COURT OF THE JUDICIARY CASE NO. 46

 

 

IN THE MATTER OF:
ROY S. MOORE
Chief Justice, Supreme Court of Alabama

 

FINAL JUDGMENT

 

At the outset, this court emphasizes that this case is
concerned only 'With alleged 'violations of the Canons of
Judicial Ethics. This case is not about whether samemsex
marriage should be permitted; indeed, we recognize that a
majority of voters in Alabama adopted a constitutional
amendment in 2006 banning same?sex marriage, as did.a majority
of states over the last 15 years. Moreover, this is not a
case to review or to editorialize about the United States

Supreme Court's June 2015 split decision in Obergefell v.

 

Hodges, 135 S. Ct. 2584 (2015), a decision that some members
of this court did not personally agree with or think was well
reasoned. This court simply does not have the authority to
reexamine those issues.

This court convenes only "to hear complaints filed by
the Judicial Inquiry Commission" as to alleged violations by

judges of the Canons of Judicial Ethics adopted.by the Alabama

Supreme Court.1 See 157, Ala. Const. 1901 (Off. Recomp.).
As this court stated in the 2003 action against Chief Justice
Roy S. Moore:

"The Canons are not merely guidelines for proper

judicial conduct; they are binding on all judges by

the oath taken upon assuming office, and violations

of the Canons can serve as the basis for disciplinary

action. The charge or charges against a judge must

be proved by clear and convincing evidence before

any discipline may be imposed."

On May 6, 2016, the Alabama Judicial Inquiry Commission
("the filed a complaint with this court charging Chief
Justice Roy S. Moore with violating the Canons of Judicial
Ethics while in his capacity as Chief Justice of the Alabama
Supreme Court.2 The complaint alleges that Chief Justice

Moore violated the Canons of Judicial Ethics in an order he

issued on January 6, 2016 ("the January 6, 2016, order"), and

 

1This court is subject to the appellate jurisdiction of
the Alabama Supreme Court as well. See 157(b), Ala. Const.
1901 (Off. Recomp.).

2Chief Justice Moore was elected Chief Justice in
November 2012 and assumed office' in January 2013. He
previously served as Chief Justice of the Alabama Supreme
Court from January 15, 2001, until his removal from office by
this court on November 13, 2003, a decision affirmed by the
Alabama Supreme Court. See Moore v. Judicial Inquiry Comm?n
of Alabama, 891 So. 2d 848, 850, 854~55 (Ala. 2004). The Court
of the Judiciary removed Chief Justice Moore from office in
2003 based on his "willful[] refus[al] to obey a lawful and
binding order of a federal court." 891 So. 2d at 862.

 

2

 

 

in 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]

 

So. 3d (Ala. 2016) a case involving the

Alabama Sanctity of Marriage Amendment, 36.03, Ala. Const.
1901 (Off. Recomp.), and the Alabama Marriage Protection Act,
30wl?19, Ala. Code 1975.

FACTUAL BACKGROUND PROCEDURAL HISTORY

 

This case involves the interplay' of four cases that
challenged state bans on same?sex marriage. Two of those cases
were filed in the United States District Court for the

Southern District of Alabama: Searcy v. Strange, 81 F. Supp.

 

3d 1285 (S.D. Ala. 2015}, and Strawser v. Strange, 44 F. Supp.

 

3d 1206 (S.D. Ala. 2015). The third case, supra, was
filed in the Alabama Supreme Court, and the fourth was filed

in the United States Supreme Court, Obergefell v. Hodges, 135

 

S. Ct. 2584 (2015).

In Searcy and Strawser, which were decided in January
2015, the United States District Court for the Southern
District of Alabama held that the provisions of Alabama?s
marriage laws that prohibited samewsex marriages violated the

United States Constitution. In response to Searcy and

 

Strawser, Chief Justice Moore wrote letters to Alabama
Governor Robert Bentley and to all probate judges in Alabama.3
Chief Justice Moore asserted that Searcy and Strawser were
not binding on probate judges who were not parties to those
cases. In his letter to the probate judges, Chief Justice
Moore included a 27?page memorandum_of law in support of that
position.

On February 8, 2015, Chief Justice Moore issued an
"Administrative Order of the Chief JUstice of the Supreme
Court." The order incorporated by reference his earlier
letter and memorandum of law to the probate judges, and it
purported ix} prohibit all probate judges 5M1 Alabama from
issuing same?sex marriage licenses.

On February 11, 2015, the petition that resulted in the
decisions :Mi AEE, supra, was filed 1J1 the Alabama Supreme
Court.4 The petition sought a declaration. that Alabama's

marriage laws did not violate the United States Constitution

 

3Chief Justice Moore's letter tx> Governor Bentley is
dated January 27, 2015; his letter to the probate judges is
dated February 3, 2015.

4The JlC's complaint states that this petition was
"docketed in the Alabama Supreme Court" on February 12, 2015.
According to the March 3, 2015, opinion in API, the petition
was filed in the Supreme Court on February 11? 2015.

4

 

and an order directing probate judges to continue to enforce
Alabama?s marriage laws.

The next day, February 12, 2015, the United States
District Court in Strawser enjoined Mobile County Probate
Judge Don Davis, who had been added to that case as a party
defendant, from refusing to issue licenses to the same-sex
couples in Strawser who were seeking to marry. Strawser, 44
F. Supp. 3d at 1209.

On March 3, 2015, the Alabama Supreme Court issued an

opinion in APT The opinion in APT 1, in which Chief

 

Justice Moore did not participate,5 concluded that the Searcy
and Strawser decisions did not prevent the Alabama Supreme
Court from independently determining the constitutionality of
Alabama's marriage laws. The Court then declared that
Alabama's marriage laws were constitutional, and the Court
enjoined all probate judges??except Judge Davis as to the

named plaintiffs in Strawser??from issuing marriage licenses

 

5Chief Justice Moore explained, in a note to his fellow
Justices, that he did not participate in APT I "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." API,
So. 3d at (Moore, C.J., statement of nonrecusal}f?*

 

 

 

to same?sex couples.6

In May 2015, the district court in Strawser joined as
class defendants all probate judges in Alabama. The court
also joined as class plaintiffs all persons in Alabama who
were unable to obtain same?sex marriage licenses. See

Strawser v. Strange, 307 F.R.D. 604, 608 (S.D. Ala. 2015).

 

The district court enjoined the probate judges from enforcing
Alabama's laws prohibiting samewsex marriages or the

recognition of sameusex marriages. Strawser v. Strange, 105

 

F. Supp. 3d 1323 (S.D. Ala. 2015). The Strawser court
specifically stated that the probate judges could not follow
any state law to the contrary?~including any decision of the

Alabama Supreme Court.7 The district court stayed its

 

6The Court gave Judge Davis a short time to file a brief
"advis[ing] this Court as to whether he is bound by any
existing federal court order regarding the issuance of any
marriage license other than the four marriage licenses he was
ordered to issue in Strawserweek later, the Court joined Judge Davis as a respondent in
and required Judge Davis to comply, except as to the four
marriage licenses at issue in Strawser, with the injunction
applicable to all other Alabama probate judges.

 

 

7The district court refused to abstain from issuing the
injunction to all probate judges because, the court reasoned,
the class plaintiffs in Strawser were not parties to the
Alabama Supreme Court's decision in API I and therefore were
not bound by it.

 

injunction, however, until the United States Supreme Court
issued its decision in Obergefell, which was pending before
the Supreme Court at that time.

On June 26, 2015, the United States Supreme Court, in a
sharply divided 5?4 decision, released its opinion in

Obergefell. Obergefell holds that same?sex couples have a

 

fundamental right to marry under the Due Process Clause and
the Equal Protection Clause of the Fourteenth Amendment to
the United States Constitution, Among other things, the Court
stated: "The Court, in this decision, holds same-sex couples

may exercise the fundamental right to marry in all States."

 

 

Stated briefly, under the doctrine of "abstention," a
federal court may decline to exercise jurisdiction over a
case out of respect for a state?court proceeding addressing
the same or a similar proceeding. This doctrine recognizes
that the federal government and state governments are
separate sovereigns and that there may be instances when it
is better to permit a state court to address a case before a
federal court does so.

The district court also relied on the decision of the
United States Supreme Court in Hale v. Bimco Trading, Inc.,
306 U.S. 375 (1939), which held that a successful mandamus
proceeding in a state court against state officials to enforce
a challenged statute does not bar injunctive relief in a
United States district court where the p?aintiffs in the
federal action are not bound by the state court's writ of
mandamus. Additionally, the district court in Strawser noted
that its ruling that the Alabama marriage laws were
unconstitutional predated the action of the Alabama Supreme
Court.

 

 

 

 

 

135 S. CH1. at 2607 (emphasis added). The Court further
stated: "It follows that the Court also must hold-sand it now
does hold??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." 135 S. Ct. at
2607~08.

Three days later, on June 29, 2015, the Alabama Supreme
Court issued an order inviting the parties in API "to submit
any motions or briefs addressing the effect of the Supreme
Court's decision in Obergefell on this Court's existing
orders in 

On. July 1% 2015, the Strawser? court issued order
stating that because Obergefell had been decided, its
injunction was "in effect and binding on all [Alabama probate
judges]." On July' 10, 2015, the probate judges filed as
"response to plaintiffs? motion for a permanent injunction"
in Strawser. In that response, the probate judges stated:

"Probate judges take an oath to follow the law upon

investiture. The 0.8. Supreme Court has now resolved

the conflict between this Court?s rulings and the

ruling of the Alabama Supreme Court. Both courts are

entitled to interpret the 0.8. Constitution, and the

0.8. Supreme Court decided that this Court's

interpretation was correct, essentially overruling

the Alabama Supreme Court's determination. The

bottom line is this: probate judges in this State
were following Court orders when they either refused

8

 

 

 

 

to issue marriage licenses or refused to issue same~

sex marriage licenses. Now that confusion about the

law has been cleared by the 0.8. Supreme Court,

there is no indication that the probate judges will

violate their oath and refuse to follow what the

Supreme Court has established 

On October 20, 2015, the United States Court of Appeals
for the Eleventh Circuit issued an order in an interlocutory
appeal in Strawser filed by Probate Judge Tim Russell. Among
other things, Judge Russell argued that the Alabama Supreme
Court's decision in APT 1 rendered improper the injunction in
Strawser. The Eleventh Circuit summarily rejected that
argument, reasoning that API I had been "abrogated by the
Supreme Court's decision in Obergefell." The Eleventh
Circuit summarily? affirmed. "the district court's jMay' 21,
2015, order granting a preliminary injunction requiring the
issuance of marriage licenses to same?sex couples."

The January 6, 2016, order is entitled "Administrative
Order of time Chief Justice the Alabama Supreme Court."
The order first recounts the APT I decision of March 3, 2015,
and states:

"In its March. 3 order? in APT, the Alabama

Supreme Court stated that 'Alabama probate judges

have a ministerial duty not to issue any marriage

license contrary to [the Sanctity of Marriage

Amendment and the Marriage Protection Act]. Nothing
in the United States Constitution alters or

overrides this duty.?

 

 

 

week later the Court reaffirmed that its
March 3 order bound every Alabama probate judge 'to
the end of achieving order and uniformity in the
application of Alabama's marriage laws.? (Order
of March 10, 2015). The Court also stated that 'all
probate judges in this State :may issue lnarriage
licenses only 1J1 accordance with: Alabama laW' as
described in our opinion of March 3, 2015.? 
(Order of March 12, 2015).

"On June 26, 2015, approximately three months
after the Alabama Supreme Court issued its orders
in APE, the United States Supreme Court in
Obergefell Hodges, 135 S. Ct. 2584 (2015), held
unconstitutional certain marriage laws in the states
of Michigan, Kentucky, Ohio, and Tennessee, which
fall within the jurisdiction of the Sixth Circuit
Court of Appeals. In its 5?4 opinion the high court
noted that '[tlhese cases come from Michigan,
Kentucky, Ohio, and Tennessee.? Obergefell, 135 S.
Ct. at 2593.

 

"On June 29, 2015, three days after the issuance
of the Obergefell opinion, the Alabama Supreme Court
invited the parties in API to address the 'effect
of the Supreme Court's decision on this Court's
existing orders in this case no later than 5:00 p.m.
on Monday, July (Order of June 29, 2015)
(emphasis added}.

"Several parties filed briefs in response to
that request. Additionally, on Sept 16, 2015,
Washington County Probate Judge Nick Williams filed
an 'Emergency Petition for Declaratory Judgement
and/or Protective Order in Light of Jailing of
Kentucky Clerk Kim Davis,? which requested the Court
'to prevent the imprisonment and ruin of their
State's probate judges who maintain fidelity to
their oath of office and their faith.? On September
22, Elmore County Probate Judge John Enslen joined
Judge Williams's Emergency Petition. On October 5,
Judge Enslen filed a separate petition for a
declaratory judgment arguing additional grounds for
relief.

10

 

 

"In October, Eunie Smith, President of the
Eagle Forum of Alabama[,] and Dr. John Killian, Sr.,
former President of the Alabama Baptist State
Convention, published 51 guest opinion (n1 AL.com
stating' that they 'anxiously await' the pending
decision on the effect of Obergefell on the orders
in QEI. In December, the Southeast Law Institute
of Birmingham, whose President is local counsel for
some of the parties in 53;, stated j?l an online
commentary that he was 'encouraging all of those who
have great concern over this issue to be prayerfully
patient' as the Court deliberates.

"Confusion and uncertainty exist among the
probate judges of this State as to the effect of
Obergefell on the 'existing orders' in 53;. Many
probate judges are issuing' marriage licenses to
same?sex couples in accordance with Obergefell;
others are issuing marriage licenses only to couples
of the opposite gender or have ceased issuing all
marriage licenses. This disparity affects the
administration of justice in this State.

am not at liberty to provide any guidance to
Alabama probate judges on the effect of Obergefell
on the existing orders of the Alabama Supreme Court.
That issue remains before the entire Court which
continues to deliberate on the matter.

"Nevertheless, recent develOpments of potential
relevance since Obergefell may impact this issue.
The United States Court of Appeals for the Eighth
Circuit recently ruled that Obergefell did not
directly invalidate the :marriage laws of states
under its jurisdiction. While applying Obergefell
as precedent, the Eighth Circuit rejected the
Nebraska defendants' suggestion that Obergefell
mooted the case. The Eighth Circuit stated: 'The
[Obergefell] Court invalidated. laws iJ1 Michigan,
Kentucky, Ohio, and.Tennessee??not Nebraska.? Waters
Ricketts, 798 F.3d 682, 685 (8th Cir. 2015)
(emphasis added). In. two other cases the Eighth
Circuit repeated its statement that Obergefell
directly invalidated. only the laws of the four

 

 

ll

 

 

states in the Sixth Circuit. See Jernigan 

 

 

Crane, 796 F.3d. 976, 979 {8th Cir. 2015) ('not
Arkansas'); Rosenbrahn Daugaard, 799 F.3d 918,
922 (8th Cir[.] 2015) ('not South Dakota?).

"The United States District Court for the
District of Kansas was even more explicit: ?While
Obergefell is clearly controlling Supreme Court
precedent, it did not directly strike down the
provisions of the Kansas Constitution and statutes
that bar the issuance of same?sex marriage licenses
Marie Mosier, 2015 WL 4724389 (D. Kan.
August 10, 2015). Rejecting the Kansas defendants'
claim that Obergefell mooted the case, the District
Court stated that 'Obergefell did not rule on the
Kansas plaintiffs? claims.? lg;

 

"The above cases reflect an elementary
principle of federal jurisdiction: a judgment only
binds the parties to the case before the court. 
judgment or decree among parties to a lawsuit
resolves issues as among them, but it does not
conclude the rights of strangers to those

 

 

proceedings.? Martin v. Wilks, 490 U.S. 755, 762
(1989). court can make a decree which will
bind anyone but a party no matter how broadly
it words its decree.? Alemite Mfg. Corp. Staff,
42 F.3d 832, 832 (2d Cir. 1930). See also Rule 65,
Fed R. Civ. P., on the scope of an injunction.

"Whether or not the Alabama Supreme Court will
apply the reasoning of the United States Court of
Appeals for the Eighth Circuit, the United States
District Court for the District of Kansas, or some
other legal analysis is yet to be determined. Yet
the fact remains that the administration of justice
in the State of Alabama has been adversely affected
by the apparent conflict between the decision of the
Alabama Supreme Court in and the decision of the
United States Supreme Court in Obergefell.

THEREFORE,

"As Administrative Head of the Unified Judicial

l2

 

SystenLof Alabama, authorized and empowered pursuant
to Section Ala. Code 1975, to 'take
affirmative and appropriate action to Cbrrect or
alleviate any condition or situation adversely
affecting the administration of justice within the
state,? and under Section Ala. Code
1975, to 'take any such other, further or additional
action as may be necessary for the orderly
administration of justice within the state, whether
or not enumerated in this section or elsewhere';

"And in that 'an order issued by a court with
jurisdiction over the subject matter and person must
be obeyed by the parties until it is reversed by
orderly and proper proceedings.? United States v.
Mine Workers, 330 U.S. 258, 293 (1947) (quoted in
Fields v. City of Fairfield, 143 So. 2d l77, 180
(Ala. 1962]);

 

 

 

IS ORDERED AND DIRECTED THAT:

"Until further decision by the Alabama Supreme
Court, the existing orders of the Alabama Supreme
Court that.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."

(Capitalization and bold?face type in original.)

On March 4, 2016, the Alabama Supreme Court issued an
order in that stated: IS ORDERED that all pending
motions and petitions are The order provided no
basis for its ruling. The order was accompanied, however, by
several writings from individual Justices. (That order and
the accompanying writings are hereinafter referred to as 



13

 

Chief Justice Moore issued a statement of
nonrecusal in which he stated that, although did not think he was disqualified from sitting
in API II, because, in his View,

"[tJhe 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 my

[February 8, 2015,] administrative order."

Chief Justice Moore also authored a special
concurrence in API II criticizing the Obergefell decision as
being, among other things, "immoral," "unconstitutional," and
"tyrannical." Chief Justice Moore asserted that the Alabama
Supreme Court's order of dismissal in API II did "not disturb
the existing March [2015] orders in this case or the Court?s
holding therein that the Sanctity of Marriage Amendment, art.
I, 36.03, Ala. Const. 1901, and. the Alabama Marriage
Protection Act, 30*1?19, Ala. Code 1975, are
constitutional." According to Chief Justice Moore, "state
judges are bound to obedience to the Constitution, laws made

in pursuance thereof, and treaties made under the authority

of the United States, not to the opinions of the United States

14

 

 

Supreme Court.? Chief Justice Moore also stated:

as not to be misunderstood, I emphasize that
judges are ordinarily obligated to regard the
opinions of the {United States Supreme Court] as
valid precedent that should be followed.

"Yet this rule admits of exception

 

[Ilf precedents are 'manifestly absurd or
unjust,? 'contrary to reason,? or 'contrary to the
divine law,? they are not to be followed."

(Quoting I. William Blackstone Commentaries on {?ne Laws of
England *69?70.)

In Chief Justice Moore's view, "{t]he Obergefell opinion,
being manifestly absurd and unjust and contrary to reason and
divine law, is not entitled to precedential value." Chief
Justice Moore stated that the holding of Obergefell should be
limited to only the parties in that particular case.

In a separate unpublished order issued on the same date

as API II, the Alabama Supreme Court issued the certificate

of judgment in API.8 The certificate of judgment states:

 

8Justice Shaw, ijl his special concurrence API II,
noted:

"[T]he issuance of a certificate of judgment, which
is also dictated by the order issued today, is a
routine administrative task that is normally
accomplished automatically by the clerk of the Court
and is not voted upon by the Justices. A certificate

l5

 

 

 

 

OF JUDGMENT

the
rehearing filed in
was entered in this

ruling (M1 the application for
this cause and indicated below
cause on March 20, 2015:

"Application Overruled. No Opinion. PER CURIAM
Stuart, Bolin, Parker, Murdock, Main,
Wise, and Bryan, JJ., concur.

the above referenced cause has been
duly submitted and considered by the Supreme Court
of Alabama and the orders indicated below were
entered in this cause:

"Petition Granted. Writ Issued. March 3, 2015.
PER CURIAM Stuart, Bolin, Parker,
Murdock, Wise, and Bryan, JJ., concur.

concurs in part and concurs in
Shaw, J., dissents.

Main, J.,
the result.

"Writ Issued as to Judge Don Davis. March 11,
2015. PER CURIAM Stuart, Parker, Murdock,
Main, Wise, and Bryan, JJ., concur. Shaw,

 

API

of judgment in a mandamus matter is generally issued
after the application for rehearing has been
overruled, which occurred on March 20, 2015.
However, because this case was not an appeal, the
usual procedures for issuing a certificate of
judgment under the Alabama Rules of Appellate
Procedure, IRule 41q were run: utilized. It jji not
clear to Ims that this Court has ea procedure for
issuing a certificate of judgment in this type of
case?~an original petition for mandamus relief?"or

 

that, because this Court was sitting as ea trial
court, one is even needed. The issuance of a
certificate of judgment is a rote entry. Further,

as explained below, it does not, and cannot, mean
that the parties in this case may defy Obergefell or
any federal court injunction against them.?

II, So. 3d at n.48 (Shaw, J., concurring

 

specially).

l6

 

 

 

J., dissents.

"Writ Issued as to additional respondents.
March 12, 2015. PER CURIAM Stuart, Bolin,
Parker, l?urdock, Ph?jn Wise, eumi Bryan,
JJ., concur. Shaw, J., dissents.

THEREFORE, pursuant to Rule 41, Ala. R.

App. P., IS HEREBY ORDERED that this Court's

judgment in this cause is certified on this date.

IT IS FURTHER ORDERED that, unless otherwise ordered

by this Court or agreed upon by the parties, the

costs of this cause are hereby taxed as provided by

Rule 35, Ala. R. App. 

(Capitalization and boldwface type in original.)

The JIC, pursuant to complaints filed against Chief
Justice Moore, conducted_an investigation and, on May 6, 2016,
filed the underlying complaint in this court. On June 21,
2016, Chief Justice Moore filed a motion to dismiss the JIC's
complaint pursuant to Rule Ala. R. Civ. P., and
Rule 10, R.P. Ala. Ct. Judi This court subsequently entered
order converting tine Chief JUstice's Hmtion ix; dismiss
into a motion for a summary judgment pursuant to Rule 56,
Ala. R. Civ. P. The JIC, on July 15, 2016, filed a cross-
motion for a summary judgment and an opposition to the Chief
Justice's summary?judgment motion; the Chief Justice filed a
reply on July 26, 2016.

This court heard oral arguments on the cross?motions for

a summary judgment on August 8, 2016. Following that hearing,

17

 

 

 

 

this court entered an <order denying' the summary?judgment
motions and setting the matter for a final hearing on
September 28, 2016.

At the final hearing, the JIC and Chief Justice Moore
presented evidence in the form.of documentary exhibits. Chief
Justice Moore also testified in his defense.

STANDARD OF PROOF

Rule 10, R.P. Ala. Ct. Jud., requires the JIC to
establish its allegations by clear and convincing evidence.
In the context of punitive damages, Ala.
Code 1975, defines "clear and convincing evidence" as

"[e]vidence that, when weighed against evidence in

opposition, will produce in the mind of the trier

of fact 51 firnl conviction as ix) each. essential

element of the claim and a high probability as to

the correctness of the conclusion. Proof by clear

and convincing evidence requires a level of proof

greater than a preponderance of the evidence or the

substantial weight of the evidence, but less than
beyond a reasonable doubt."
This same definition appears in that part of the dee of
Alabama addressing workers' compensation, see 
Ala. Code 1975, and has been used in cases addressing the

termination of parental rights, see, J.B. v. DeKalb

Cnty. Dep't of Human Res., 12 So. 3d 100, 111?12 (Ala. Civ.

 

App. 2008).

18

 

 

 

DISCUSSION



At the outset, we briefly address Chief Justice Moore's
arguments regarding an alleged breach of confidentiality by
the JIC. According to an affidavit from Mat Staver, one of
Chief Justice Moore's counsel in these proceedings and one of
the counsel (If record for time petitioners ABE, Staver
received a telephone call from a reporter at the New York
May 5, 2016, indicating that the reporter's "sources"
had told him that the would be filing a complaint as early
as May 5 or May 6. Citing the requirements that all
proceedings before the JIC are to be confidential, see, 
156, Ala. Const. 1901 (Off. Recomp.), and Rule 5, Ala. R.P.
Jud. lnq. Comm'n, Chief Justice Moore maintains that this
telephone call from a reporter the day before the charges
were filed in this court indicates that the JIC breached its
duty of confidentiality. Chief Justice Moore asks this court
to find that the breached its duty of confidentiality,
and, as a remedy, he seeks dismissal of the charges against
him. Although Chief Justice Moore contends that the JIC is

the only possible "source" of the information alleged to have

19

 

 

been disclosed, no evidence was offered during the hearing
identifying the reporter's "source." Thus, to conclude that
the JIC was the "source" would require this court to
speculate, and we decline to do so.9

At oral argument on the summary?judgment motions, this
court asked Chief Justice Moore to identify how the alleged
breach of confidentiality had prejudiced him, particularly
given. that charges were filed. the day' after the alleged
telephone call. Chief Justice Moore maintains that he is not
required to prove prejudice. That may be so, but Chief Justice
Moore was reasonably apprised of the charges against him and
had the opportunity to address those charges with the JIC and
in this court. Even if the evidence establishedw?and it does
not??that the JIC breached its duty of confidentiality
regarding the proceedings, Chief Justice Moore has cited no
authority indicating he is entitled to the remedy he seeks:
dismissal of the charges. Accordingly, this court denies
Chief Justice Moore's request that the charges be dismissed

on time basis that time JIC allegedly breached i113 duty of

 

9Chief Justice Moore also offered into evidence an
article from the Montgomery Advertiser? in which unnamed
sources indicated that a complaint would be filed. Again,
however, no evidence was offered to identify those unnamed
sources.

 

20

 

 

confidentiality.
a;
In his motion for a summary judgment, Chief Justice Moore

reserved 13%; right 1x3 raise ea constitutional challenge to

that part of ?3 159, Ala. Const. 1901 (Off. Recomp.), that
provides: judge shall be disqualified from acting as a
judge, without loss of salary, while there is pending a

complaint against him filed by the judicial inquiry
commission with the court of the judiciary.? He noted in
that motion that he had filed a challenge to 159 in federal
court. He ultimately did not prevail in that action.

At the final hearing, counsel for Chief Justice Moore
made a brief argument that 159 is unconstitutional to the
extent it applies to allegations of violations of the Canons
of Judicial Ethics that do not involve conduct that is
criminal in nature. Counsel asserted that no other state has
such a provision.

Initially, we question whether this Court has the power
to declare this provision of the Alabama Constitution
unconstitutional. Regardless, Chief Justice Moore has offered
only bare assertions by counsel in support of his

constitutional challenge. He therefore has not demonstrated

21

 

 

that he is entitled to relief, and this claim is denied.

II.

We now turn to the charges of the complaint, the evidence
presented, and the parties' arguments. The complaint alleges
the following six charges against the Chief Justice:

Charge No. 1: "By willfully issuing [the January 6,
2016, order,] in which he directed or appeared to
direct all Alabama probate judges to follow
Alabama?s marriage laws, completely disregarding a
federal court injunction when he knew or should have
known every Alabama probate judge was enjoined from
using the Alabama 'marriage laws or any _Alabama
Supreme Court order to deny marriage licenses to
same?sex couples, Chief Justice Roy S. Moore
violated [Canons L, 2, 2A, 2B, and 

 

Charge No. 2: "In demonstrating his unwillingness
in [the January 6, 2016, order] to follow clear law,
Chief Justice Roy S. Moore violated [Canons 1,
2, 2A, 2B, and 

 

Charge 3: "In issuing [the January 6, 2016,
order] and in abusing his administrative authority
by addressing and/or deciding substantive legal
issues while acting in his administrative capacity,
Chief Justice Roy S. Moore violated [Canons 1,
2, 2A, 2B, and 

 

Charge PM). 4: "In issuing ??ue January 6, 2016,
order] and thereby substituting his judgment for the
judgment of the entire Alabama Supreme Court on a
substantive legal issue in a case then pending in
that Court, the effect of the decision of the
United States Supreme Court 1J1 Obergefell, Chief
Justice Roy S. Moore violated [Canons l, 2, 2A,
2B, 3, 

 

Charge PM). 5: "By issuing Him; January 6, 2016,
order] and willfully abusing his administrative

 

22

 

authority to issue [that order], Chief Justice Roy
S. Moore interfered with legal process and remedies
in the United States District Court and/or the
Alabama Supreme Court available through those courts
to address the status of any proceeding to which

Alabama's probate judges were parties. In so doing,
Chief Justice Moore violated [Canons l, 2, 2A,
2B, and 

Charge No. 6: "By taking legal positions in [the
January 6, 20l6, order] on a matter pending before
the Alabama Supreme Court in 53;, Chief Justice Roy
S. Moore placed his impartiality into question on
those issues, thus disqualifying himself from
further proceedings in that case; yet he
participated in further proceedings in 53;, after
having disqualified himself by his actions, in
violation of [Canons 1, 2, 2A, 2B, and 

 

(JIC's complaint, pp. 26?32.)

The alleges that Chief Justice Moore's conduct that
resulted in the above charges violated the Canons of Judicial
Ethics in that he specifically

a. "[flailed to uphold the integrity and
independence of the judiciary, Canon 1"
(Charges 

b. "[f]ailed to participate in establishing,
maintaining, and enforcing and to himself
observe high standards of conduct so that the
integrity and independence of the judiciary may
be preserved, Canon 1" (Charges 1?5; Charge 6

alleges that he "[f]ailed to observe high
standards of conduct so that the integrity and
independence of the judiciary may be
preserved");

c. "[f]ailed. to avoid impropriety and the
appearance of impropriety in all his
activities, Canon 2" (Charges l~6J;

23

 

d. "[f]ailed to respect and comply with the law,
Canon (Charges 

e. "[f]ailed to conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary,
Canon (Charges 

f. "[f]ailed to avoid conduct prejudicial to the
administration of justice that brings the
judicial office into disrepute, Canon 
(Charges 

g. "[f]ailed to perform the duties of his office
impartially, Canon 3" {Charges 1?5; Charge 6
alleges that he "[flailed to perform the duties
of his office impartially and diligently");

and/or

h. "[f]ailed to abstain from public comment about
a pending proceeding in his own court, Canon
(Charge 4).

In sum, the first five charges relate to the issuance of
the January 6, 2016, order, and the sixth charge relates to
the January 6, 2016, order and Chief Justice Moore's
subsequent participation in API II.

A. Charges Nos. 1?5

 

The JIC starts with the premise that binding federal
court injunctions-?such as the May 2015 injunction in
Strawser that bound all Alabama probate judges??are to be
obeyed. To that, the JIC adds the premise that the United
States Supreme Court is the final arbiter of the United States

Constitution and that its decisions on matters of

24

 

constitutional law are binding on lower federal and state
courts. From these premises, the JIC asserts that the Chief
Justice should not issue an order that, if followed, would
constitute disobedience to a binding federal injunction
supported in! a controlling decision the United States
Supreme Court. The central claim of charges nos. 1?5 of the
JlC's complaint is that the January 6, 2016, order required,
or appeared to require, Alabama?s 68 probate judges to defy
the United States Supreme Court's decision in Obergefell and
the expressed prohibitions of a t?nding injunction by the
federal district court in Strawser.

The JIC argues that Chief Justice Moore's actions in this
case are the same as?"indeed, worse thane?his actions that
led to his removal from the office of Chief Justice in 2003.
In 2003, the Court of the Judiciarym'found that Chief Justice
Moore had personally violated numerous Canons of Judicial
Ethics based on his "willful[] and public[]" refusal to obey

the binding orders of a United States district court. As a

 

mThe only current member of this court who served on the
court that removed Chief Justice Moore from office in 2003 is

John V. Denson ll. Judge Denson, however, recused himself
from this matter, and a predetermined alternate member was
appointed to sit in Judge Denson's place. Thus, no current

member of this court served on the court that removed Chief
Justice Moore from office in 2003.

25

 

 

 

sanction, this court removed Chief Justice Moore from the
office Chief Justice because, this court found, Chief
Justice Moore had indicated unequivocally that 1M3 had no
remorse for his defiance of that order and that he would, in
fact, "do it again." This court reasoned that 
short of removal would only serve to set up another
confrontation that would ultimately bring us back to where we
are today."

According to the Chief Justice, at the time he issued
the January 6, 2016, order, there were a number of differences
between his conduct and the circumstances in 2003 and his
conduct and the circumstances in this case. The primary
difference, the Chief Justice asserts, is that the Alabama
Supreme Court had issued injunctions in March 2015 in AP: I
that told Alabama's probate judges not ix) issue same?sex
marriage licenses. (The injunctions in APT 1 are at times
referred to as "the existing orders" of the Alabama Supreme
Court in 

The position is that at the time of the January 6,
2016, order, the March 2015 orders had been nullified by
Obergefell, as well as by the injunction entered against all

probate judges in Strawser in May 2015 that by its terms took

26

effect once the United States Supreme Court decided
Obergefell. The JIC further cites the Eleventh Circuit's
statement in October 2015 that Obergefell had "abrogated" the
orders in ABE.

The Chief JUstice, however, finds significance in the
Alabama Supreme Court's June 29, 2015, order~?issued three
days after the Obergefell decision??in which. the Alabama
Supreme Court invited the parties in APT I "to submit any
motions or briefs addressing the effect of the Supreme Court's
decision Obergefell CH1 this court's existing orders in
The Chief Justice argues that the Alabama Supreme
Court, by' inviting additional briefing, did. not 'vieW' its
orders as having been automatically abrogated or nullified by
Obergefell.ll The Chief Justice asserts that the Eleventh
Circuit's October 2015 statement was therefore incorrect, and
he cites decisions standing' for? the jproposition that the
Eleventh Circuit does not have the authority to review
decisions of the Alabama Supreme Court.

The (man: of time Chief Justice's ?argument is that he

issued the January 6, 2016, order not as a direction to anyone

 

11The Alabama Supreme Court's June 29, 2015, invitation
for additional briefing, as as the Court's possible
reasons for it, are discussed in more detail below.

27

 

 

U3 do anythingL2 inn: merely as ea sort of "status update"
informing the probate judges that the issues addressed in the
June 29, 2015, invitation for "additional briefing" remained
pending before the Court. Chief Justice Moore argues that he
"merely recited the status of the API orders" and that he
"did not offer an opinion, pro or con, as to their validity."13
He asserts that he respected the prerogative of the Alabama
Supreme Court and did not anticipate how the Court would rule.

He claims further that he "did not counsel the probate
judges to disobey the federal injunction. In fact, he did
not mention it." Finally, he claims that the JIC's complaint
is "double minded":

"On the one hand, the JIC accuses the Chief Justice

of failing to declare that Obergefell, the federal

injunction [in Strawser], and the Eleventh Circuit

had rendered Tine API orders meaningless. On the

other hand, the JIC criticizes the Chief Justice for

allegedly usurping the authority of the Alabama

Supreme Court to decide the fate of its own orders.

In the eyes of the JIC, the Chief Justice is guilty
of an ethical violation no matter what he does."

 

12According to Chief Justice Moore's counsel in closing
argument, the January 6, 2016, order did not have the
authority to require anyone to do anything.

13Chief Justice Moore acknowledges that he ignored the
federal injunction in Strawserw-including its statement that
the probate judges could not obey any contrary injunction
issued by the Alabama Supreme Court.

28

 

 

 

As the JIC points out, however, this is a false dilemma.
There is a third option Chief Justice Moore fails to mention:
He could have simply not issued the January 6, 2016, order.

Chief Justice Moore testified that the purpose of the

January 6, 2016, order was to preserve the public reputation

of the Court and to urge compliance with Canon Canons
of Judicial Ethics, which states that judge should
dispose of the business of the court." He offered

into evidence two partially redacted, internal memoranda he
wrote to other members of the Alabama Supreme Court~?one dated
September 9, 2015, and one dated October 7, 2015??in support
of this claim.M He further offered evidence that complaints
were filed by third parties with the against each of the
Justices on the Alabama Supreme Court on February 18, 2016,
alleging ethical violations because of the delay in ruling on
the ggl_motions.l5 Chief Justice Moore asserted that he issued
the January EL 2016, order address time confusion and

uncertainty among the probate judges of Alabama arising from

 

14OnAugust 3, 2016, this Court, after? an in camera
review, denied the motion to produce the unredacted
copies.

15Those complaints were summarily dismissed.

29

 

 

 

the Court's delay."

This court does not find credible Chief Justice Moore's
claim that the purpose of the January 6, 2016, order was
merely to provide a "status update" to the State's probate
judges. Chief Justice Moore repeatedly has asserted to this
Court that he wanted to draw attention to the "conflicting
orders" of ?31_1 and the injunction in Strawser. Thus, Chief
Justice Moore clearly knew about the contrary, binding
injunction in Strawser. Chief Justice Moore's failure in the
January 6, 2016, order to acknowledge the recipients'
obligations under the binding federal injunction in Strawser
?'and the potential dire implications of open defiance of
that injunction?~did not negate the existence of the
injunction in Strawser (or Obergefell?s clear holdings quoted
above). Moreover, the failure to mention the Strawser
injunction did not prevent the January 6, 2016, order??with
its clear statement that probate judges could not issue same?
sex marriage licenses??from being direct conflict with

Strawser.he

 

lE'See API 11, So. 3d at n.49 (Shaw, J., concurring
specially) ("Ordering and directing that Alabama probate
court judges had a 'duty not to issue any marriage license
contrary to the Sanctity of Marriage Amendment or the Marriage

Protection Act' .is contrary to Time federal district court

 

 

 

30

 

 

We likewise do not accept Chief Justice Moore's repeated
argument that the disclaimer in paragraph 10 of the January
6, 2016, order?min which Chief Justice Moore asserted he was
"not at liberty to provide any guidance on the effect of
Obergefell (N1 the existing orders of 11%; Alabama Supreme
Court"??negated the reality that Chief Justice Moore was in
fact "order[ing] and direct[ing]" the probate judges to
comply with the orders regardless of Obergefell or the
injunction in Strawser.

Chief Justice Moore?s arguments that his actions and
words mean something other than what they clearly express is
not a new strategy. In 2003, this court?s order removing Chief
Justice Moore quoted the following testimony from him before
the JIC:

did what I did because I upheld my oath. And

that's what I did, so I have no apologies for it.

I would do it again. 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."

 

injunction, which said that the probate court judges
could not enforce those provisions. The order did more than
address the hypothetical impact of Obergefell on 53;; it
ordered and directed that the probate court judges continue
to follow gig, a course of action that would be contrary to
the federal court injunction. The failure of the order to
mention. the federal court injunction. did INN: negate that


31

 

 

Just as Chief Justice Moore?s decision that he "wouldn't
move the monument" was, in fact, defiance of the federal court
order binding him, a disinterested reasonable observer, fully
informed of all the relevant facts, would conclude that the
undeniable consequence of the January 6, 2016, order was to
order and direct the probate judges to deny marriage licenses
in direct defiance of the decision of the ?United States
Supreme Court in Obergefell and the Strawser injunction.

Indeed, to see that the January 6, 2016, order can be
reasonably read as requiring defiance of the United States
Supreme Court and the district court in Strawser, we need
look no further than a press release issued by Mat Staver??
Chief Justice Moore's own counsel in these proceedings and
one of the counsel of record in g?l??that was issued the same
day as the January 6, 2016, order. In that press release,
which solely addressed the January 6, 2016, order, Staver
asserted:

"In Alabama state judiciaries are standing

up against the federal judiciary or any one [sic]

else who wants to come up with some cockeyed View

that somehow the Constitution now births some
newfound notion of same?sex marriage."?

 

17Chief Jostice Moore challenged the admissibility of
these statements. Specifically, Chief Justice Moore pointed
out that Staver was not his counsel of record at the time,
and he asserted that the statements are not prOperly

 

32

 

Chief Justice Moore's contention that the only purpose and
plausible reading of the January 6, 2016, order is that of a
"status update" is entirely unconvincing.

Furthermore, as the LIME correctlii argues, the ?United

States Supreme Court in Cooper v. Aaron, 358 U.S. 1 (1958),

 

clearly rejected the theory underlying the January 6, 2016,
order and Chief Justice Moore's special writing in API 11??
namely, the theory that only the parties to a United States
Supreme Court decision are bound by the decision. Cooper held
that states are bound by the decisions of the United States

Supreme Court, even when a state has not been a party to the

 

case that generated the decision. In addressing attempts by

 

the State of .Arkansas to resist the school?desegregation

decision of the United States Supreme Court in Brown v. Board

 

of Education, 347 U.S. 483 (1954), the Cooper Court stated:

 

should answer the premise of the actions of
the Governor and Legislature that they are not bound
by our holding in the Brown case. It is necessary
only to recall some basic constitutional
propositions which are settled doctrine.

 

 

 

 

authenticated and are irrelevant. This court overruled Chief
Justice Moore's objections, however, and admitted Staver's
statements for the limited purpose of showing that the JIC's
reading of the January 6, 2016, order as calling for open
defiance of federal court orders was the same reading Staver
licensed attorney??gave the January 6, 2016, order at the
time it was issued.

 

 

"Article VI of the Constitution makes the
Constitution the 'supreme Law of the Land.? In 1803,
Chief Justice Marshall, speaking fOr ea unanimous
Court, referring to the Constitution as 'the
fundamental and paramount law of the nation,?
declared in the notable case of Marbury v. Madison,
1 Cranch 137, 177, that NH: is emphatically the
province and duty of the judicial department to say
what the law is.? This decision declared the basic
principle that the federal judiciary is supreme in
the exposition of the law of the Constitution, and
that principle has ever since been respected by this
Court and the Country' as a permanent and
indispensable feature of our constitutional system.
It follows that the interpretation of the Fourteenth
Amendment enunciated by this Court in the Brown case
is the supreme law of the land, and Art. VI of the
Constitution. makeS' it of binding effect on the
States ?any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.? Every state
legislator and executive and judicial officer is
solemnly committed by oath taken pursuant to Art.
VI, $3 'to support this Constitution.? Chief Justice
Taney, speaking for a unanimous Court in 1859, said
that this requirement reflected the framers'
'anxiety to preserve it [the Constitution] in full
force, in all its powers, and. to guard against
resistance to or evasion of its authority, on the
part of a State. Ableman v. Booth, 21 How. 506,
524.

 

 

 

 

 

 

 

"No state legislator or executive or judicial
officer can war against the Constitution without
violating his undertaking to support it. Chief
Justice Marshall spoke fOr ea unanimous Court in
saying that: 'If the legislatures of the several
states mega at will, annul time judgments (of the
courts of the United States, and destroy the rights
acquired. under those judgments, the constitution
itself becomes a solemn mockery United States
v. Peters, 5 Cranch 115, 136. A Governor who asserts
a power to nullify a federal court order is similarly
restrained. If he had such power, said Chief Justice
Hughes, in 1932, also for a unanimous Court, 'it is

 

34

 

 

 

manifest that the fiat of a state Governor, and not
the Constitution of the United States, would be the
supreme law of the land; that the restrictions of
the Federal Constitution upon the exercise of state
power would be but impotent phrases Sterling
v. Constantin, 287 0.8. 378, 397-398."

 

358 0.8. at 17?19 (emphasis added).

Chief Justice Moore recognized the holding and validity
of Cooper in 2003, when he argued then that his case was
distinguishable from Cooper. Chief Justice Moore's
understanding of Cooper-?as evidenced by his arguments in
2003??means that. he could :not ihave actually' thought that
Qbergefell bound only the parties to that case. Thus, we agree
with the JIC's contention that Chief Justice Moore is
disingenuous in his suggestion in the January 6, 2016, order
that "recent developments of potential relevance since
Obergefell may impact" whether Obergefell abrogated 53;.

We likewise are not persuaded by Chief Justice Moore?s
attempt to, in effect, blame the Alabama Supreme Court for
creating a situation that necessitated his issuance of the
January 6, 2016, order. Because the Alabama Supreme Court
chose to take no action on its June 29, 2015, invitation for
additional briefing other than eventually' to dismiss all

pending motions and to certify its judgment in API 1, this

35

 

 

court does not know what field of operation, if any, the
Alabama Supreme Court thought its "existing orders" in 
had after the decision in Obergefell was released.m What is
clear to this court, however, is that the Alabama Supreme
Court?s decision to take no action after Obergefell other
than to give a deadline to submit additional briefing in its
June 29, 2015, order qualitatively (jifferent fron1 the
language Chief Moore used :ui the January EA 2016,
order. That order, with its clear statement ?w"lT IS ORDERED

AND DIRECTED THAT the existing orders of time Alabama

 

18Counsel for Chief Justice Moore informed this court
that one of the issues briefed in response to the June 29,
2015, invitation for briefing is whether the Alabama Supreme
Court should attempt in to protect the right of individual
probate judges to object, on the basis of religious liberty,
to the issuance of same?sex marriage licenses.

The fact remains, however, that the Alabama Supreme Court
simply ciuj not explain. the Zbasis for its June 29, 2015,
briefing order or for its ruling in API II. Justices Wise and
Bryan concurred. in the Court's order in .API 11 without
writing. As noted above, Chief Justice Moore authored a
special concurrence. In additimq to Chief Justice
Moore's writing, Justice Stuart authored a special
concurrence, joined by Justices Bolin and Main; those three
Justices stated that when the Alabama Supreme Court dismisses
a matter without explanation from the Court, it would be

"erroneous and unjust" to "[a]ttribut[e] the reasoning and
explanation in a special concurrence or a dissent to a Justice
who (did run: issue join time writing.? Justices Bolin,
Parker, Murdock, and Shaw each issued separate special

concurrences. Justice Bolin joined. Justice Shaw's special
concurrence in part.

36

 

 

Supreme Court remain in full force and not,
as the JIC pointed out in its C?osing argument, merely a
status update. A judge does not issue a "status update" that
"orders and directs" that a law remain in effect. Rather, a
judge "orders and directs" individuals to do something: in
this instance, to comply with law that is in "full force and
effect." The January 6, 2016, order called for action??and
that action would have been in defiance of Obergefell and of
the injunction in Strawser.

An additional difference in the Alabama Supreme Court's
June 29, 2015, invitation for briefing and the January 6,
2016, order is that the Alabama Supreme Court cited no legal
authority in its order other than the rule of the Emited
States Supreme (lmnn: giving time parties ij1 Obergefell "a
period of 25 days to file a petition for rehearing in that
case." The January 6, 2016, order, on the other hand, includes
three paragraphs of legal authority, which the order
describes as standing for the "elementary" proposition that
"a judgment only binds the parties to the case before the
court." As noted above, the United States Supreme Court has
rejected the notion that only the parties to a United States

Supreme Court judgment are bound by it. Regardless of the

37

 

 

 

merits of the statement in the January 6, 2016, order,
however, it is clear to this court that Chief Justice Moore
in fact took a legal position in the January 6, 2016, order,
despite his claim that he was not taking any such position.?
Further, Chief Justice Moore's use of legal authority in
support of that position was incomplete to the point that
this court finds it was intended to be misleading. First,
his brief description of Obergefell in the January 6, 2016,
order as holding "unconstitutional certain marriage laws in
the states of Michigan, Kentucky, Ohio, and Tennessee" is, as
the JIC explains, at best incomplete and at worst
intentionally misleading. That brief description of
Obergefell did not address the clear holding of Obergefell??
that same?sex couples may exercise the right to marry in all
states, not just Michigan, Kentucky, Ohio, and Tennessee.
Second, Chief Justice Moore?s use of authority from the

Eighth and Tenth Circuits was selective and misleading. In

 

WAS the JIC explained at the final hearing, a disclaimer
that one is not doing something is only true if one, in fact,
does not do that something. Here, despite Chief Justice
Moore?s repeated pmotests tjmm: he said 1K3 could give
guidance as to the effect of Obergefell, he proceeded to give
guidance as to the effect of Obergefell and ultimately
concluded that it had done nothing to affect the "existing
orders" in APT 1, which he said remained "in full force and
effect."

38

each of the cases Chief Justice Moore cited in the January 6,
2016, order, the lower federal courts had issued injunctions
before Obergefell was decided??and each of those injunctions
was consistent with what Obergefell later held. Thus, the
question was whether Obergefell had rendered moot the need
for the lower federal courts to continue to exercise
jurisdiction ix} enforce the injunctions they lmui already
entered before Obergefell was decided. In each case, as the
JIC explains, "it appears the courts remained unconvinced
that the states would actually abide by Obergefell's mandate.
To say that these cases somehow indicate that Obergefell does
not impact Alabama law has no basis.? At best, as the JIC
asserts, the "selective inclusion" and "selective omission"
of authority was "one?sided"; at worst, it was "fully
misleading? and was a "thinly?veiled order directing probate
judges to defy federal law." Indeed, as we have already noted,
Chief Justice Moore's own attorney in this proceeding
interpreted the January 6, 2016, order as a call for open
defiance of federal court decisions and issued a press release
to that effect on the date the order was released.

In sum, this court rejects Chief Justice Moore's argument

that the January 6, 2016, order "merely recited the status of

39

 

 

the 33; orders" and "did not offer an opinion, pro or con, as
to their validity." The order clearly asserts that the
"existing orders of the Alabama Supreme Court that 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." (Boldwface type in original.)

Beyond question, at the time he issued the January 6,
2016, order Chief Justice Moore knew about Obergefell and its
clear holding that the United States Constitution protects
the right of same?sex couples to marry. Similarly, at the
time he issued the January 6, 2016, order he knew the binding
application of the federal injunction in Strawser.
Accordingly, we conclude that the omission from the January
6, 2016, order of any mention of the federal injunction in
Strawser was intentional. Further, this intentional omission
was a failure to follow clear law and a failure to uphold the
integrity and independence of the judiciary.

As noted, Chief Justice Moore's use of caselaw in the
order was incomplete, misleading, and manipulative. We find
that, when coupled with the intentional omission of binding

federal authority, the clear purpose of the January 6, 2016,

40

 

 

order was to order and direct the probate judges??most of
whom have never been admitted to practice law in 
to stop complying with binding federal law until the Alabama
Supreme Court decided_what effect that federal law would have.

Based on the foregoing, this court finds that the JIC
has proved by clear and convincing evidence that Chief Justice
Moore is guilty of charges nos. 1-5. As to charge no. 1, by
willfully issuing the January 6, 2016, order, in which he
directed or appeared to direct all Alabama probate judges to
follow Alabama?s marriage laws, completely disregarding a
federal court injunction when he knew or should have known
every Alabama probate judge was enjoined from using the
Alabama marriage laws or any Alabama Supreme Court order to
deny marriage licenses to same?sex couples, the evidence that
Chief Justice Moore violated Canons clear and convincing.

As to charge no. 2, the evidence is clear and convincing
that the January 6, 2016, order demonstrated an unwillingness
to follow clear law, and Chief Justice Moore thereby violated

Canons l, 2, 2A, 2B, and 3.

 

20According to records from the Alabama State Bar
introduced at the hearing of this matter, 20 of Alabama's 68
probate judges are admitted to practice law in Alabama.

41

 

As to charge no. 3, the evidence is clear and convincing
that ?ll issuing' the .January 6, 2016, order, and_=deciding
substantive legal issues while purporting ix) act in his
administrative capacity, Chief Justice Moore violated Canons
charge no. 4, the evidence is clear and convincing
that in issuing the January 6, 2016, order, Chief Justice
Moore substituted his judgment for the judgment of the entire
Alabama Supreme Court on a substantive legal issue in a case
then pending in that Court~?the effect of the decision of the
United States Supreme Court in Obergefell??and thereby
violated Canons charge no. 5, the evidence is clear and convincing
that, by issuing the January 6, 2016, order Chief Justice
Moore interfered with the legal process and remedies in the
United States District Court and/or the Alabama Supreme Court
available through those courts to address the status of any
proceeding to which Alabama's probate judges were parties.
In so doing, Chief Justice Moore violated Canons Charge No. 6

 

The remaining charge in the JEC's complaint is that 

42

 

Chief Justice Moore took legal positions in the January 6,
2016, order on a matter pending before the Alabama Supreme
Court in ABE, which (2) placed his impartiality into question
on those issues, and therefore (3) disqualified Chief Justice
Moore from further proceedings in that case. The JIC alleges
that Chief Justice Moore's continued participation in the
case??by participating in the decision in API ll??violated
Canons l, 2, 2A, 2B, and 3.

Chief Justice Moore asserts this charge is "demonstrably
untrue"~~that he "did not take a legal position on the effect

of Obergefell on the API case." He says he merely

 

"instruct[ed] the probate judges that the Alabama Supreme
Court's orders remained in effect pending 'further decision'
of that Court." Additionally, Chief Justice Moore argues that
charge no. 6 was brought in violation of the Rules of
Procedure of Judicial Inquiry Commission, specifically
Rule 6C and 6D. Rule 6C requires the JIC to "advise the judge
of those aspects (If the complaint that then considers
worthy of some investigation"; Rule 6D requires the to
provide a status?update letter every six weeks. According to
Chief Justice Moore, the JIC provided statuswupdate letters

on Mardh 4 and April 15, but neither letter included the

43

 

 

substance of charge no. 6. Chief Justice Moore asserts that
charge no. 6 is therefore procedurally noncompliant and
should be dismissed. Chief Justice Moore also cites Rule 19,
Ala. R.P. Jud. Inq. Comm'n, which authorizes a judge to
petition this court to remedy a violation of rules by the
JIC.

Initially, we address Chief Justice Moore?s claim that
the JIC did not properly notify him of charge no. 6. The 
introduced evidence indicating that Chief Justice Moore
actually was given an opportunity to address the charge at an
April 17 hearing before the JIC. At that April 17 hearing, in
response to questioning about his participation in APT II,
Chief Justice Moore distributed copies of his statement of
nonrecusal in API TI. The also asserts:

"The requirements of due process??which are at the
heart of the Chief Justice?s claim here??'are not
necessarily the same as those in a criminal matter.?

This is because the purpose of the disciplinary
proceeding is ?to protect the public interest'??not
to punish the judge In fact, 'the majority view
holds that virtually no notice is required by the
due process clause in investigatory jproceedings.
This view does not extend to adjudicative
proceedings. Even there, though, due process demands
only the amount of notice necessary to give a judge
a general idea of the charges against him.? With
this in mind, there is simply no question that the
Chief Justice has been provided robust notice under
the JIC Rules, above and beyond what the majority
of jurisdictions require at the investigatory stage

 

 

 

 

44

 

 

 

??and his own testimony at the April 17, 2016,
hearing proves he had, at the very least, a general
idea of the charges against him, if not specific
knowledge of the Commission's investigation into
these matters.

"But even if Charge Six was not
adequately noticed. by the Commission??which the
Commission does not concede??and even if formal
notice and strict adherence to the JIC procedures
is required??which it is not~~the Chief Justice has
not shown any prejudice by this lack of notice, as
required. by Rule 19 and the majority of
jurisdictions."

We agree with the Chief Justice Moore had adequate
notice of charge no. 6, and, even if he did not, he has not
demonstrated prejudice??despite having multiple
opportunities to do so??by any alleged lack of notice.

Turning to the merits of charge no. 6, as noted above,
Chief Justice Moore in fact took legal positions in the
January 6, 2016, order on a matter pending before the Alabama
Supreme Court??namely, he stated that the "existing orders"
of the Alabama Supreme Court remained in effect until vacated
by the Alabama Supreme Court, and he argued that Obergefell
bound (or might only bind} the parties to it but no one else.

As the JIC points out:

"[TJhe Chief Justice's guilt here is self?evident

upon. a simple comparison. that reveals that

significant portions of his January 6th Order are

actually just COpied and pasted verbatim into his
subsequent??and substantive?-legal opinion API

45

 

 Considering' that the substantive legal

content of his API II concurrence is identical to

the language in his January 6th Order, the Chief

Justice's assertion that his January 6th Order

somehow does not also address substantive legal

issues is plainly disingenuous and transparent."
Further, we agree with the JIC's argument that, under an
objective standard, Chief Justice Moore's decision to issue
the January 6, 2016, order was a decision to make a public
comment about a pending proceeding in his own Court, thereby
placing his impartiality into question. See Canon 3Ai6),
Canons of Jud. Ethics judge should abstain from public
comment about a pending or impending proceeding in any court,
and should require similar abstention on the part of court
personnel subject to his direction and Thus,
under an objective standard, by virtue of the issuance of the
January 6, 2016, order, Chief Justice Moore was disqualified
from additional participation in API II.

In his statement of nonrecusal in API II, Chief Justice
Moore asserted:

"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.

46

 

 

 



"In joining this case to consider the effect

of Obergefell, I am not sitting in review of [the

January 6, 2016,] order, nor have I made any public

statement on the effect of Obergefell on this

Court's opinion and order of March 3, 2015."

As noted above, in the January 6, 2016, order, Chief
Justice Moore, in fact, took legal positions on the effect of
Obergefell, and that order was, in fact, a public comment on
the issue. And, as noted above, he copied and pasted
substantial portions of those legal positions and public
comment into his special concurrence in API II. Accordingly,
this court finds that the evidence is clear and convincing

that Chief Justice Moore is guilty of charge no. 6.



 

We turn now to the issue of the appropriate sanction.
The JIC argues that Chief Justice Moore should be removed
from office. In the view, Chief Justice Moore's conduct
in this case is even worse than the conduct that led to Chief
Justice Moore's removal in 2003 because the order in this
case, if complied with, would have put 68 probate judges in
direct defiance of federal law.

As noted above in Part II, this court agrees with the

JIC as to Chief Justice Moore's violation of the Canons of

47

 

 

Judicial Ethics. A majority of this court also agrees with
the JIC that the only appropriate sanction for Chief Justice
Moore is removal from office. Removal of a judge from office,
however, requires "the concurrence of all members sitting."
Rule 16, R.P. Ala. Ct. Jud.

As this court stated in its 2003 order removing Chief
Justice Moore from office: "While this court respects Chief
Justice Moore's right to his personal Opinion on the
underlying issues the fact remains that Chief Justice
Moore is the chief judicial officer of this State and is held
to a higher standard than a member of the general public."
The fact also remains that this is the second time Chief
Justice Moore has caused himself to be brought before this
court for taking actions grossly inconsistent with his duties
as Chief Justice and in violation of the Canons of Judicial
Ethics. The result in both instances has been a 
costly proceeding for this court, the JIC, and, most
unfortunately, the taxpayers of this State.

Based upon the clear and convincing evidence of Chief
Justice Moore's violations of the Canons of Judicial Ethics,
his disregard for binding federal law exhibited in the January

6, 2016, order, and his history with this court, it is the

48

 

unanimous judgment of this Court that Chief JUstice Moore
should be suspended from office without pay for the remainder
of his term.
CONCLUSION

On the basis of the evidence presented, this Court
unanimously finds that the JIC proved by clear and convincing
evidence that Chief Justice Moore is guilty of charges nos.
1-6. Specifically, Chief Justice Moore is guilty of
violating:

- Canon 1, in that he failed to uphold the integrity
and independence of the judiciary;

0 Canon 2, in that he failed to avoid impropriety
and time appearance (Hf impropriety le all his
activities;

0 Canon 2A, in that failed to respect and comply
with the law and failed to conduct himself at all
times in a manner that promotes public confidence
in the integrity and impartiality of the
judiciary;

0 Canon 28, in that he failed. to avoid. conduct
prejudicial to the administration of justice that
brings the judicial office into disrepute;

0 Canon 3, in that he failed to perform the duties
of his office impartially; and

0 Canon 3Af6), in that he failed to abstain from
public comment about a pending proceeding in his
own court.

49

For these violations Chief Justice Moore is hereby
suspended from office without pay for the remainder of his
term. This suspension is effective immediately.

Chief Justice Moore is also taxed with the costs of this
proceeding.

ORDERED this 30th day of September, 2016.
JKMICHWER
IEF 



W.N. WATSON . BROCK

L. GWALTN MCCOLLUM, JAMES 

W4. Val/0 )g 7\ my]

LAURA PETRO S. DAGML 

0W 6? #2152?.

DARYL PERKINS