Tuesday, March 10, 2015

I see your mandamus and raise you a class action // Howard Wasserman//Prawfsblog

PrawfsBlawg: I see your mandamus and raise you a class action:

by Prof. Howard Wasserman

"In response to last week's Writ of Mandamus by the Supreme Court of Alabama, the plaintiffs in Strawser have moved to amend the complaint to add some new plaintiffs and one new probate-judge defendant and to have the entire thing certified as a plaintiff and defendant class action. (H/T: Lyle Denniston).

 If successful, the move will allow Judge Granade to enjoin every probate judge to issue a license to every same-sex couple in the state.

It also seems to set-up a direct conflict between orders of a state supreme court and a lower federal court, although that may be more illusory than real. The arguments surrounding the mandamus recognize that the mandamus only controlled judges not under a federal injunction requiring them to issue licenses; recall that Judge Don Davis (at the time the only probate judge subject to an injunction) was ordered to show that he was under the injunction, presumably to be released from the mandamus. By those terms, if a class injunction issues, every probate judge should be given an opportunity to make that showing, after which the mandamus should give way.

Posted by Howard Wasserman on March 9, 2015 at 09:31 AM"

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