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Ex parte STATE ex rel. ALABAMA

ALAN L. KING, in his official
capacity as Judge of Probate for
Jefferson County, Alabama,
ROBERT M. MARTIN, in his official
capacity as Judge of Probate for
Chilton County, Alabama,
TOMMY RAGLAND, in his official
capacity as Judge of Probate for
Madison County, Alabama,
STEVEN L. REED, in his official
capacity as Judge of Probate for
Montgomery County, Alabama, and
JUDGE DOES **1-63, each in his or
her official capacity as an
Alabama Judge of Probate,

CASE NO. 1140460______

Comes now John E. Enslen in his official capacity as
Probate Judge of Elmore County, Alabama, and files this
responsive pleading to the instant Petition for Writ of
Mandamus (hereinafter "Petition"):

1. The undersigned John E. Enslen (hereinafter "Judge Enslen")

is the duly elected Probate Judge of Elmore County, Alabama,
and he is one of the "John Doe" respondents referenced in
the caption and in paragraph 9 of the Petition.
2. Judge Enslen does not address herein the issue of standing.
He leaves said issue to the competent judgment of the
Alabama Supreme Court.
3. Judge Enslen has thus far refused to issue same sex marriage
licenses because (1) the geographical boundaries of his
office do not lie within the federal district court
(Southern District) which issued the Searcy ruling; (2) he
was not made a party to the Searcy action; (3) there has
thus far been no ruling on the underlying substantive merits
by any higher federal court having authority over the
federal district court which issued the Searcy ruling; (4)
the Constitution of the State of Alabama constitutes
superior legal authority over a trial level ruling by a
federal district court (see cases cited in Footnote 3, page
18, of the Petition and the cases cited hereinafter in
paragraph 7); (5) there is a split in the federal circuits
with respect to the merits of the underlying substantive
issue; (6) the law remains in a "status quo" condition until
the United States Supreme Court makes a ruling; (7) my

actions as probate judge should not be based on anticipation

of what future rulings may hold; and (8) making the state
Attorney General a party to a federal civil action testing a
state constitutional provision is equivalent to making the
state a party to the action and Article III, Section 2,
Clause 2, of the United States Constitution grants exclusive
"original jurisdiction" in such matters to the United States
Supreme Court.
4. Judge Enslen verily believes that the issuance of a marriage
license is purely an administrative or ministerial act that
is totally disconnected from his judicial or court duties,
and that the clerical function of issuing a marriage license
does not require Judge Enslen to exercise any degree of
judgment or discretion called for or established by the
limited-jurisdiction statutes relating to the judicial
functions or judicial authority of a probate judge presiding
over a county probate court.
5. Judge Enslen verily believes that the Governor of the State
of Alabama (hereinafter "Governor") as chief of the
executive branch of state government, is the appropriate
constitutional officer who in the current context possesses
the legal duty and responsibility to provide uniform
direction to the probate judges of Alabama, and that the

Governor, if uncertain as to his correct course of action,

should expeditiously seek an advisory opinion from the
Supreme Court of Alabama.
6. A recent detailed study of the courts of all 50 states and
the District of Columbia determined that 46 states and the
District of Columbia adopt the position that the precedents
of lower federal courts are not binding in their
jurisdictions. Wayne A. Logan, "A House Divided: When State
and Lower Federal Courts Disagree on Federal Constitutional
Rights," 90 Notre Dame L. Rev. 235, 280-81 (2014). The
position of three other states is uncertain. Only one state
(Delaware) defers to the constitutional decisions of lower
federal courts. Id. at 281.
7. Additional federal case law upon which Judge Enslen relies
for his position may be found in the following federal
cases: Johnson v. Williams, 133 S. Ct. 1088, 1098 (2013)
(noting that "the views of the federal courts of appeals do
not bind the California Supreme Court when it decides a
federal constitutional question"); Camreta v. Greene, 131 S.
Ct. 2020, 2033 n. 7 (2011)(quoting 18 J. Moore et al.,
Moore's Federal Practice 134.02[1][d], p. 124-26 (3d ed.
2011))("A decision of a federal district court judge is not
binding precedent in either a different judicial district,

the same judicial district, or even upon the same judge in a

different case."); Lockhart v. Fretwell, 506 U.S. 364, 37576 (1993) (Thomas, J., concurring) ("The Supremacy Clause
demands that state law yield to federal law, but neither
federal supremacy nor any other principle of federal law
requires that a state court's interpretation of federal law
give way to a (lower) federal court's interpretation. In our
federal system, a state trial court's interpretation of
federal law is no less authoritative than that of the
federal court of appeals in whose circuit the trail court is
located."); Asarco Inc. v. Kadish, 490 U.S. 605, 617 (1989)
(Recognizing that state courts "possess the authority,
absent a provision for exclusive federal jurisdiction, to
render binding judicial decisions that rest on their own
interpretations of federal law."); Steffel v. Thompson, 415
U.S. 452, 482, n. 3 (1974)(Rehnquist, J., concurring)
(noting that a lower-federal-court decision "would not be
accorded the stare decisis effect in state court that it
would have in a subsequent proceeding within the same
federal jurisdiction."); Surrick v. Killion, 449 F. 3d 520,
535 (3rd Cir. 2006)("Although consistency between state and
federal courts is desirable in that it promotes respect for

the law and prevents litigants from forum-shopping, there is

nothing inherently offensive about two sovereigns reaching
different legal conclusions. Indeed, such results were
contemplated by our federal system, and neither sovereign is
required to, nor expected to, yield to the other."); United
States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075 (7th
Cir. 1970)("In passing on federal constitutional questions,
the state courts and lower federal courts have the same
responsibility and occupy the same position; there is a
parallelism but not paramountcy for both sets of courts are
governed by the same reviewing authority of the Supreme
8. Wherefore the premises considered, Judge Enslen respectfully
requests that this Supreme Court of Alabama, by any and all
lawful means available to it, protect and defend the
sovereign will of the people of the State of Alabama as
expressed in the Constitution of the State of Alabama, as
amended, so long as said state constitution represents the
highest and prevailing authoritative law under our American
system of government. At the current time, our state
constitution is the highest law of the land as shown by the

federal cases herein cited, and particularly those cases

previously issuing from the United States Supreme Court.

Respectfully submitted,

/s/ John E. Enslen_____________________

John E. Enslen, Pro Se
Probate Judge of Elmore County, Alabama
Post Office Box 10
Wetumpka, Alabama 36092

State of Alabama
Elmore County
Before me, the undersigned notary public, personally
appeared John E. Enslen, who after having been duly sworn,

stated under oath that the facts set forth in the foregoing
responsive pleading are true and correct.
Sworn to and subscribed before me this 18th day of
February, 2015.

/s/ Shirley Moseley____________

State of Alabama At Large
My commission expires 1/15/2019

I, John E. Enslen, do hereby Certify that a true and
correct copy of the foregoing has been furnished by United
States Postal Service and electronic mail on this 18th day
of February, 2015, to:
Matthew D. Staver

Liberty Counsel
Post Office Box 540774
Orlando, Florida 32854-0774
Horatio G. Mihet
Liberty Counsel
Post Office Box 540774
Orlando, Florida 32854-0774
Roger K. Gannam
Liberty Counsel
Post Office Box 540774
Orlando, Florida 32854-0774
A. Eric Johnson
Suite 107
1200 Corporate Drive
Birmingham, Alabama 35242
Samuel J. McLure
The Adoption Law Firm
Post Office Box 2396
Montgomery, Alabama 36102

The Honorable Alan L. King

Judge of Probate, Jefferson County
716 North Richard Arrington Junior Boulevard
Birmingham, Alabama 35203
The Honorable Robert M. Martin
Judge of Probate, Chilton County

500 2nd Avenue North

Clanton, Alabama 35045
The Honorable Tommy Ragland
Judge of Probate, Madison County
100 North Side Square, Room 101
Huntsville, Alabama 35801
The Honorable Steven L. Reed
Judge of Probate, Montgomery County
Montgomery County Courthouse Annex I, Third Floor
100 South Lawrence Street
Montgomery, Alabama 36104
David Byrne
Legal Counsel, Governor Robert Bentley
Office of Governor Robert Bentley
State Capitol
600 Dexter Avenue
Montgomery, Alabama 36130-2751
Luther Strange
Attorney General, State of Alabama
501 Washington Avenue
Montgomery, Alabama 36130-0152

Ken Webb
7475 Halcyon Pointe Drive
Montgomery, Alabama 36117


18 Feb. 2015________________

/s/ John E. Enslen__________