In a decision handed down today, Alabama Supreme Court Chief Justice Roy Moore has been suspended for the remainder of his term by the Alabama Court of the Judiciary.
On May 6, the Alabama Judicial Inquiry Commission filed a complaint with the Court of the Judiciary, charging Moore with violating the Canons of Judicial Ethics in an order he issued on Jan. 6, 2016 and by his subsequent refusal to recuse himself in the March 4, 2016 decision of the Alabama Supreme Court in Ex parte State ex rel. Alabama Policy Institute, [Ms. 1140460, March 4, 2016], a case that involved the Alabama Sanctity of Marriage Amendment – an amendment to the Alabama Constitution that prohibited same sex marriage.
Judge Moore’s Jan. 6, 2016 order related to the U.S. Supreme Court’s decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), a 5-4 decision in which the high Court held that same sex couples have a fundamental right to marry in all states under the Due Process and Equal Protection Clauses of the U.S. Constitution, and an Alabama federal court’s injunction on Alabama probate judges in Strawser v. Strange. The Jan. 6, 2016 order, entitled “Administrative Order of the Chief Justice of the Alabama Supreme Court,” described the history of same-sex marriage litigation in the Alabama courts and outlined the confusion and uncertainty existing among Alabama’s probate judges about whether they must issue marriage licenses to gay couples following Obergefell. While Justice Moore stated that he was not at liberty to provide guidance to the probate judges on Obergefell’s effect on existing orders of the Alabama Supreme Court, he ordered that:
“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that the Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.”
The Judicial Inquiry Commission filed its complaint against Chief Justice Moore on May 6, 2016, and he was temporarily suspended from office. The complaint charged that Moore willfully issued the January 6 order, abused his administrative authority, substituted his judgment for the judgment of the entire Alabama Supreme Court on a legal issue pending before it, and called his impartiality into question by taking legal positions on a matter pending before the court. The Commission alleged that Moore failed to: (a) uphold the integrity and independence of the judiciary; (b) participate in establishing and maintaining high standards of conduct so that the integrity and independence of the judiciary may be preserved; (c) avoid impropriety and its appearance; (d) to respect and comply with the law; (e) to conduct himself in a manner that promotes public confidence in the judiciary; (f) to avoid conduct prejudicial to the administration of justice; (g) to impartially perform the duties of his office; and (h) failed to abstain from public comment about a pending proceeding in his court.
In his defense, Moore argued that he did not issue the January 6 order as a directive to the probate judges to do anything, but merely as a “status update” informing them that the issues addressed in the Alabama Supreme Court’s June 29, 2015 invitation for additional briefing in Strawser remained pending. Moore denied that he offered an opinion, pro or con, regarding the validity of the orders issued in Obergefell and Strawser, and further denied that he counseled Alabama’s probate judges to disobey the federal injunction. He argued that the purpose of the January 6 order was to preserve the public reputation of the Court, to urge compliance with the judicial canon requiring that a judge should dispose promptly of the business of the court, and to address the confusion and uncertainty among the probate judges of Alabama.
The final hearing was held on Sept. 28, at which Moore testified in his defense. The Court of the Judiciary found Chief Justice Moore’s claim that his order was a “status update” not to be credible. The court also found a parallel in Moore’s argument here and the one he made back in 2003 when he was removed from office for refusal to move the Ten Commandments monument. There, he testified: “I didn’t say I would defy the court order. I said I wouldn’t move the monument. And I didn’t move the monument, which you can take as you will.” Like his action in 2003, the Court of the Judiciary found that the “undeniable consequence of” his January 6 order was to direct Alabama’s probate judges to deny marriage licenses in direct defiance of the Obergefell decision and the Strawser injunction.
Furthermore, the court found that a mere “status report” does not “order and direct” action as the January 6 order did. The court further found that the omission of the Strawser injunction from the January 6 order was an intentional failure to follow clear law and uphold the integrity and independence of the judiciary. The court also found that the purpose of the order was to direct probate judges (most of whom are not attorneys) to stop complying with binding federal precedent. Finally, the court held that Moore unethically made a public comment on a pending proceeding.
The Court of the Judiciary thus found Chief Justice Moore guilty on all counts. In order to remove Moore from office, all members of the court sitting in decision must agree. That did not occur. Therefore, the Court of the Judiciary could only suspend him without pay for the remainder of his term. That order is effective immediately, and Alabama Governor Robert Bentley’s office has stated that Acting Chief Justice Lyn Stewart will remain in place for the duration of Moore’s term.
The practical result of the suspension, insofar as Alabama practitioners and their clients is concerned, is that the Alabama Supreme Court, like the current U.S. Supreme Court, will be sitting with only eight justices for the foreseeable future.