May 17, 2016
Re: Chief Justice Roy S. Moore
Members of the Judicial Inquiry Commission—Chairman Billy Bedsole, Judge Randall Cole, Judge David Kimberley, Mr. David Scott, Judge Craig Pittman, Dr. David Thrasher, Judge Kim Cheney, Mr. Ralph Malone, Ms. Augusta Dowd, Ms. Jenny Garrett, and Ms. Rosa Davis:
We speak to the Judicial Inquiry Commission as a body, understanding that it acts at the behest of the majority of its members. To any members who dissented from the decision to bring charges against the Chief Justice of the Alabama Supreme Court, Roy S. Moore, we wholeheartedly thank you. The following letter is not addressed to you.
However, to the J.I.C. as an institution, we say that by issuing your Complaint against Chief Justice Roy Moore, you overstepped your bounds and you took the wrong side. We have read the background section and found it to be more akin to a witch hunt than a pertinent introduction to charges against a judge. We have scrutinized the charges. We have read the complaints that facilitated those charges. We have read every exhibit that you attached. We search in vain for a legitimate ethics charge against Chief Justice Moore. You levy six charges against the Chief Justice. Every one of them is due to be dismissed for failure to state a cognizable claim.
You take issue with the Chief Justice’s administrative order dated January 6th, 2016. While Canon 3(A)(6) of the Canons of Judicial Ethics notes that judges “should abstain from public comment about a pending or impending proceeding in any court,” that rule “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.” Administrative orders are issued not in a judicial capacity but in an administrative capacity. Such orders are well within the constitutional authority of the Chief Justice. Ala. Code § 12-2-30 states that, as the administrative head of the judicial system (see Ala. Const., Art. VI, § 149) the Chief Justice is authorized to “take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state.”
It’s no secret that there is conflict in the courts, in the culture, in the church, among probate judges, and in the legal profession about how to deal with the marriage issue. Squelching debate is never an answer for any conflict resolution and filing charges related to an administrative order under the guise of enforcing judicial ethics is not an acceptable solution for legal controversy. While you may have ideological disagreements with Chief Justice Moore’s position, your disagreements do not warrant the action you took on May 6, 2016 (or your leaking of confidential information that was printed in two newspapers before the decision was to be made.)
Allow us to respond to each of your six charges:
Charge I: “...Appear[ing] to direct all probate judges to…[disregard] a federal court injunction.”
Response: You speak out of both sides of your mouth. On the one hand, you accuse the Chief Justice of instructing probate judges to violate a federal district court injunction. On the other hand, you criticize him for failing to mention the injunction at all. Which is it? It would have behooved you to read the Chief Justice’s administrative order before making it the basis of a spurious ethics complaint. Had you done so, you would have seen that the Chief Justice did not direct Alabama probate judges to do anything or to abstain from doing anything. He stated that the injunction issued by the Alabama Supreme Court on March 12, 2015 was still in effect. At the time, that was an obvious and incontrovertible procedural reality—otherwise known as a “fact.”
Your personal views about the propriety of the Alabama Supreme Court’s injunction, and the effect federal court rulings bore on that injunction, are of the utmost irrelevance to the case, and you disgrace the process by injecting them where they do not belong. To charge an elected official with an ethics violation for stating something as self-evident as “the sky is blue” is itself unethical.
Since the only federal injunction possibly affecting Alabama was issued by the Southern District, we must assume that you overlooked the fact that the actual order compelling Alabama probate judges to act was issued, not by the Chief Justice, but by the Alabama Supreme Court in a 7-1 margin, the Chief Justice recusing. In his administrative order, the Chief Justice pointed out that reality. Do you intend to charge the other Justices as well?
Charge II: An unwillingness to follow “clear law.”
Response: It is obvious to us that, as far as you are concerned, the only thing necessary to create “clear law” is a majority vote by the U.S. Supreme Court. To borrow the condescending language you used when referencing Chief Justice Moore, it is your “personal right” to believe whatever you wish about judicial review. But you have no right to denounce someone as unethical for subscribing to, and acting on, a view different from yours (and which happens to be legally correct). You should take note of what United States Supreme Court Justice Felix Frankfurter said: “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” Whom do you wish to challenge: Chief Justice Moore or Justice Frankfurter?
Your statement that the law is clear baffles us to no end and makes you the laughingstock of attorneys and citizens across Alabama. If the law is so clear, why are you having this discussion, filing these charges against a Chief Justice, disregarding countless legal briefs and motions filed in API over the course of the last year, and forgetting about orders from the Alabama Supreme Court? The current debate over marriage policy and the scope of judicial review is far from clear.
Charge III: “[D]eciding substantive legal issues…”
Response: The administrative order neither added nor subtracted anything from the legal reality at the time of its’ issuance. The Chief Justice expressly stated that he was not commenting on the case and that the decision would have to come from the Alabama Supreme Court. He wrote, “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.” The Court decided the substantive legal issues on March 4, 2016.
Charge IV: “[S]ubstituting his judgment for the judgment of the entire Alabama Supreme Court.”
Response: Which one of you who lent your vote to this preposterous charge is prepared to be brought up on ethics charges of your own? After all, you stated repeatedly in the Complaint that the Alabama Supreme Court’s injunction was nullified by subsequent legal proceedings, something the Alabama Supreme Court itself never conceded. Therefore, you are also guilty of substituting your judgment for that of the State’s high court.
The Alabama Supreme Court itself asked for briefs on its “existing orders” after Obergefell v. Hodges. The Chief Justice’s statement that the Alabama Supreme Court’s injunction of March 12, 2015 (from which the Chief Justice recused himself) was still in effect, merely expressed a legal reality and did not substitute his judgment for the Court’s. Further, if the Alabama Supreme Court had agreed that the Chief Justice prematurely issued judgment in a case, it could have corrected or rescinded the Chief Justice’s administrative order, which it did not do.
Charge V: “[I]nterfer[ing] with the legal process and remedies in the United States District Court and/or the Alabama Supreme Court…to address the status of any proceeding to which Alabama’s probate judges were parties.”
Response: This is ironic coming from you. Talk about interfering with the legal process! No one denies the controversy surrounding the relationship between the Southern District Court and the Alabama Supreme Court and their respective orders. Such judicial controversies should be resolved by those courts and, ultimately, the United States Supreme Court by way of a process that involves many jurists and attorneys – not merely the J.I.C. Again, if the Alabama Supreme Court had believed that the Chief Justice’s administrative order was inappropriate, it could have rescinded it.
Charge VI: “[T]aking legal positions…on a matter pending before the Alabama Supreme Court…[and] participating in further proceedings.”
Response: Which legal positions are you referring to? Legal positions are different from legal realities. We find outlined in Chief Justice Moore’s administrative order legal and procedural realities that, though uncomfortable, were necessary or otherwise permissible to outline. He took no positions on API itself and there was thus no reason for him to recuse himself.
In the wake of Obergefell v. Hodges—arguably the most polarizing and contested SCOTUS opinion in the history of American jurisprudence—a Pandora’s box of questions dealing with morality, constitutional jurisdiction, marriage and family policy, and the scope of judicial review have swamped the country and the legal profession.
Your singling out of Chief Justice Moore for one administrative order related to this issue because of complaints filed and/or encouraged by individuals and organizations who seek to destroy him, demonstrates that this proceeding has nothing to do with ethics and everything to do with political assassination. You’ve sided with the wrong people, you’ve sided with the wrong legal arguments, you’ve sided with the wrong court, you’ve sided with the wrong opinions, and you’ve produced pathetically biased charges.
Regardless of your opinion on whether Obergefell constitutionally removed the gender requirement from marriage in all fifty states, you’ve played your part to dishonor God, squelch conflict resolution in the proper context of the courts, bury the rule of law, and surrender to the whims of a few who don’t care for any of it. You have attempted to take the easy way out and we intend to work with activists, organizations, and citizens across the state to bring a halt to this political game in which you have participated.
We are disappointed in you. We are appalled by your capitulation. We are indignant over the politically motivated charges you levied against an elected official we trust. And we intend to do all we can to ensure that the people of Alabama understand that when lines were drawn, you took the wrong side before God, before the law, and before the people of the State of Alabama, and you grossly overstepped your jurisdiction.
Dr. Tom Ford
Sanctity of Marriage Alabama
———Reprinted with permission from Sanctity of Marriage Alabama.