A special Alabama Supreme Court has affirmed the decision of the Court of the Judiciary suspending Chief Justice Roy Moore from office without pay for the remainder of his term for ordering all probate judges to follow the state’s same-sex marriage ban despite a federal court injunction requiring the issuance of marriage licenses to same-sex couples and for failing to disqualify from the state case on same-sex marriage after taking a position on the issue in the order to probate judges.  Moore v Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017).

In early 2015, a federal district court enjoined enforcement of Alabama laws banning same-sex marriage, and the Eleventh Circuit upheld the injunction, but the Alabama Supreme Court held the state ban was constitutional.  Several days after the U.S. Supreme Court’s June 2015 decision on same-sex marriage in Obergefell v. Hodges, the Alabama Supreme Court invited argument on the effect of Obergefell on its prior decisions.  In July, lifting a stay it had entered pending the U.S. Supreme Court decision, the federal district court stated its injunction was binding on all Alabama probate judges.  In September, 2 probate judges filed petitions with the Alabama Supreme Court seeking a writ of mandamus directing them not to issue marriage licenses to same-sex couples.

On January 6, 2016, believing, as the special Court found, that the “Court was taking too long to decide the issue” and “deciding he could wait no longer,” the Chief Justice filed an administrative order that stated:  “IT IS ORDERED AND DIRECTED THAT:  Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court 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 remain in full force and effect.”  In the administrative order, the Chief Justice did not mention the federal injunction or the Eleventh Circuit’s decision upholding the injunction.

In March 2016, the Alabama Supreme Court dismissed the probate judges’ petitions seeking a writ of mandamus.  The Chief Justice participated in the decision, writing a special concurrence into which he “copied and pasted substantial portions” of his administrative order.

Based on a complaint filed by the Judicial Inquiry Commission, the Court of the Judiciary found that the Chief Justice, in the administrative order, had demonstrated an unwillingness to follow clear law, had decided substantive legal issues while purporting to act in his administrative capacity, had substituted his judgment for the judgment of the entire Court on a substantive legal issue in a case then pending in that Court, and had interfered with the legal process and remedies in the U.S. District Court and the Alabama Supreme Court; the Court also found that the Chief  Justice should have disqualified himself from the decision on the probate judges’ petitions.  The Court of Judiciary decision is summarized in a prior blog post, “Not about same-sex marriage.”

The special Supreme Court held that the Court of the Judiciary’s findings were supported by clear and convincing evidence.  It is notable how often the special Supreme Court concluded, either directly or by agreeing with the findings of the Court of the Judiciary, that the Chief Justice’s administrative order or his defense of his conduct was disingenuous, not credible, or misleading.  For example:

• The special Court repeatedly noted that the Chief Justice omitted from his arguments that his administrative order had “ordered and directed” probate judges not to issue marriage licenses while they were unquestionably bound by the federal court injunction. For example, despite the “ordered and directed” language, he argued the order was merely a “status update.”
• The Court found that the administrative order “served no purpose, other than to create confusion among the probate judges.” The Court of the Judiciary had noted that only 20 of Alabama’s 68 probate judges are lawyers.
• The Court found that the Chief Justice’s failure to mention the federal injunction in the order was intentional but that that omission did “not absolve him of inciting those bound by it to disobey.”
• Although the Chief Justice stated in the order “I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell,” the special Court explained that “[s]tating that one is not at liberty to provide guidance while taking great pains to include several pages of legal analysis and argument is disingenuous.”
• The Court of the Judiciary found that the Chief Justice’s brief description of Obergefell in the order was “at best incomplete and at worst intentionally misleading” and that his use of caselaw was “incomplete, misleading, and manipulative.”

The Alabama Supreme Court that issued the opinion was comprised of 7 special justices chosen by random from a pool of retired appellate, circuit, and district justices and judges after the other supreme court justices recused themselves from the Chief Justice’s appeal.  Documents in the case are available on the Court of the Judiciary web-site.