To suspend Chief Justice Moore for the rest of his term without pay is the same as removal. The COJ lacked the unanimous votes to remove the Chief, so the majority ignored the law and the rules
MONTGOMERY, AL - Last Friday the Court of the Judiciary (COJ) issued a decision that defies the rule of law. The public should carefully review the facts of this case. Below are several irrefutable points in chronological order.
1. The Judicial Inquiry Commission (JIC) violated the Alabama Constitution and JIC Rule 5, which require confidentiality of the JIC investigation phase before a charge is filed. A week before the charges were filed, the Montgomery Advertiser received information, that could have only come from the JIC, that the investigation was complete and charges would be forthcoming. The day prior to the charges, Moore's counsel was contacted by the New York Times stating the JIC would issue a charge that day or the next day. The next day, the charges were filed.
2. JIC Rule 6 requires that: 1) The JIC may only investigate a matter upon receiving a Verified Complaint; 2) Within 70 days of receiving a Verified Complaint, the JIC must vote whether to investigate; 3) If the JIC votes to investigate a Verified Complaint, it must provide the complaint to the judge; 4) Every six weeks the JIC must notify the judge that it is still investigating the Verified Complaint. Charge 6 alleges that the Chief Justice should have recused himself from participating in the March 2016 decision. The JIC failed to comply with all four requirements. The JIC never received a Verified Complaint, never voted on Charge 6, never sent the Chief the Verified Complaint because there was no such complaint and never sent the Chief letters every six weeks. The Chief cannot legally be convicted on Charge 6, but the COJ did so anyway.
3. Charges 1 through 5 allege the Chief ordered probate judges to disobey a federal court injunction and the U.S. Supreme Court Obergefell (same-sex marriage opinion) by issuing the January 6, 2016 Administrative Order.
a. Paragraph 10 stated: "I am not at liberty to provide any guidance to the 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."
b. Paragraph 14 stated: How the Alabama Supreme Court will rule is "yet to be determined."
c. Paragraph 11 stated: The Eighth Circuit Court of Appeals applied "Obergefell as precedent" and the Kansas Federal District Court declared "Obergefell is clearly controlling precedent."
d. The JIC, in the charge, acknowledged that the Alabama Supreme Court's 2015 orders remained in effect at the time of the Administrative Order.
e. The Alabama Supreme Court's March 2015 orders remained in effect and would continue to remain in effect until the Alabama Supreme Court ruled upon them. On June 29, 2015, the Alabama Supreme Court requested briefing for the parties to address the "effect of Obergefell on the [Alabama Supreme] Court's existing orders." On March 25, 2016, the Alabama ACLU stated in a brief that the 2015 Alabama Supreme Court orders continued to remain in effect. Federal Judge Callie Granade acknowledged on June 7, 2016, that the Alabama Supreme Court 2015 orders remained in effect.
f. Since the Alabama Supreme Court 2015 orders remained in effect at the time of the January 6, 2016 Administrative Order, that Administrative Order did not create any new obligation or duty on the probate judges. It merely reported on the status of the case pending before the Alabama Supreme Court.
g. The only sworn testimony before the COJ was Chief Justice Moore who testified that he did not order, and would never order, the probate judges or anyone else to violate any law or court order. This testimony is unrebutted.
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4. COJ Rule 16 requires that a unanimous 9-0 decision is required to remove a judge from the bench. The COJ did not have a 9-0 unanimous decision to remove the Chief Justice. The COJ order states: "A majority of this court also agrees with the JIC that the only appropriate sanction for Chief Justice Moore is removal from office. Removal of a judge from office, however, requires 'the concurrence of all members sitting.' Rule 16, R.P. Ala. Ct. Jud." (emphasis added). It is clear there was not a unanimous concurrence to remove the Chief from office, so the COJ suspended him without pay for the remainder of his term. In other words, the COJ did what the rules say they cannot do. There is no meaningful difference between suspension without pay for the remaining of the term and removal from office. The Chief's term expires in January 2019.
"To suspend Chief Justice Moore for the rest of his term without pay is the same as removal. The COJ lacked the unanimous votes to remove the Chief, so the majority ignored the law and the rules," said Mat Staver, Founder and Chairman of Liberty Counsel.
"Justice has left Montgomery. It now appears that certain members of the COJ had their mind made up even before the hearings in August and September. No amount of evidence could have stopped the COJ from reaching its predetermined verdict. The JIC and the COJ violate the law with impunity and then have the nerve to charge Chief Justice Moore with violating the law. The violation of the law by both the JIC and the COJ is obvious and disappointing," said Staver.
Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.
