County: No lawyer for same-sex issue

Published 8:39 pm Tuesday, March 31, 2015

Probate Judge Ben Bowden speaks to the county commission Tuesday. | Andrew Garner/Star-News

Probate Judge Ben Bowden speaks to the county commission Tuesday. | Andrew Garner/Star-News

The Covington County Commission took no action Tuesday on a request from Probate Judge Ben Bowden to hire an attorney to represent him in the event litigation involving same-sex marriage in federal court in Mobile is extended to include all of the state’s probate judges.

“As most of you know, for the better part of two months, the state of Alabama has been embroiled in a controversy about same sex marriage,” Bowden said. “From the very beginning, I never issued or agreed to issue marriage licenses to same sex couples because I didn’t believe (Alabama) law allowed that.

“That was a controversial position to take at the time, but since then, the Alabama Supreme Court, our highest court, has ruled that all probate judges have to follow Alabama law.”

The controversy stems from a ruling handed down from U.S. District Judge Callie V.S. “Ginny” Granade striking down Alabama’s ban on same-sex marriage as unconstitutional.

Granade’s ruling came in a lawsuit filed by a same-sex couple married in California but living in Mobile, Ala. — Cari Searcy and Kim McKeand.

The couple filed their suit after the Mobile County Probate Judge denied Searcy’s petition to adopt a child the couple has reared together. The probate judge ruled that the couple wasn’t married under Alabama law.

According to reports, Mobile County Probate Judge Don Davis had issued a temporary decree granting Cari Searcy parental rights to the son she shares with McKeand. Davis said he wouldn’t issue a final adoption order until the U.S. Supreme Court rules on the same-sex marriage cases before it.

Bowden said the state Supreme Court’s ruling gave the probate judges some relief.

“But, we have a U.S. District Court, a federal court in Mobile, that is pushing to require all of us to have to issue marriage licenses to same sex couples,” he said. “There are several motions being filed there, and the end game is that the plaintiffs — or the proponents of same sex marriage — are asking the federal judge in Mobile to put all of the probate judges in a class so that then she can issue orders that can cover all of us, even the ones that are not in the Mobile or southern district.”

Bowden said this action hasn’t happened yet, but if it does, then the state’s 68 probate judges would have two orders — one each from the federal court and Alabama Supreme Court — telling them that they’d be found in contempt of court.

“We’d be at risk with these two court systems,” he said.

Bowden, who also is an attorney, said he requested permission to hire outside counsel because of the potential he’ll be operating under conflicting orders in the near future.

“Now that there is a case in a federal district court in Mobile that would seek to issue an order directly against me, I feel like I need a lawyer to represent me in the event that happens, and to work to prevent that from happening if I can,” he said. “I need outside counsel, not inside counsel; not the county attorney. It may be somebody who has to file something in court for me down in Mobile.”

Bowden said newly-hired county attorney Stacy Brooks is capable, but she couldn’t represent him as a client.

“I’m asking the commission to allow me to hire an attorney to advise me and possibly represent me in the litigation down in Mobile,” Bowden said. “I want to try to prevent being in the spot I described where I’d be doing one thing by one court and another thing by another court. I think it’s possible that I’ll do one thing and let it kind of roll along and let other people basically take the brunt of it.”

Bowden needed the county’s permission because the line item in his budget for legal fees would not cover the expected expenses, he said. He did, however, say he expects the legal fees could be covered by shifting items in his budget.

Bowden said Anne Sumblin of Kinston has already agreed to represent him in the case.

“I wouldn’t have Anne do anything right away, but evaluate the situation with me and help me decide to do anything or not,” he said. “As far as cost, I would ask the commission to allow me to retain her out of my own budget. We would tighten our belt in the probate office and manage our business.”

Commissioner Joe Barton asked Bowden whether the 68 probate judges in the state would retain lawyers if the federal judge makes the expected ruling.

“Some could be grouped together,” Bowden said. “Some will be satisfied to let it flow and try to do what they can when the pieces fall into place. I’m not saying that I might not do that, too. I just feel like this is a critical juncture in the whole affair.

“It’s the first time I feel like I am at risk of the judge in Mobile issuing a direct order to me that would require me to do something that I don’t believe is right,” he said.

Bowden then asked if Brooks would lend her take, but Godwin thanked the probate judge for lending his comments.

The commission voted to go into executive session, where it met for more than 15 minutes. State law allows closed sessions to discuss pending litigation.

Commissioners took no action on Bowden’s request, based on Brooks’ advice.

Barton made the motion to take no action. Commissioners unanimously approved the motion, essentially saying “no” to Bowden’s request.

Bowden, who asked for the commission’s support, wasn’t happy with the decision.

“I’m pretty disappointed,” he said.

Godwin said the commission doesn’t have a position on Bowden’s request to retain counsel.

“I have no comment at this time,” he said. “We just don’t have enough information to make a decision at this time. Right now, we don’t have a position on him retaining counsel because we’re waiting on further information.”