Not about same-sex marriage

Based on a complaint by the Judicial Inquiry Commission, the Alabama Court of the Judiciary suspended Chief Justice Roy Moore from office without pay until the end of his term for an administrative order in which he directed or appeared to direct all Alabama probate judges to follow Alabama’s marriage bans for same-sex couples despite a federal court injunction.  In the Matter of Moore, Final judgment (Alabama Court of the Judiciary September 30, 2016).  The Court of the Judiciary emphasized that the case was only about “alleged violations of the Canons of Judicial Ethics,” “not about whether same-sex marriage should be permitted,” or reviewing or editorializing about the U.S. Supreme Court’s decision in Obergefell v. Hodges, “a decision that some members of this court did not personally agree with or think was well reasoned.”  The Chief Justice filed a notice of appeal the next business day. (A timeline of relevant events is at the end of this post.)

In June 2015, in Obergefell, the U.S. Supreme Court held that same-sex couples have a fundamental right to marry under the federal constitution.  In January 2016, the Alabama Supreme Court was still considering the effect of Obergefell on its previous decision upholding the state’s same-sex marriage bans.  On January 6, noting confusion among the state’s probate judges, who issue marriage licenses, the Chief Justice filed an administrative order that “ordered and directed” that “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act” until the Alabama Supreme Court ruled on issue.  The order did not mention the federal injunction that had enjoined all probate judges from refusing to issue licenses to same-sex couples.

Subsequently, the Alabama Supreme Court dismissed petitions filed by probate judges seeking a writ of mandamus directing that they not issue marriage licenses to same-sex couples.  Chief Justice Moore participated in the decision.

 The Judicial Inquiry Commission filed a complaint against Chief Justice Moore based on his January 6, 2016 administrative order.

The Court of the Judiciary rejected as “not credible” the Chief Justice’s argument that he filed the January 6 order “merely to provide a ‘status update’ to the State’s probate judges,” noting that “a judge does not issue a ‘status update’ that ‘orders and directs’ that a law remain in effect.”  The Court found that “a disinterested reasonable observer, fully informed of all the relevant facts, would conclude that the undeniable consequence of the January 6, 2016, order was to order and direct the probate judges to deny marriage licenses” and that the order “called for action – and that action would have been in defiance” of Obergefell and of the federal injunction.  Noting that only 20 of Alabama’s 68 probate judges are lawyers, the Court also stated that the Chief Justice’s use of legal authority in the January 6 order “was incomplete to the point that . . . it was intended to be misleading.”

The Court of the Judiciary concluded that the Chief Justice, by willfully issuing the January 6, 2016 order, completely disregarded a federal court injunction when he knew or should have known every Alabama probate judge was enjoined from using the Alabama marriage laws or any Alabama Supreme Court order to deny marriages licenses to same-sex couples.  It also held that he demonstrated an unwillingness to follow clear law, decided substantive legal issues while purporting to act in his administrative capacity, substituted his judgment for the judgment of the entire Alabama Supreme Court on a substantive legal issue in a case then pending in that court, and interfered with the legal process and remedies in the U.S. District Court and/or the Alabama Supreme Court to address the status of any proceeding in which Alabama’s probate judges were parties.  The Court found that the Chief Justice violated Canons 1, 2, 2A, 2B, and 3.  The Court also found that the Chief Justice’s order was a public comment about a pending proceeding that placed his impartiality into question, and, therefore, he should have disqualified himself from the subsequent decision by the Alabama Supreme Court on the effect of Obergefell.

The Court of the Judiciary concluded:

As this court stated in its 2003 order removing Chief Justice Moore from office:  “While this court respects Chief Justice Moore’s right to his personal opinion on the underlying issues . . . , the fact remains that Chief Justice Moore is the chief judicial officer of this State and is held to a higher standard than a member of the general public.”  The fact also remains that this is the second time Chief Justice Moore has caused himself to be brought before this court for taking actions grossly inconsistent with his duties as Chief Justice and in violation of the Canons of Judicial Ethics.  The result in both instances has been a lengthy, costly proceeding for this court, the JIC, and, most unfortunately, the taxpayers of this State.

 A majority of the Court agreed with the Commission that removal was the appropriate sanction; however, the Court’s rules provide that removal of a judge requires “the concurrence of all members sitting.”

Time line

2003-2013

November 2003:  Based on the complaint of the Judicial Inquiry Commission, the Alabama Court of the Judiciary removes Chief Justice Roy Moore from office for failing to comply with a federal court order that he remove a monument displaying the Ten Commandments from the rotunda of the State Judicial Building.

April 2004:  A special Alabama Supreme Court affirms the judgment of the Court of the Judiciary.  (After the other justices of the Court recused, a special court of 7 members was chosen in a random drawing from a pool of retired justices and judges.)

2006:   Moore loses to the incumbent in the Republican primary for governor.

2010:  Moore places 4th in the Republican primary for governor.

November 2012:  Moore is elected Chief Justice for a second time.

January 2013:  Chief Justice Moore takes office for a 6-year term.

2015

January:  In Searcy v. Strange, a federal district court holds that Alabama’s same-sex marriage bans (the Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act) are unconstitutional and enters a preliminary injunction enjoining enforcement by the state attorney general.

February:  The 11th Circuit refuses to stay the district court injunction.

In a letter and memorandum of law, Chief Justice Moore advises the state’s probate judges that they are “not required to defer to federal district and circuit court rulings” on constitutional issues regarding same-sex marriage.

Chief Justice Moore issues an administrative order advising the probate judges that they are not bound by the injunction in Searcy because they are not parties to the case.

In Strawser v. Strange, the federal district judge holds that Alabama’s same-sex marriage bans are unconstitutional and enters a preliminary injunction enjoining the 1 probate judge who is a defendant from refusing to issue a marriage license to the same-sex plaintiffs.

March:  In Ex parte State ex rel. Alabama Policy Institute, the Alabama Supreme Court holds that Alabama’s same-sex marriage bans are constitutional and orders all probate judges who are not parties to Strawser to enforce the bans.  Chief Justice Moore did not participate because of his letter, memorandum, and administrative order to the probate judges.

May:  In Strawser, granting the plaintiff’s motion, the federal district court certifies a defendant class of all Alabama probate judges and preliminarily enjoins all members of the defendant class from denying marriage licenses to same-sex couples, but stays its injunction pending an imminent U.S. Supreme Court decision.

June:  In Obergefell v. Holdges, a case arising from challenges to same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee, the U.S. Supreme Court holds that same-sex couples have a fundamental right to marry under the federal constitution and may exercise that right in all states.

The Alabama Supreme Court invites the parties in Alabama Policy Institute to address the effect of Obergefell on its decision upholding the bans.

July:  The federal district judge lifts the stay on the injunction in Strawser, noting it is binding on all Alabama probate judges.

September:  2 probate judges file petitions with the Alabama Supreme Court seeking a writ of mandamus directing probate judges not to issue marriage licenses to same-sex couples.

October:  The 11th Circuit summarily affirms the district court’s preliminary injunction.

2016

January:  Noting confusion among probate judges, the Chief Justice files an administrative order that “ordered and directed” that “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act” until the Alabama Supreme Court rules on the pending petitions.

March:  The Alabama Supreme Court dismisses the probate judges’ petitions seeking a writ of mandamus.  Chief Justice Moore participates in the decision and files a special concurrence.

May:  The Judicial Inquiry Commission files a complaint against Chief Justice Moore based on his administrative order.  By automatic action of a provision in the state constitution, he is suspended with pay.

Chief Justice Moore files a federal lawsuit challenging the automatic suspension provision.

June:  Chief Justice Moore files a motion to dismiss the complaint.

July:  The only current member of the Court of the Judiciary who was also on the Court when it removed the Chief Justice in 2003 (1 of 2 lawyer members appointed by the Alabama State Bar) recuses himself from the proceedings, and the first alternate provided by the Bar is appointed a member of the Court for the matter.

August 8:  The federal district court dismisses the Chief Justice’s lawsuit, finding federal abstention was required.

The Court of the Judiciary denies the Chief Justice’s motion to dismiss.

September 28:  A 1-day hearing is held before the Court of the Judiciary.  (The Court’s rules provide that “a failure to convict within ten days after the conclusion of the hearing shall constitute an acquittal.”)

September 30:  The Court of the Judiciary suspends Chief Justice Moore from office without pay for the remainder of his term.  His attorney says he will appeal.

October 3:  The Chief Justice files a notice of appeal.

One thought on “Not about same-sex marriage

  1. Pingback: Affirming discipline in Alabama same-sex marriage case | Judicial ethics and discipline

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s