity.

While Davis has mischaracterized this action as “frivolous at worst,” Davis’s claim that

he is a state actor, and, therefore, entitled to sovereign immunity is completely false and

frivolous. Both Alabama and federal cases confirm that Defendant’s claim to sovereign immunity

under the Eleventh Amendment of the United States Constitution is baseless and that the direct

opposite is in fact true. The law on the matter is clear and fully resolved, and Davis is not a state

official. Probate Judges are county, and not state, officials. It has long been held that Probate

Judges are not entitled to sovereign immunity.

The truth is that in his official capacity as Judge of Probate of Mobile County, Judge

Davis is, as a matter of law, a county official, and, therefore, not entitled to sovereign immunity.

The case law makes this clear and makes equally clear that he is not entitled to qualified

immunity as well. See, e.g., excerpts from the following:

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# 1: Johnson v. Walters, 970 F. Supp. 991, 1001-03 (M.D. Ala. 1997):

2. Immunity Defenses

Having found that plaintiff sufficiently states claims of discrimination based on race and gender to survive summary judgment, the court will now

consider whether any doctrines of immunity preclude suit against defendant

Waters in his official or individual capacities.

a) Official Capacity Liability-Eleventh Amendment Immunity

The Eleventh Amendment of the United States Constitution prohibits

federal courts from exercising jurisdiction over a lawsuit against a state, its agents

or instrumentalities except where the state has consented to be sued or waived its

immunity, or where Congress has overridden the state's immunity. Edelman v.Jordan, 415 U.S. 651, 653, 94 S.Ct. 1347, 1351, 39 L.Ed.2d 662 (1974);

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct.

900, 906-908, 79 L.Ed.2d 67 (1984); Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct.

1139, 1145, 59 L.Ed.2d 358 (1979). Congress exercised its abrogation authority

for suits brought pursuant to Title VII of the Civil Rights Act, and therefore, the

Eleventh Amendment does not preclude suit against Waters for plaintiff's Title VII

claim. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614

(1976); Allen v. Alabama State Bd. of Educ., 816 F.2d 575, 577 (11th Cir. 1987).

Therefore, if Eleventh Amendment immunity is available for Waters, only

plaintiff's claims under Section 1983 would be precluded. It is a disputed legalissue, however, whether Waters is a state or local official.

Waters makes the untenable argument that as probate judge he is an

executive officer of the State of Alabama pursuant to Alabama Constitution of

1901, Article V, § 112. Section 112 enumerates the following officials as officers

of the executive department: governor, lieutenant governor, attorney-general, state

auditor, secretary of state, state treasurer, superintendent of education,

commissioner of agriculture and industries, and a sheriff for each county. Probate

judges are not included in this designation nor is there a reasonable basis for the

contention that they are intended to be.

More important, the Supreme Court of Alabama long ago resolved the

issue of the official status of a county probate judge. In Hawkins v. Jefferson

County, 233 Ala. 49, 169 So. 720 (1936), the court held that since the state

constitutional provision that provides for the creation of the probate courts limited

those courts' jurisdiction to the county, and the probate judge is "elected by the

vote of a single county confined in duty to the territorial limits of that county," the

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proper construction of the constitution makes the probate judge a county

officer.

Additionally, the Alabama Supreme Court found that the county

probate judge was a proper defendant in an action by a former probate office

employee alleging breach of contract and wrongful discharge because the judge he had the authority to employ and terminate persons working in the

probate office. Williams v. Killough, 474 So.2d 680, 681 (1985). Certainly, if a

privilege precluding suit against the probate judge was available, the court would

not have deemed the probate judge "a proper defendant." See also McDaniel v.

Woodard, 886 F.2d 311 (11th Cir. 1989) (plaintiff maintained action against

Pickens County, Alabama district court judge under Section 1983 alleging

that she was terminated in violation of her first amendment rights).

As a probate judge for Bullock County, defendant Waters is not a

state official, and, therefore, is not immune from suit under the EleventhAmendment of the United States. Moreover, since Waters is a county official,

he is within the definition of "persons" subject to liability under Section

1983. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018,

2036, 56 L.Ed.2d 611 (1978); Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989).

Defendant Waters's motions to dismiss and for summary judgment in his

favor on plaintiff's Title VII and Section 1983 race and gender discrimination

claims against him in his official capacity are due to be denied.

b) Individual Capacity Liability…

ii. Section 1983 Claims

Defendant Waters also argues that he is entitled to qualified immunity for

plaintiff's Section 1983 claim against him in his individual capacity. Qualified

immunity protects "government officials performing discretionary functions from

civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person should have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.

2d 396 (1982). The issue that the court must resolve is "whether the legal normsallegedly violated by the defendant were clearly established at the time of the

challenged actions." Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816,

86 L.Ed.2d 411 (1985). See also Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct.

1789, 1792-1793, 114 L.Ed.2d 277 (1991). Thus, if the contours of the right that

defendant allegedly violated is sufficiently clear such that a reasonable official

would have understood that his conduct was unlawful, the defendant is not

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entitled to qualified immunity. Anderson v. Creighton, 483 U.S. 635, 640, 107

S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

A person's right to be free from discrimination in the workplace because of

her gender or race has been long established. Nicholson v. Georgia Dept. of

Human Resources, 918 F.2d 145 (11th Cir. 1990); Yeldell v. Cooper Green Hosp.,Inc., 956 F.2d 1056 (11th Cir. 1992). Thus, if defendant Waters is found to have

terminated plaintiff because of her gender or race, such conduct violates clearly

established constitutional rights, and this would have been known to a reasonable

official in Waters's circumstances. Accordingly, Waters is not entitled to qualified

immunity for plaintiff's race and gender discrimination claims as enforced under

Section 1983.

In summary, the court finds that plaintiff's claim that she was terminated

because of her race and gender in violation of Title VII and the equal protection

clause of the Fourteenth Amendment as it is enforced under Section 1983 survivesWaters's motions to dismiss and for summary judgment. Plaintiff may proceed

against Waters in his official capacity only on her Title VII claim but Waters

may be subject to liability under Section 1983 in his official and individual

capacities.

(emphasis added).

The case law and black letter law is clear—Davis is not entitled to sovereign immunity.

Likewise, he is not entitled to qualified immunity, and he is subject to damages in his personal

capacity. Searcy has alleged the violations of her constitutional rights by Defendant. These rights

have been clearly established by this Court and further supported by Orders of the 11th Circuit

and the Supreme Court of the United States. Clarity of Plaintiff’s rights are all the more evident

given that Davis is specifically enjoined from enforcing the Alabama Sanctity Laws’ ban on

recognizing same-sex marriage. In an Order granting an injunction against Davis, this Court

specifically held that he infringes on Constitutional rights of all same-sex couples by (1) refusing

to grant same-sex marriage licenses and (2) refusing to recognize same sex marriage. Rarely, if

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ever, could a Plaintiff’s constitutional rights be made any more clearer to the Defendant—this

Court has even specifically ordered him to not do so.

Searcy has adequately pled the specific facts necessary to entitle her to relief, and an

injunction is in place to prevent Davis from interfering with those rights. Therefore, Davis is not

entitled to qualified immunity.

#2: Scott v. Estes, 60 F. Supp. 2d 1260, 1272-73 (M.D. Ala. 1999):

Because Scott has alleged that Estes deprived her of a constitutional right,

because the right was clearly established during the period in which Estes

allegedly deprived her of that right, and because she has set forth with specificity

facts to support that Estes deprived her of that right, Estes is not entitled to

qualified immunity. Scott may, therefore, proceed against Estes in his individual

capacity with her sexual harassment claim under § 1983.

The court also rejects Estes and Montgomery County's argument that Estes

is a state employee entitled in his official capacity to immunity under the eleventh

amendment to the United States Constitution. Admittedly, while neither the 1901

Alabama Constitution nor the 1975 Alabama Code expressly lists the officers of

the State's judicial division, the Alabama Constitution vests the judicial power of

the State in a "unified judicial system," which includes a probate court. 1901 Ala.

Const. amend. 328, § 6.01(a). A probate judge is, therefore, a member of the

State's unified judicial system.

The Alabama Constitution, however, designates the Montgomery County

Judge of Probate as a "county officer" and requires the county to pay his salary.

1901 Ala. Const. amend. 4. In addition, state law provides that, unless otherwise

provided by local law, the county probate judge shall be a member of the county

commission and shall serve as its chair. See 1975 Ala.Code § 11-3-1. And other

provisions of the Alabama Constitution and the 1975 Alabama Code indicate that

probate judges are not state officers, at least for purposes related to their

compensation. See, e.g., 1901 Ala. Const. art. VI, § 150 (excepting probate judges

from among those judges whose compensation may not be diminished during

their terms in office); 1901 Ala. Const. amend. 328, § 6.09(a) ("A state judicial

compensation commission is hereby created which shall recommend the salary

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and expense allowances to be paid from the state treasury for all the judges of this

state except for judges of the probate court."); 1975 Ala.Code § 12-10-4

(excepting only probate judges and municipal judges from the judiciary for

purposes of the Judicial Compensation Commission's recommending to the

legislature the salary and expense allowances to be paid to judges from the state

treasury); 1975 Ala.Code § 12-1-15(a) (excepting probate judges and municipal judges, but not other judges, from receiving benefits received by state employees).

And, finally, both state and federal courts have held or indicated that

Alabama probate judges are county, and not state, officials. See, e.g., Johnson

v. Waters, 970 F.Supp. 991, 1001-02 (M.D.Ala.1997) (Carroll, M.J.); Hawkins v.

Jefferson County, 233 Ala. 49, 169 So. 720, 722 (1936). Therefore, for these

reasons, the court finds that the Montgomery County Judge of Probate is a

county, not a state, official.

(emphasis added).

Again, Plaintiff will not belabor the point that Davis is not entitled to sovereign

immunity. Plaintiff will, however, take the opportunity to again state that Searcy has alleged the

violations of her constitutional rights. These rights have been clearly established by this Court

and further supported by Orders of the 11th Circuit and the Supreme Court of the United States.

The right is made ever more clear given that Davis is enjoined from enforcing the Alabama

Sanctity Laws’ ban on recognizing same-sex marriage. Searcy has adequately pled the specific

facts necessary to entitle her to relief. Therefore, Davis is not entitled to qualified immunity.

V. DAVIS’S CLAIM THAT “THE ADOPTEE’S OVERALL WELL-BEING IS

OF PRIMARY IMPORTANCE” IS DEMONSTRABLY FALSE IN THE

PRESENT SITUATION.

Davis claims that an adoptee’s over all well-being is of primary importance to him in

making determinations on adoptions. Plaintiff does not dispute that as a general principle, but

Plaintiff does dispute that Davis is delaying this adoption because he is concerned about the

overall well-being of Kari Searcy and Kim McKeand’s son. Every day that his adoption is

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delayed while heterosexual couples’ adoptions go forward without waiting for rulings on 6th

Circuit cases before the Supreme Court of the United States is a day that Searcy, McKeand and

the minor child are harmed.

This Court held that children of same-sex couples are “just as worthy of protection and

recognition by the State as are the children being raised by same-sex couples” because doing so

“humiliates thousands of children now being raised by same-sex couples. The law in question

makes it even more difficult for the children to understand the integrity and closeness of their

family and its concord with other families in their community and in their daily lives.” Searcy v.

Strange, Doc. 53, p. 9 (January 23, 2015). This Court held that it negatively impacts the financial

status of children and their families and causes denial of state and federal benefits. Id. This Court

also held that those children are further injured because they “will grow up knowing that

Alabama does not believe they are as capable of creating a family as their heterosexual friends.”

Id. at p. 10.

This Court similarly held that every day same-sex marriage recognition is delayed the

Plaintiff and the minor child are irreparably harmed because “same-sex couples and their

families remain in a state of limbo with respect to adoption, child care and custody, medical

decisions, employment and health benefits, future tax implications, inheritance and many other

rights associated with marriage.” Searcy v. Strange, Doc. 59 (January 25, 2015)(denying

extension of stay)(denial of extended stay upheld by the 11th Circuit and the Supreme Court of

the United States).

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VI. AS APPLIED TO THIS DEFENDANT, THE LAW COULD NOT BE MORE

CLEARLY ESTABLISHED.

The most applicable law to the Defendant was enunciated by this Court: “This injunction

binds Judge Don Davis and all his 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 which prohibit or fail to recognize same-sex marriage.” (Strawser v. Strange, Doc.

55, p. 8 (February 12, 2015)).

Davis claims that Judge Moore’s Order of February 8, 2015, puts him in a double-bind.

Undoubtedly, now that the Alabama Supreme Court has ordered all Probate judges from issuing

same-sex marriage licenses, Davis will claim that this bolsters his position notwithstanding the

fact that that Order specifically exempts him.

Defendant has not challenged or appealed this Court’s Injunction or the other Orders of

this Court, the 11th Circuit, or the Supreme Court of the United States.

Plaintiff submits that this Injunction is binding on Davis and specifically precludes him

from following any state law (including an Order from Judge Roy Moore or an Order of the

Alabama Supreme Court). This is made all the more obvious given that Judge Moore himself

was removed from the bench for refusing to comply with a federal injunction.

VII. DEFENDANT’S VIOLATIONS OF PLAINTIFF’S CONSTITUTIONAL

RIGHTS ARE DONE WILLFULLY, RECKLESSLY, AND WITH MALICE.

REGARDLESS, PLAINTIFF IS NOT REQUIRED TO PROVE THESECLAIMS AT THIS STAGE OF LITIGATION BECAUSE DAVIS FILED A

MOTION TO DISMISS AND NOT A MOTION FOR SUMMARY

JUDGMENT.

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Plaintiff’s Complaint alleges that Davis violated Searcy’s 14th Amendment rights and

doing so was and is “intentional, malicious, willful, wanton and in gross disregard for Plaintiff’s

Constitutional Rights.” (Doc. 1, ! 23 and 27). Following this Court’s specific injunction directed

to Defendant, there can be no doubt that the Defendant was on notice that refusing to recognize

same-sex marriage violates the Plaintiff’s constitutional rights.

Being conscious of a right and purposefully disregarding it does amount to willful and/or

malicious, and/or intentional, and or/ wantonness and/or amounts to a gross disregard for

Plaintiff’s rights. Yet, he decided to impose, in effect, an indefinite stay on her adoption petition.

He is aware, via previous Orders of this Court, the 11th Circuit Court of Appeals, and the

Supreme Court of the United States that Plaintiff is irreparably harmed every time her marriage

to Kimberly McKeand is not recognized. This is especially true when she is not allowed to

receive and provide the most basic of protections on behalf of what is, in reality (but not yet in

law due to the Defendant’s choices) her son. Defendant’s position is unsurprising given he claims

that he has not harmed the Plaintiff and is looking out for the minor child’s best interests.

Defendant is also aware that irreparable harm is inflicted on the minor child K.S. when

his parents’ marriage is not recognized. Davis cannot claim ignorance on these points, and,

therefore, the evidence will ultimately show that his actions were intentional, willful, malicious,

wanton, and in gross disregard for the Plaintiff’s judicially defined constitutional rights. Harming

a parent and then harming that parent’s child and doing it with full knowledge that you are

enjoined from doing so meets the most basic definition of those terms as alleged in the

Complaint.

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CONCLUSION

Davis is now asking for an additional eleven days to respond to the Supreme Court of

Alabama’s Order of March 3, 2015. (A copy of Davis’s Motion for Extension of Time is included

herewith as Exhibit “A.”). Yet, that has no bearing on this motion or the determinations Plaintiff

requests of the Court.

No court can overrule this Court save for the 11th Circuit Court of Appeals and/or the

Supreme Court of the United States. The Alabama Supreme Court’s determination on Davis’s

current Motion for Extension of time and resolution of the underlying issue of the Mandamus

Order’s effect on Davis is meaningless because that Court is powerless to undo this Court’s

injunction.

That is so because this Court has consistently demonstrated that it does enforce our most

basic jurisprudential concepts of federalism, stare decisis, and comity.

Plaintiff offers that Davis never qualifies his Interlocutory Order or delays adoptions of

heterosexual step-parent adoptions. He has no valid, legal, constitutional reason for doing so as

applied to Plaintiff and her family.

Plaintiff hereby respectfully requests that the Court deny the Plaintiff’s Motion to

Dismiss.

Respectfully submitted this 6th day of March, 2015,

/s/ David G. Kennedy (KEN049) /s/ David G. Kennedy

ASB 1238-I72K

The Kennedy Law Firm

P.O. Box 556

Mobile, Alabama 36601

251-338-9805

[email protected]

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Of Counsel for the Plaintiff:

Christine C. Hernandez

ASB 8252-I64H

The Hernandez Firm, LLCP.O. Box 66174


251-479-1477

[email protected]

CERTIFICATE OF SERVICE

I hereby certify that I, David G. Kennedy, have filed the foregoing this 6th day of March, 2015,

using the CM/ECF electronic system which will send notice of the above and a copy of the same

to all counsel of record.

/s/ David G. Kennedy (KEN049) /s/

David G. Kennedy

ASB 1238-I72K

The Kennedy Law Firm

P.O. Box 556


251-338-9805

[email protected]

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Documents

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