Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
_________________________
1160002
_________________________
Roy S. Moore, Chief Justice of the Supreme Court of Alabama
v.
Alabama Judicial Inquiry Commission
Appeal from the Court of the Judiciary
(No. 46)
PER CURIAM.1
1

Section 157(b), Ala. Const. 1901 (Off. Recomp.), provides
that "[a] judge aggrieved by a decision of the Court of the
Judiciary may appeal to the Supreme Court." Following the
filing of the notice of appeal in this case on October 3,
2016, the members of the Alabama Supreme Court acknowledged
that Canon 3 of the Alabama Canons of Judicial Ethics required
their recusal from consideration of this appeal. In an order
dated October 24, 2016, the Court, pursuant to § 149 and §
161(h), Ala. Const. 1901 (Off. Recomp.), and Ala. Code 1975,
§ 12-2-14, authorized "the Acting Chief Justice to participate
with the Governor in causing the names of 50 judges to be
drawn at random from a pool of all retired appellate justices
and judges, retired circuit court judges, and retired district
court judges, who are members of the Alabama State Bar,
capable of service, and residents of the State of Alabama."
1

 1160002
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

The order further provided that "the first 7 judges shall
constitute the special Supreme Court that will hear Chief
Justice Moore's appeal. In the event any judge so selected is
not willing and able to serve, then that judge's place shall
be filled by the next judge on that list in order of selection
who is willing and able to serve, until seven judges willing
and able to serve have been selected. The names of such judges
shall then be certified to the Governor." The drawing took
place on October 27, 2016. On October 31, 2016, in compliance
with the random-selection procedure, then Governor Robert
Bentley appointed the following seven judges to serve as the
special Supreme Court of Alabama in case no. 1160002, Roy S.
Moore, Chief Justice of the Supreme Court of Alabama
v.
Alabama Judicial Inquiry Commission: the Honorable James
Harvey Reid, Jr., of Baldwin County, Special Chief Justice;
the Honorable Harris Edward McFerrin of Butler County; the
Honorable Robert George Cahill of Jefferson County; the
Honorable William Reddoch King of Crenshaw County; the
Honorable Lynn Clardy Bright of Montgomery County; the
Honorable Ralph Alton Ferguson, Jr., of Jefferson County, and
the Honorable John David Coggin of Cherokee County, Special
Associate Justices. Also on October 31, 2016, prior to her
recusal, Acting Chief Justice Lyn Stuart, to the extent she
retained the authority to do so, also appointed the same seven
judges as previously appointed by Governor Bentley.
2

 1160002
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

marriage.

any

Alabama

law

that

prohibits

same-sex

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

2

Chief Justice Moore was elected Chief Justice in November
2012 and assumed office in January 2013, for a six-year term
that expires in January 2019.
3

 1160002
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."

3

The Chief Justice of the Alabama Supreme Court is also
the administrative head of the Alabama Administrative Office
of Courts. Ala. Const. 1901, § 149 (Off. Recomp.).
4

 1160002
On February
administrative

8,

order

2015,
to

Chief

Justice

Alabama's

Moore

probate

issued

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
5

an

 1160002
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

further marriage licenses contrary to Alabama law."

any

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.
6

 1160002
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

7

 1160002
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 (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
8

 1160002
in effect and binding on all Alabama probate judges. Strawser,
No. 14-0424-CG-C (S.D. Ala. July 1, 2015).

On July 7, 2015,

the Alabama probate judges filed in the federal district court
an opposition to making Judge Granade's injunction a permanent
injunction, stating:
"The U.S. 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 U.S. Constitution, and the
U.S. 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
to issue marriage licenses or refused to issue
same-sex marriage licenses. Now that the confusion
about the law has been cleared up by the U.S.
Supreme Court, there is no indication that the
probate judges will violate their oath and refuse to
follow what the Supreme Court has established, and
what the Alabama Attorney General and the Governor
of the State have said is now the law of the land."
On

September

2,

2015,

Chief

Justice

Moore

sent

a

memorandum he authored4 to Alabama Supreme Court Associate
Justices Lyn Stuart, Michael F. Bolin, Tom Parker, Glenn
Murdock, Greg Shaw, James Allen Main, Alisa Kelli Wise, and
Tommy Bryan regarding the Court’s June 29 invitation for
further briefing in API.

In that memorandum, Chief Justice

4

The copy of the memorandum included in the record on
appeal is partially redacted.
9

 1160002
Moore stated: "I believe it is time for us to make a decision
in this case ... to acquiesce in Obergefell and retreat from
our March orders or to reject Obergefell and maintain our
orders in place." Chief Justice Moore then implored the Court
to render guidance on this issue because, he said, "Obergefell
is particularly egregious because it mandates submission in
violation of religious conscience" and "ominous developments
are already occurring in other states."
On October 7, 2015, Chief Justice Moore sent a second
memorandum regarding API to the same Alabama Supreme Court
Justices.5

Chief Justice Moore wrote to inform his fellow

Justices of an article published on AL.com, an online news
service, entitled "Where is the Supreme Court of Alabama on
gay marriage?"6 The article noted the Alabama Supreme Court's
delay in addressing the effect of Obergefell on API I and the
subsequent orders issued in API.

Chief Justice Moore also

reminded the Justices of their obligation to discharge their
duties in a timely fashion and his "responsibility to respond

5

The copy of the memorandum included in the record on
appeal is partially redacted.
6

A printed copy of the article
memorandum.
10

was attached

to the

 1160002
to the continuing delay of this Court in addressing an issue
of serious public concern, as well as an obligation to answer
the probate judges of this State who have asked for our
assistance in protecting their religious liberty."
On October 20, 2015, the United States Court of Appeals
for the Eleventh Circuit summarily affirmed Judge Granade’s
May

21,

requiring
couples."

2015,

order

"granting

the

issuance

of

a

preliminary

marriage

licenses

injunction
to

same-sex

Strawser v. Alabama, No. 15-12508-CC (11th Cir.

Oct. 20, 2015).
On January 6, 2016, Chief Justice Moore issued a fourpage administrative order to Alabama probate judges.

That

order stated, in part:
"IT 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."

Chief Justice Moore, although citing several federal-court
decisions

questioning

the

extent

of

the

application

of

Obergefell, did not address, discuss, cite, or otherwise alert
11

 1160002
the probate judges to Judge Granade's May 21, 2015, order or
the Eleventh Circuit’s affirmance of that order.
On March 4, 2016, the Alabama Supreme Court issued an
order dismissing all pending motions and petitions submitted
in API ("API II"). Chief Justice Moore's name appeared in the
vote line of this order as concurring specially, and, in
addition to his special writing concurring specially, Chief
Justice

Moore

issued

a

lengthy

statement

of

nonrecusal

explaining why his recusal from the matter was not necessary.
On May 5, 2016, the Judicial Inquiry Commission filed a
formal six-count complaint against Chief Justice Moore in the
Court of the Judiciary, charging Chief Justice Moore with
violating Canons 1, 2, 2A, 2B, 3, and 3A(6), Alabama Canons of
Judicial Ethics.

The Canons Chief Justice Moore is charged

with violating read as follows:
"Canon 1. A Judge Should Uphold the Integrity and
Independence of the Judiciary
"An independent and honorable judiciary is
indispensable to justice in our society. A judge
should participate in establishing, maintaining, and
enforcing,
and
should
himself
observe,
high
standards of conduct so that the integrity and
independence of the judiciary may be preserved. The
provisions of this Code should be construed as
applied to further that objective."
___________________

12

 1160002
"Canon 2. A Judge Should Avoid Impropriety and the
Appearance of Impropriety in All His Activities
"A. A judge should respect and comply with the
law and should conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary.
"B. A judge should at all times maintain the
decorum and temperance befitting his office and
should
avoid
conduct
prejudicial
to
the
administration of justice which brings the judicial
office into disrepute.
"...."
___________________
"Canon 3. A Judge Should Perform the Duties of His
Office Impartially and Diligently
"The judicial activities of a judge take
precedence over his other activities. His judicial
duties include all the duties of his office
prescribed by law.
In the performance of these
duties, the following standards apply:
"A.

Adjudicative Responsibilities.

"....
"(6) A 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
control. This subsection does not prohibit judges
from making public statements in the course of their
official duties or from explaining for public
information the procedures of the court."
The secretary of the Court of the Judiciary personally served
Chief Justice Moore with a copy of the complaint the same day
13

 1160002
it was filed.

As of the filing of the complaint, Chief

Justice Moore was automatically disqualified from acting as a
judge and was no longer able to perform his duties as Chief
Justice, pending the resolution of the charges by the Court of
the Judiciary.

Ala. Const. 1901, § 159 (Off. Recomp.).

On September 30, 2016, after considering the evidence,
most of which was not disputed, the Court of the Judiciary
rendered its judgment and issued a unanimous opinion holding
that Chief Justice Moore had violated the Alabama Canons of
Judicial Ethics as charged in the complaint.
majority

of

the

Court

of

the

Judiciary

Although the

agreed

that

the

appropriate sanction for Chief Justice Moore was removal from
office, the court did not reach the necessary unanimous
agreement for removal.

However, the Court of the Judiciary

did reach unanimous agreement on the sanction it ultimately
imposed:

"suspension

from

office

without

pay

for

the

remainder of his term."

Chief Justice Moore filed his notice of appeal with this
Court on October 3, 2016.
Scope of Review
"The

Court

of

the
14

Judiciary

is

a

 1160002
constitutionally
created
court
with
limited
jurisdiction. Ala. Const. 1901, Amend. No. 581, §
6.18 [now § 157, Ala. Const. 1901 (Off. Recomp.)]
(proclaimed ratified June 19, 1996). It can decide
only cases involving charges brought against judges
by the Judicial Inquiry Commission. § 6.18(a) [now
§ 157(a)]. 'A judge aggrieved by a decision of the
Court of the Judiciary may appeal to the Supreme
Court [of Alabama]. The Supreme Court shall review
the record of the proceedings on the law and the
facts.' § 6.18(b) [now § 157(b)]."
Moore v. Judicial Inquiry Comm’n of Alabama, 891 So. 2d 848,
855 (Ala. 2004).
Standard of Review
"'The applicable standard of review for an order
from the Court of the Judiciary is that the evidence
must be clear and convincing. That is, "orders of
the Court of the Judiciary are entitled to a
presumption of correctness if the charge is
supported by 'clear and convincing evidence.'"' In
re Sheffield, 465 So. 2d 350, 355 (Ala. 1984)
(quoting In re Samford, 352 So. 2d 1126, 1129 (Ala.
1977)).
With regard to questions of law, this
Court's review is de novo. Rogers Found. Repair,
Inc. v. Powell, 748 So. 2d 869, 871 (Ala.
1999)(quoting Ex parte Graham, 702 So. 2d 1215 (Ala.
1997)). However, factual findings of the Court of
the Judiciary based on ore tenus evidence are
presumed
correct,
and
'[the
Court
of
the
Judiciary's] judgment based on those findings will
not be disturbed unless the appellate court, after
considering all the evidence and all reasonable
inferences that can be drawn therefrom, concludes
that the judgment is plainly and palpably wrong,
manifestly unjust, or without supporting evidence.'
Boggan v. Judicial Inquiry Comm'n, 759 So. 2d 550,
555 (Ala. 1999). In the absence of specific factual
findings, 'this court will assume that the trial
court made those findings necessary to support its
15

 1160002
judgment, unless such findings would be clearly
erroneous and against the great weight and
preponderance of the evidence.' 759 So. 2d at 555
(quoting Powers v. Judicial Inquiry Comm'n, 434 So.
2d 745, 749 (Ala. 1983)). Further, in reviewing an
appeal from a judgment of the Court of the Judiciary
finding the judge guilty of the charges against him
or her, the Supreme Court 'must consider the
evidence ... in the light most favorable to the
Judicial Inquiry Commission, the prevailing party.'
Boggan, 759 So. 2d at 555.
"Our review is also guided by the Supremacy
Clause of the United States Constitution: 'This
Constitution, and the laws of the United States
which shall be made in pursuance thereof ... shall
be the supreme law of the land; and the judges in
every state shall be bound thereby, anything in the
Constitution or laws of any state to the contrary
notwithstanding.' U.S. Const., art. VI, cl. 2."
Moore, 891 So. 2d at 855 (footnote omitted).
Issues on Appeal
I.
Chief Justice Moore argues that the Judicial Inquiry
Commission and the Court of the Judiciary lack jurisdiction to
investigate any complaint related to his issuance of the
January 6, 2016, administrative order because, he says, only
the Alabama Supreme Court may review an administrative order
issued by a Chief Justice.
Alabama Const. 1901, Art. VI, § 149, established the
Chief

Justice

of

the

Alabama

16

Supreme

Court

as

the

 1160002
administrative head of the Alabama judicial system.

Section

12-5-20, Ala. Code 1975, grants the Justices of the Alabama
Supreme Court the authority to "review, countermand, overrule,
modify or amend any administrative decision by either the
Chief Justice or the Administrative Director of Courts." When
a complaint was submitted to the Judicial Inquiry Commission,
that

entity

was

tasked

with

investigating

whether

Chief

Justice Moore, in issuing the order, violated a Canon of
Judicial Ethics.

In turn, once a formal complaint was filed,

the Court of the Judiciary was tasked with determining whether
clear and convincing evidence existed to show that issuance of
the order violated a Canon of Judicial Ethics.

Neither the

Judicial Inquiry Commission nor the Court of the Judiciary was
asked to "review, countermand, overrule, modify or amend" the
January 6 order.
The Court of the Judiciary is not an appellate court
tasked with reviewing, overruling, modifying, reversing, or
remanding any judicial order.

Rather, the Court of the

Judiciary is tasked with reviewing judicial conduct.

The

Court of the Judiciary may consider the content of a judicial
order as it speaks to the conduct or motivations leading to
the

entry

of

the

order

or

to
17

whether

that

conduct

or

 1160002
motivation constituted a violation of a Canon, but the Court
of the Judiciary can neither affirm nor reverse such an order;
that authority lies exclusively with the appropriate appellate
court.

See §§ 12-2-7, 12-3-9, and 12-3-10, and 12-5-20, Ala.

Code 1975.

See In re Sheffield, 465 So. 2d 350, 357 (Ala.

1984)("In certain circumstances erroneous legal rulings may
indeed amount to a failure to respect and comply with the law
which undermines 'the public confidence in the integrity and
impartiality of the judiciary' (Canon 2A), or to 'conduct
prejudicial to the administration of justice which brings the
judicial office into disrepute' (Canon 2B).").

Therefore, to

the extent the Judicial Inquiry Commission investigated and
the Court of the Judiciary considered the January 6, 2016,
administrative
undermined

the

order
public

to

determine
confidence

whether
in

the

its

issuance

integrity

and

impartiality of the judiciary, whether it was prejudicial to
the administration of justice, or whether it violated any
other Canon of Judicial Ethics, both entities acted within
their jurisdiction.
II.
Chief Justice Moore argues that all charges asserted
against him should be dismissed because, he says, the Judicial
18

 1160002
Inquiry Commission failed to prove by clear and convincing
evidence that he violated any of the Canons of Judicial Ethics
as charged.
Count I
Count I of the complaint charged:
"By willfully issuing his Administrative Order of
January 6, 2016, 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 the following Alabama Canons of Judicial
Ethics in that he, separately and severally:
"a. Failed to uphold the integrity and independence
of the judiciary, Canon 1;
"b. Failed
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;
"c. Failed to avoid impropriety and the appearance
of impropriety in all his activities, Canon 2;
"d. Failed to respect and comply with the law,
Canon 2A;
"e. Failed to conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary,
Canon 2A;
"f. Failed

to

avoid

conduct
19

prejudicial

to

the

 1160002
administration of justice that brings
judicial office into disrepute, Canon
and/or

the
2B;

"g. Failed to perform the duties of his office
impartially, Canon 3."
Chief

Justice

Moore

argues

that

the

Court

of

the

Judiciary's finding that his January 6, 2016, administrative
order is anything other than a "status update" is unsupported
by the text of the order itself.

He argues that the order was

a mere "status update" to clarify the confused state of the
law for the probate judges and that he "did not direct the
probate judges to do anything or [to] disregard federal law."
(Chief Justice Moore's brief, at 53.)

After reviewing the

documents in evidence and Chief Justice Moore's testimony, the
Court of the Judiciary held:
"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 API
I and the injunction in Strawser [v. Strange, 105 F.
Supp. 3d 1323 (S.D. Ala. 2015)]. 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
20

 1160002
holdings ...). 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 in direct conflict with Strawser ....
"We likewise do not accept Chief Justice Moore's
repeated argument that the disclaimer in paragraph
10 of the January 6, 2016, order -– in which Chief
Justice Moore asserted he was 'not at liberty to
provide any guidance ... on the effect of Obergefell
on the existing orders of the 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 API orders regardless of
Obergefell or the injunction in Strawser.
"....
"... [I]t 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 [Judicial Inquiry Commission]
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 each of the cases Chief Justice
Moore cited in the January 6, 2016, order, the lower
21

 1160002
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
to enforce the injunctions they had 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 the API 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.' (Boldface 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
22

 1160002
Strawser.
Accordingly, we conclude that
omission from the January 6, 2016, order of
mention of the federal injunction in Strawser
intentional. Further, this intentional omission
a failure to follow clear law and a failure
uphold the integrity and independence of
judiciary.

the
any
was
was
to
the

"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, order was
to order and direct the probate judges -– most of
whom have never been admitted to practice law in
Alabama -– 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 1, 2, 2A, 2B,
and 3 is clear and convincing."
The record before this Court supports the findings of the
Court of the Judiciary; therefore, we cannot conclude that its
judgment is plainly and palpably wrong, manifestly unjust, or
without supporting evidence.

By his own admission, Chief

Justice Moore had an interest in the Strawser and the Searcy
23

 1160002
cases. The early developments in those cases inspired Chief
Justice Moore to pen a letter to the Governor and to issue the
February 8, 2015, administrative order enjoining any probate
judge in the State from issuing a marriage license to a samesex couple.
agreed

at

Chief Justice Moore further testified that he
the

time

he

issued

his

January

6,

2016,

administrative order that the probate judges had filed an
acknowledgment in Strawser that there was no longer a conflict
and the United States Supreme Court’s decision in Obergefell
was the supreme law of the land. 7
Chief Justice Moore also testified that Judge Granade had
jurisdiction to enter the injunction.

There is no question

that Chief Justice Moore was aware that Judge Granade had
issued an injunction that was binding on all parties to API,
including all Alabama probate judges.

Despite his knowledge

and despite his agreement that Judge Granade had jurisdiction
to enter the injunction, Chief Justice Moore testified that
Judge Granade's order created what he perceived to be a

7

The probate judges’ filing on July 7, 2015, was in
opposition to a motion to make Judge Granade’s injunction a
permanent injunction.
Their argument was that because the
issue was settled, there was no longer a need for a permanent
injunction.
24

 1160002
conflict with API I, a conflict he felt compelled to address.
Chief Justice Moore also testified that he issued the
January 6, 2016, administrative order because he "felt it
necessary to inform the public that the Alabama Supreme Court
was still deliberating" the effect of Obergefell on API I.
Chief Justice Moore knew, or should have known, that such an
act was unnecessary because the public was already aware of
the continued deliberation as evidenced by the news article
Chief

Justice

Moore

attached

to

his

memorandum to the Justices of the Court.

October

7,

2015,

There was no reason

for him to issue the January 6, 2016, administrative order.
Even if this Court were to agree that the January 6,
2016, administrative order was merely a "status update," Chief
Justice Moore, with willful deliberation, failed to address
the existence of Judge Granade's injunction or the Eleventh
Circuit’s affirmance of that injunction.

Issuing such a

partial "status update" served no purpose, other than to
create confusion among the probate judges.
the

probate

judges

disagreed

with

Although some of

Obergefell

and

some

requested the Supreme Court revisit API I and issue an order
alleviating them from complying with Obergefell and with Judge
Granade's injunction, it is clear from the probate judges'
25

 1160002
July 7, 2015, filing in Strawser that they were no longer
confused

as

to

the

meaning

of

Obergefell

or

of

their

obligations under Judge Granade's injunction.
Further, this Court cannot agree with Chief Justice Moore
that the January 6, 2016, administrative order was a mere
"status

update."

interpretation.
in

Alabama

was

prohibiting

the

The

order

itself

betrays

that

With full knowledge that every probate judge
subject

to

enforcement

a
of

federal-court
the

Alabama

injunction
Sanctity

of

Marriage Amendment, the Alabama Marriage Protection Act, or
any injunction issued by the Alabama Supreme Court prohibiting
the issuance of a marriage license to a same-sex couple,
Chief Justice Moore "ordered and directed" each of those same
probate judges that,
"[u]ntil 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."
For these reasons, this Court concludes that the Court of
the Judiciary had before it clear and convincing evidence to
support its finding that Chief Justice Moore willfully issued
an order directing the probate judges to disregard a binding
26

 1160002
federal-court injunction in violation of the Alabama Canons of
Judicial Ethics as charged in Count I of the complaint.

We

affirm the judgment of the Court of the Judiciary as to Count
I.
Count II
Count II charged:
"In
demonstrating
his
unwillingness
in
his
Administrative Order of January 6, 2016, to follow
clear law, Chief Justice Roy S. Moore violated the
following Alabama Canons of Judicial Ethics in that
he, separately and severally:
"a. Failed to uphold the integrity and independence
of the judiciary, Canon 1;
"b. Failed
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;
"c. Failed to avoid impropriety and the appearance
of impropriety in all his activities, Canon 2;
"d. Failed to respect and comply with the law,
Canon 2A;
"e. Failed to conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary,
Canon 2A;
"f. Failed to avoid conduct prejudicial to
administration of justice that brings
judicial office into disrepute, Canon
and/or
27

the
the
2B;

 1160002
"h. Failed to perform the duties of his office
impartially, Canon 3."
Chief Justice Moore argues that because his January 6,
2016, administrative order did not decide the issue pending
before

the

Alabama

Supreme

Court,

i.e.,

the

effect

of

Obergefell on API I, he could not have been ignoring or
failing to follow clear law.

He maintains that he "did not

direct or order probate judges to violate any federal court
order or precedent."
We disagree.

We concur with the Court of the Judiciary,

which found:
"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."
Chief

Justice

Moore's

failure

to

mention

the

Strawser

injunction in his January 6, 2016, order does not absolve him
of inciting those bound by it to disobey.

There is clear and

convincing evidence in the record before us, including Chief

28

 1160002
Justice Moore's public writings leading up to his issuance of
the administrative order, the administrative order itself, and
Chief Justice Moore's testimony before the Court of the
Judiciary, to support that court's finding that Chief Justice
Moore "demonstrated an unwillingness to follow clear law, and
Chief Justice Moore thereby violated Canons 1, 2, 2A, 2B, and
3."

We affirm the judgment of the Court of the Judiciary as

to Count II.

Count III
Count III charged:
"In issuing his Administrative Order of January 6,
2016, 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 the following Alabama
Canons of Judicial Ethics in that he, separately and
severally,
"a. Failed to uphold the integrity and independence
of the judiciary, Canon 1;
"b. Failed
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;
"c. Failed to avoid impropriety and the appearance
of impropriety in all his activities, Canon 2;
29

 1160002
"d. Failed to respect and comply with the law,
Canon 2A;
"e. Failed to conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary,
Canon 2A;
"f. Failed to avoid conduct prejudicial to
administration of justice that brings
judicial office into disrepute, Canon
and/or

the
the
2B;

"g. Failed to perform the duties of his office
impartially, Canon 3."

Chief Justice Moore argues there is insufficient evidence
in support of Count III because, he says, he did not determine
any

substantive

legal

administrative order.

issues

in

his

January

6,

2016,

Chief Justice Moore maintains that he

left the determination of all substantive issues to the
Alabama Supreme Court and that his use of the phrase "[u]ntil
further decision by the Alabama Supreme Court" insulates him
from any culpability.

We disagree.

By ordering and directing the probate judges that "the
existing orders of the Alabama Supreme Court ... remain in
full force and effect" (boldface type in original), Chief
Justice Moore decided on his own and in his administrative
capacity

as

head

of

the

State's
30

judicial

system

that

 1160002
Obergefell had no effect on API I.

He did indeed address the

very issue pending before the Alabama Supreme Court, and he
decided that issue.

The fact that his decision was limited

until such time as the whole Court issued a decision in API
does not diminish his act of rendering a decision when he
lacked authority to do so.

We agree that in "deciding

substantive legal issues while purporting to act in his
administrative capacity, Chief Justice Moore violated Canons
1, 2, 2A, 2B, and 3."

We affirm the judgment of the Court of

the Judiciary as to Count III.
Count IV
Count IV charged:
"In issuing his Administrative Order of January 6,
2016, 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, i.e., the effect of the decision of the
United States Supreme Court in Obergefell, Chief
Justice Roy S. Moore violated the following Alabama
Canons of Judicial Ethics in that he, separately and
severally:
"a. Failed to uphold the integrity and independence
the judiciary, Canon 1;
"b. Failed to observe high standards of conduct so
that the integrity and independence of the
judiciary may be preserved, Canon 1;
"c. Failed to avoid impropriety and the appearance
of impropriety in all his activities, Canon 2;
31

 1160002
"d. Failed to respect and comply with the law,
Canon 2A;
"e. Failed to conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary,
Canon 2A;
"f. Failed to avoid conduct prejudicial to
administration of justice that brings
judicial office into disrepute, Canon 2B;

the
the

"g. Failed to perform the duties of his office
impartially, Canon 3; and/or
"h. Failed to abstain from public comment about a
pending proceeding in his own court, Canon
3A(6)."
Chief Justice Moore argues that the plain text of his
administrative order belies a finding that he substituted his
own opinion for that of the Alabama Supreme Court.

Chief

Justice Moore argues that the following language in the order
is unequivocal evidence that he did not substitute his opinion
for that of the Court:
"I 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."
We disagree.
Stating that one is not at liberty to provide guidance
while taking great pains to include several pages of legal

32

 1160002
analysis and argument is disingenuous.

Chief Justice Moore

knew the Alabama Supreme Court had asked for briefing on the
issue of the effect of Obergefell on API I.

At the time he

issued his administrative order, he knew that the issue was
still pending before the Court. Chief Justice Moore testified
at length that he believed the Alabama Supreme Court was
taking too long to decide the issue.

Deciding he could wait

no longer, he substituted his opinion for that of the Court.
He decided when to release his order, and he decided to inform
the probate judges that Obergefell had no effect on API I.
The evidence clearly and convincingly supports the Court of
the Judiciary's finding that "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 1,
2, 2A, 2B, 3, 3A(6)."

We affirm the judgment of the Court of

the Judiciary as to Count IV.
Count V
Count V charged:
"By issuing his Administrative Order of January 6,
2016, and willfully abusing his administrative
authority to issue the Administrative Order of
33

 1160002
January 6, 2016, 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, separately and severally,
violated the following Alabama Canons of Judicial
Ethics:
"a. Failed to uphold the integrity and independence
of the judiciary, Canon 1;
"b. Failed to observe high standards of conduct so
that the integrity and independence of the
judiciary may be preserved, Canon 1;
"c. Failed to avoid impropriety and the appearance
of impropriety in all his activities, Canon 2;
"d. Failed to respect and comply with the law,
Canon 2A;
"e. Failed to conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary,
Canon 2A;
"f. Failed to avoid conduct prejudicial to
administration of justice that brings
judicial office into disrepute, Canon
and/or

the
the
2B;

"g. Failed to perform the duties of his office
impartially, Canon 3."
Chief Justice Moore argues that his January 6, 2016,
administrative order could not possibly have interfered with
proceedings in another court when, he says, his order "merely
stated that the impact of Obergefell on the orders of this
34

 1160002
Court was for the full Court to determine" and "said nothing
of other proceedings before the lower federal District Court
because that issue was not before this Court." (Chief Justice
Moore's brief, at 73-74.)
Chief Justice Moore again omits from his argument the
fact that he "ordered and directed" probate judges who were,
at

the

time,

unquestionably

bound

by

a

federal-court

injunction that the orders issued by the Alabama Supreme Court
in API remained in "full force and effect."

At the time Chief

Justice Moore issued his January 6, 2016, administrative
order, the probate judges had already agreed and accepted that
they

were

injunction.

parties

to

and

were

bound

by

the

Strawser

Chief Justice Moore testified that Judge Granade

had jurisdiction to enter the injunction.

At the time Chief

Justice Moore issued his January 6, 2016, administrative
order, the Eleventh Circuit Court of Appeals had already
affirmed the injunction in Strawser.

Therefore, by ordering

and directing the same probate judges who were bound by the
Strawser injunction that they had a "ministerial duty not to
issue any marriage license contrary to the Alabama Sanctity of
Marriage Amendment or the Alabama Marriage Protection Act,"
Chief Justice Moore clearly sought to interfere with the legal
35

 1160002
processes in the United States District Court and the Eleventh
Circuit Court of Appeals.

Furthermore, by issuing his order

and prematurely deciding the effect of Obergefell on API I,
Chief Justice Moore also interfered with a case pending in the
Alabama Supreme Court.

Consequently, we agree that "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 1, 2, 2A, 2B, and 3."

We affirm

the judgment of the Court of the Judiciary as to Count V.
Count VI
Count VI charged:
"By taking legal positions in his Administrative
Order of January 6, 2016, on a matter pending before
the Alabama Supreme Court in API, 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 API, after
having disqualified himself by his actions, in
violation of the following Alabama Canons of
Judicial Ethics, separately and severally:
"a. Failed to uphold the integrity and independence
of the judiciary, Canon 1;
36

 1160002
"b. Failed to observe high standards of conduct so
that the integrity and independence of the
judiciary may be preserved, Canon 1;
"c. Failed to avoid impropriety and the appearance
of impropriety in all his activities, Canon 2;
"d. Failed to respect and comply with the law,
Canon 2A;
"e. Failed to conduct himself at all times in a
manner that promotes public confidence in the
integrity and impartiality of the judiciary,
Canon 2A;
"f. Failed to avoid conduct prejudicial to
administration of justice that brings
judicial office into disrepute, Canon
and/or

the
the
2B;

"g. Failed to perform the duties of his office
impartially and diligently, Canon 3."
Chief Justice Moore initially argues that, as to Count
VI,

there was no verified complaint filed with the Judicial

Inquiry Commission.
Court

of

the

This argument was not presented to the

Judiciary

for

its

consideration.

Because

jurisdictional issues may be raised at any time, to the extent
this argument may impact the Judicial Inquiry Commission's
jurisdiction to investigate the allegations set out in Count
VI, we address it.
Initially, we note that Chief Justice Moore does not
frame his argument in terms of a jurisdictional challenge; he
37

 1160002
argues only that the Judicial Inquiry Commission failed to
follow its own procedures and that, therefore, Count VI must
be dismissed.

Chief Justice Moore does not challenge the

validity of the verified complaint with regard to Counts I-V.
Therefore, it is undisputed that Chief Justice Moore had
adequate notice that his issuance of the January 6, 2016,
administrative

order

was

under

investigation

participated in and issued a writing in API II.

when

he

The length

and tone of his statement of nonrecusal indicates that he was
clearly aware that his failure to recuse himself would be
questioned.

He

was

aware

that

the

impact

of

the

administrative order on the integrity and independence of the
judiciary, the impropriety or appearance of impropriety of his
actions, and whether he was conducting himself at all times in
a manner that promotes public confidence in the integrity and
impartiality of the judiciary were already being investigated.
Because the investigation into whether Chief Justice Moore's
issuance

of

the

January

6,

2016,

administrative

order

necessitated his recusal in API II arises directly from the
investigation

into

the

impact

of

the

issuance

of

the

administrative order, the Judicial Inquiry Commission was not
divested of jurisdiction to engage in the investigation.
38

 1160002
We now turn to Chief Justice Moore's argument that the
Judicial

Inquiry

Commission

failed

to

afford

him

proper

written notice of Count VI as required under Rule 6.C and Rule
6.D

of

the

Rules

of

Procedure

of

the

Judicial

Inquiry

Commission.
Rule 6.C and Rule 6.D provide, in pertinent part:
"C. If a complaint is not dismissed on
preliminary review pursuant to Rule 6.B., the
commission, within 14 days of its decision to
conduct some investigation of the complaint, and in
no event more than 84 days after a complaint is
filed, shall serve upon the judge who is the subject
of the complaint copies of the complaint and all
other documents or other materials of any nature
whatsoever constituting, supporting, or accompanying
the complaint, or accumulated by the commission
before such service upon the judge. Further, the
commission shall advise the judge of those aspects
of the complaint that it then considers worthy of
some investigation.
"D. Every six weeks after serving the judge
pursuant to Rule 6.C., the commission shall serve on
the judge being investigated copies of all materials
of any nature whatsoever not already served upon him
or her tending to establish that the conduct either
did or did not occur or that the investigation is or
is not still appropriate, and shall serve upon the
judge a full statement of whether the commission
intends to continue the investigation and any
modification of the previous advice as to aspects of
the complaint that it then deems worthy of some
investigation. ..."
(Emphasis added.)
Regarding this argument, the Court of the Judiciary
39

 1160002
found:
"The JIC [Judicial Inquiry Commission] introduced
evidence indicating that Chief Justice Moore
actually was given an opportunity to address the
charge at an April [78] hearing before the JIC. At
that April [7] hearing, in response to questioning
about his participation in API I, Chief Justice
Moore distributed copies of his statement of
nonrecusal in API II. The JIC 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
proceedings. 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 -– and his own testimony at the April
[7], 2016, hearing proves he had, at the
very least, a general idea of the charges
against him, if not specific knowledge of
the [JIC's] investigation into these
matters.

8

The Court of the Judiciary states the investigatory
hearing before the Judicial Inquiry Commission took place on
April 17, 2016, but the record reflects that hearing took
place on April 7, 2016.
40

 1160002
"'But ... even if ... Charge Six was
not adequately noticed by the [JIC] -–
which the [JIC] 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 JIC. 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."
Chief Justice Moore does not dispute that he attended the
April 7 hearing before the Judicial Inquiry Commission and
that his nonrecusal in API II was a topic of discussion at
that hearing.

Therefore, it does appear that Chief Justice

Moore had notice that the Judicial Inquiry Commission was
investigating his nonrecusal in API II.

Chief Justice Moore

argues that the Judicial Inquiry Commission's "failure to
follow its own mandatory process regarding Count VI signaled
to the Chief Justice that the issue was not a serious one."
(Chief Justice Moore's brief, at 46-47.)

We disagree.

Rule

6.B allows the Judicial Inquiry Commission, after finding that
a complaint is not worthy of investigation, to dismiss a
complaint without ever notifying the judge being investigated

41

 1160002
of the filing of the complaint.

The fact that the Judicial

Inquiry Commission requested Chief Justice Moore to appear and
to address questions related to his nonrecusal in API II,
rather

than

summarily

dismissing

that

portion

of

the

investigation, denotes the importance of the issue.
Chief Justice Moore does not dispute that he failed to
demonstrate that he suffered any harm or prejudice from the
Judicial

Inquiry

Commission's

failure

to

provide

written

notice of the aspect of its investigation leading to Count VI.
Rather, he argues that he has no burden to demonstrate harm or
prejudice.
The Judicial Inquiry Commission argues that Chief Justice
Moore is required under Rule 19, Rules of Procedure of the
Judicial Inquiry Commission, to demonstrate that he has been
prejudiced or aggrieved by the alleged lack of notice. See In
re Storie, 574 S.W.2d 369, 372 (Mo. 1978)("Absent a showing of
prejudice,

respondent

cannot

complain

of

alleged

irregularities in the informal notice."); and McCartney v.
Commission on Judicial Qualifications, 12 Cal. 3d 512, 519,
526 P.2d 268, 273, 116 Cal. Rptr. 260, 265 (1974) ("[N]otice
to the judge under investigation as to the nature of the
complaints against him is not compelled as a matter of due
42

 1160002
process. ... Hence, relief from the deleterious effect, if
any, of the Commission's failure to follow rule 904(b) may be
secured

by

petitioner

only

upon

a

showing

of

actual

prejudice." (citing Hannah v. Larche, 363 U.S. 420 (1960))).
(Judicial Inquiry Commission's brief, at 74.)

Chief Justice

Moore offers no legal argument in rebuttal, and we find the
Judicial Inquiry Commission's argument persuasive.
Chief

Justice

Moore

complains

that

he

did

not

have

sufficient notice during only the investigatory phase, not the
adjudication phase. "[W]hen governmental agencies adjudicate
or make binding determinations which directly affect the legal
rights of individuals, it is imperative that those agencies
use the procedures which have traditionally been associated
with

the

judicial

process.

On

the

other

hand,

when

governmental action does not partake of an adjudication, as
for example, when a general fact-finding investigation is
being conducted, it is not necessary that the full panoply of
judicial procedures be used."
442.

Hannah v. Larche, 363 U.S. at

Chief Justice Moore does not allege that the failure to

provide written notice prevented him from offering evidence or
rebutting evidence that would have prevented the filing of a
formal charge with the Court of the Judiciary. In fact, Chief
43

 1160002
Justice Moore did provide rebuttal evidence during the April
7, 2016, hearing in the form of his statement of nonrecusal in
API II.

Without more, we cannot conclude that Chief Justice

Moore was "aggrieved" by the Judicial Inquiry Commission's
failure

to

provide

written

notice

of

the

investigation

regarding the administrative order and Chief Justice Moore's
participation in API II.
With regard to the merits of Count VI, Chief Justice
Moore argues that he did not take a position as to the effect
of Obergefell on API I in his January 6, 2016, administrative
order.

Further, he says that he stated specifically in his

administrative order that he could not give any guidance to
the probate judges.
The Court of the Judiciary found:
"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 [Judicial Inquiry Commission] points
out:
"'[T]he Chief Justice's guilt here is
self-evident upon a simple comparison that
44

 1160002
reveals that significant portions of his
January 6th Order are actually just copied
and pasted verbatim into his subsequent -–
and substantive –- legal opinion in API II.
"'....
"'... 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 3A(6), Canons
of Jud. Ethics ('A 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 control.'). 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. ...
"'....
"'In joining this case to consider the
effect of Obergefell, I am not sitting in
45

 1160002
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 agree.

"Recusal is required under Canon 3 C(1) when

'facts are shown which make it reasonable for members of the
public

or

a

party,

or

counsel

opposed

to

question

the

impartiality of the judge.'" In re Sheffield, 465 So. 2d 350,
355-56 (Ala. 1984)(quoting Acromag-Viking v. Blalock, 420 So.
2d 60, 61 (Ala. 1982)).

"'"[T]he Canon 3(C) test is: 'Would

a person of ordinary prudence in the judge's position knowing
all the facts known to the judge find that

there is a

reasonable basis for questioning the judge's impartiality?'
The question is not whether the judge was impartial in fact,
but whether another person, knowing all the circumstances,
might reasonably question the judge's impartiality -– whether
there is an appearance of impropriety."'"

Ex parte Monsanto

Co., 862 So. 2d 595, 605 (Ala. 2003)(quoting Ex parte City of
46

 1160002
Dothan Pers. Bd., 831 So. 2d 1, 5 (Ala. 2002), quoting in turn
Ex parte Duncan, 638 So. 2d 1332, 1334 (Ala. 1994)).
The January 6, 2016, administrative order was completely
silent as to relevant federal-court injunctions and as to the
true effect of Obergefell on API I. Chief Justice Moore chose
to include only that legal analysis leading to his ultimate
conclusion that Obergefell had no effect on the Court's
decision in API I.

Despite Chief Justice Moore's including

qualifying language in his administrative order, there is no
question that he concluded that Obergefell had no effect and
that he correspondingly ordered and directed that the "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."

Having made such a

decision and having issued such an order, Chief Justice Moore
was ethically obligated to recuse himself from participation
in API II, which involved the sole issue of the effect, if
any, of Obergefell on API I.

Because Chief Justice Moore had

already decided the pivotal legal question at issue in API II,
there can be no question that a person of ordinary prudence
would or could question Chief Justice Moore's impartiality in
API II.
47

 1160002
By participating in API II, Chief Justice Moore failed to
uphold the integrity and independence of the judiciary, failed
to observe high standards of conduct so that the integrity and
independence of the judiciary may be preserved, failed to
avoid impropriety and the appearance of impropriety, failed to
respect and to comply with the law, failed to conduct himself
at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary, failed to
avoid conduct prejudicial to the administration of justice
that brings the judicial office into disrepute, and failed to
perform the duties of his office impartially and diligently.
We,

therefore,

affirm

the

judgment

of

the

Court

of

the

Judiciary as to Count VI.
III.
Chief Justice Moore argues that the Court of Judiciary
committed reversible error by improperly considering the 2003
opinion of Court of the Judiciary removing him from office and
the

2004

removal.9

Alabama

Supreme

Court

opinion

affirming

that

The Court of the Judiciary admitted those exhibits

9

At trial, Chief Justice Moore objected to the
admissibility of evidence involving his removal from office in
2003, but on appeal he challenges only the manner in which the
evidence was considered.
48

 1160002
for the limited purposes for which they were offered by the
Judicial Inquiry Commission, which were (1) to determine the
appropriate sanction, and (2) as evidence that Chief Justice
Moore had notice of the potentially damaging effect of his
January 6, 2016, administrative order.

Despite the limited

purposes for which those exhibits were admitted pursuant to
Rule 404, Ala. R. Evid., Chief Justice Moore contends that the
Court of the Judiciary considered those exhibits as evidence
of his guilt.

(Chief Justice Moore's brief, at 74-82.)

Rule 404 provides, in pertinent part: 10
"(a) Character Evidence Generally. Evidence of
a person’s character or a trait of character is not
admissible for the purpose of proving action in
conformity therewith on a particular occasion ....
"(b) Other Crimes, Wrongs, or Acts. Evidence of
other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident ...."
(Emphasis added.)
Chief Justice Moore argues that the following portion of

10

The Alabama Rules of Civil Procedure and the Alabama
Rules of Evidence govern proceedings in the Court of the
Judiciary. See Rule 10, Rules of Procedure for the Alabama
Court of the Judiciary.
49

 1160002
the Court of the Judiciary's opinion demonstrates that court's
improper use of his 2003 removal from office:
"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 [Judicial Inquiry Commission]:
"'I 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.'
"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."

The Judicial Inquiry Commission argues that this language
appears because the Court of the Judiciary must decide guilt
and, if warranted, impose a sanction in the same opinion. The
Judicial Inquiry Commission maintains that nothing indicates
that the above-quoted language was not part of the Court of
the Judiciary's determination as to the severity of the
50

 1160002
sanction to be imposed.
We

disagree

with

the

Judicial

Inquiry

interpretation of the above-quoted text.
Judiciary

devoted

a

separate

section

determining the appropriate sanction.

Commission's

The Court of the

of

its

opinion

to

In that section, the

Court of the Judiciary does reference Chief Justice Moore's
2003

removal

from

office

and

considers

that

removal

in

determining the appropriate sanction to impose in this case.
Because the references to the 2003 removal also appear in the
adjudication portion of the Court of the Judiciary's opinion,
we cannot conclude that that court considered Chief Justice
Moore's 2003 removal solely for the purpose of imposing a
sanction.
However, we also disagree with Chief Justice Moore's
interpretation of the above-quoted text.

The language quoted

above was but one portion of a long discussion as to why that
court disagreed with Chief Justice Moore's testimony that his
January 6, 2016, administrative order was merely a "status
update."
Based on the full context of the portion of the Court of
the Judiciary's opinion quoted by Chief Justice Moore, we
conclude that the Court of the Judiciary relied on a passage
51

 1160002
from a previous opinion of that court to demonstrate that
Chief Justice Moore had knowledge, i.e., that he knew or
should have known, that his January 6, 2016, administrative
order

would

be

interpreted

as

a

directive

to

disobey

Obergefell and the binding Strawser injunction, not as a mere
status update.

For that limited purpose, the Court of the

Judiciary's consideration of its previous opinion involving
Chief Justice Moore is permissible under Rule 404(b).
Chief Justice Moore further argues the Court of the
Judiciary

impermissibly

considered

his

2003

removal

from

office, as evidenced by the following passage:
"Chief Justice Moore recognized the holding and
validity of Cooper[11] 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 have actually thought that Obergefell
bound only the parties to that case. Thus, we agree
with the [Judicial Inquiry Commission'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
API."
This

passage,

like

the

previous

one

cited

by

Chief

Justice Moore, appears in the Court of the Judiciary's 10-

11

Cooper v. Aaron, 358 U.S. 1 (1958) .
52

 1160002
page discussion
administrative

as

order

to

whether

could

be

the

deemed

January
a

"status

6,

2016,

update."

Before the passage quoted above, the Court of the Judiciary
included a lengthy quote from Cooper v. Aaron, 358 U.S. 1
(1958), that explains that, once the United States Supreme
Court interprets a provision of the

Constitution, that

interpretation is binding on all states, not just those party
to the decision.

Cooper, 358 U.S. at 17-19.

The Court of the

Judiciary cited materials relating to Chief Justice Moore's
2003 removal from office for the purpose of establishing that
Chief Justice Moore was aware of or had knowledge of the
Cooper decision and specifically of the binding nature of the
United States Supreme Court's rulings as to the interpretation
of Constitutional provisions.

As stated above, evidence of

prior acts is admissible for the purpose of establishing
knowledge.12
Nothing in the Court of the Judiciary's opinion indicates
that the court improperly considered Chief Justice Moore's
2003 removal from office as evidence of his character or a

12

The Judicial Inquiry Commission uses the term "notice."
We note that the list of permissible purposes under Rule
404(b) is not an exhaustive list and that, in this context of
this case, notice and knowledge are synonymous .
53

 1160002
trait of character or that in issuing the January 6, 2016,
administrative order he acted in conformity therewith.
IV.
Chief Justice Moore also contends that Art. VI, § 159,
Ala. Const. 1901, violates his due-process rights enumerated
in the Fourteenth Amendment of the United States Constitution
by immediately disqualifying a judge "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."

The Judicial Inquiry Commission

argues that this issue was not preserved for appeal because
Chief Justice Moore failed to brief the issue before the Court
of the Judiciary.
"If a party makes a constitutional argument to
the trial court before a decision in the case is
rendered, the constitutional issue is preserved for
appellate review. See Alabama Power Co. v. Capps,
519 So. 2d 1328, 1330 (Ala. 1988)(holding that if a
party raises a constitutional issue 'at the pleading
stage, during the taking of the evidence, or even
during the instructions to the jury, the trial court
[is] presented with the constitutional arguments
..., and if it had accepted the argument, could have
saved the time and expense of trial under the
allegedly unconstitutional [statute]')."
Ex parte J.W.B., [Ms. 1150075, July 1, 2016] __ So. 3d __, __
(Ala. 2016).
54

 1160002
Chief

Justice

Moore

raised

particularity, in his answer.

this

issue,

with

The Court of the Judiciary

addressed this issue in its opinion.

For these reasons, this

issue is properly before this Court.
The Judicial Inquiry Commission also argues in a single
footnote that this issue was rendered moot when the temporary
suspension with pay under § 159 terminated upon the Court of
the Judiciary's determination of Chief Justice Moore's guilt
and the imposition of sanctions.

See Triano v. Supervisor of

Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1282 (11th
Cir. 2004)("[A] case is moot when it no longer presents a live
controversy

with

respect

meaningful relief.").

to

which

the

court

can

give

We first note that whether an issue is

moot can rarely be adequately argued in a single footnote.
Indeed, the Judicial Inquiry Commission addresses only one
aspect of mootness.
In this instance, the controversy over § 159 is at an end
for Chief Justice Moore.
Court may provide.

There is no action or remedy this

Pursuant to § 159, Chief Justice Moore was

automatically suspended upon the filing of a complaint with
the

Court

of

the

Judiciary,

performing his job duties.

which

prohibited

him

from

During that period, however, he
55

 1160002
retained his salary, his retirement benefits, and all other
benefits of his office, pending the outcome of his trial.
Chief Justice Moore's inability to perform his job duties
during that time is not something this Court can remedy at
this juncture.

Because he is suspended for the remainder of

his term and because he is also prohibited from running for
public office as a judge in the future because of his age, the
provisions of § 159 will no longer apply to him.

In these

respects, Chief Justice Moore's argument with regard to § 159
is moot.

However, despite the Judicial Inquiry Commission's

contention, that is not the end of the analysis.
"'Alabama courts do not give opinions in which there
is no longer a justiciable controversy; yet, Alabama
has recognized two exceptions to the mootness
doctrine:
questions of great public interest and
questions that are likely of repetition of the
situation.'"
Underwood v. Alabama State Bd. of Educ., 39 So. 3d 120, 127
(Ala. 2009).

We now turn to whether this issue of the

automatic suspension provided in § 159 is a question of great
public importance.
"'The criteria for applying the public interest
exception to the mootness doctrine include the
public nature of the question, the desirability of
an authoritative determination for the purpose of
guiding public officers, and the likelihood that the
question will generally recur.'
However, this
56

 1160002
'exception is construed narrowly ... and a clear
showing of each criterion is required to bring a
case within its terms.'"
Chapman v. Gooden, 974 So. 2d 972, 989 (Ala. 2007)(internal
citations omitted).

Here, both criteria are met.

The issue raised has the potential to affect publicly
elected judges in the State of Alabama.
Commission,

unfortunately,

has

had

The Judicial Inquiry

cause

to

file

formal

charges with the Court of the Judiciary on numerous occasions
before it filed the charges against Chief Justice Moore and,
unfortunately, will continue to have occasion to file formal
charges against sitting judges.
"desirability

of

an

Therefore, there exists a

authoritative

determination

for

the

purpose of guiding public officers," and there exists "the
likelihood that the question will generally recur." For these
reasons, we address this issue.
"'[P]rocedural due process, protected by the
Constitutions of the United States and this State,
requires notice and an opportunity to be heard when
one's life, liberty, or property interests are about
to be affected by governmental action.'
Brown's
Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So. 2d
226, 228 (Ala. 1992); see also Carter v. City of
Haleyville, 669 So. 2d 812 (Ala. 1995). The United
States
Supreme
Court
has
held
that
a
procedural-due-process violation that is potentially
actionable is not complete when the deprivation
takes place; such a violation does not occur 'unless
and until the State fails to provide due process.'
57

 1160002
Zinermon v. Burch, 494 U.S. 113, 126, 110 S. Ct.
975, 108 L. Ed. 2d 100 (1990).
In Zinermon, the
Supreme Court noted that '[p]rocedural due process
rules are meant to protect persons not from the
deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property.' 494 U.S.
at 125-26, 110 S. Ct. 975, 108 L. Ed. 2d 100
(quoting Carey v. Piphus, 435 U.S. 247, 259, 98 S.
Ct. 1042, 55 L. Ed.2d 252 (1978))."
City of Orange Beach v. Duggan, 788 So. 2d 146, 151 (Ala.
2000).
Chief Justice Moore asserts he has a vested property
interest in holding the office of Chief Justice. The Judicial
Inquiry Commission disputes that assertion, arguing instead
that a public office is not provided for the benefit of the
officeholder but as a public necessity.

We need not reach

that issue, however, because we conclude that whether Chief
Justice Moore has a vested property interest in his office,
adequate due process was provided.
"The Supreme Court held that tenured government
employees almost always must be afforded at least a
limited pretermination hearing before they can be
constitutionally terminated. [Cleveland Bd. of Educ.
v. Loudermill,] 470 U.S. [532,] at 542-43, 105 S.
Ct. 1487 [(1985)]. The Supreme Court, however, held
that the pretermination hearing need not be
elaborate and need not be a full evidentiary
hearing. Id. at 545, 105 S. Ct. 1487. The Supreme
Court reasoned that the purpose of a pretermination
hearing is not to 'definitively resolve the
propriety of the discharge,' but, rather, to 'be an
initial
check
against
mistaken
decisions-58

 1160002
essentially, a determination of whether there are
reasonable grounds to believe that the charges
against the employee are true and support the
proposed action.' Id. at 545-46, 105 S. Ct. 1487.
The Supreme Court also noted that under state law
the terminated government employee was later
entitled to a full and adequate administrative
posttermination hearing and judicial review. Id. at
545, 105 S. Ct. 1487. Therefore, the Supreme Court
concluded that under federal procedural-due-process
law all that is required in a pretermination hearing
is 'oral or written notice of the charges against
[the employee], an explanation of the employer's
evidence, and an opportunity [for the employee] to
present his side of the story.' Id. at 546, 105 S.
Ct. 1487.
The Supreme Court then stated that '[t]o
require more than this prior to termination would
intrude to an unwarranted extent on the government's
interest in quickly removing an unsatisfactory
employee.'Id."
City of Orange Beach, 788 So. 2d at 152.

Even when an

employee has a vested property interest in his or her job, due
process requires only a pre-termination hearing.
Rule 6.C and Rule 6.D, Rules of Procedure of the Judicial
Inquiry Commission, require that any judge under investigation
be given a copy of the verified complaint asserted against him
or her and a copy of

any materials in support of that

complaint, along with notice of those issues the Judicial
Inquiry Commission finds worthy of investigation.

The judge

under investigation is also entitled to an update as to the
progress of the investigation every six weeks until the

59

 1160002
complaint is dismissed or formal charges are filed with the
Court

of

the

Judiciary.

Further,

if

the

investigation

culminates in formal charges, those charges must be filed in
the nature of a complaint with the Court of the Judiciary.
That complaint must state "in plain and concise language the
charges against the judge and the allegations of fact upon
which such charges are based." Rule 3, Rules of Procedure for
the Alabama Court of the Judiciary.

Therefore, the rules

governing the investigation and the rules governing the prediscipline hearing provide an accused judge with ample notice
of the charges against him or her.
The trial held by the Court of the Judiciary affords an
accused judge of ample opportunity to hear and to challenge
the Judicial Inquiry Commission's evidence and to present his
or her "side of the story."
are

all

that

are

Notice and the ability to respond

required

in

a

pre-termination/pre-

disciplinary hearing.
Chief Justice Moore challenges his suspension with pay
pending the outcome of his pre-disciplinary hearing. However,
"in

those

situations

where

the

employer

perceives

a

significant hazard in keeping the employee on the job, it can
avoid the problem by suspending with pay."
60

Cleveland Bd. of

 1160002
Educ. v. Loudermill, 470 U.S. 532, 544-45 (1985).
The legislature that drafted § 159, and the people of
Alabama, who ratified § 159, were justified in so doing to
protect the orderly administration of justice.

The people of

Alabama, subject to the jurisdiction of a duly elected judge,
must be free to lodge complaints against a judge who they
believe may be in violation of the Canons of Judicial Ethics.
If that complaint is deemed to have merit and formal charges
are brought, the complaining individuals, who may still have
matters pending before that judge, must be protected from
retaliation -- real or imagined.

Furthermore, the government

has a vested interest in protecting the integrity of the
administration of justice so that immediately removing the
charged judge who may indeed be violating the Canons of
Judicial

Ethics

is

desirable

and

necessary.

Therefore,

suspending such a judge with pay pending the outcome of a
disciplinary hearing does not deprive that judge of due
process. Therefore, no reversible error occurred as to this
issue.
V.
Chief

Justice

Moore

argues

that

the

Court

of

the

Judiciary erred by failing to dismiss all the charges against
61

 1160002
him because, he says, the Judicial Inquiry Commission violated
the confidentiality provisions of Rule 5, Rules of Procedure
of the Judicial Inquiry Commission.
With regard to this issue, the Court of the Judiciary
held:
"According to an affidavit from Mat Staver, one of
Chief Justice Moore's counsel in these proceedings
and one of the counsel of record for the petitioners
in API, Staver received a telephone call from a
reporter at the New York Times on May 5, 2016,
indicating that the reporter's 'sources' had told
him that the JIC [Judicial Inquiry Commission] 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, e.g., § 156,
Ala. Const. 1901 (Off. Recomp.), and Rule 5, Ala.
R.P. Jud. Inq. 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 JIC 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
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."
The Court of the Judiciary also noted that in support of his
argument Chief Justice Moore offered an article from the
Montgomery Advertiser, which also alleged that an unnamed

62

 1160002
source had indicated that charges would be filed against Chief
Justice Moore. We agree with the Court of the Judiciary that,
without more evidence, a resolution of this issue requires
speculation on the part of the Court. Because no evidence was
presented as to who the "source" might be, we see no error in
the Court of the Judiciary's declining to grant relief on this
basis.

We affirm the judgment of the Court of the Judiciary

as to this issue.

VI.
Chief Justice Moore argues that, by suspending him for
the remainder of his term, effectively removing him from
office, the Court of the Judiciary violated Rule 16, Rules of
Procedure

of

the

Alabama

Court

of

the

Judiciary,

which

provides:
"With respect to all matters other than removal from
office, the Court shall convict only with the
concurrence of no fewer than six of its nine
members. With respect to removal from office, the
Court shall convict only with the concurrence of all
members sitting."
The Judicial Inquiry Commission, quoting Boggan v. Judicial
Inquiry Commission, 759 So. 2d 550, 555 (Ala. 1999), argues
that this Court "'has repeatedly held that when it reviews the

63

 1160002
record of the proceedings of the Court of the Judiciary on the
law

and

the

facts,

if

the

records

shows

by

clear

and

convincing evidence that the charge or charges have been
committed, then this Court does not have the authority to
reduce or reject the sanction imposed by the Court of the
Judiciary.'"
This Court is obligated to follow prior precedent holding
that, assuming the charges below were proven by clear and
convincing evidence, this Court has no authority to disturb
the sanction imposed by the Court of the Judiciary.

See also

Hayes v. Alabama Court of the Judiciary, 437 So. 2d 1276, 1279
(Ala. 1983); Powers v. Judicial Inquiry Comm'n, 434 So. 2d 745
(Ala. 1983); and In re Samford, 352 So. 2d 1126 (Ala. 1977).
In so doing, this Court notes that, although only a majority
of the Court of Judiciary agreed that removal from office was
the appropriate sanction in this case, the Court of the
Judiciary unanimously suspended Chief Justice Moore for the
remainder of his term. Presumably, the Court of the Judiciary
was aware that the suspension was in excess of two years,
because it is common knowledge that an appellate judge's term
of office is six years and the Court of the Judiciary stated
in note 2 of its opinion that Chief Justice Moore took office
64

 1160002
in January

2013.

The

Court

of

the

Judiciary

was

also

presumably aware that such a suspension would preclude Chief
Justice Moore from reassuming his duties at any point before
the expiration of his term but unanimously agreed that such a
suspension was warranted.

Even though both sanctions are

similarly severe, because the Court of the Judiciary was
unanimous in its imposition of such a serious sanction, we
cannot conclude that the Court of the Judiciary violated Rule
16 of the Rules of Procedure of the Alabama Court of the
Judiciary.
Chief Justice Moore also argues his suspension (2 years,
3

months,

and

14

days)

is

four

times

longer

than

any

suspension imposed on any other judge since the revision of
Rule 16 in 2001. However, Chief Justice Moore fails to offer
the Court examples of comparable offenses.

Chief Justice

Moore does not argue that other similarly situated judges have
received lesser suspensions.
Because we have previously determined that the charges
were proven by clear and convincing evidence and there is no
indication that the sanction imposed was plainly and palpably
wrong, manifestly unjust, or without supporting evidence, we
shall not disturb the sanction imposed.
65

 1160002
Conclusion
For the reasons stated above, we affirm the judgment of
the Court of the Judiciary in all respects.
AFFIRMED.
James Harvey Reid, Jr., Special Chief Justice, and Robert
George Cahill, William Reddoch King, Lynn Clardy Bright, Ralph
Alton Ferguson, Jr., and John David Coggin, Special Justices,
concur.
Harris Edward McFerrin, Special Justice, concurs in the
result.

66