1140460 Glasscox Amicus Brief

8/9/2019 1140460 Glasscox Amicus Brief

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CASE NO. 1140460

IN THE SUPREME COURT OF ALABAMA

EX PARTE STATE OF ALABAMA EX REL. ALABAMA POLICY

INSTITUTE AND ALABAMA CITIZENS ACTION PROGRAM,

PETITIONERS

ON MANDAMUS TO THE PROBATE COURT

OF JEFFERSON COUNTY, ET AL.

HON. ALAN L. KING, JUDGE, ET AL.

BRIEF OF AMICUS CURIÆ

AND

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIÆ

J. Stanton Glasscox

GLASSCOX LAW FIRM, LLCPost Office Box 2646

Birmingham, AL 35201

205-323-6170 / [email protected]

AMICUS CURIÆ

E-Filed02/17/2015 @ 10:42:00 PM

Honorable Julia Jordan Weller

Clerk Of The Court


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STATEMENT REGARDING ORAL ARGUMENT

The undersigned Amicus is currently recovering

from surgery, and respectfully asks to be excused from

any oral argument granted in this case, especially

before February 28, 2015.


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MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIÆ

Comes now the undersigned, a member of the Bar of

this Court, and moves this Court for leave pursuant to

Ala.R.App.P. 29 to file the appended Brief as an Amicus

Curiæ , and in support thereof shows as follows:

1. The undersigned is not only a member of the

Bar of this Court, he had the inestimable honor and

privilege of serving it as a clerk to retired Justice

Janie Shores. As such, the undersigned is well

conversant with the jurisdiction of this Court, and the

sometimes esoteric procedural aspects of the

extraordinary writ of mandamus.

2.

As one current Justice of the United States

Supreme Court noted, when a member of the United States

Court of Appeals for the Third Circuit, in granting

leave for the filing of an amicus brief:

Even when a party is very well represented, an

amicus may provide important assistance to the

court. “Some amicus briefs collect backgroundor factual references that merit judicial

notice. Some friends of the court are entities

with particular expertise not possessed by any

party to the case. Others argue points deemed

too far-reaching for emphasis by a party

intent on winning a particular case. Still


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others explain the impact a potential holding

might have on an industry or other group.”

Luther T. Munford, When Does the Curiae Need

An Amicus?, 1 J.App. Prac. & Process 279

(1999). Accordingly, denying motions for leave

to file an amicus brief whenever the partysupported is adequately represented would in

some instances deprive the court of valuable

assistance.

The criterion of desirability set out in

Rule 29(b)(2) is open-ended, but a broad

reading is prudent. The decision whether to

grant leave to file must be made at a

relatively early stage of the appeal. It is

often difficult at that point to tell with any

accuracy if a proposed amicus filing Will behelpful. Indeed, it is frequently hard to tell

whether an amicus brief adds anything useful

to the briefs of the parties without

thoroughly studying those briefs and other

pertinent materials, and it is often not

feasible to do this in connection with the

motion for leave to file. Neonatology

Associates, P.A. v. C.I.R., 293 F.3d 128, 132-

33 (3d Cir. 2002)(Alito, J.)1

3.

This case is before the Court on mandamus

pursuant to Ala.R.App.P. 21, and is subject to the

expedited briefing and scheduling Order of February 13,

2015. As such, it is particularly within the scope of

Justice Alito’s observation that it is “difficult at

1 “Where possible, application has been made of the

existing Federal Rules of Appellate Procedure (FRAP), and

where a rule is noted to be based upon such FRAP Rule, the

construction given to that rule in the federal courts has

been used and would be expected to constitute authority for

the construction of these rules.” Ala.R.App.P. 1, Committee

Comment.


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[this] point to tell with any accuracy if a proposed

amicus filing will be helpful.” ibid . The terms of the

scheduling Order are such that the undersigned does not

expect to have the opportunity to review the briefs of

the parties on the merits, and determine whether the

significant jurisdictional and constitutional questions

addressed in his Brief will be properly raised by any

party, or by the Court ex mero motu. As such, this

Motion should be granted, and the undersigned humbly

submits the arguments of the Brief to the Court’s

consideration.

Respectfully submitted,

/s/ J. Stanton Glasscox

J. Stanton Glasscox Amicus Curiæ

OF COUNSEL:

GLASSCOX LAW FIRM, LLC

Post Office Box 2646




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TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .................... i

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIÆ ...... ii

STATEMENT OF JURISDICTION ........................... vi

TABLE OF AUTHORITIES ................................ vi

STATEMENT OF THE CASE ................................ 1

STATEMENT OF THE ISSUES .............................. 1

STATEMENT OF FACTS ................................... 1

STATEMENT OF THE STANDARD OF GRANT OF THE WRIT ....... 2

SUMMARY OF THE ARGUMENT .............................. 2

ARGUMENT ............................................. 3

THE SUBJECT MATTER OF THE PETITION FOR A WRIT OF

MANDAMUS EXTENDS TO THE NON-JUDICIAL POWERS AND

DUTIES OF THE RESPONDENT PROBATE JUDGES, AND IS

NOT WITHIN THE JURISDICTION OF THIS COURT .......... 3

THE PETITION SUFFERS FROM FUNDAMENTAL PROCEDURAL

FLAWS, AND IS DUE TO BE DENIED ON THAT BASIS ...... 11

CONCLUSION .......................................... 13

CERTIFICATE OF SERVICE .............................. 16


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STATEMENT OF JURISDICTION

This Court has general subject matter jurisdiction

to “issue writs of injunction, habeas corpus, and such

other remedial and original writs as are necessary to

give to it a general superintendence and control of

courts of inferior jurisdiction.” Ala. Code § 12-2-

7(3). However, as will be argued more fully infra, this

jurisdiction is not properly invoked by the instant

Petition.

TABLE OF AUTHORITIES

CASES

Cotten v. Rutledge, 33 Ala. 110 (1858) ............ 3, 9

Ex parte Alfab, Inc ., 586 So.2d 889 (Ala. 1991) ...... 2

Ex Parte Dunlap, 260 Ala. 52, 68 So.2d 533 (1954) ... 14

Ex parte Gist, 26 Ala. 156 (1855) .................... 8

Ex parte Guaranty Pest Control, Inc ., 21 So.3d

1222 (Ala. 2009) .................................. 12

Ex parte Ocwen Fed. Bank , FSB, 872 So.2d 810 (Ala.

2003) ....................................... 2, 3, 12

Ex parte Pearson, 76 Ala. 521 (Ala. 1884) ......... 2, 5


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Ex parte Phil Owens Used Cars, Inc ., 4 So.3d 418

(Ala. 2008) ........................................ 4

Ex parte State Dept. of Human Resources, 890 So.2d

114 (Ala. 2004) ................................... 12

Ex parte State ex rel. McKinney , 575 So.2d 1024

(Ala. 1990) ....................................... 14

Ex parte Valloze, 142 So.3d 504 (Ala. 2013) .......... 8

Ex parte Williamson, 907 So.2d 407 (Ala. 2004) ...... 13

Fox v. McDonald , 101 Ala. 51, 13 So. 416 (1893) ...... 6

Lucas v. Belcher , 20 Ala.App. 507, 103 So. 909

(1925) ............................................. 9

Neonatology Associates, P.A. v. C.I.R., 293 F.3d

128 (3d Cir. 2002)................................ iii

State ex rel. King v. Morton, 955 So.2d 1012 (Ala.

2006) .............................................. 4

STATUTES

§ 750 Ill. Comp. Stat. 5/203 ......................... 9

23 Pa. Cons. Stat. § 1501 ........................... 10

Ala. Code § 2-15-312 ................................. 6

Ala. Code § 10A-1-4.02 ............................... 6

Ala. Code § 11-3-1(c) ................................ 6

Ala. Code § 12-2-7(3) ............................... vi


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Ala. Code § 30-1-9 ................................... 7

Ala. Code § 32-6-4(a) ................................ 6

Alaska Stat. § 25.05.091 ............................. 9

Ariz. Rev. Stat. § 25-121 ........................... 10

Ark. Code Ann. § 9-11-203 ........................... 10

Cal. Fam. Code § 350 ................................. 9

Colo. Rev. Stat. § 14-2-106 .......................... 9

Conn. Gen. Stat. § 46b-24 ............................ 9

D.C. Code § 46-410 .................................. 10

Del. Code Ann. Tit. 13 § 109 ........................ 10

Fla. Stat. Ann. § 741.01 ............................ 10

Ga. Code Ann. § 19-3-30 ............................. 10

Haw. Rev. Stat. § 572-5 .............................. 9

Idaho Code Ann. § 32-403 ............................. 9

Ind. Code Ann. § 31-11-4-3 .......................... 10

Iowa Code Ann. § 595.4 ............................... 9

Kan. Rev. Stat. § 23-2505 ........................... 10

Ky. Rev. Stat. Ann. § 402.100 ....................... 10

La. Rev. Stat. § 9:221 .............................. 10

Mass. Gen. Laws Ch. 207 § 19 ........................ 10

Md. Code Ann. Fam. Law § 2-401 ...................... 10

Me. Rev. Stat. Ann. Tit. 19-A § 651 ................. 10


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Mich. Comp. Laws § 551.101 .......................... 10

Minn. Stat. Ann. § 517.07 ........................... 10

Miss. Code Ann. § 93-1-5 ............................ 10

Mo. Rev. Stat. § 451.080 ............................ 10

Mont. Code Ann. § 40-1-201 .......................... 10

N.C. Gen. Stat. § 51-8 .............................. 10

N.D. Cent. Code § 14-03-10 .......................... 10

N.H. Rev. Stat. Ann. § 457:22 ....................... 10

N.J. Stat. Ann. § 37:1-2 ............................ 10

N.Y. Dom. Rel. Law § 13 ............................. 10

Neb. Rev. Stat. § 42-104 ............................ 10

Nev. Rev. Stat. § 122.040 ........................... 10

Ohio Rev. Code Ann. § 3101.05 ....................... 10

Okla. Stat. Tit. 43 § 5 ............................. 10

Or. Rev. Stat. § 106.041 ............................ 10

R.I Gen. Laws § 15-2-1 .............................. 10

S.C. Code Ann. § 20-1-220 ........................... 10

S.D. Codified Laws § 25-1-10 ........................ 10

Tenn. Code Ann. § 36-3-103 .......................... 10

Tex. Fam. Code Ann. § 2.001 ......................... 10

Utah Code Ann. § 30-1-7 ............................. 10

Va. Code Ann. § 20-14 ............................... 10


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Vt. Stat. Ann. § 5131 ............................... 10

W.Va. Code Ann. § 48-2-102 .......................... 10

Wash. Rev. Code § 26.04.140 ......................... 10

Wisc. Stat. § 765.05 ................................ 10

Wyo. Stat. Ann. § 20-1-103 .......................... 10

RULES

Ala.R.App.P. 1, Committee Comment .................. iii

Ala.R.App.P. 21 ................................. iii, 1

Ala.R.App.P. 38 ..................................... 14

Ala.R.Evid. 901 ..................................... 13

Ala.R.Evid. 902 ..................................... 13

Ala.R.Evid. 1003 .................................... 13

Ala.R.Evid. 1005 .................................... 13

Ala.R.Evid. 1101(a) ................................. 13

Alabama Canons of Judicial Ethics, Compliance with

the Canons of Judicial Ethics ...................... 7

TREATISES

2 McElroy’s Alabama Evidence § 484.02(2)(2009) ...... 12

CONSTITUTIONAL PROVISIONS

Ala. Const., Art. III § 43 ....................... 3, 11

Ala. Const., Art. V, § 114 ........................... 5

Ala. Const., Art. VI § 140 ................ 2, 4, 10, 13


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LAW REVIEWS

When Does the Curiae Need An Amicus?, 1 J.App.

Prac. & Process 279 (1999) ....................... iii


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STATEMENT OF THE CASE

This case is before the Court on the Petition

filed by Alabama Policy Institute and Alabama Citizens

Action Program on February 11, 2015. The Court entered

an Order pursuant to Ala.R.App.P. 21 on February 13,

2015, directing the Respondents to file answers and

briefs.

STATEMENT OF THE ISSUES

I. WHETHER THE SUBJECT MATTER OF THE PETITION FOR A

WRIT OF MANDAMUS EXTENDS TO THE NON-JUDICIAL

POWERS AND DUTIES OF THE RESPONDENT PROBATE

JUDGES, AND IS NOT WITHIN THE JURISDICTION OF

THIS COURT.

II. WHETHER THE PETITION SUFFERS FROM FUNDAMENTAL

PROCEDURAL FLAWS, AND IS DUE TO BE DENIED ON

THAT BASIS.

STATEMENT OF FACTS

Apart from the issues raised by the Argument,

infra, this Amicus takes no exception to the Statement

of Facts of the Petition.


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STATEMENT OF THE STANDARD OF GRANT OF THE WRIT

Mandamus is an extraordinary remedy and willbe granted only where there is “(1) a clear

legal right in the petitioner to the order

sought; (2) an imperative duty upon the

respondent to perform, accompanied by a

refusal to do so; (3) the lack of another

adequate remedy; and (4) properly invoked

jurisdiction of the court.” Ex parte Alfab,

Inc ., 586 So.2d 889, 891 (Ala. 1991). This

Court will not issue the writ of mandamus

where the petitioner has “‘full and adequate

relief’” by appeal. Ex parte Ocwen Fed. Bank,

FSB, 872 So.2d 810, 813 (Ala. 2003).

SUMMARY OF THE ARGUMENT

The jurisdiction of this Court, under Ala. Const.,

Art. VI § 140, is limited to (1) appeals; and (2)

“power to issue writs of injunction, habeas corpus, quo

warranto and such remedial and original writs as may be

necessary to give it a general superintendence and

control of inferior jurisdictions.” The writ of

mandamus arises from the latter of the two classes of

this Court’s jurisdiction. Ex parte Pearson, 76 Ala.

521 (Ala. 1884). “In issuing a license to marry, the

judge of probate does not exercise judicial power. He


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acts ministerially , and at his peril.” Cotten v.

Rutledge, 33 Ala. 110, 113 (1858)(emphasis in

original). Because the issuance of a marriage license

is not an exercise of the judicial authority of a

probate judge, “superintendence” mandamus does not

extend to the Respondents in their capacity as probate

judges. Roughly two-thirds of our sister states do not

administer marriage licenses through judicial offices,

underscoring the non-judicial nature of the function.

see, statutes collected at n. 4, infra.

The unverified Petition, and by implication its

unauthenticated Exhibits, do not provide any basis of

record on which the Petitioners can meet their

“affirmative burden to prove,” Ex parte Ocwen Fed.

Bank , FSB, 872 So.2d 810, 813 (Ala. 2003), the factual

basis for the grant of the writ.

ARGUMENT

I

THE SUBJECT MATTER OF THE PETITION FOR A WRIT OF

MANDAMUS EXTENDS TO THE NON-JUDICIAL POWERS AND DUTIES

OF THE RESPONDENT PROBATE JUDGES, AND IS NOT WITHIN THE

JURISDICTION OF THIS COURT


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As this Court well knows, Ala. Const., Art. III §

43 provides that:

In the government of this state, except in theinstances in this Constitution hereinafter

expressly directed or permitted, the

legislative department shall never exercise

the executive and judicial powers, or either

of them; the executive shall never exercise

the legislative and judicial powers, or either

of them; the judicial shall never exercise the

legislative and executive powers, or either of

them; to the end that it may be a government

of laws and not of men.

In applying this provision, this Court has noted that,

“[o]ur Constitution may provide for a stricter

application of the separation-of-powers doctrine than

is compelled by the federal constitution.” State ex

rel. King v. Morton, 955 So.2d 1012, 1020 (Ala. 2006).

A necessary element of the right to mandamus is

“properly invoked jurisdiction of the court.” Ex parte

Phil Owens Used Cars, Inc ., 4 So.3d 418, 423 (Ala.

2008) Ala. Const., Art. VI § 140, as amended, provides

that:

Except in cases otherwise directed in thisConstitution, the Supreme Court shall have

appellate jurisdiction only , which shall be

coextensive with the state, under such

restrictions and regulations, not repugnant to

this Constitution, as may from time to time be


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prescribed by law, except where jurisdiction

over appeals is vested in some inferior court,

and made final therein; provided that the

Supreme Court shall have power to issue writs

of injunction, habeas corpus, quo warranto and

such remedial and original writs as may benecessary to give it a general superintendence

and control of inferior jurisdictions.

(emphasis added).

In other words, this Court has (1) appellate

jurisdiction, and (2) jurisdiction to issue writs to

superintend inferior courts. It is the latter grant of

authority that is the basis for the writ of mandamus.

Ex parte Pearson, 76 Ala. 521 (Ala. 1884). If the

Petition in this case cannot be fit into one of these

holes, this Court lacks jurisdiction.

It may at first blush seem that this Court has

authority to issue writs in superintendence of a

probate court, as the Petition prays. However, when the

unique characteristics of an Alabama probate judge’s

office are unpacked, it becomes apparent that this is

not the case.

A probate judge has many powers and duties, not

all of which are judicial in character. He or she

shares with the unarguably executive Secretary of


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State, Ala. Const., Art. V, § 114, the duties of

receiving and maintaining corporate and similar

records. Ala. Code § 10A-1-4.02. The probate judge is

required to maintain local copies of records filed with

the equally executive Commissioner of Agriculture and

Industries. Ala. Code § 2-15-312. In most counties, the

probate judge issues drivers’ licenses. Ala. Code § 32-

6-4(a). In the absence of a local law to the contrary,

the probate judge serves as chairman of the county

commission. Ala. Code § 11-3-1(c).2

In the case of Fox v. McDonald , 101 Ala. 51, 13

So. 416 (1893), this Court had occasion to note the

extensive executive powers wielded by a probate judge,

in his capacity as the chair of what was then the court

of county commissioners:

In Clay’s Digest, and in each compilation of

our laws since, we find the creation of a

court of county commissioners. This body is an

inferior court created by law, and belongs,

under express provision of each of our

constitutions, to the judicial department of

government, yet we find, in its very creation,it was, and has ever since been, endowed with

2 Currently, in Blount, Cherokee, Choctaw, Cleburne,

Dallas, Franklin, Geneva, Hale, Henry, Lamar, Lee, Monroe,

and Tuscaloosa Counties.


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legislative and executive powers. In fact, its

chief duties are of those characters. It is

given the power to levy and assess taxes for

the support of the county government, which is

a legislative function. Cooley, Const. Lim .

marg. pp. 479, 488. It is given power todirect and control the property of the county,

to examine and audit the accounts of the

receiving and disbursing officers of the

county, to make rules and regulations for the

support of the poor; and it is given plenary

and executive powers over the erection and

maintenance of public roads, bridges, and

ferries, and the appointment of the necessaryofficers in that behalf. These are functions

which do not inherently pertain to thejudiciary , yet none will say, in view of their

long-continued and useful exercise by the

court of county commissioners, without let or

hindrance, that the constitution, in

distributing the powers of government,

intended to inhibit such exercise. 13 So. at

419 (emphasis added).

This Court, in the exercise of its rulemaking

authority, has further explicitly recognized that

“[p]robate judges in Alabama are charged with many

administrative and executive duties not judicial in

nature.” Alabama Canons of Judicial Ethics, Compliance

with the Canons of Judicial Ethics.

The Petition, by its own terms, seeks only to

reach the probate judges’ issuance vel non of marriage

licenses pursuant to Ala. Code § 30-1-9. Petition, p.


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11. This is an executive, not a judicial, function. The

judicial power of this State has always been recognized

to be limited to the determination of cases and

controversies. “[B]y the term ‘judicial power’ is here

meant that power with which the courts are to be

clothed for the purpose of the trial and determining of

causes.” Ex parte Gist, 26 Ala. 156, 162

(1855)(emphasis in original). More recently, this Court

stated that “[w]e have construed Art. VI, § 139, Ala.

Const. of 1901 (as amended by amend. no. 328, § 6.01,

vesting the judicial power in the Unified Judicial

System), to vest this Court ‘with a limited judicial

power that entails the special competence to decide

discrete cases and controversies involving particular

parties and specific facts.’” Ex parte Valloze, 142

So.3d 504, 508 n. 2 (Ala. 2013).3

In the issuance of a marriage license, there is no

case or controversy. The issuance is a ministerial act.

“In issuing a license to marry, the judge of probate

does not exercise judicial power. He acts

3 Quære, whether the same principle of law applies to

the Petition on its merits.


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ministerially , and at his peril.” Cotten v. Rutledge,

33 Ala. 110, 113 (1858)(italic emphasis in original). A

“duty is ministerial, when the law, exacting its

discharge, prescribes and defines the time, mode and

occasion of its performance, with such certainty that

nothing remains for judgment or discretion.” Lucas v.

Belcher , 20 Ala.App. 507, 508, 103 So. 909, 911 (1925).

Under these rules of law, the issuance of a

marriage license by a probate judge is an executive, as

well as a ministerial, function. It certainly does not

invoke the judicial power of that office, as would the

determination of a claim against a decedent’s estate,

or a petition to remove an executrix.

A finding that the issuance of marriage licenses

is not a judicial function is additionally underscored

by the fact that, in 33 of our sister states, the

issuance of marriage licenses is vested in non-judicial

officials,4 although a minority of 16 states and the

4 Alaska Stat. § 25.05.091 (Registrar of Vital

Statistics); Cal. Fam. Code § 350 (County Clerk); Colo.

Rev. Stat. § 14-2-106 (County Clerk); Conn. Gen. Stat. §

46b-24 (Town Registrar); Haw. Rev. Stat. § 572-5

(Department of Health); Iowa Code Ann. § 595.4 (County


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District of Columbia (including Alabama) issue such

licenses through judicial offices.5

Registrar); Idaho Code Ann. § 32-403 (County Recorder); §

750 Ill. Comp. Stat. 5/203 (County Clerk); Ky. Rev. Stat.

Ann. § 402.100 (County Clerk); Mass. Gen. Laws Ch. 207 § 19

(City or Town Clerk); Md. Code Ann. Fam. Law § 2-401

(County Clerk); Me. Rev. Stat. Ann. Tit. 19-A § 651

(Municipal Clerk); Mich. Comp. Laws § 551.101 (County

Clerk); Minn. Stat. Ann. § 517.07 (County Registrar); Mo.

Rev. Stat. § 451.080 (County Recorder); Nev. Rev. Stat. §

122.040 (County Clerk or Authorized Private Wedding

Chapel); Neb. Rev. Stat. § 42-104 (County Clerk); N.H. Rev.Stat. Ann. § 457:22 (Town Clerk); N.J. Stat. Ann. § 37:1-2

(City Clerk or Registrar); N.Y. Dom. Rel. Law § 13 (City or

Town Clerk); N.C. Gen. Stat. § 51-8 (Register of Deeds);

N.D. Cent. Code § 14-03-10 (County Recorder); Or. Rev.

Stat. § 106.041 (County Clerk); R.I. Gen. Laws § 15-2-1

(City or Town Clerk); S.D. Codified Laws § 25-1-10

(Register of Deeds); Tenn. Code Ann. § 36-3-103 (County

Clerk); Tex. Fam. Code Ann. § 2.001 (County Clerk); Utah

Code Ann. § 30-1-7 (County Clerk); Vt. Stat. Ann. § 5131

(Town Clerk); Wash. Rev. Code § 26.04.140 (County Auditor);

Wisc. Stat. § 765.05 (County Clerk); W.Va. Code Ann. § 48-2-102 (County Clerk); Wyo. Stat. Ann. § 20-1-103 (County

Clerk).5 Ark. Code Ann. § 9-11-203 (Clerk of County Court); Ariz.

Rev. Stat. § 25-121 (Clerk of Superior Court); D.C. Code §

46-410 (Clerk of Superior Court); Del. Code Ann. Tit. 13 §109 (Clerk of the Peace): Fla. Stat. Ann. § 741.01 (Clerk

of Superior Court); Ga. Code Ann. § 19-3-30 (Judge of

Probate Court): Ind. Code Ann. § 31-11-4-3 (Clerk of

Circuit Court) Kan. Rev. Stat. § 23-2505 (Clerk of District

Court); Miss. Code Ann. § 93-1-5 (Clerk of Circuit Court);

Mont. Code Ann. § 40-1-201 (Clerk of District Court); Ohio

Rev. Code Ann. § 3101.05 (Probate Court): Okla. Stat. Tit.

43 § 5 (Clerk of District Court); 23 Pa. Cons. Stat. § 1501

(Court of Common Pleas); S.C. Code Ann. § 20-1-220 (Probate

Court); Va. Code Ann. § 20-14 (Clerk of Circuit Court).

Louisiana, as is its wont, is an outlier. In most parishes,

the license is obtained from the Clerk of the District

Court. In Orleans Parish, that court is possibly spared the

indignity of sanctioning impetuous marriages inspired by


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The Petition indisputably does not come before the

Court as an appeal. As the issuance of a marriage

license is an executive and ministerial act, the acts

vel non of the probate judges in that regard do not

come under the only other basis for this Court’s

jurisdiction, the “general superintendence and control

of inferior jurisdictions” authority of this Court,

within the meaning of Ala. Const., Art. VI § 140.6

Indeed, to the extent that the issuance of marriage

licenses is an executive act, the exercise of mandamus

jurisdiction as urged by the Petition would constitute

an intrusion, impermissible under Ala. Const., Art. III

§ 43, on the affairs of the executive branch, of which

the probate judges are also a part.

II

THE PETITION SUFFERS FROM FUNDAMENTAL PROCEDURAL FLAWS,

AND IS DUE TO BE DENIED ON THAT BASIS

the venue; the license is obtained from the Registrar of

Vital Records. La. Rev. Stat. § 9:221.6 Should the Court reach the merits of the Petition, it

may need to determine whether the same want of authority

attaches to the Order of the Chief Justice, made Exhibit B

to the Petition.


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As noted by Justices Shaw and Main in their

dissents from the Order of this Court of February 13,

2015, the Petition is not verified. “When this Court

considers a petition for a writ of mandamus, the only

materials before it are the petition and the answer and

any attachments to those documents. There is no

traditional ‘record’ submitted to this Court by the

trial court clerk as in an appeal.” Ex parte Guaranty

Pest Control, Inc ., 21 So.3d 1222, 1228 (Ala. 2009). As

the Petition is not verified, the “record” before this

Court is therefore an abyss, with no basis on which the

Court can rule. cf ., “The petitioner has an affirmative

burden to prove the existence of each of these

conditions. Ex parte Ocwen Fed. Bank , FSB, 872 So.2d

810, 813 (Ala. 2003)(burden to prove excess of

discretion in discovery dispute).

The failure of the Petitioners to verify the

Petition also fatally taints the exhibits to it. While

the Court can probably take judicial notice of the

Order of the Chief Justice made Exhibit C, Ex parte

State Dept. of Human Resources, 890 So.2d 114, 118

(Ala. 2004), the same cannot be said for those exhibits


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purporting to be decrees of the federal courts. “No

court takes judicial notice of the records of another

court.” Charles Gamble and Robert Goodwin, 2 McElroy’s

Alabama Evidence § 484.02(2)(2009).7 These exhibits are

not authenticated as required by Ala.R.Evid. 901; are

not certified as required by Ala.R.Evid. 902 and 1005;

and the correctness of the copies is not even averred,

as required by Ala.R.Evid. 1003.8

The Rules of Evidence must denote boundaries if

they are to have any meaning. cf ., “While the

Administrative Procedure Act does relax the rules of

evidence, it does not relax the rules to the point of

allowing ‘double hearsay’ to be considered. Ex parte

Williamson, 907 So.2d 407, 410 (Ala. 2004).

CONCLUSION

7 The undersigned does not wish to impugn the

credibility of Petitioner’s counsel, and does not aver the

inauthenticity of the exhibits. He merely points out the

inability of this Court to take judicial notice of them,

and the further inadequate foundation laid for their

consideration.8 The Alabama Rules of Evidence “apply in all

proceedings in the courts of Alabama.” Ala.R.Evid. 1101(a),

which necessarily includes mandamus proceedings before this

Court.


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If the probate judge of Tuscaloosa or Cherokee

Counties were confronted with casting a tie-breaking

vote on his county commission, and this Court proposed

to direct his vote under the guise of “general

superintendence and control of inferior jurisdictions,”

Ala. Const., Art. VI § 140, a constitutional crisis

would ensue. If a resident of his county filed a

mandamus petition asking this Court to direct his vote,

sanctions under Ala.R.App.P. 38 would ensue. Yet, the

Petition asks the Court to do an equivalent thing, and

to extend its jurisdiction well beyond the bounds

established by the Alabama Constitution. As “mandamus

is not a writ of right; it is granted or denied in the

Court's discretion. Ex Parte Dunlap, 260 Ala. 52, 68

So.2d 533 (1954),” Ex parte State ex rel. McKinney , 575

So.2d 1024, 1026 (Ala. 1990), this Court should, at a

minimum, decline to exercise that discretion. Better

still, it should deny the Petition as seeking relief

beyond its jurisdiction and authority.

Respectfully submitted,


J. Stanton Glasscox

Amicus Curiæ


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OF COUNSEL:

GLASSCOX LAW FIRM, LLC

Post Office Box 2646




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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the

foregoing Brief and Motion on all parties and counsel

of record, in conformity with Ala.R.App.P. 57(h)(5),

and on the following parties by email and U.S. Mail:

Hon. Alan L. King

716 North Richard

Arrington Jr. Blvd.


[email protected]

Hon. Robert M. Martin

500 2nd Avenue North

Clanton, AL 35045

[email protected]

Hon. Tommy Ragland

100 North Side Square,

Rm. 101

Huntsville, AL 35801

[email protected]

Hon. Steven L. Reed

Montgomery County

Courthouse Annex I, Third

Floor

100 South Lawrence Street

Montgomery, AL 36104

[email protected]

Hon. Luther Strange

Attorney General

501 Washington Avenue

Montgomery, AL 36130-0152

[email protected]

on February 17, 2015.


1140460 Glasscox Amicus Brief

Documents

Transcript of 1140460 Glasscox Amicus Brief