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Parker v. Judicial Inquiry Commission of State of Alabama

United States District Court, M.D. Alabama, Northern Division

August 31, 2017

HON. TOM PARKER, Associate Justice, Supreme Court of Alabama, Plaintiff,




         On 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 Obergefell.[1]

         On October 6, 2015, Justice Parker, who was a candidate for reelection to the Alabama Supreme Court[2], 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.[3] His comments are contextualized and laid out in detail below.

         When 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.)

         Justice 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.)

         The 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 Parker said:

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.).

         In 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

         The 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.

         Specifically, 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.”[4] (Doc. # 1-1.)

         On 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.)

         On July 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 granted.

         Justice 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.


         The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331. The parties do not ...

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