Glassroth v. Moore

• Decision Date: 18 August 2003
• Docket Number: Nos. CIV.A.01-T-1268-N, CIV.A.01-T-1269-N.,s. CIV.A.01-T-1268-N, CIV.A.01-T-1269-N.
• Citation: 278 F.Supp.2d 1272
• Parties: Stephen R. GLASSROTH, Plaintiff, v. Roy S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant. Melinda Maddox and Beverly Howard, Plaintiffs, v. Roy Moore, in his official capacity, Defendant.
• Court: U.S. District Court — Middle District of Alabama

278 F.Supp.2d 1272

Stephen R. GLASSROTH, Plaintiff, v. Roy S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant.

Melinda Maddox and Beverly Howard, Plaintiffs, v. Roy Moore, in his official capacity, Defendant.

Nos. CIV.A.01-T-1268-N, CIV.A.01-T-1269-N.

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

August 18, 2003.

J. Richard Cohen, Morris S. Dees, Jr., Rhonda Brownstein, Danielle Jeannine Lipow, Montgomery, AL, James A. Tucker, Tuscaloosa, AL, for plaintiff.

William Z. Messer, Robert J. Varley, Robert M. Weinberg, Varley & Messer, LLP, Montgomery, AL, Ayesha Khan, Washington, DC, for plaintiff/consolidated plaintiff.

Herbert W. Titus, Troy A. Titus, PC, Virginia Beach, VA, D. Stephen Melchior, Cheyenne, WY, Phillip Jauregui, Philllip L. Jauregui, LLC, Birmingham, AL, Rich Hobson, Pro Se, Roy S. Moore, Pro Se, Alabama Supreme Court Chief Justice, Montgomery, AL, for defendant.

John J. Park, Jr., Charles B. Campbell, Office of the Attorney General, Montgomery, AL, for consolidated defendant.

ORDER

MYRON H. THOMPSON, District Judge.

This litigation is again before the court, this time on a motion to stay, etc., filed on August 15, 2003, by defendant Roy S. Moore, Chief Justice of the Alabama Supreme Court. The Chief Justice asks that the court stay its August 5 final judgment and injunction pending the outcome of a petition for writ of mandamus and prohibition he has filed in the United States Supreme Court. The stay motion will be denied for the following reasons:

(1) In his petition for writ of mandamus and prohibition, the Chief Justice attacks, for several reasons, the August 5 final judgment and injunction, which required that he remove his Ten Commandments monument from the rotunda of the Alabama Judicial Building. Glassroth v. Moore, 275 F.Supp.2d 1347, 1348, 2003 WL 21892927 *1 (M.D.Ala.2003). As a required predicate to the issuance of the writ, the Chief Justice argues to the United States Supreme Court that the relief sought "is not available in any other court." Defendant's motion to stay, etc., filed August 15, 2003 (Doc. no. 246) (attachment: petition for writ of mandamus and prohibition, at 2). Mallard v. U.S. District Court for the Southern District of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989) ("to ensure mandamus remains an extraordinary remedy, petitioners must show that they lack alternative means to obtain the relief they seek"); Kerr v. U.S. District Court, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) ("the party seeking issuance of a writ [must] have no other adequate means to attain the relief he desires"). This is not true. The Chief Justice could have appealed, and still can appeal, the August 5 final judgment and injunction to the Eleventh Circuit Court of Appeals. 28 U.S.C.A. §§ 1291, 1292 (1994 & Supp. 2003). The Chief Justice should not be able to circumvent, or avoid, the Eleventh Circuit and keep that appellate court out of the orderly appellate process.

In short, with his writ petition, the Chief Justice is seeking relief in the wrong court at this time. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) (declining to issue a writ of mandamus because "extraordinary writs may not be used as substitutes for appeals, even though hardship may result from delay ... and whatever may be done without the writ may not be done with it") (internal citations omitted).

(2) As jurisdictional support for his writ petition, the Chief Justice invokes 28 U.S.C.A. § 1651(a), which provides that, "The Supreme Court and all courts established by Act of Congress may issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The Chief Justice argues that granting the writ will "aid [the Supreme] Court to conduct an orderly and timely review of [his] petition for writ of certiorari." Defendant's motion to stay, etc., filed August 15, 2003 (Doc. no. 246) (attachment: petition for writ of mandamus and prohibition, at 1).

This argument is completely meritless. Aside from the fact, as stated above, that the Chief Justice can simply seek relief in the Eleventh Circuit from this court's August 5 final judgment and injunction, this court, not once but twice, essentially invited the Chief Justice to invoke the orderly and established process under the federal rules for a stay of any injunction pending a petition to the United States Supreme Court for writ of certiorari—invitations which the Chief Justice declined.

Therefore, the fact that the court issued a final judgment and injunction on August 5, without allowing for a stay pending review by the United States Supreme Court, is the direct, willed result of the actions of the Chief Justice himself. As the court explained in its August 5 final judgment and injunction, on two separate occasions this court conducted conference calls with counsel for all parties to discuss how to proceed regarding an injunction for removal of the monument once the appellate mandate had issued pursuant to the decision of the Eleventh Circuit Court of Appeals upholding the removal of the monument. Glassroth v. Moore, 335 F.3d 1282 (11th Cir.2003). During the first call, on July 28, before the appellate mandate had issued, the Chief Justice's counsel indicated that while they were aware of the proper procedure, under Rule 41 of the Federal Rules of Appellate Procedure, for requesting a stay of the mandate pending a request for review by the United States Supreme Court (and thus a continuance of the stay this court had previously entered pending Eleventh Circuit review of the initial injunction requiring removal of the monument, Glassroth v. Moore, 242 F.Supp.2d 1068 (M.D.Ala.2002)), they declined to do so. Glassroth v. Moore, 275 F.Supp.2d 1347, 1348, 2003 WL 21892927 *1 (M.D.Ala.2003). During the August 4 conference call, after the mandate had issued, the Chief Justice's counsel again declined to use this opportunity to ask that a stay be entered or continued pending application to the Supreme Court for review. Id. at 1348. Indeed, in the final judgment and injunction, the court stated that one of the reasons for not continuing the stay already in effect was "because the Chief Justice did not ask, either in the Eleventh Circuit or in this court, for a stay of the injunction pending application for a writ of certiorari in the Supreme Court." Id. at 1349.

To this day, the court does not know any litigation-related reason why the Chief Justice declined to seek a stay through the orderly and established process outlined in the Federal Rules of Appellate Procedure. It can therefore be reasonably argued that the Chief Justice himself, for seemingly "extra-judicial" reasons known only to him, intentionally created the scenario from which he now contends in his petition for writ of mandamus and prohibition he should be extricated—apparently because there is now an effort afoot to remove him from office and because other state officials have now made known that they will enforce the August 5 final judgment and injunction if he does not. The court will not be a party to any extra-judicial machinations of the Chief Justice.¹

(3) In...