In re King

• Decision Date: 04 March 2016
• Docket Number: 1140460
• Parties: Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County. (In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al.).
• Court: Supreme Court of Alabama

Ex parte State of Alabama ex rel.

Alabama Policy Institute, Alabama Citizens Action Program,

and John E. Enslen, in his official capacity

as Judge of Probate for Elmore County.

(In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al.).

1140460

SUPREME COURT OF ALABAMA

March 4, 2016

PETITION FOR WRIT OF MANDAMUS

ORDER

IT IS ORDERED that all pending motions and petitions are DISMISSED.

Wise and Bryan, JJ., concur.

Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw, and Main, JJ., concur specially.

MOORE, Chief Justice (statement of nonrecusal).

On February 11, 2015, the State of Alabama on relation of the Alabama Policy Institute and the Alabama Citizens Action Program initiated this case by filing in this Court an "Emergency Petition for Writ of Mandamus." The petition sought a writ of mandamus "directed to each Respondent judge of probate, commanding each judge not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples."

In its statement-of-facts section the petition described the federal injunctions in Searcy v. Strange, 81 F. Supp. 3d 1285 (S.D. Ala. 2015), and Strawser v. Strange (Civil No. 14-0424-CG-C) (S.D. Ala. Jan. 26, 2015), which enjoined the Alabama Attorney General from enforcing Alabama's Sanctity of Marriage Amendment, Art. I, § 36.03, Ala. Const. 1901 ("the marriage amendment"), and the Alabama Marriage Protection Act, § 30-1-19, Ala. Code 1975 ("the marriage act"). The petition further stated:

"On February 8, 2015, Chief Justice Roy S. Moore of the Supreme Court of Alabama entered an administrative order ruling that neither the Searcy nor the Strawser Injunction is binding on any Alabama probate judge, and prohibiting any probate judge from issuing or recognizing a marriage licensewhich violates the Marriage Amendment or the Marriage Act."

Attached to the petition as Exhibit C was a copy of the referenced administrative order. In subsequent paragraphs the petition identified by name four respondent Alabama probate judges who allegedly were issuing marriage licenses to same-sex couples "in violation of the Marriage Amendment, the Marriage Act, and the Administrative Order." (Emphasis added.) The petition also named as respondents 63 Judge Does "who may issue, or may have issued, marriage licenses to same-sex couples in Alabama as a result of the Searcy or Strawser Injunction, in violation of the Marriage Amendment, the Marriage Act, and the Administrative Order."

The petition argued that the writ should issue because (1) the marriage amendment and the marriage act were consistent with the United States Constitution and (2) this Court was not bound by a federal district court's interpretation of the United States Constitution. Alternatively, the petition stated:

"Chief Justice Moore's Administrative Order provides a separate basis for mandamus relief because it directly prohibits all Alabama probate judges from issuing marriage licenses to same-sex couples in violation of the Marriage Amendment and the MarriageAct. (Admin. Ord. (Ex. C) at 5.) The Administrative Order is binding on all probate judges for the reasons stated in the order. Just as mandamus is appropriate for this Court to command a lower court's compliance [with] this Court's mandate, see, e.g., Ex parte Ins. Co. of N. Am., 523 So. 2d 1064, 1068-69 (Ala. 1988), it is appropriate for this Court to command probate judges' compliance with the Administrative Order."

Because the petition requested, as an alternative to the determination of the constitutional issues, that this Court order the enforcement of the administrative order, I abstained from voting on this Court's order of February 13, 2015, that ordered the respondents to file answers and permitted them to file briefs. I also abstained from voting on the opinion and order of March 3, 2015, that granted the petition and ordered the named probate judges "to discontinue the issuance of marriage licenses to same-sex couples." On March 3, 2015, I explained in a note to my fellow Justices:

"I have decided to abstain from voting in this case to avoid the appearance of impropriety in light of the memorandum of February 3, 2015, and the administrative order of February 8, 2015 that I provided to Alabama probate judges in my role as administrative head of the Unified Judicial System."

I likewise have abstained from voting on subsequent orders in this case.

In Ex parte Hinton, 172 So. 3d 348 (Ala. 2012), JusticeShaw addressed the question whether he could sit on a case "given that it was previously before me when I was a judge on the Court of Criminal Appeals." 172 So. 3d at 353. Canon 3.C.(1), Ala. Canons of Jud. Ethics, states: "A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned ...." Justice Shaw noted that "'a reasonable person has a reasonable basis to question the impartiality of a judge who sits in [an appellate court] to review his own decision as a trial judge.'" 172 So. 3d at 354-55 (quoting Rice v. McKenzie, 581 F.2d 1114, 1117 (4th Cir. 1978)). See § 12-1-13, Ala. Code 1975. For an analogous reason I declined to vote in this case when my administrative order was potentially under review. Compare Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339 (1913) (construing federal law and noting that an appellate judge should not pass upon "the propriety, scope, or effect of any ruling of his own made in the progress of the cause in the court of first instance").

Justice Shaw identified, however, an exception to the principle that a judge should not review a case in which thejudge had participated below: "The principle that a judge must recuse himself or herself in an appeal where the judge ruled in the case while a member of a lower court has been held not to apply if the issue on appeal is different from the issue ruled upon below." 172 So. 3d at 355. In my administrative order, I addressed the issue whether probate judges in Alabama were bound by the orders in Searcy and Strange when they were not parties to those cases. This Court's order of March 3, 2015, which held that the United States Constitution did not require a state to recognize same-sex marriage, mooted that issue.

The issuance of the opinion in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), on June 26, 2015, has sufficiently altered the posture of this case to cause me to reconsider my participation. The effect of Obergefell on this Court's writ of mandamus ordering that the probate judges are bound to issue marriage licenses in conformity with Alabama law is a new issue before this Court. The controlling effect of Obergefell was not at issue when I earlier abstained from voting. The issue then addressed was the effect of the order of a federal district court, which I had addressed in myadministrative order. In his analysis of the recusal issue in Hinton, Justice Shaw said:

"Participation in the instant case does not involve a determination of the correctness, propriety, or appropriateness of what I did as a member of the Court of Criminal Appeals in Hinton v. State, because we are now faced with an issue that had not been decided by the trial court in the case that was before the Court of Criminal Appeals while I was serving on that court. My impartiality cannot be questioned because I am not called upon to review my prior decision ...."

172 So. 3d at 355. Likewise in this case, the issue now before the Court "does not involve a determination of the correctness, propriety, or appropriateness" of my administrative order.

In joining this case to consider the effect of Obergefell, I am not sitting in review of my administrative order, nor have I made any public statement on the effect of Obergefell on this Court's opinion and order of March 3, 2015. My expressed views on the issue of same-sex marriage are also not disqualifying.

"'A judge's views on matters of law and policy ordinarily are not legitimate grounds for recusal, even if such views are strongly held. After all, judges commonly come to a case with personal views on the underlying subject matter. ... Far from necessarily warranting recusal, typically such views merely mark an active mind.'"

Barber v. Jefferson Cty. Racing Ass'n, Inc., 960 So. 2d 599, 618 (Ala. 2006) (Stuart, J., statement of nonrecusal) (quoting United States v. Snyder, 235 F.3d 42, 48 (1st Cir. 2000) (citations omitted)).

In Barber, the defendants were charged with "operating illegal gambling devices at the Birmingham Race Course." 960 So. 2d at 601. They sought Justice Bolin's recusal because a voter guide for the 2004 election listed him as opposing gambling. Justice Bolin responded as follows:

"My position on that issue is consistent with the law of Alabama; gambling is illegal in this State. I also oppose other acts that violate the laws of the State of Alabama, such as murder, rape, and robbery, but my personal opposition to the above acts does not prevent me from fairly and unbiasedly participating in cases involving such acts."

Barber, 960 So. 2d at 620 (Bolin, J., statement of nonrecusal) (emphasis added). See also Barber, 960 So. 2d at 618 (Stuart, J., statement of nonrecusal) (stating that her "decision in a case [is] based on the application of the law to the facts in that particular case, regardless of my personal opinion").

Although I have made public comments critical of Obergefell in which I quoted extensively from the four dissenting Justices in that case, "'a judge's expressing aviewpoint on a legal issue is generally not deemed to be disqualifying in and of itself; this is usually true without regard to where such judicial views are expressed, and even if they are expressed somewhat prematurely or harshly.'" Ex parte Ted's Game Enters., 893 So. 2d 376, 392 (Ala. 2004) (See, J., statement of nonrecusal) (quoting Richard E. Flamm, Judicial Disqualification § 10.7 (1996)). Most...