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Moore v. Alabama Judicial Inquiry Commission

Supreme Court of Alabama

April 19, 2017

Roy S. Moore, Chief Justice of the Supreme Court of Alabama
v.
Alabama Judicial Inquiry Commission

         Appeal from the Court of the Judiciary (No. 46)

          PER CURIAM. [1]

         Facts and Procedural History

         The facts of this case are undisputed. On January 23, 2015, Judge Callie Granade, district judge for the United States District Court for the Southern District of Alabama, issued an order declaring unconstitutional both the Alabama Sanctity of Marriage Amendment, Ala. Const. 1901, Art. I, § 36.03, and the Alabama Marriage Protection Act, Ala. Code 1975, § 30-1-19, as violating the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Searcy v. Strange, 81 F.Supp.3d 1285 (S.D. Ala. 2015). On January 26, 2015, Judge Granade entered an injunction prohibiting the Alabama Attorney General from enforcing any Alabama law that prohibits same-sex marriage. The injunction was stayed until February 9, 2015, to allow time for an appeal of her decision to the United States Court of Appeals for the Eleventh Circuit. Strawser v. Strange, 44 F.Supp.3d 1206 (S.D. Ala. 2015).

         On January 27, 2015, Roy S. Moore, Chief Justice of the Alabama Supreme Court, [2] sent a letter, on Supreme Court of Alabama letterhead, to then Governor Robert Bentley regarding Judge Granade's orders, expressing "legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment." In his three-page letter, Chief Justice Moore laid out his arguments as to why Judge Granade's federal-court orders were not binding upon the State of Alabama and avowed: "As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment." He also asked Governor Bentley "to continue to uphold and support the Alabama Constitution with respect to marriage" and advised that "I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority."

         On February 3, 2015, Chief Justice Moore penned another letter, on Administrative Office of Courts[3] letterhead, addressed to the probate judges of Alabama and entitled "Federal Intrusion into State Sovereignty." To this 4-page letter, Chief Justice Moore also attached a 27-page memorandum of law, which concluded:

"In fulfillment of my obligations as Administrative Head of the Unified Judicial System, I have herein offered you my considered guidance on how the recent orders from the United States District Court in Mobile affect your duties as an Alabama probate judge. Because, as demonstrated above, Alabama probate judges are not bound by Judge Granade's orders in the Searcy [v. Strange, 81 F.Supp.3d 1285 (S.D. Ala. 2015), ] and Strawser [v. Strange, No. 1:14-CV-424-CG-C (S.D. Ala. Jan. 26, 2015), ] cases, they would in my view be acting in violation of their oaths to uphold the Alabama Constitution if they issued marriage licenses prohibited under Alabama law."

         On February 8, 2015, Chief Justice Moore issued an administrative order to Alabama's probate judges, which provided:

"WHEREAS, neither the Supreme Court of the United States nor the Supreme Court of Alabama has ruled on the constitutionality of either the Sanctity of Marriage Amendment or the Marriage Protection Act:
"NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT:
"To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:
"Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.
"Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests 'the supreme executive power of this state, ' Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. 'The Governor shall take care that the laws be faithfully executed.' Art. V, § 120, Ala. Const. 1901. '"If the governor's '"supreme executive power"' means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal."' Tyson v. Jones, 60 So.3d 831, 850 (Ala. 2010)(quoting Riley v. Cornerstone, 57 So.3d 704, 733 (Ala. 2010))." (Boldface type in original.) From February through June 2015, Chief Justice Moore also conducted several interviews with representatives of national and local media outlets.

         On March 3, 2015, the Alabama Supreme Court released a decision in Ex parte State of Alabama ex rel. Alabama Policy Institute, 200 So.3d 495 (Ala. 2015)("API I"), a per curiam opinion ordering the probate judges named as respondents to discontinue issuing marriage licenses to same-sex couples in compliance with Alabama law. Chief Justice Moore's name did not appear in the vote line of this opinion, nor did he author or join any of the special writings. On March 10, 2015, the API I Court issued an order stating that API I "serves as binding statewide precedent, " joining Judge Don Davis as a respondent, and enjoining Judge Davis "from issuing any further marriage licenses contrary to Alabama law." Ex parte State of Alabama ex rel. Alabama Policy Institute, 200 So.3d at 557, 558. Chief Justice Moore's name did not appear in the vote line of the order. On March 12, 2015, the Court issued another order declaring that all previously non-named probate judges within the State were to be respondents and were to be bound by its March 3, 2015, opinion in API I. Chief Justice Moore's name did not appear in the vote line of that order.

         On May 21, 2015, Judge Granade issued an order certifying a plaintiff class as

"all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages, "

         and certifying a defendant class as

"all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages."

Strawser v. Strange, 307 F.R.D. 604, 614-15 (S.D. Ala. 2015). That same day, Judge Granade also issued an order declaring the Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act unconstitutional as violating the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and enjoining the enforcement of any Alabama laws, including any injunction issued by the Alabama Supreme Court, that would prevent the issuance of a same-sex marriage license or the recognition of a same-sex marriage license. By that same order, Judge Granade stayed her injunction until such time as the United States Supreme Court issued its ruling in a then pending appeal that raised many of the same issues --Obergefell v. Hodges, 576 U.S.___, 135 S.Ct. 2584 (2015). Strawser v. Strange, 105 F.Supp.3d 1323 (S.D. Ala. 2015).

         On June 26, 2015, the United States Supreme Court issued its opinion in Obergefell, holding that "same-sex couples may exercise the fundamental right to marry in all States" and that "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." 576 U.S. at___, 135 S.Ct. at 2607-08.

         On June 29, 2015, the Alabama Supreme Court invited the parties to Ex parte State of Alabama ex rel. Alabama Policy Institute ("API") to submit any motions or briefs addressing the effect of the Obergefell decision on the existing orders in API.

         On July 1, 2015, Judge Granade issued an order clarifying that her May 21 order enjoining the enforcement of any Alabama laws, including any injunction issued by the Alabama Supreme Court, that would prevent the issuance of a same-sex marriage license or the recognition of a same-sex marriage license was in effect and binding on all Alabama probate judges. Strawser, No. 14-0424-CG-C (S.D. Ala. July 1, 2015). On July 7, 2015, the Alabama probate judges filed in the federal district court an opposition to making Judge Granade's injunction a permanent injunction, stating:

"The U.S. Supreme Court has now resolved the conflict between this Court's rulings and the ruling of the Alabama Supreme Court. Both Courts are entitled to interpret the U.S. Constitution, and the U.S. Supreme Court decided that this Court's interpretation was correct, essentially overruling the Alabama Supreme Court's determination. The bottom line is this: probate judges in this State were following Court orders when they either refused to issue marriage licenses or refused to issue same-sex marriage licenses. Now that the confusion about the law has been cleared up by the U.S. Supreme Court, there is no indication that the probate judges will violate their oath and refuse to follow what the Supreme Court has established, and what the Alabama Attorney General and the Governor of the State have said is now the law of the land."

         On September 2, 2015, Chief Justice Moore sent a memorandum he authored[4] to Alabama Supreme Court Associate Justices Lyn Stuart, Michael F. Bolin, Tom Parker, Glenn Murdock, Greg Shaw, James Allen Main, Alisa Kelli Wise, and Tommy Bryan regarding the Court's June 29 invitation for further briefing in API. In that memorandum, Chief Justice Moore stated: "I believe it is time for us to make a decision in this case ... to acquiesce in Obergefell and retreat from our March orders or to reject Obergefell and maintain our orders in place." Chief Justice Moore then implored the Court to render guidance on this issue because, he said, "Obergefell is particularly egregious because it mandates submission in violation of religious conscience" and "ominous developments are already occurring in other states."

         On October 7, 2015, Chief Justice Moore sent a second memorandum regarding API to the same Alabama Supreme Court Justices.[5] Chief Justice Moore wrote to inform his fellow Justices of an article published on AL.com, an online news service, entitled "Where is the Supreme Court of Alabama on gay marriage?"[6] The article noted the Alabama Supreme Court's delay in addressing the effect of Obergefell on API I and the subsequent orders issued in API. Chief Justice Moore also reminded the Justices of their obligation to discharge their duties in a timely fashion and his "responsibility to respond to the continuing delay of this Court in addressing an issue of serious public concern, as well as an obligation to answer the probate judges of this State who have asked for our assistance in protecting their religious liberty."

         On October 20, 2015, the United States Court of Appeals for the Eleventh Circuit summarily affirmed Judge Granade's May 21, 2015, order "granting a preliminary injunction requiring the issuance of marriage licenses to same-sex couples." Strawser v. Alabama, No. 15-12508-CC (11th Cir. Oct. 20, 2015).

         On January 6, 2016, Chief Justice Moore issued a four-page administrative order to Alabama probate judges. That order stated, in part:

"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."

         Chief Justice Moore, although citing several federal-court decisions questioning the extent of the application of Obergefell, did not address, discuss, cite, or otherwise alert the probate judges to Judge Granade's May 21, 2015, order or the Eleventh Circuit's affirmance of that order.

         On March 4, 2016, the Alabama Supreme Court issued an order dismissing all pending motions and petitions submitted in API ("API II"). Chief Justice Moore's name appeared in the vote line of this order as concurring specially, and, in addition to his special writing concurring specially, Chief Justice Moore issued a lengthy statement of nonrecusal explaining why his recusal from the matter was not necessary.

         On May 5, 2016, the Judicial Inquiry Commission filed a formal six-count complaint against Chief Justice Moore in the Court of the Judiciary, charging Chief Justice Moore with violating Canons 1, 2, 2A, 2B, 3, and 3A(6), Alabama Canons of Judicial Ethics. The Canons Chief Justice Moore is charged with violating read as follows:

"Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary
"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed as applied to further that objective." _
"Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
"A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
"B. A judge should at all times maintain the decorum and temperance befitting his office and should avoid conduct prejudicial to the administration of justice which brings the judicial office into disrepute.
"...."
"Canon 3. A Judge Should Perform the Duties of His Office Impartially and Diligently
"The judicial activities of a judge take precedence over his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:
"A. Adjudicative Responsibilities.
"....
"(6) A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court."

         The secretary of the Court of the Judiciary personally served Chief Justice Moore with a copy of the complaint the same day it was filed. As of the filing of the complaint, Chief Justice Moore was automatically disqualified from acting as a judge and was no longer able to perform his duties as Chief Justice, pending the resolution of the charges by the Court of the Judiciary. Ala. Const. 1901, § 159 (Off. Recomp.).

         On September 30, 2016, after considering the evidence, most of which was not disputed, the Court of the Judiciary rendered its judgment and issued a unanimous opinion holding that Chief Justice Moore had violated the Alabama Canons of Judicial Ethics as charged in the complaint. Although the majority of the Court of the Judiciary agreed that the appropriate sanction for Chief Justice Moore was removal from office, the court did not reach the necessary unanimous agreement for removal. However, the Court of the Judiciary did reach unanimous agreement on the sanction it ultimately imposed: "suspension from office without pay for the remainder of his term."

         Chief Justice Moore filed his notice of appeal with this Court on October 3, 2016.

         Scope of Review

"The Court of the Judiciary is a constitutionally created court with limited jurisdiction. Ala. Const. 1901, Amend. No. 581, § 6.18 [now § 157, Ala. Const. 1901 (Off. Recomp.)] (proclaimed ratified June 19, 1996). It can decide only cases involving charges brought against judges by the Judicial Inquiry Commission. § 6.18(a) [now § 157(a)]. 'A judge aggrieved by a decision of the Court of the Judiciary may appeal to the Supreme Court [of Alabama]. The Supreme Court shall review the record of the proceedings on the law and the facts.' § 6.18(b) [now § 157(b)]."

Moore v. Judicial Inquiry Comm'n of Alabama, 891 So.2d 848, 855 (Ala. 2004).

         Standard of Review

"'The applicable standard of review for an order from the Court of the Judiciary is that the evidence must be clear and convincing. That is, "orders of the Court of the Judiciary are entitled to a presumption of correctness if the charge is supported by 'clear and convincing evidence.'"' In re Sheffield, 465 So.2d 350, 355 (Ala. 1984) (quoting In re Samford, 352 So.2d 1126, 1129 (Ala. 1977)). With regard to questions of law, this Court's review is de novo. Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala. 1999)(quoting Ex parte Graham, 702 So.2d 1215 (Ala. 1997)). However, factual findings of the Court of the Judiciary based on ore tenus evidence are presumed correct, and '[the Court of the Judiciary's] judgment based on those findings will not be disturbed unless the appellate court, after considering all the evidence and all reasonable inferences that can be drawn therefrom, concludes that the judgment is plainly and palpably wrong, manifestly unjust, or without supporting evidence.' Boggan v. Judicial Inquiry Comm'n, 759 So.2d 550, 555 (Ala. 1999). In the absence of specific factual findings, 'this court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous and against the great weight and preponderance of the evidence.' 759 So.2d at 555 (quoting Powers v. Judicial Inquiry Comm'n, 434 So.2d 745, 749 (Ala. 1983)). Further, in reviewing an appeal from a judgment of the Court of the Judiciary finding the judge guilty of the charges against him or her, the Supreme Court 'must consider the evidence ... in the light most favorable to the Judicial Inquiry Commission, the prevailing party.' Boggan, 759 So.2d at 555.
"Our review is also guided by the Supremacy Clause of the United States Constitution: 'This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.' U.S. Const., art. VI, cl. 2."

Moore, 891 So.2d at 855 (footnote omitted).

         Issues on Appeal

         I.

         Chief Justice Moore argues that the Judicial Inquiry Commission and the Court of the Judiciary lack jurisdiction to investigate any complaint related to his issuance of the January 6, 2016, administrative order because, he says, only the Alabama Supreme Court may review an administrative order issued by a Chief Justice.

         Alabama Const. 1901, Art. VI, § 149, established the Chief Justice of the Alabama Supreme Court as the administrative head of the Alabama judicial system. Section 12-5-20, Ala. Code 1975, grants the Justices of the Alabama Supreme Court the authority to "review, countermand, overrule, modify or amend any administrative decision by either the Chief Justice or the Administrative Director of Courts." When a complaint was submitted to the Judicial Inquiry Commission, that entity was tasked with investigating whether Chief Justice Moore, in issuing the order, violated a Canon of Judicial Ethics. In turn, once a formal complaint was filed, the Court of the Judiciary was tasked with determining whether clear and convincing evidence existed to show that issuance of the order violated a Canon of Judicial Ethics. Neither the Judicial Inquiry Commission nor the Court of the Judiciary was asked to "review, countermand, overrule, modify or amend" the January 6 order.

         The Court of the Judiciary is not an appellate court tasked with reviewing, overruling, modifying, reversing, or remanding any judicial order. Rather, the Court of the Judiciary is tasked with reviewing judicial conduct. The Court of the Judiciary may consider the content of a judicial order as it speaks to the conduct or motivations leading to the entry of the order or to whether that conduct or motivation constituted a violation of a Canon, but the Court of the Judiciary can neither affirm nor reverse such an order; that authority lies exclusively with the appropriate appellate court. See §§ 12-2-7, 12-3-9, and 12-3-10, and 12-5-20, Ala. Code 1975. See In re Sheffield, 465 So.2d 350, 357 (Ala. 1984)("In certain circumstances erroneous legal rulings may indeed amount to a failure to respect and comply with the law which undermines 'the public confidence in the integrity and impartiality of the judiciary' (Canon 2A), or to 'conduct prejudicial to the administration of justice which brings the judicial office into disrepute' (Canon 2B)."). Therefore, to the extent the Judicial Inquiry Commission investigated and the Court of the Judiciary considered the January 6, 2016, administrative order to determine whether its issuance undermined the public confidence in the integrity and impartiality of the judiciary, whether it was prejudicial to the administration of justice, or whether it violated any other Canon of Judicial Ethics, both entities acted within their jurisdiction.

         II.

         Chief Justice Moore argues that all charges asserted against him should be dismissed because, he says, the Judicial Inquiry Commission failed to prove by clear and convincing evidence that he violated any of the Canons of Judicial Ethics as charged.

         Count I

         Count I of the complaint charged:

"By willfully issuing his Administrative Order of January 6, 2016, in which he directed or appeared to direct all Alabama probate judges to follow Alabama's marriage laws, completely disregarding 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 marriage licenses to same-sex couples. Chief Justice Roy S. Moore violated the following Alabama Canons of Judicial Ethics in that he, separately and severally:
"a. Failed to uphold the integrity and independence of the judiciary, Canon 1;
"b. Failed to participate in establishing, maintaining, and enforcing and to himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved, Canon 1;
"c. Failed to avoid impropriety and the appearance of impropriety in all his activities, Canon 2;
"d. Failed to respect and comply with the law, Canon 2A;
"e. Failed to conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, Canon 2A;
"f. Failed to avoid conduct prejudicial to the administration of justice that brings the judicial office into disrepute, Canon 2B; and/or
"g. Failed to perform the duties of his office impartially, Canon 3."

         Chief Justice Moore argues that the Court of the Judiciary's finding that his January 6, 2016, administrative order is anything other than a "status update" is unsupported by the text of the order itself. He argues that the order was a mere "status update" to clarify the confused state of the law for the probate judges and that he "did not direct the probate judges to do anything or [to] disregard federal law." (Chief Justice Moore's brief, at 53.) After reviewing the documents in evidence and Chief Justice Moore's testimony, the Court of the Judiciary held:

"This court does not find credible Chief Justice Moore's claim that the purpose of the January 6, 2016, order was merely to provide a 'status update' to the State's probate judges. Chief Justice Moore repeatedly has asserted to this Court that he wanted to draw attention to the 'conflicting orders' of API I and the injunction in Strawser [v. Strange, 105 F.Supp.3d 1323 (S.D. Ala. 2015)]. Thus, Chief Justice Moore clearly knew about the contrary, binding injunction in Strawser. Chief Justice Moore's failure in the January 6, 2016, order to acknowledge the recipients' obligations under the binding federal injunction in Strawser -- and the potential dire implications of open defiance of that injunction -- did not negate the existence of the injunction in Strawser (or Obergefell's clear holdings ...). Moreover, the failure to mention the Strawser injunction did not prevent the January 6, 2016, order -- with its clear statement that probate judges could not issue same-sex marriage licenses -- from being in direct conflict with Strawser ....
"We likewise do not accept Chief Justice Moore's repeated argument that the disclaimer in paragraph 10 of the January 6, 2016, order -- in which Chief Justice Moore asserted he was 'not at liberty to provide any guidance ... on the effect of Obergefell on the existing orders of the Alabama Supreme Court' -- negated the reality that Chief Justice Moore was in fact 'order[ing] and direct[ing]' the probate judges to comply with the API orders regardless of Obergefell or the injunction in Strawser.
"....
"... [I]t is clear to this court that Chief Justice Moore in fact took a legal position in the January 6, 2016, order, despite his claim that he was not taking any such position.
"Further, Chief Justice Moore's use of legal authority in support of that position was incomplete to the point that this court finds it was intended to be misleading. First, his brief description of Obergefell in the January 6, 2016, order as holding 'unconstitutional certain marriage laws in the states of Michigan, Kentucky, Ohio, and Tennessee' is, as the JIC [Judicial Inquiry Commission] explains, at best incomplete and at worst intentionally misleading. That brief description of Obergefell did not address the clear holding of ...

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