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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

CARI. D. SEARCY and KIMBERLY
MCKEEAND, individually and as
parent and next friend of K.S., a minor,
Plaintiffs,
v.
ROBERT BENTLEY, individually and
in his official capacity as Governor of
the State of Alabama, et al.,
Defendants.
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Civil Action No.
1:14-cv-208



REPLY BRIEF OF DEFENDANTS STRANGE AND BENTLEY
IN SUPPORT OF THEIR MOTION TO DISMISS (doc. 17)

Defendants Robert Bentley, Governor, and Luther Strange, Attorney
General, respectfully submit this reply brief in support of their motion to dismiss
the claims against Governor Bentley (doc. 17).
In Plaintiffs reply to Defendants motion, Plaintiffs state that they intend to
dismiss the individual capacity claims against Strange and Bentley, and they make
no other response regarding such claims (see doc. 27). Defendants therefore will
not address the individual capacity claims further.
As for the official capacity claims against Governor Bentley, Plaintiffs argue
that he is a necessary party (and that plaintiffs have standing to raise such claims
against Governor Bentley) because the Governor (i) possesses the statutory right
Case 1:14-cv-00208-CG-N Document 28 Filed 06/27/14 Page 1 of 6
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under Alabama law to file lawsuits and intervene in legal actions, and (ii) is the
States chief executive officer. Neither ground is sufficient to make the Governor a
proper defendant.
The Governors role as chief executive officer was addressed in Defendants
motion. That status alone does not give the Governor a sufficiently direct role in
enforcement of marriage laws to overcome his Eleventh Amendment Immunity.
See Summit Med. Assocs. V. Pryor, 180 F.3d 1326, 1341 (11
th
Cir. 1999) (holding
that making a state officer a defendant when the officer lacks connection with
enforcement of the challenged law is an attempt to make the State a party);
Womens Emergency Network v. Bush, 323 F.3d 937, 949 (11
th
Cir. 2003) (a
plaintiff may sue state officers only when those officers are responsible for a
challenged action and have some connection to the unconstitutional act at
issue.).
If the Governors role as chief executive officer were enough to make him a
proper defendant, then he could be sued in any lawsuit challenging any state
statute. That plainly is not the law. See C.M. ex rel. Marshall v. Bentley, No. 2:13-
CV-591-WKW, 2014 WL 1378432 at *13-14 (M.D. Ala. April 8, 2014)
(dismissing claims against the Governor on similar arguments).
Concerning Plaintiffs other argument, it is true that the Governor may
appear in cases involving the State. The Legislature has provided that
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[w]henever, in his judgment, it is expedient or necessary, the
Governor may employ an attorney or attorneys to advise him in his
official capacity, or to institute, conduct or appear in any court or in
any civil or criminal case in which the state is interested and to agree
with such counsel on his compensation.

Ala. Code 36-13-2. Thus, had the Governor not been sued in this case, he could
choose to appear and assert his own arguments.
But just because he could appear does not mean that the Governor must
appear. If so, then (as with Plaintiffs other argument) the Governor could be made
a defendant in any case involving a state statute, contrary to the authorities cited in
Defendants motion.
Plaintiffs nonetheless argue that this right to appear in litigation makes the
Governor a necessary party. It does not. One is a necessary party only if the
court cannot accord complete relief without him, or if he claims an interest in the
litigation and disposing of the litigation in his absence (i) impedes his ability to
protect the interest or (ii) places existing parties at risk of inconsistent obligations.
Fed.R.Civ.P. 19(a).
Here, the court may accord complete relief without the Governor. Whatever
the outcome of this case, once any appeal is final, the judgment will apply
throughout the State.
The fact that the Governor may appear does not put the Plaintiffs at risk of
inconsistent judgments. His appearance, should he choose to do so, would occur
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within the action initiated by Plaintiffs, and all parties would be bound by a single
final judgment.
1

Nor would the Governors absence impede his ability to protect his interest
in the States marriage laws. The Governor and Attorney General are in complete
accord that Alabamas marriage laws are constitutional and should be defended in
this action. The Attorney General stands ready to defend the laws.
The Governor therefore is not a necessary party. Because the Governor is
not involved in enforcement of the marriage laws or the adoption statutes, suing
him is akin to making the state a party in violation of the Eleventh Amendment.
And without that direct enforcement power, the Governor is not the cause of any
alleged injury, meaning that Plaintiffs lack standing to sue him (even though the
Attorney General does not contest Plaintiffs standing to challenge the marriage
laws generally in an action against the Attorney General in his official capacity).
For all these reasons, the claims against Governor Bentley are due to be
dismissed.


1
There are presently two other challenges to Alabamas marriage laws pending in federal courts.
See Hard v. Strange, No. 2:13-cv-922-WKW (M.D. Ala.); Aaron-Brush v. Strange, No. 2:14-cv-
01091-RDP (N.D. Ala.). The plaintiffs in each suit, like the plaintiffs here, challenge the laws on
Equal Protection and Due Process grounds. Conceivably, inconsistent judgments could arise out
of the three lawsuits. But if that were to occur, the inconsistency would not arise because of the
Governors presence (or lack thereof), and a decision from the Eleventh Circuit would resolve
any such conflict.
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David B. Byrne, Jr.
Chief Legal Advisor


STATE OF ALABAMA
OFFICE OF THE GOVERNOR
Alabama State Capitol
600 Dexter Avenue, Suite NB-05
Montgomery, Alabama 36130
(334) 242-7120
David.Byrne@governor.alabama.gov

Attorney for Alabama Governor
Robert Bentley

Respectfully submitted,
LUTHER STRANGE
Attorney General

s/ James W. Davis
James W. Davis
Laura E. Howell
Assistant Attorneys General

STATE OF ALABAMA
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
Montgomery, Alabama 36130-0152
(334) 242-7300
(334) 353-8440 (fax)
jimdavis@ago.state.al.us
lhowell@ago.state.al.us

Attorneys for Alabama Governor
Robert Bentley and Alabama
Attorney General Luther Strange


Case 1:14-cv-00208-CG-N Document 28 Filed 06/27/14 Page 5 of 6
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CERTIFICATE OF SERVICE
I certify that on June 27, 2014, I electronically filed the foregoing document
using the Courts CM/ECF system which will send notification of such filing to the
following persons:

Felicia M. Brooks
State of Alabama
Department of Human Resources
Legal Office
P. O. Box 304000
Montgomery, AL 36130
Telephone: (334) 242-9330
Fax: (334) 242-0689
felicia.brooks@dhr.alabama.gov

Jason K. Hagmaier
Johnston Druhan, LLP
P. O. Box 154
Mobile, AL 36601
Telephone: (251) 432-0738
Fax: (251) 432-4874
jkh100@bellsouth.net
Christine C. Hernandez
P. O. Box 66174
Mobile, AL 36660
Telephone: (251) 479-1477
christine@hernandezlaw.comcastbiz.net
David G. Kennedy
P. O. Box 556
Mobile, AL 36601
Telephone (251) 338-9805
david@kennedylawyers.com

Ms. Catherine M. Donald
201 Monroe Street, Ste. 1150
Montgomery, AL 36104



s/James W. Davis
Counsel for the Defendants








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