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

MOTION TO DISMISS BY DEFENDANTS BENTLEY & STRANGE
Alabama Governor Robert Bentley and Alabama Attorney General Luther
Strange move the Court under Federal Rule of Civil Procedure 12(b)(1) to dismiss
Governor Bentley as a defendant in his official capacity. Governor Bentley fully
supports the laws at issue in this litigation. But naming him as a defendant, and
subjecting him to the attendant rigors of litigation, is incompatible with basic
notions of sovereign immunity and the federal courts proper adjudicative role.
Both defendants, moreover, move the Court under Rule 12(b)(6) to dismiss the
individual-capacity claims against them. They are protected from individual
liability under settled principles of qualified immunity.
I. Background
This case presents a challenge to Alabamas laws precluding state
recognition of same-sex marriages. See Ala. Const. art. I, 36.03; Ala. Code 30-
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1-19. The plaintiffs are a same-sex couple from Mobile who allege they were
married six years ago in California. Doc. 1, 13. Purporting to proceed both
[i]ndividually and as parent and next friend of one partners minor child, they
assert various federal constitutional claims arising from the recent denial of the
other partners attempt to adopt that child. Doc. 1 at 1; see id. 21-24.
The complaint names five state and local officials as defendants. Relevant
here, the defendants include Alabama Governor Robert Bentley and Alabama
Attorney General Luther Strange. See id. 7-8. Governor Bentley, the complaint
says, is vested with the powers of the office of the highest executive branch
official in the State. Id. 7. And Attorney General Strange is allegedly
responsible for appearing in court on behalf of the State and providing legal
guidance to local officials concerning the performance of their duties. See id. 8.
Both Governor Bentley and General Strange are named in their individual
capacities as well as their official capacities. See id. at 1.
II. Official-Capacity Claims Against Governor Bentley
Two distinct grounds require dismissing the complaint against Governor
Bentley in his official capacity as Governor: (1) sovereign and Eleventh
Amendment immunity and (2) standing.


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A. Sovereign & Eleventh Amendment Immunity.
The doctrine of sovereign immunity, as reflected in the Eleventh
Amendment, provides the first reason that it would be improper to subject
Governor Bentley to this lawsuit in his official capacity. The Eleventh Amendment
prohibits suit[s] . . . commenced or prosecuted against one of the United States,
U.S. Const. amend XI, and the Supreme Court has interpreted it to also prohibit
suits against state officials where the state is, in fact, the real party in interest.
Summit Med. Assocs. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999) (citing
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)). A key
consideration underlying the doctrines applicability is whether a state official has
a sufficient connection to enforcement of the act under review:
In making an officer of the state a party defendant in a suit to enjoin
the enforcement of an act alleged to be unconstitutional, it is plain that
such officer must have some connection with the enforcement of the
act, or else it is merely making him a party as a representative of the
state, and thereby attempting to make the state a party.

Id. at 1341 (quoting Ex parte Young, 209 U.S. 123, 157 (1908)). A plaintiff may
thus sue state officers only when those officers are responsible for a challenged
action and have some connection to the unconstitutional act at issue. Womens
Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003) (quoting Luckey
v. Harris, 860 F.2d 1012, 1015-16 (11th Cir. 1988)). Relevant here, [a]
governors general executive power is not a basis for jurisdiction in most
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circumstances. Id. (citing Harris v. Bush, 106 F. Supp. 2d 1272, 1276-77 (N.D.
Fla. 2000)).
Under the foregoing principles, Governor Bentley is not a proper defendant.
In general, Governor Bentley has no enforcement responsibilities with respect to
Alabamas marital and domestic relations laws. See Ala. Code 30-1-1 et seq.
(Indeed, he cannot even solemnize a marriage. See id. 30-1-7.) And in particular,
he has no enforcement responsibilities with respect to the adoption statute that
forms the basis of this lawsuit. See id. 26-10A-27. It is thus unsurprising that,
after identifying Governor Bentley in the caption and in a single paragraph, the
complaint never once mentions him again. See doc. 1 7. What is more, the one
paragraph that does mention Governor Bentley directly cites only his status as
Alabamas highest executive branch officiala status that the Eleventh Circuit
has rejected as a sufficient basis for jurisdiction. Id.; see Womens Emergency
Network, 323 F.3d at 949. That one paragraph also alleges that Governor Bentley
maintains, exercises and enforces his authority, among other ways, in connection
with the Sanctity Laws. Doc. 1 7. But this proposition is conclusory and
unsupported and can thus provide no better a basis for subjecting Governor
Bentley to this action. In similar circumstances, other federal district courts in
Alabama have very recently relieved Governor Bentley from suit. See C.M. ex rel.
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Marshall v. Bentley, No. 2:13-CV-591-WKW, 2014 WL 1378432 at *13-*14
(M.D. Ala. April 8, 2014). This Court should do the same.
B. Standing.
The plaintiffs similarly lack standing to bring this action against Governor
Bentley in his official capacity as Governor. To have standing, the plaintiffs must
demonstrate injury in fact, causation, and redressability. I.L. v. Alabama, 739 F.3d
1273, 1278 (11th Cir. 2014) (citing DiMaio v. Democratic Nat'l Comm., 520 F.3d
1299, 1301-02 (11th Cir. 2008)). And standing cannot be dispensed in gross.
Id. at 1279 (quoting Davis v. FEC, 554 U.S. 724, 734 (2008)). The Court must
address standing for each category of claims separately. Id. (citing Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 185 (2000)).
With respect to the official-capacity claims against Governor Bentley, the
plaintiffs have failed to make the requisite standing allegations for largely the same
reasons these claims are barred by sovereign and Eleventh Amendment immunity.
In the vocabulary of standing doctrine, Governor Bentleys lack of a connection to
the challenged statutes means that he is not causing any injury the plaintiffs have
suffered. And it likewise means that he is powerless to redress that injury should
the Court order relief. The Court should therefore dismiss the official-capacity
claims against Governor Bentley for this distinct threshold reason.

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III. Qualified Immunity
Separate and apart from the viability of the official-capacity claims against
Governor Bentley, the Court should also dismiss the individual-capacity claims
against both him and Attorney General Strange under the doctrine of qualified
immunity. That doctrine shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of
the challenged conduct. Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A right is clearly
established if the contours of the right [are] sufficiently clear that a reasonable
official would understand that what he is doing violates that right because in the
light of pre-existing law the unlawfulness [of his action is] apparent. Anderson v.
Creighton, 483 U.S. 635, 640 (1987).
Through this litigation, the defendants will demonstrate that the enforcement
of Alabamas marriage laws does not violate the plaintiffs rights as alleged. But
even if the Court ultimately (and wrongly) concludes there was a violation, it could
not plausibly determine that any such right was clearly established at the relevant
time. The Supreme Court certainly did not recognize a right to same-sex marriage
when it invalidated the federal Defense of Marriage Act in United States v.
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Windsor, 133 S. Ct. 2675 (2013). As Chief Justice Roberts noted in dissent, the
Court did not address that question at all:
The Court does not have before it, and the logic of its opinion does not
decide, the distinct question whether the States, in the exercise of their
historic and essential authority to define the marital relation, . . . may
continue to utilize the traditional definition of marriage.

Id. at 2696 (Roberts, C.J., dissenting). Indeed, the Windsor majority went out of
its way to make this explicit in the penultimate sentence of its opinion by stating
that its opinion and its holding are confined to those lawful marriages . . .
referring to same-sex marriages that a State has already recognized. Id. (citation
omitted). Noting that the Court may in the future have to decide this issue, the
Chief Justice also at least implicitly acknowledged that no prior Supreme Court
decision had resolve[d] challenges to state marriage definitions affecting same-
sex couples. Id. at 2697.
Chief Justice Robertss dissenting opinion in Windsor is dispositive of the
individual defendants personal liability in this case. Neither Governor Bentley nor
Attorney General Strange had anything to do with the challenged conduct at
issue here. Al-Kidd, 131 S. Ct. at 2080. But even if they did, the unlawfulness of
that conduct was not at all apparent. Anderson, 483 U.S. at 640. These are
precisely the circumstances in which state officials are, and should be, free to
perform their jobs without fear of personal liability. The Court should dismiss the
individual-capacity claims accordingly.
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IV. Conclusion
Attorney General Strange will defend the validity of Alabamas marriage
laws in this case. But the plaintiffs complaint contains numerous defects that must
be addressed here at the outset of the litigation. For the foregoing reasons, the
Court should dismiss the official-capacity claims against Governor Bentley and the
individual-capacity claims against both Governor Bentley and Attorney General
Strange.







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


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CERTIFICATE OF SERVICE
I certify that on June 6, 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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