E-Filed

02/17/2015 @ 10:42:00 PM
Honorable Julia Jordan Weller
Clerk Of The Court

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 CURI

AND
MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURI

J. Stanton Glasscox
GLASSCOX LAW FIRM, LLC
Post Office Box 2646
Birmingham, AL 35201
205-323-6170 / stan@glasscoxlaw.com
AMICUS CURI

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.

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURI

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
Curi, 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 background
or 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

ii

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 party
supported 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 be
helpful. 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, 13233 (3d Cir. 2002)(Alito, J.)1
3.

This

case

is

before

pursuant to Ala.R.App.P.

21,

the
and

Court
is

on

subject

mandamus
to

the

expedited briefing and scheduling Order of February 13,

2015. As such, it is particularly within the scope of
Justice Alitos observation that it is difficult at

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.

iii

[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

Courts

consideration.
Respectfully submitted,
/s/ J. Stanton Glasscox
J. Stanton Glasscox
Amicus Curi
OF COUNSEL:
GLASSCOX LAW FIRM, LLC
Post Office Box 2646
Birmingham, AL 35201
205-323-6170 / stan@glasscoxlaw.com

iv

TABLE OF CONTENTS

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

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURI ...... 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

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 12-27(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
vi

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

vii

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

viii

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

ix

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 McElroys 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
x

LAW REVIEWS
When Does the Curiae Need An Amicus?, 1 J.App.
Prac. & Process 279 (1999) ....................... iii

xi

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.

STATEMENT OF THE STANDARD OF GRANT OF THE WRIT

Mandamus is an extraordinary remedy and will
be 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
control

to
of

give

it

inferior

general

superintendence

jurisdictions.

The

writ

and
of

mandamus arises from the latter of the two classes of

this Courts 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
2

acts

ministerially,

Rutledge,

33

and

Ala.

at

110,

his
113

peril.

Cotten

v.

(1858)(emphasis

in

original). Because the issuance of a marriage license

is

not

probate

an

exercise

judge,

of

the

judicial

superintendence

authority

mandamus

does

of

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

affirmative

which
burden

the
to

Petitioners
prove,

Ex

can
parte

meet
Ocwen

their
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

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

43 provides that:
In the government of this state, except in the
instances 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

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 this
Constitution, 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
4

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 be
necessary 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

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

unique characteristics of an Alabama probate judges
office are unpacked, it becomes apparent that this is
not the case.
A probate judge has many powers and duties, not
all

of

shares

which
with

are
the

judicial
unarguably

in

character.

executive

He

or

Secretary

she
of

State,

Ala.

receiving

Const.,

and

Art.

V,

maintaining

114,

corporate

the

duties

and

of

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 326-4(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 Clays 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.

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 to
direct 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 necessary
officers in that behalf. These are functions
which do not inherently pertain to the
judiciary, 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,

authority,
[p]robate

has

in

further

judges

administrative

the

and

in

exercise

of

explicitly

Alabama

executive

are

its

rulemaking

recognized
charged

duties

not

with

that
many

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.

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

Qure, whether the same principle of law applies to

the Petition on its merits.

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

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 decedents 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

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

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. 482-102 (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

10

The Petition indisputably does not come before the

Court

as

an

appeal.

As

the

issuance

of

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

Courts

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.

11

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

12

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 McElroys
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

The
undersigned
does
not
wish
to
impugn
the
credibility of Petitioners 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.

13

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

resident

of

his

county

filed

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,
/s/ J. Stanton Glasscox
J. Stanton Glasscox
Amicus Curi
14

OF COUNSEL:
GLASSCOX LAW FIRM, LLC
Post Office Box 2646
Birmingham, AL 35201
205-323-6170 / stan@glasscoxlaw.com

15

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.
Birmingham, AL 35203
kinga@jccal.org
Hon. Robert M. Martin
500 2nd Avenue North
Clanton, AL 35045
probate@chiltoncounty.org
Hon. Tommy Ragland
100 North Side Square,
Rm. 101
Huntsville, AL 35801
phanson@co.madison.al.us

Hon. Steven L. Reed

Montgomery County
Courthouse Annex I, Third
Floor
100 South Lawrence Street
Montgomery, AL 36104
probate@mc-ala.org
Hon. Luther Strange
Attorney General
501 Washington Avenue
Montgomery, AL 36130-0152
smclure@ago.state.al.us

on February 17, 2015.

/s/ J. Stanton Glasscox

16