Professional Documents
Culture Documents
01/31/2017 @ 02:37:21 PM
Honorable Julia Jordan Weller
Clerk Of The Court
)
)
)
ORAL ARGUMENT REQUESTED
)
Appellant,
)
)
v.
)
)
ALABAMA JUDICIAL INQUIRY
)
COMMISSION,
)
)
Appellee.
)
_______________________________________________________
REPLY BRIEF OF APPELLANT
CHIEF JUSTICE ROY S. MOORE
_______________________________________________________
Mathew D. Staver
Fla. Bar No. 0701092
court@LC.org
Horatio G. Mihet
Fla. Bar No. 0026581
hmihet@LC.org
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
(407) 875-1776 (tel)
(407) 875-0770 (fax)
Phillip L. Jauregui
Ala. Bar No. 9217-G43P
Judicial Action Group
plj@judicialactiongroup.com
7013 Lake Run Drive
Birmingham, AL 35242
(202) 216-9309 (tel)
Attorneys for Petitioner
TABLE OF CONTENTS
TABLE OF CONTENTS..........................................i
TABLE OF AUTHORITIES.....................................iii
SUMMARY OF THE ARGUMENT....................................1
ARGUMENT...................................................1
I.
B.
B.
C.
The
Administrative
Orders
Plain
Text
Eviscerates The JICs Notion That Documentary
Evidence Of Guilt Is Clear And Convincing.........15
1.
2.
The
Administrative
Order
Properly
Described
the
Judgment
Issued
in
Obergefell and Provided No Legal Guidance
on Obergefells Precedential Effect.........17
3.
4.
V.
A.
B.
C.
D.
B.
B.
TABLE OF AUTHORITIES
CASES
Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala. 1996)......2
Andrews v. Alabama Eye Back, 727 So.2d 62 (Ala. 1999).......6
Big Valley Home Ctr., Inc. v. Mullican,
774 So.2d 558 (Ala. 2000).................................43
Boggan v. Judicial Inquiry Commn,
759 So.2d 550 (Ala. 1999).............................passim
Born v. Clark, 662 So.2d 669 (Ala. 1995)....................2
Chapman v. California, 386 U.S. 18 (1967)..................34
Ex parte Batey, 958 So.2d 339 (Ala. 2006).............42, 49
Ex parte Bd. of Zoning Adjustment,
636 So.2d 415 (Ala. 1994).................................43
Ex parte Casey, 852 So.2d 175 (Ala. 2002)..................42
Ex Parte Graham, 702 So.2d 1215 (Ala. 1997)................43
Ex parte Hutcherson, 677 So.2d 1205 (Ala. 1996)............34
Ex parte Metropolitan Life, Ins. Co.,
707 So.2d 229 (Ala. 1997).................................28
Ex Parte Norwood Hodges Motor Co., Inc.,
680 So.2d 245 (Ala. 1996).................................11
Foster v. Hacienda Nirvana, Inc.,
32 So.2d 1256 (Ala. 2009)..................................2
Ginn v. State, 894 So.2d 793 (Ala. Crim. App. 2004)...42, 49
Girard v. State, 883 So.2d 717 (Ala. 2003).................43
Hayes v. Alabama Court of Judiciary,
437 So.2d 1276 (Ala. 1983)............................passim
iii
1961)................33
iv
STATUTES
Ala. Code 12-2-30(7) (1975)...........................7, 24
Ala. Code 12-2-30(8) (1975)...........................7, 24
Ala. Code 12-5-20 (1975).................................4
Ala. Code 25-5-81 (1975)................................11
Art. VI, 156(c), Ala. Const. 1901.......................35
Art. VI, 157(b), Ala. Const. 1901................40, 41, 43
Fed. R. Civ. P. 65(d)(2)..................................20
Rule 6, R.P. Ala. Ct. Jud..............................passim
Rule 10, R.P. Ala. Ct. Jud...........................8, 9, 10
Rule 16, R.P. Ala. Ct. Jud.............................passim
Rule 19, R.P. Ala. Ct. Jud.............................39, 40
Rule 404, Ala. R. Evid................................passim
OTHER CITATIONS
Blacks Law Dictionary 718 (6th ed. 1990)..................34
Blacks Law Dictionary 762 (9th ed. 2009)..................6
Blacks Law Dictionary 918 (9th ed. 2009)..................18
Blacks Law Dictionary 1295 (9th ed. 2009).................19
Josh Blackmun & Howard Wasserman, The Process of Marriage
Equality,43 Hastings Const. L.Q. 243, 250 (2016)..........20
Judge Reeds Notice of Decision by United States Supreme
Court and of Judge Reeds Understanding of His Legal Duty
in light of that Decision, API, Case No. 1140460 (Ala.
June 26, 2015)............................................23
vi
Moores
Administrative
Order.
The
plain
text
of
the
involves
questions
of
law
for
the
court
to
TO
REVIEW
ADMINISTRATIVE
law
vests
jurisdiction
over
administrative
countermand,
overrule,
modify
or
amend
any
Director
of
Courts.
(emphasis
added)).
or
Justice.
reverse
The
JIC
an
and
administrative
the
COJ
lack
order
of
the
jurisdiction
to
Chief
even
includes
Administrative
Orders
issued
by
the
Chief
Order);
(C.1136-37)
(basing
all
of
its
Administrative
Order,
which
it
unquestionably
lacked
jurisdiction to review.
Notably, the JIC concedes that the plain text of the
Administrative Order is all the COJ needed to find Chief
Justice Moore guilty of the charges brought against him. (JIC
at 26 n.6) (claiming that the undisputed content of the
[Administrative] Order . . . is more than enough to convict
Chief Justice Moore). The JICs admission undermines its
entire premise. If the text of the Administrative Order is
jurisdictionally
deficient
review
of
the
true).
The
plain
text
of
the
Administrative
Order
Justice
Moore
explicitly
stated
in
the
this
State);
(C.693)
(the
fact
remains
that
the
affected
by
the
apparent
conflict
between
the
situation
adversely
affecting
the
administration
of
his
order
was
textbook
application
of
his
Chief
Justice
Moore
was
attempting
to
clarify
the
(informing
probate
judges
that
this
Court
had
Court);
(C.693)
(stating
the
legal
truism
that
Justice
Moores
Administrative
Order
plainly
the
state.
Ala.
Code
12-2-30(8)
(1975).
The
The
reasonable
observer
8
standard
adopted
and
applied by the COJ finds no basis in the law and ignores the
demanding burden established by Rule 10. The COJs reliance
on mere appearances does not and cannot amount to clear and
convincing evidence. The Administrative Orders plain text
eviscerates
the
JICs
notion
that
documentary
evidence
The
JIC
contends
that
the
Administrative
Order
was
that
the
Administrative
Order
could
potentially
that
reasonable
observer
could
potentially
believe that the Chief Justice was ordering the probate judges
to defy Obergefell. (C.1127). The COJs reasonable observer
standard
of
proof
undermines
and
usurps
the
clear-and-
the
Wisconsin
Supreme
Court
has
explained:
[A]
of
proof,
the
COJ
eviscerated
the
demanding
to
each
essential
element
of
the
claim
and
high
10
11
own
apparent
application
of
its
impermissible
and
6,
released.
2016,
(C.710).
the
Mr.
day
the
Johnston
Administrative
said
that
Order
he
was
believed
12
of
the
diminished
and
unworkable
reasonable
the
appearances
JIC
resorts
matter.
to
(JIC
the
at
notion
29-30).
that
To
potential
support
its
notion
that
the
Administrative
Order
appeared
to
(Administrative
defiance);
Order
(C.1127)
might
have
appeared
(Administrative
to
Order
mere
possibilities
and
speculative
evidence
are
clear
and
convincing
evidence.
(Principal
Br.
at
50-51)
original).
The
JICs
contention
is
patently
JICs
argument
here,
is
based
entirely
upon
the
that
all
Administrative
Order);
such
(C.1119)
charges
(all
stem
charges
from
the
arose
from
15
the
conclusion
of
guilt
solely
on
the
text
of
the
Administrative Order).
The JICs contention that the documentary evidence alone
presents sufficient evidence of guilt is belied by the plain
text of the only piece of documentary evidence relied upon by
the COJ below the Administrative Order. The Administrative
Order speaks for itself, and the appropriate de novo review
of its plain text demonstrates the error committed by the COJ
below. Its judgment should be reversed.
1.
proper
Administrative
Order,
and
claims
such
omission
was
misleading and amounted to an ethical violation. (JIC at 3638). But, the impact of Obergefell was not the proper subject
for
an
Administrative
Order,
and
Chief
Justice
Moore
remains
before
the
entire
Court.
(emphasis
original));
language
eviscerates
any
notion
that
Chief
scope
of
the
judgment
in
Obergefell.
The
(C.690-91)
17
(discussing
Obergefell).
the
Supreme
Courts
discussion
in
its
opinion.
See
Ohio,
and
Tennessee).
Chief
Justice
Moores
18
involving
Dictionary
1295
Administrative
similar
(9th
Order
facts
ed.
or
2009)
plainly
issues.
Blacks
Law
(emphasis
added).
The
described
the
operation
of
inter
alia,
the
post-Obergefell
decision
in
19
What the court in Marie recognized, and the JIC and COJ
stubbornly
refuse
to
understand,
was
that
subsequent
still
necessary
to
give
effect
to
Supreme
Court
20
of
precedent
also
resulted
in
baseless
21
Administrative
Order
expressly
reserved
such
upon
that
contention
must
be
reversed.
The
judgment.
The
Administrative
Order
was
not
misunderstands
the
operation
of
22
Supreme
Court
3.
Moore,
the
JIC
retreats
to
the
claim
that
the
statement
by
the
Attorney
General
and
generic
acting
inconsistently
concerning
the
issuance
of
with
Obergefell;
others
are
issuing
marriage
was
factual
and
correct.
23
Compare
Judge
Reeds
API,
Case
No.
1140460
(Ala.
June
26,
2015)
of
licenses
to
same-sex
couples),
with
Judge
judges
in
Alabama
were
applying
the
law
Code
12-2-30(7)
(1975),
and
to
issue
any
order
24
4.
The
JICs
contention
that
the
Administrative
Order
Court
orders
otherwise,
and
that
this
Court
was
therefore
did
not
order
the
probate
judges
to
do
26
only
new
thing
the
Administrative
Order
allegedly
or
court
of
competent
jurisdiction.
See,
e.g.,
has
jurisdiction,
it
has
right
to
decide
every
27
of
precedent
and
should
be
rejected.
The
COJs
The JIC contends that the error was minor because only
two out of the 42 exhibits in the record were implicated (JIC
28
at
64),
as
if
Rule
404
is
contingent
on
sufficient
Principal
attempted
to
Br.
at
establish
74-76),
guilt
on
precisely
an
because
impermissible
they
basis,
demonstrated
in
2003.
Rule
404s
prohibition
29
B.
discussion
outlining
its
findings
and
drawing
case
was
central
to
the
COJs
opinion.
Such
use
The JIC next argues that the 2003 evidence falls under
an exception recognized in Rule 404, namely notice. (JIC at
65-67). The JIC states that under Rule 404(b) evidence of
prior acts is admissible if it is offered for purposes such
as knowledge, notice and absence of mistake. (JIC at 66).
The problem with this statement is that the relevant part of
Rule 404 does not contain a notice exception. Rule 404 states:
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, provided that upon request
by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
Rule 404(b), Ala. R. Evid. (emphasis added).
The list of other purposes exceptions in Rule 404(b)
does not include notice. Admittedly, the word notice
31
include
purposes
incorrect.2
such
Because
as
the
...
rule
notice
is
provides
no
exception for the use based upon notice, the COJs use of
such evidence was impermissible and constitutes reversible
error.
D.
undoubtedly
affected
by
the
impermissible
use
of
which
is
error
is
defined
as
an
error
34
then
considered
worthy
of
some
investigation.
Alleged
weeks
thereafter
full
statement
of
whether
the
6D,
R.P.
Ala.
Ct.
Jud.
(emphasis
added).
In
two
statements
and
never
included
any
mention
of
36
under
investigation
the
burden
of
searching
through
37
erroneous
proposition:
that
it
may
ignore
the
runs
unjustifiable
roughshod
and
over
the
unconscionable
rules
burden
and
on
imposes
Chief
an
Justice
on
the
Administrative
Order.
(C.711-12).
The
38
any
violation
of
these
Rules
to
institute
formal
39
cases
from
other
jurisdictions.
Whatever
lax
The
COJs
Unprecedented
been
committed
then
this
Court
does
not
have
the
if
the
charge
is
supported
by
clear
and
convincing evidence).
Nothing in this precedent precludes this Court from
reviewing a sanction if the sanction is itself illegal. In
Samford, Boggan, and Hayes, this Court did not defer to
sanctions that were objectively unlawful and in violation of
the COJs own rules. The constitutional mandate of 157(b)
provides
that
this
Court
must
review
the
record
of
the
41
74
So.2d
640,
641
(Ala.
App.
1954)).
Indeed,
yet
even
that
open
defiance
42
of
the
law
would
be
719
(Ala.
2003)
(The
interpretation
of
statute
on
questions
of
law.);
Ex
parte
Bd.
of
Zoning
43
finds
that
the
charges
were
proved
by
clear
and
Courts
precedent
prohibiting
an
imposition
of
Chief
Justice
argued
45
that
the
length
of
his
suspension
was
not
only
unprecedented,5
but
also
sentence
is
transparent
evasion
of
the
unanimity
Countermand
Motion
5).
Chief
Justice
Moores
staff,
and
updating
his
biographical
information
to
at
the
nullification
of
the
unanimity
rule
for
removal:
We trial judges find a detour like this around the
rule requiring unanimity for removal troubling to
say the least, for the same sanction could be applied
to one of our members in the future, and the Chief
Justices case could set unassailable precedent
against any argument to the contrary.
(Amicus Brief of 8 Trial Judges of Alabama at 10).
As the COJ admitted, it did not have the unanimous
concurrence of all members to remove Chief Justice Moore.
(C.1143). The JICs contention that this Court should affirm
the de facto removal sanction because the COJ would have no
standard on remand by which to determine the proper length of
a suspension short of removal is patently absurd. (JIC at 6062). The notion that a sanction based on a deliberate evasion
48
of the law should stand because the JIC cannot imagine how
the error can be corrected flouts the very essence of the
rule of law. Indeed, the JICs contention is a transparent
attempt to place the COJ beyond the reach of this Courts
review and the plain text of the binding mandates of the COJs
own rules. Because the COJ deliberately evaded the law, this
Court should reverse and render a new judgment itself. The
JIC asked for only one sanction removal from the bench.
Lacking the unanimous vote to remove, the COJ should be
reversed because the sanction was unlawful. The COJ has no
more say in this matter.
VII. THE CHIEF JUSTICES COMPENSATION SHOULD BE REINSTATED
RETROACTIVE TO SEPTEMBER 30, 2016.
Since the COJ violated Rule 16 by permanently removing
Chief Justice Moore for the remainder of his term without
compensation,
this
Court
should
reverse
and
order
his
and
the
charges
against
Chief
Justice
Moore
50
Respectfully Submitted,
/s Mathew D. Staver
Mathew D. Staver
Fla. Bar No. 0701092
court@LC.org
s/ Phillip L. Jauregui
Phillip L. Jauregui
Ala. Bar No. 9217-G43P
Judicial Action Group
plj@judicialactiongroup.com
7013 Lake Run Drive
Birmingham, AL 35242
(202) 216-9309 (tel)
/s Horatio G. Mihet
Horatio G. Mihet
Fla. Bar No. 0026581
hmihet@LC.org
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
(407) 875-1776 (tel)
(407) 875-0770 (fax)
51
CERTIFICATE OF SERVICE
I certify that I have this 31st day of January, 2017,
served a copy of this Reply Brief on the Judicial Inquiry
Commission and counsel below through electronic mail:
John L. Carroll, Lead Counsel
jic@jic.alabama.gov
Rosa Hamlett Davis, Co-Counsel
RosaH.Davis@jic.alabama.gov
Judicial Inquiry Commission of Alabama
401 Adams Avenue, Suite 720
Montgomery, AL 36104
R. Ashby Pate (PAT077)
apate@lightfootlaw.com
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, Alabama 35203-3200
(205) 581-0700
s/ Horatio G. Mihet
Horatio G. Mihet
Attorney for Chief Justice
Roy S. Moore
52