United States District Court, M.D. Alabama, Northern Division
HON. TOM PARKER, Associate Justice, Supreme Court of Alabama, Plaintiff,
JUDICIAL INQUIRY COMMISSION OF THE STATE OF ALABAMA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE.
INTRODUCTION & BACKGROUND
March 3, 2015, prior to the United States Supreme Court's
decision in Obergefell v. Hodges, 135 S.Ct. 2584
(2015), the Alabama Supreme Court held that the Alabama
Sanctity of Marriage Amendment and the Alabama Marriage
Protection Act, which defined marriage as the union of one
man and one woman, did not run afoul of the federal
Constitution. Ex parte State v. King, No. 1140460,
--- So.3d __, 2015 WL 892752 (Ala. 2015). Later that year, on
June 26, 2015, the U.S. Supreme Court decided
October 6, 2015, Justice Parker, who was a candidate for
reelection to the Alabama Supreme Court, appeared on a
radio talk show during which he was asked, among other
things, about his personal views on federalism, the U.S.
Supreme Court, and the Obergefell decision.
Specifically, Justice Parker expressed his opinion that
Wisconsin's response over 150 years ago to the U.S.
Supreme Court's pro-slavery decisions, e.g.,
Dred Scott v. Sandford, 60 U.S. 393 (1857), provides
precedent for states to ignore federal rulings they believe
are in conflict with the U.S. Constitution. His comments are
contextualized and laid out in detail below.
asked about Wisconsin, Justice Parker said:
The Wisconsin situation in fact involved a double defiance of
the Supreme Court. First they defied the Dred Scott
decision, and then their decision in defiance was taken up to
the U.S. Supreme Court, which reversed it, sent its mandate
back to the Wisconsin Supreme Court, which refused to accept
that mandate, so the reversal was never acted on.
I think it was a model of what we need to see in this
[country]. Now, in the federalist papers, they said the
states should be a restriction on the powers of the federal
government to prevent it from overreaching.
. . . [I]t's time for the state Supreme Courts to rise up
and do their responsibility for this entire system we have
nationally, otherwise it's just going to continue to get
worse and worse.
(Doc. # 1-1, at 11). Having raised Wisconsin as an example,
the radio host began to get more specific. He asked,
“What is the lay of the land right now in Alabama with
regard to the subject of same sex marriage?” (Doc. #
1-1, at 12.) Justice Parker, in response, laid out the
history of King and Obergefell, and noted
that, because “nobody appealed [King] to the
U.S. Supreme Court, ” the Alabama Supreme Court must
now determine whether King remains enforceable in
Alabama. (Doc. # 1-1, at 12.) He explained that, in his view,
the Obergefell mandate extends only “to the
one court of appeals that was the source of the original
cases taken to the U.S. Supreme Court” because Article
III of the U.S. Constitution “says that the
[Court's] jurisdiction is over cases or controvers[ies],
and the practice from the very beginning was that a decision
by the U.S. Supreme Court only affected the parties before
that court.” (Doc. # 1-1, at 13.)
Parker made it clear he does not agree with the reasoning of
Obergefell. Far from it, he believes the decision
runs “contrary to the constitution” and is out of
step with popular opinion. (Doc. # 1-1, at 15.) Unpopular
judicial decrees, he thinks, are due largely to the fact that
federal judges are appointed for life rather than being
elected by the people they represent. (Doc. #1-1, at 14-15.)
Lifetime appointments make judges unaccountable to the
people, while elections help to “keep judges in
line.” (Doc. # 1-1, at 15.)
subject of judicial accountability prompted a broader
dialogue about federalism, especially as it relates to
Obergefell. Justice Parker explained to the audience
that the Tenth Amendment “says that the state retains
rights not delegated to the federal government” and
“[t]here is nothing in the constitution that delegates
any rights over marriage to the federal government.”
(Doc. # 1-1, at 16.) He argued that the Obergefell
decision was an example of the federal government
“intruding into the state prerogative” in
violation of the Tenth Amendment, and he voiced his belief
that “states should be a check on the federal
government.” (Doc. # 1-1, at 16, 17.) Asked what would
happen if a state Supreme Court refused to “accept the
jurisdiction of the [U.S.] Supreme Court, ” Justice
I doubt that it would be a blanket defiance of all
jurisdiction of the U.S. Supreme Court, but in regard to the
Obergefell decision, where it's clear that they
jumped outside of all the precedents in order to impose their
will on this country, that yes, resisting that decision could
maybe state a revival of what we need in this country to
return to our original founding principles.
(Doc. # 1-1, at 9.).
summary, Justice Parker-a candidate for political office,
nearing election season, and speaking in a public
forum-expressed his personal views on a number of highly
contentious legal and political issues that his constituents,
and the country at large, are currently debating
Southern Poverty Law Center (“SPLC”) took
offense. On October 12, 2015, the SPLC filed a complaint with
the JIC-the body charged with investigating violations of
Judicial Canons and the primary defendant in this lawsuit.
The complaint alleged that Justice Parker's comments
“assault the authority and integrity of the federal
judiciary” and “publicly endorse . . . [defiance
of] Obergefell.” SPLC further complained that
Justice Parker “offers ridicule and suggests defiance,
” which in turn “foments the false impression in
the public's mind that the federal judiciary has
tyrannically taken for itself unconstitutional power . . .
.” Thus, said the SPLC, Justice Parker's expression
of criticism of the federal courts in general, and the U.S.
Supreme Court in particular, is worthy of state-sanctioned
disciplinary action because it violated a host of Judicial
Canons promulgated by the state of Alabama.
the complaint alleges that Justice Parker's comments were
in violation of Canon 1, which requires a judge to observe
“high standards of conduct so that the integrity . . .
of the judiciary may be preserved”; Canon 2(A), which
requires a judge to “conduct himself at all times in a
manner that promotes public confidence in the integrity . . .
of the judiciary”; and Canon 3(A)(6), which requires a
judge to “abstain from public comment about a pending
or impending proceeding in any court.” (Doc. # 1-1.)
November 5, 2015, the JIC notified Justice Parker that it
intended to investigate all three purported violations, and
informed him of his right to respond. (Doc. # 1-3.) Justice
Parker responded on January 4, 2016. (Doc. # 26-1.) Since
then, the JIC has kept its investigation open but has not
filed a formal complaint with the Court of the Judiciary
(“COJ”), which is the body responsible for trying
ethics complaints after formal charges are filed. COJ
decisions are appealable to the Alabama Supreme Court. Ala.
Const., art. VI, § 157(b). Justice Parker filed this
lawsuit in federal court on June 15, 2016. (Doc. # 1.)
14, 2016, Defendants moved for dismissal on the ground that
Younger v. Harris, 401 U.S. 37 (1971), required the
court to abstain from hearing the case. (Doc. # 12.) Earlier
in this case, the court recognized “the First Amendment
issues” implicated by SPLC's attempt to use a state
agency to suppress speech (Doc. # 39, at 8-9), but it
nevertheless held that the JIC investigation constituted an
“ongoing” state proceeding under
Younger, which precluded federal court intervention
(Doc. # 39, at 19). Thus, on that ground Defendants'
first pair of Motions to Dismiss (Docs. # 12, 13) were
Parker appealed, only to have JIC drop the investigation
while the appeal was pending. With Younger no longer
an issue, the Eleventh Circuit remanded the case “to
consider the issue of mootness, in addition to any other
arguments concerning jurisdiction and the merits of the
complaint.” (Doc. # 49, at 2.) This court then ordered
the parties to file briefs “setting forth their
position on whether this case should be dismissed as moot or
otherwise for lack of jurisdiction.” (Doc. # 50.) In
response, JIC filed a new Motion to Dismiss (Doc. # 51),
asserting that Justice Parker's claims are moot and that,
in any event, he cannot state a claim for relief. The
Attorney General renewed his original Motion to Dismiss (Doc.
# 53 (incorporating arguments contained in Doc. # 13)),
concurring with JIC's mootness argument and adding two
arguments of his own: (1) that Justice Parker lacks standing
to sue the Attorney General, and (2) that the Attorney
General enjoys Eleventh Amendment sovereign immunity. For the
reasons set forth below, Defendants' Motions to Dismiss
are due to be granted in part and denied in part.
JURISDICTION AND VENUE
court exercises subject-matter jurisdiction pursuant to 28
U.S.C. § 1331. The parties do not ...