Ex parte State ex rel. James

• Decision Date: 23 January 1998
• Parties: Ex parte STATE of Alabama ex rel. Fob JAMES, Governor, and Jeff Sessions, * Attorney General. (In re STATE of Alabama ex rel. Fob JAMES, Governor, and Jeff Sessions, Attorney General v. ACLU OF ALABAMA, et al.). Roy S. MOORE v. AMERICAN CIVIL LIBERTIES UNION OF ALABAMA, et al. STATE of Alabama ex rel. Fob JAMES, Governor, and Bill Pryor, Attorney General v. ACLU OF ALABAMA and Alabama Freethought Association. 1951975, 1960572, 1960839 and 1960927.
• Court: Alabama Supreme Court

Page 952

711 So.2d 952

Ex parte STATE of Alabama ex rel. Fob JAMES, Governor, and Jeff Sessions, ^* Attorney General.

(In re STATE of Alabama ex rel. Fob JAMES, Governor, and Jeff Sessions, Attorney General v. ACLU OF ALABAMA, et al.).

Roy S. MOORE v. AMERICAN CIVIL LIBERTIES UNION OF ALABAMA, et al.

STATE of Alabama ex rel. Fob JAMES, Governor, and Bill Pryor, Attorney General v. ACLU OF ALABAMA and Alabama Freethought Association.

1951975, 1960572, 1960839 and 1960927.

Supreme Court of Alabama.

Jan. 23, 1998.

On Application for Rehearing

April 10, 1998.

Bill Pryor, atty. gen., and John J. Park, deputy atty. gen.; and William P. Gray, Jr., Governor's legal advisor, for the State of Alabama and Chief Justice Perry O. Hooper, Sr.

D. Stephen Melchior, Cheyenne, Wyoming; and Myron K. Allenstein of Allenstein & Associates, Gadsden, for Judge Roy S. Moore.

Robert D. Segall of Copeland, Franco, Screws & Gill, P.A., Montgomery; James Tucker, Montgomery; and Pamela L. Sumners, Birmingham, for American Civil Liberties Union of Alabama, Gloria Hersheiser, Herb Stappenbeck, and Barbara Stappenbeck.

Joel L. Sogol, Tuscaloosa, for Alabama Freethought Association.

Tammy W. Parris, Gadsden, for amicus curiae The Christian Family Ass'n.

James Matthew Henderson, Sr., and Colby M. May of American Center for Law and Justice, Washington, D.C.; Jay Alan Sekulow and John G. Stepanovich of American Center of Law and Justice, Virginia Beach, Virginia; and Ike Gulas, Birmingham, for amicus curiae Members of the Alabama Delegation to the One-Hundred Fifth Congress of the United States.

A. Eric Johnston of Johnston, Trippe & Brown, Birmingham, for amicus curiae Rutherford Institute of Alabama, Inc.

Stuart J. Roth, Mobile, for amicus curiae American Center for Law and Justice of Alabama.

Barry E. Teague, Montgomery, for amici curiae American Family Ass'n of Alabama and National Clergy Council.

Marc D. Stern, American Jewish Congress, New York, New York, for amici curiae American Jewish Congress, People for the American Way, and Americans United for Separation of Church and State.

Robert R. Baugh, Julian D. Butler, and Steven A. Brickman, Birmingham; and Ruth Lansner, Steven Freeman, Debbie Kaminer, and Johnathon Barash, New York, New York, for amicus curiae Anti-Defamation League.

Mark N. Chambless, Karen P. Chambless, and Leonard N. Math, Montgomery, for amicus curiae a group "known as Alabama Historians".

Steven K. Green, Washington, D.C., and Jerome A. Cooper, Birmingham. J. Brent Walker and Melissa Rogers were listed "of counsel", for amici curiae Alabama Clergy, Baptist Joint Committee on Public Affairs, Clifton Kirkpatrick as Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.), Interfaith Alliance, and Union of American Hebrew Congregations.

COOK, Justice.

The petitioner or appellant in two of these four cases is the State of Alabama, upon the relation of Governor Fob James and Attorney General Bill Pryor, and the appellant in the other two is Judge Roy Moore of the Etowah Circuit Court. They seek review of a judgment entered in the Montgomery County Circuit Court declaring certain aspects of Judge Moore's courtroom decorum and practice to violate the Establishment Clause of the First Amendment of the United States Constitution. We dismiss these four cases.

The events out of which this litigation arose began in 1993, with a series of correspondence initiated by Joel Sogol, on behalf of the American Civil Liberties Union of Alabama ("ACLUA"). On June 9, 1993, Sogol drafted a letter to Sonny Hornsby, then Alabama Supreme Court Chief Justice, stating in pertinent part:

"This letter comes in an attempt to avoid litigation involving a number of judges in this State. We have received complaints from people in a large number of circuits regarding prayers prior to jury week terms. Generally, these situations will involve a judge inviting a preacher or minister to give the prayer just after the jury has been sworn in.

"I have enclosed for you a copy of North Carolina Civil Liberties Union Legal Foundation v. Constangy, which I believe to be the most current case on point. As you can see, the 9th Circuit held the practice of prayer before court unconstitutional, and we are prepared to go to court if necessary. It is my hope that in your capacity of Chief Justice, you would be willing to put a stop to this practice, and that litigation would then be unnecessary."

On June 25, 1993, Oliver Gilmore, administrative director of courts, responded to the ACLUA by the following letter:

"This is in response to your letter, dated June 9, 1993, to Chief Justice Sonny Hornsby regarding the practice of having prayers in the courtroom at the beginning of jury sessions. We intend to bring this matter to the attention of the Presiding Circuit Judges at their meeting on Wednesday, July 14, 1993, and to provide them with ... copies of your letter to the Chief Justice, as well as the Constangy case."

On July 6, 1994, Sogol sent another letter to Chief Justice Hornsby, stating in pertinent part:

"Approximately one year ago, I wrote you regarding judges having prayers recited in court. In an effort to avoid litigation, I asked you, as the administrative head of the State Judicial System, to stop that practice. In the time that has passed, some judges have complied. Unfortunately, many have not, and in fact, some have gotten worse.

"I again appeal to you in your administrative capacity to halt this unconstitutional conduct on the part of judges. I enclose the Constangy case and the Harvey case for your review. Given the scarce resources of our judicial system, it seems a shame to squander funds in this type litigation. However, if no action is forthcoming from within the system, I will have no choice but to file suit."

Litigation subsequently began, with the filing of a complaint in the United States District Court for the Northern District of Alabama by (1) the Alabama Freethought Association ("AFA"), (2) Gloria Hersheiser, and (3) Herb Stappenbeck and Barbara Stappenbeck, against Judge Roy Moore of the Etowah County Circuit Court. Alabama Freethought Ass'n v. Moore, 893 F.Supp. 1522, 1524-25 (N.D.Ala.1995). The complaint contained the following allegations: (1) that a number of members of the AFA, along with Hersheiser and the Stappenbecks, were residents of Etowah County, and, consequently, were "subject to attending Judge Moore's courtroom in Gadsden, either as jurors, litigants, witnesses or observers," id. at 1525 (emphasis in original); (2) that Judge Moore "has caused a plaque depicting the Ten Commandments to be hung behind the bench in his courtroom" and that "in presiding over jury organizing sessions, [he] has caused prayer to be uttered," id. at 1524; (3) that the pre-session prayer and display of the Ten Commandments violates the Establishment Clause of the First Amendment to the United States Constitution; and (4) that, as a result of these practices, the plaintiffs, should they be called to appear in Judge Moore's courtroom, "would be, offended" and would be required to "assume special burdens to avoid [the allegedly] unconstitutional conduct." Id. at 1525 (emphasis in original). On April 21, 1995, Judge Moore "filed a Motion to Dismiss, or in the Alternative, for Stay," in which he contended, among other things, that the plaintiffs lacked "standing, as either citizens or taxpayers, to maintain this action." Id. at 1524.

The same day, the State of Alabama, upon the relation of Governor Fob James and then Attorney General Jeff Sessions, filed a complaint in the Montgomery County Circuit Court. The case was assigned to Circuit Judge Charles Price. The complaint named as defendants the American Civil Liberties Union of Alabama (the "ACLUA") and Judge Roy Moore. It also named as defendants (1) the AFA, (2) Gloria Hersheiser, and (3) Barbara and Herb Stappenbeck (hereinafter collectively designated the "AFA"). The complaint contained the following factual allegations:

"7. Defendant the Honorable Roy S. Moore ('Moore') has been a judge of the Circuit Court of Etowah County since November 1992. When Judge Moore became a circuit judge, the Circuit Court of Etowah County began its commissioning of jurors with a prayer, including, for example, a call on God to save the Court and an expression of thanks for due process of law.

"8. This practice has occurred for many decades in the Circuit Court of Etowah County.

"9. The Supreme Court of the United States and other courts of the United States open their sessions with a prayer requesting God to save the court, and the Supreme Court has used this practice, or a similar one, for over two centuries.

"10. The opening sessions of deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.

"11. Defendant Moore has continued the practice of opening sessions of the Etowah County Circuit Court with prayers since becoming a circuit judge.

"12. In addition, Defendant Moore has placed on the wall of the courtroom where he presides, a plaque of the Ten Commandments, which Judge Moore hand-carved. Judge Moore also has displayed in his courtroom artistic renderings of other important documents related to American history: the Declaration of Independence and the Mayflower Compact. Moore also has displayed large pictures of George Washington and Abraham Lincoln. All of the items have been displayed by Moore for most of the period of time Moore has been a circuit judge.

"13. The chamber of the Supreme Court of the United States contains a depiction of Moses with the Ten Commandments.

"14. Defendant Moore has announced that he believes it impossible to sit in judgment of others without the guidance of God, and Judge Moore believes that the display of the Ten Commandments and the use of prayer to open Court is a logical necessity and a reasonable acknowledgment of the presuppositions upon which the American government and...