After listening to the media conference call held by the Probate Judges's Association today, I'm a little worried about the power these guys have. Do we really want people who can't handle simple paperwork changes running our elections, dealing with inheritance disputes, and ruling on mental competence?
I listened to this for almost an hour & now I'm more concerned about the competence of the people running this professional organization. The attorney for the PJA – Al Agricola (President of the Montgomery Federalist Society) – says that Alabama probate judges can issue licenses, but the Executive Board of the Association (acting on Agricola's legal advice) “advises against it.”
The main problem, you see.. is paperwork and laws dating back to 1852. hmmm… let's THINK about some laws that old that the state no longer follows – thanks to the federal judiciary. This is not an exact transcript, but the quick notes get most of it (fortunately, Agricola was speaking slowly!) and you'll get the gist:
“Changes brought about by the judge's order are complex. Laws regarding marriage go back to 1852 & we have no details from the judge as to how Probate Judges & clerks are supposed to uniformly & efficiently administer these changes.”
Question: Wouldn't the change be issue or not issue the license? Isn't that the option?
“It's not that easy.”
“All the forms have “husband and wife” and there are ripple effects in issues surrounding presumption of paternity and in this case adoption. The purpose of the adoption laws in AL – those use the term husband and wife – purpose is to ensure the fundamental right of children to have relationship with biological arents. And approximate that with an adoption.
Issuing marriage licenses is as complicated as administering an election. Clerks have no training. Want to avoid long lines at officers because we don't know how to administer the changes.
More notes are on the flip,
along with a link to the audio file – audio link coming in an hour or so…. Audio link is active at Dropbox.
Note: Answers are in italics and an approximate time is noted in case you want to listen to a particular exchange in its entirety.
Each Probate Judge in the county is his own jurisdiction. But our position is that it “wouldn't be proper.”
Since Strange was sued, he has no role in the issuance of marriage licenses.
17 min: AL Probate Judges are a private association & all Probate Judgess are members. Not binding on members; advice provided as a service to members. Members make up their own minds. Frankly, that's part of the problem. Judge gave us no details on how to administer the details uniformly across the state. Issued on Friday & laws we're dealing with go back to 1852. Can't administer changes between Friday and Monday.
Question: What if some judges took the weekend to consider it? And you say don't issue licenses?
Yes, because ruling doesn't apply to Probate Judges.
Question: Confused: trying to figure out: if Probate Judges aren't part of this ruling, how do they get the authority to issue licenses?
PJA answers that Judge's ruling doesn't apply to them.
Question: 19 minutes: Can Association take action against any judge who issues licenses? NO.
Question: 20:20 Think Progress reporter: law is declared unconstitutional. Strange only named, but wouldn't it be unconstitutional for anyone to enforce the current law?
— Courts decide disputes between parties. Holding of a court involving a class action is a broader application. If ruling is NOT in a class action, applies only to parties named. This suit only named the AG, who is the chief legal officer of the state. He has a role to play in the enforcement o flaws generally. Judge enjoined him from enforcing two Alabama laws. She did declare both unconstitutional, but as matters stand currently, there is no party before the judge who has anything to do with the issuance of marriage licenses.
Question: Less than a month ago, Florida has a similar situation & clerks gave the same advice. But federal judge “clarified” the ruling & said clerks were allowed to issue licenses. And clerks could be sued. Any concern about Probate Judges being sued?
What is different between Florida and now, January 16, SCOTUS granted cert. In all likelihood, we'll have a ruling by June 30. That's a sufficient reason to stay the ruling. AG filed that Friday evening. Second, if anyone at risk, 2 kinds of risk. For people who might seek to marry; their marriages might be at risk & I dn't know what might happen. Judge at risk if they don't? We don't believe that there is any risk. It is possible that a Probate Judge who refuses could be made a party to the judge's order and ordered to issue licenses. We don't know if that will happen.
Question: 27:30 – How can other couples NOT use this as a precedent?
That goes back to how case is framed procedurally. Probate Judges aren't part of the suit, so not covered.
Question: 31 – Curious about the legal determination that this is narrowly tailored to the two plaintiffs when 20-30 previous rulings in other cases overturned prohibition on marriage equality. Is it your position that all these cases involved a class and the Alabama case is unique?
Don't know about other states; I'm only looking at Alabama.
Question: 33: Mentioned some fundamental changes that would have to take place over the weekend to issue licenses. What changes?
“Changes brought about by the judge's order. Laws regarding marriage go back to 1852 & we have no details from the judge as to how Probate Judges & clerks are supposed to uniformly & efficiently administer these changes.”
Question: Wouldn't the change me issue or not issue the license? Isn't that the option?
It's not that easy.
All the forms have “husband and wife” and there are ripple effects in issues surrounding presumption of paternity and in this case adoption. The purpose of the adoption laws in AL – those use the term husband and wife – purpose is to ensure the fundamental right of children to have relationship with biological parents. And approximate that with an adoption.
36:3- Lawyer: issuing marriage licenses is as complicated as administering an election. Clerks have no training. Want to avoid long lines at officers because we don't know how to administer the changes.
Question: 37:30 – Ruling says ban on marriage equality violates the 14 Amendment. How is refusing to issue a license not unconstitutional?
Ruling only applies to AG Strange, not Probate Judges.
Question: ummm… if the role of Probate Judges is to issue marriage licenses & ruling says that not issuing them is unconstitutional, doesn't that at least tacitly mean that it's unconstitutional?
Courts resolve disputes between parties. Only unconstitutional to deny adoption of this child to this couple.
Question: 40:30 – Opinion of the Association is to stay Probate Judges until SCOTUS rules. Is that right?
The Association intends to file a motion with the judge to support Strange's motion for a stay until the Supreme Court rules. Will be filed today electronically.
Question: 44:30 – What's the legal precedent that you're standing on now? The opinion of the judge seemed pretty broad. What's your case you're basing this on?
Article 3 gives the courts jurisdiction to decide cases – disputes between parties – that's what we do instead of having swordfights and gunfights. Procedural mechanisms are available to designate parties as class representatives, much broader, but no officials named in the case have any connection to marriage licenses, so AL Probate Judges aren't bound by the judge's order.