Moore v. Ala. Judicial Inquiry Comm'n

• Decision Date: 19 April 2017
• Docket Number: 1160002
• Citation: 234 So.3d 458
• Parties: Roy S. MOORE, Chief Justice of the Supreme Court of Alabama v. ALABAMA JUDICIAL INQUIRY COMMISSION
• Court: Alabama Supreme Court

234 So.3d 458

Roy S. MOORE, Chief Justice of the Supreme Court of Alabama

v.ALABAMA JUDICIAL INQUIRY COMMISSION

1160002

Supreme Court of Alabama.

April 19, 2017

Phillip L. Jauregui, Judicial Action Group, Birmingham; and Mathew D. Staver and Horatio G. Mihet of Liberty Counsel, Orlando, Florida, for appellant Roy S. Moore, Chief Justice of the Supreme Court of Alabama.

R. Ashby Pate of Lightfoot, Franklin & White, L.L.C., Birmingham; and John L. Carroll and Rosa Hamlett Davis, Judicial Inquiry Commission, Montgomery, for appellee Alabama Judicial Inquiry Commission.

Richard A. Lawrence, Montgomery, for amicus curiae Richard A. Lawrence, in support of the appellant.

Matthew J. Clark, Prattville, for amicus curiae Sanctity of Marriage Alabama, in support of the appellant.

Winthrop E. Johnson, Montgomery, for amicus curiae 8 Trial Judges of Alabama (Tim Riley, circuit judge; T. Lee Carter, circuit judge; John Bentley, circuit judge; Mark Hammitte, district judge; Ashley McKathan, retired circuit judge; Jerry Stokes, retired circuit judge; Frank L. McGuire III, retired district judge; and Rusty Johnston, retired circuit judge), in support of the appellant.

Steven Knapp, Opelika, for amici curiae United States Justice Foundation, Public Advocate of the United States, and Conservative Legal Defense and Education Fund, in support of the appellant.

PER CURIAM.¹

Facts and Procedural History

The facts of this case are undisputed. On January 23, 2015, Judge Callie Granade, district judge for the United States District Court for the Southern District of Alabama, issued an order declaring unconstitutional both the Alabama Sanctity of Marriage Amendment, Ala. Const. 1901, Art. I, § 36.03, and the Alabama Marriage Protection Act, Ala. Code 1975, § 30–1–19, as violating the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Searcy v. Strange, 81 F.Supp.3d 1285 (S.D. Ala. 2015). On January 26, 2015, Judge Granade entered an injunction prohibiting the Alabama Attorney General from enforcing any Alabama law that prohibits same-sex marriage. The injunction was stayed until February 9, 2015, to allow time for an appeal of her decision to the United States Court of Appeals for the Eleventh Circuit. Strawser v. Strange, 44 F.Supp.3d 1206 (S.D. Ala. 2015).

On January 27, 2015, Roy S. Moore, Chief Justice of the Alabama Supreme Court,² sent a letter, on Supreme Court of Alabama letterhead, to then Governor Robert Bentley regarding Judge Granade's orders, expressing "legitimate concerns about the propriety of federal court jurisdiction over the Alabama Sanctity of Marriage Amendment." In his three-page letter, Chief Justice Moore laid out his arguments as to why Judge Granade's federal-court orders were not binding upon the State of Alabama and avowed: "As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment." He also asked Governor Bentley "to continue to uphold and support the Alabama Constitution with respect to marriage" and advised that "I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority."

On February 3, 2015, Chief Justice Moore penned another letter, on Administrative Office of Courts³ letterhead, addressed to the probate judges of Alabama and entitled "Federal Intrusion into State Sovereignty." To this 4–page letter, Chief Justice Moore also attached a 27–page memorandum of law, which concluded:

"In fulfillment of my obligations as Administrative Head of the Unified Judicial System, I have herein offered you my considered guidance on how the recent orders from the United States District Court in Mobile affect your duties as an Alabama probate judge. Because, as demonstrated above, Alabama probate judges are not bound by Judge Granade's orders in the Searcy [v. Strange, 81 F.Supp.3d 1285 (S.D. Ala. 2015),] and Strawser [v. Strange, No. 1:14–CV–424–CG–C (S.D. Ala. Jan. 26, 2015),] cases, they would in my view be acting in violation of their oaths to uphold the Alabama Constitution if they issued marriage licenses prohibited under Alabama law."

On February 8, 2015, Chief Justice Moore issued an administrative order to Alabama's probate judges, which provided:

"WHEREAS, neither the Supreme Court of the United States nor the Supreme Court of Alabama has ruled on the constitutionality of either the Sanctity of Marriage Amendment or the Marriage Protection Act:

"NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT:

"To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:

"Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30–1–19, Ala. Code 1975.

"Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests ‘the supreme executive power of this state,’ Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. ‘The Governor shall take care that the laws be faithfully executed.’ Art. V, § 120, Ala. Const. 1901. ‘ "If the governor's ‘ "supreme executive power" ’ means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal." ' Tyson v. Jones, 60 So.3d 831, 850 (Ala. 2010) (quoting Riley v. Cornerstone, 57 So.3d 704, 733 (Ala. 2010) )."

(Boldface type in original.) From February through June 2015, Chief Justice Moore also conducted several interviews with representatives of national and local media outlets.

On March 3, 2015, the Alabama Supreme Court released a decision in Ex parte State of Alabama ex rel. Alabama Policy Institute, 200 So.3d 495 (Ala. 2015) (" API I"), a per curiam opinion ordering the probate judges named as respondents to discontinue issuing marriage licenses to same-sex couples in compliance with Alabama law. Chief Justice Moore's name did not appear in the vote line of this opinion, nor did he author or join any of the special writings. On March 10, 2015, the API I Court issued an order stating that API I"serves as binding statewide precedent," joining Judge Don Davis as a respondent, and enjoining Judge Davis "from issuing any further marriage licenses contrary to Alabama law." Ex parte State of Alabama ex rel. Alabama Policy Institute, 200 So.3d at 557, 558. Chief Justice Moore's name did not appear in the vote line of the order. On March 12, 2015, the Court issued another order declaring that all previously non-named probate judges within the State were to be respondents and were to be bound by its March 3, 2015, opinion in API I. Chief Justice Moore's name did not appear in the vote line of that order.

On May 21, 2015, Judge Granade issued an order certifying a plaintiff class as

"all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of enforcement of Alabama's laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages,"

and certifying a defendant class as

"all Alabama county probate judges who are enforcing or in the future may enforce Alabama's laws barring the issuance of marriage licenses to same-sex couples and refusing to recognize their marriages."

Strawser v. Strange, 307 F.R.D. 604, 614–15 (S.D. Ala. 2015). That same day, Judge Granade also issued an order declaring the Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act unconstitutional as violating the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and enjoining the enforcement of any Alabama laws, including any injunction issued by the Alabama Supreme Court, that would prevent the issuance of a same-sex marriage license or the recognition of a same-sex marriage license. By that same order, Judge Granade stayed her injunction until such time as the United States Supreme Court issued its ruling in a then pending appeal that raised many of the same issues— Obergefell v. Hodges, 576 U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). Strawser v. Strange, 105 F.Supp.3d 1323 (S.D. Ala. 2015).

On June 26, 2015, the United States Supreme Court issued its opinion in Obergefell, holding that "same-sex couples may exercise the fundamental right to marry in all States" and that "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." 576 U.S. at ––––, 135 S.Ct. at 2607–08.

On June 29, 2015, the Alabama Supreme Court invited the parties to Ex parte State of Alabama ex rel. Alabama Policy Institute ("API") to submit any motions or briefs addressing the effect of the Obergefell decision on the existing orders in API.

On July 1, 2015, Judge Granade issued an order clarifying that her May 21 order enjoining the enforcement of any Alabama laws, including any injunction issued by the Alabama Supreme Court, that would prevent the issuance of a same-sex marriage license or the recognition of a same-sex marriage license was in effect and binding on all Alabama probate judges. Strawser v. Strange, No. 14–0424–CG–C, 2015 WL 6121805 (S.D. Ala. July 1, 2015). On July 7, 2015, the Alabama probate judges filed in the federal district court an...