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E-Filed

01/31/2017 @ 02:37:21 PM
Honorable Julia Jordan Weller
Clerk Of The Court

Case No. 1160002


IN THE SUPREME COURT OF ALABAMA
ROY S. MOORE,
Chief Justice of the
Alabama Supreme 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)

Admitted pro hac vice

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.

THE STANDARD OF REVIEW IS DE NOVO......................1

II. THE COJ LACKS JURISDICTION TO REVIEW ADMINISTRATIVE


ORDERS OF THE CHIEF JUSTICE............................3
A.

The JICs Conflation Of Review And Reverse


Has No Merit And Does Not Cure The
Jurisdictional Defects Of The COJs Decision.......3

B.

The Administrative Order Was Issued In Good


Faith.............................................6

III. THE COJS FINAL JUDGMENT WAS NOT SUPPORTED BY CLEAR


AND CONVINCING EVIDENCE...............................8
A.

The COJs Reasonable Observer Standard Finds No


Basis In The Law..................................9

B.

Mere Appearances Do Not Equal Clear And


Convincing Evidence..............................13

C.

The
Administrative
Orders
Plain
Text
Eviscerates The JICs Notion That Documentary
Evidence Of Guilt Is Clear And Convincing.........15
1.

The impact of Obergefell was not a proper


subject for the Administrative Order.........16

2.

The
Administrative
Order
Properly
Described
the
Judgment
Issued
in
Obergefell and Provided No Legal Guidance
on Obergefells Precedential Effect.........17

3.

Confusion Existed among Alabama Probate


Judges concerning the Proper Understanding
of Obergefell...............................23

4.

The Administrative Order Did Not Direct


Probate Judges to do Anything...............25

IV. THE COJS IMPERMISSIBLE SUBSTANTIVE USE OF CHIEF


JUSTICE MOORES 2003 CONVICTION CONSTITUTES
REVERSIBLE ERROR.....................................28

V.

A.

Rule 404s Prohibition Is Not Contingent On The


Scope Of The Impermissible Use Of Evidence........28

B.

The COJs Impermissible Use Of Evidence Was


Central To Its Entire Conclusion.................30

C.

The COJs Impermissible Use of Evidence Falls


Under No Exception...............................31

D.

The COJs Error Was Not Harmless.................32

CHARGE 6 WAS NEVER ISSUED AND IS NOT BEFORE THE COJ....35


A.

The JIC Failed To Provide The Requisite Notice


For Charge 6.....................................35

B.

This Courts Mandatory Rules Are Not Contingent


On Chief Justice Moore Being Prejudiced By The
JICs Failure To Follow Them.....................39

VI. THE COJS UNPRECEDENTED SANCTION IMPERMISSIBLY


FLOUTED RULE 16 AND MUST BE REVERSED..................40
A.

This Court May Review The COJs Unprecedented


Sanction In This Case............................40

B.

The COJs Unprecedented Suspension Is


Impermissible As A Matter Of Law.................45

VII. THE CHIEF JUSTICES COMPENSATION SHOULD BE


REINSTATED RETROACTIVE TO SEPTEMBER 30, 2016..........49
CONCLUSION................................................50
ii

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

Howat v. Kansas, 258 U.S. 181 (1922).......................28


In re Hughestown Borough Councilman,
167 A. 587 (Penn. 1933)...................................15
In re Samford, 352 So.2d 1126 (Ala. 1977)...............3, 41
In re Sheffield, 465 So.2d 350 (Ala. 1984).................30
Jefferson Cnty. Commn v. F.O.P,
543 So. 2d 198 (Ala. 1989).................................44
Kotteakos v. United States, 328 U.S. 750(1946).............33
Lamar v. Commrs Court of Marshall Cnty.,
21 Ala. 772 (1852)........................................50
Marie v. Mosier, 122 F. Supp. 3d 1085 (D. Kan. 2015)......19
Miller-El v. Dretke, 545 U.S. 231 (2005)...................10
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)...........passim
Pounders v. State, 74 So.2d 640 (Ala. App. 1954)...........42
Ripps v. Herrington, 1 So.2d 899 (Ala. 1941)............6, 8
Stain v. State, 138 So.2d 703 (Ala.

1961)................33

State v. Harris, 786 N.W.2d 409 (Wis. 2010)........10, 11, 12


Stiles v. Brown, 380 So.2d 792 (Ala. 1980).................2
T.E.W. v. T.S., 97 So.3d 157 (Ala. Civ. App. 2012)........15
United States v. Dunkel, 927 F. 2d 955 (7th Cir. 1991)......38
United States v. Raineri, 42 F.3d 36 (1st Cir. 1994).......33
Wightman v. Karsner, 20 Ala. 446 (Ala. 1852)...............27

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

Judge Williams Response to June 2, 2015 Motion, API,


Case No. 1140460 (Ala. June 10, 2015)......................24
Supreme Court of Alabama, Biography of Chief Justice Roy
Moore, http://judicial.alabama.gov/Bios/rmoore.cfm
(last visited Jan. 30, 2016)..............................47

vi

SUMMARY OF THE ARGUMENT


This Court should engage in a de novo review of the pure
questions of law presented by this appeal. The COJ lacked
jurisdiction to review Chief Justice Moores Administrative
Order and to impose any sanction based upon that Order. The
COJs decision below is unsupported by clear and convincing
evidence. The COJs sanction violates Rule 16. The COJs
impermissible use of Chief Justice Moores 2003 conviction as
evidence of his conduct in conformity therewith is reversible
error. The JIC never voted upon or formally issued Charge 6,
and never provided continuing notice of Charge 6. For these
reasons, the judgment of the COJ below must be reversed.
ARGUMENT
I.

THE STANDARD OF REVIEW IS DE NOVO.


The central issue in this appeal centers on Chief Justice

Moores

Administrative

Order.

The

plain

text

of

the

Administrative Order speaks for itself. This Courts review


is thus de novo. Where, as here, the central focus of the
Courts inquiry involves the interpretation of a document,
the legal significance and meaning of which may be determined
solely by looking at its plain text, the COJs interpretation
of that document is accorded no presumption of correctness,

and this Courts review is de novo. Foster v. Hacienda


Nirvana, Inc., 32 So.3d 1256, 1259 (Ala. 2009).
The JICs contention that this matter is subject to the
ore tenus standard of review is incorrect. (Brief of Appellee,
Alabama Judicial Inquiry Commn, JIC at 16-17). The ore
tenus rule applies only to disputed issues of fact. Born v.
Clark, 662 So.2d 669, 672 (Ala. 1995). [W]here the facts
before the trial court are essentially undisputed and the
controversy

involves

questions

of

law

for

the

court

to

consider, the courts judgment carries no presumption of


correctness. Allstate Ins. Co. v. Skelton, 675 So.2d 377,
379 (Ala. 1996). The COJ based its ruling entirely upon the
Administrative Order (C.1136-37), and the JIC concedes that
the Administrative Orders plain text is not in dispute. (JIC
at 26 n.6). Thus, this Court owes no deference to the COJs
findings concerning the interpretation of that document. See
Stiles v. Brown, 380 So.2d 792, 794 (Ala. 1980).
Even if this Court determines that the standard of review
is ore tenus which it is not the COJs judgment must still
be reversed because the JIC and COJ lacked authority to review
the Administrative Order, none of the Charges are supported
by clear and convincing evidence, and Charge 6 was not even

properly before the COJ. Even under the JICs proffered


standard, this Courts task is to determine whether the
record shows clear and convincing evidence to support the
order of the [COJ]. In re Samford, 352 So.2d 1126, 1129 (Ala.
1977). The COJ must be reversed if its judgment is plainly
and palpably wrong, manifestly unjust, or without supporting
evidence or if its findings are clearly erroneous and
against the great weight and preponderance of the evidence.
Boggan v. Judicial Inquiry Commn, 759 So.2d 550, 555 (Ala.
1999). Thus, even under the ore tenus standard, the COJs
decision is in error and cannot stand.
II. THE COJ LACKS JURISDICTION
ORDERS OF THE CHIEF JUSTICE.
A.

TO

REVIEW

ADMINISTRATIVE

The JICs Conflation Of Review And Reverse Has


No Merit And Does Not Cure The Jurisdictional
Defects Of The COJs Decision.

In its effort to avoid the jurisdictional defects present


here, the JIC curiously conflates the terms review and
reverse. (JIC at 22). This argument labors in vain to
ascribe jurisdiction to a body wholly lacking authority to
review administrative orders of the Chief Justice. Reduced to
its core premise, the JICs contention is that it did not
lack jurisdiction here because it did not seek to reverse
the Administrative Order. (Id.) (Neither the Commission nor
3

the COJ sought to reverse the January 6th Order.). This


contention is incorrect.
Alabama

law

vests

jurisdiction

over

administrative

orders of the Chief Justice in one body alone the Alabama


Supreme Court. Ala. Code 12-5-20 (1975) (The justices of
the Supreme Court shall have the power and authority to
review,

countermand,

overrule,

modify

or

amend

any

administrative decision by either the Chief Justice or the


Administrative

Director

of

Courts.

(emphasis

added)).

Alabama law deprives the JIC and the COJ of jurisdiction to


review

or

Justice.

reverse

The

JIC

an
and

administrative
the

COJ

lack

order

of

the

jurisdiction

to

Chief
even

review administrative decisions from the Chief Justice.


Alabama law cannot be more clear. The JIC and the COJ have no
authority to review or reverse the Administrative Order of
the Chief Justice. On March 10, 2015, this Court re-stated
longstanding precedent that the JIC is not a court of law,
and it has no authority and no role to play in the
performance by this Court of its constitutional duties as a
court of law to decide cases brought before it. (C.906).
This

includes

Administrative

Orders

Justice. Ala. Code 12-5-20 (1975).

issued

by

the

Chief

The JICs attempt to rescue this fatal flaw from certain


reversal by stating that it merely reviewed the conduct of
Chief Justice Moore in issuing the Administrative Order fairs
no better. (JIC at 23). The only purported conduct here is
the plain text of the Administrative Order. (C.1097) (The
JICs complaint alleges that Chief Justice Moore violated the
Canons of Judicial Ethics in an order he issued on January 6,
2016. (emphasis added)). Indeed, the Administrative Order is
the sole basis for all charges brought against Chief Justice
Moore. (C.1119) (noting that all charges arise from the
Administrative

Order);

(C.1136-37)

(basing

all

of

its

findings on the text of the Administrative Order). Thus, the


COJs decision below is based entirely upon its review of
the

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

all that is needed to convict Chief Justice Moore, then its


alleged review of his so-called conduct was nothing more
than

jurisdictionally

deficient

review

of

the

Administrative Order itself. The COJ lacked jurisdiction to


decide the instant matter, and its decision based upon the
Administrative Order must be reversed.
B.

The Administrative Order Was Issued In Good Faith.

Even if the COJ possessed jurisdiction to review the


Administrative Order, which it did not, the Administrative
Order was issued in good faith and thus cannot serve as the
basis for an ethical complaint. Good faith is defined as
[a] state of mind consisting in . . . honesty in belief or
purpose. Blacks Law Dictionary 762 (9th ed. 2009); see also
Andrews v. Alabama Eye Back, 727 So.2d 62, 65 (Ala. 1999)
(same); Ripps v. Herrington, 1 So.2d 899, 902 (Ala. 1941)
(good faith consists of the honest belief that the statement
was

true).

The

plain

text

of

the

Administrative

Order

demonstrates that it was issued in good faith.


Chief

Justice

Moore

explicitly

stated

in

the

Administrative Order why it was necessary. (C.691) (noting


that confusion and uncertainty exists among the probate
judges, that the probate judges of Alabama were acting

inconsistently regarding the issuance of marriage licenses,


and that the disparity affects the administration of justice
in

this

State);

(C.693)

(the

fact

remains

that

the

administration of justice in the State of Alabama has been


adversely

affected

by

the

apparent

conflict

between

the

decision of the Alabama Supreme Court in API and the decision


of the United States Supreme Court is Obergefell.). Given
the conflicting practices of probate judges in Alabama, Chief
Justice Moore was within his authority to take affirmative
and appropriate action to correct or alleviate any condition
or

situation

adversely

affecting

the

administration

of

justice within the state. Ala. Code 12-2-30(7) (1975).


Indeed,

his

order

was

textbook

application

of

his

administrative duties. These statements alone demonstrate the


honesty of his belief that there was a situation adversely
affecting the operation of the probate courts in Alabama.
The plain text of the Administrative Order also reveals
that

Chief

Justice

Moore

was

attempting

to

clarify

the

existing state of this Courts orders in effect at the time.


(C.691)

(informing

probate

judges

that

this

Court

had

requested briefing from the parties in API regarding the


effect of Obergefell); (C.692) (noting that the effect of

Obergefell was still being deliberated by the entire Alabama


Supreme

Court);

(C.693)

(stating

the

legal

truism

that

existing orders of this Court remain operative and in effect


until reversed by this Court).
Chief

Justice

Moores

Administrative

Order

plainly

demonstrates that confusion existed, that probate judges were


applying the law differently in different counties, and that
this disparity was adversely affecting the uniformity of the
law in Alabama. The Administrative Order merely provided
guidance necessary for the orderly administration of justice
within

the

state.

Ala.

Code

12-2-30(8)

(1975).

The

description of the situation reveals the Chief Justices


honest belief that an administrative order clarifying the
situation was necessary. This is the essence of good faith,
even if the honest belief turned out to be mistaken. Ripps,
1 So.2d at 902.
III. THE COJS FINAL JUDGMENT WAS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE.
Rule 10 mandates that the JIC prove its allegations by
clear and convincing evidence. Rule 10, R.P. Ala. Ct. Jud.
The JIC failed to satisfy this mandatory threshold, and the
COJs judgment is thus unsupported by clear and convincing
evidence.

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

established guilt by clear and convincing evidence. The COJs


final judgment was unsupported by the requisite proof and
must be reversed. Boggan v. Judicial Inquiry Commn, 759 So.2d
550, 555 (Ala. 1999).
A.

The COJs Reasonable Observer Standard Finds No


Basis In The Law.

The

JIC

contends

that

the

Administrative

Order

was

nothing more than a scheme to deceive the probate judges into


defying Obergefell and a federal injunction. (JIC at 35-36).
The text of the Administrative Order, however, undermines any
such claim. (C.692) (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. (emphasis original)).
Thus, to succeed in its case, the JIC retreats to the
argument

that

the

Administrative

Order

could

potentially

appear to a reasonable observer as deceptive and concealing


9

of its true motivations. (JIC at 31). The COJs Final


Judgment sought refuge in this diminished standard as well,
stating

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-

convincing evidence standard that the law actually requires.


As

the

Wisconsin

Supreme

Court

has

explained:

[A]

reasonable observer test ... contradicts established law on


the [clear and convincing] burden of proof. State v. Harris,
786 N.W.2d 409, 419 (Wis. 2010) (emphasis added). Because
that test requires only proof of what a reasonable observer
might perceive, the reasonable observer test significantly
lowers the burden of proof. Id. By retreating to a diminished
standard

of

proof,

the

COJ

eviscerated

the

demanding

standard mandated by Rule 10. See Miller-El v. Dretke, 545


U.S. 231, 241 (2005) (noting that the clear and convincing
burden of proof is demanding). By adopting such a diminished
standard, the COJ absolved the JIC of its high burden to
produce evidence capable of demonstrating a firm conviction
as

to

each

essential

element

of

the

claim

and

high

probability as to the correctness of the conclusion. Ala.

10

Code 25-5-81 (1975); Ex Parte Norwood Hodges Motor Co.,


Inc., 680 So.2d 245, 248-49 (Ala. 1996). This reduced standard
has no basis in law.
In addition to violating the demands of Rule 10, the
COJs adoption of the reasonable observer test also presents
significant problems of clarity and precision. Harris, 786
N.W.2d at 419 (the reasonable observer test . . . lacks basic
clarity and is unworkable in practice.). The unworkable
problems of this diminished standard are readily apparent in
the COJs own application of its erroneous standard. The COJ
relies on a press release containing an alleged statement of
Mathew Staver, who was not counsel for the Chief Justice at
the time, that the Administrative Order represented standing
up against the federal judiciary. (C.1127). The JIC never
authenticated this alleged statement. It is patently hearsay
and is irrelevant. This cherry-picked, non-admissible alleged
statement, the JIC argues, was particularly telling because
it illustrated how the order reasonably appears to the general
public. (JIC at 48) (emphasis added).
By what standard does the JIC, the COJ, or anyone measure
what the public might reasonably perceive? Indeed, it is
unclear how widely shared this perception needs to be to pass

11

this test. Harris, 786 N.W.2d at 419. Is the reasonable


observer standard satisfied if even one intelligent person
listening to the [evidence] might think so? Id. Under the
COJs

own

apparent

application

of

its

impermissible

and

unauthorized test, it appears so.


The reasonable perception of other individuals, however,
demonstrates equally plausible, contrary understandings. Eric
Johnston, attorney for the Alabama Policy Institute, the lead
plaintiff in API, spoke to the Montgomery Advertiser on
January

6,

released.

2016,

(C.710).

the
Mr.

day

the

Johnston

Administrative
said

that

Order

he

was

believed

Moores order was appropriate and that he believed it would


address any confusion probate judges might have over the
issue. (C.710). The JICs reliance on a press interview with
one person to establish the perspective of the reasonable
observer shows how unreliable and subjective that standard
is. As these conflicting understandings of the Administrative
Order demonstrate, the COJs improper reasonable observer
test lacks the clarity and workability necessary to be a
sound rule of law. Harris, 786 N.W.2d at 419.
The COJ impermissibly absolved the JIC of its demanding
burden to prove Chief Justice Moores guilt by clear and

12

convincing evidence. The COJ was obligated to find that all


charges were supported by clear and convincing evidence. The
COJ ignored that obligation, opting instead for a diminished
standard wholly foreign to the law of Alabama. Its ultra vires
adoption

of

the

diminished

and

unworkable

reasonable

observer test was thus in error and must be reversed. The


JIC failed to satisfy its burden of proof, and the COJs
decision below should be reversed.
B.

Mere Appearances Do Not Equal Clear And Convincing


Evidence.

Following the COJs example, the JIC attempts to uphold


Chief Justice Moores conviction based upon its own, unlawful
diminished burden of proof. Plagued by the unequivocal and
unavoidable import of the plain text of the Administrative
Order,

the

appearances

JIC

resorts

matter.

to

(JIC

the
at

notion

29-30).

that
To

potential

support

its

appearances-matter assertion, the JIC selects one isolated


conclusion from the COJs Final Judgment. (JIC at 30) (stating
that the COJ held that Chief Justice Moores use of caselaw
in the order was incomplete, misleading, and manipulative.
(citing (C.1135-36))). Yet that conclusion cannot be read in
isolation from the premises upon which it is based. The
premises outlined by the COJ reveal that the foundation for
13

its conclusion is based solely on possibilities, supposition,


and speculation.
Indeed, the COJs conclusion was founded entirely upon
the

notion

that

the

Administrative

Order

appeared

to

require probate judges to do something, could potentially be


read a certain way, and might mean one thing versus another.
(C.1120)
require

(Administrative
defiance);

Order
(C.1127)

might

have

appeared

(Administrative

to

Order

potentially could be reasonably read); (C.1133) (noting


that the Administrative Order could potentially be read to
mean different things); (C.1134) (same); (C.1136) (noting
that Administrative Order might have appeared to direct);
(C.1140) (noting that the Administrative Order might have
meant one thing). The JICs contention that the COJs opinion
was based on more than appearances is thus unsupported by the
COJs own analysis. The foundation for the COJs conclusion
was based upon insufficient evidence and speculation.
As Chief Justice Moore pointed out in his Principal
Brief,1

mere

possibilities

and

speculative

evidence

are

unquestionably insufficient to meet the demanding burden of

Principal Brief of Appellant Chief Justice Roy S. Moore,


Principal Br., filed December 13, 2016.
14

clear

and

convincing

evidence.

(Principal

Br.

at

50-51)

(quoting T.E.W. v. T.S., 97 So.3d 157, 163 (Ala. Civ. App.


2012)). Thus, the COJs conclusion, is like a house built on
sand; the foundation being swept away, the superstructure
crumbles and falls. In re Hughestown Borough Councilman, 167
A. 587, 588 (Penn. 1933).
C.

The Administrative Orders Plain Text Eviscerates


The JICs Notion That Documentary Evidence Of Guilt
Is Clear And Convincing.

The JIC contends that the documentary evidence alone


provides clear and convincing evidence of guilt. (JIC at 35)
(emphasis

original).

The

JICs

contention

is

patently

incorrect. In fact, the only piece of evidence that the JIC


points to for its erroneous contention is the Administrative
Order itself. (JIC at 35-50). The COJs decision below, like
the

JICs

argument

here,

is

based

entirely

upon

the

Administrative Order. (C.1097) (noting that all charges arose


from Chief Justice Moores Administrative Order); (C.111718) (reciting all of the charges in the JIC complaint and
demonstrating

that

all

Administrative

Order);

such

(C.1119)

charges
(all

stem

charges

from

the

arose

from

Administrative Order); (C.1132-34) (focusing all analysis on


the text of the Administrative Order); (C.1135-37) (basing

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.

The impact of Obergefell was not a


subject for the Administrative Order.

proper

The JIC faults Chief Justice Moore for failing to address


the impact of the Supreme Courts decision in Obergefell in
the

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

appropriately left resolution of that issue to this Court.


(C.691) (noting that this Court had requested briefing on the
impact of Obergefell on the existing orders of this Court);
(C.692) (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
16

remains

before

the

entire

Court.

(emphasis

original));

(C.693) (noting that this Courts decision on the impact of


Obergefell was yet to be determined); (C.693) (noting that
the Administrative Order was operative only [u]ntil further
decision by the Alabama Supreme Court). This clear and
unequivocal

language

eviscerates

any

notion

that

Chief

Justice Moore was being intentionally misleading concerning


the impact of Obergefell. Indeed, Chief Justice Moore did not
have authority to and did not issue judgment concerning the
impact of Obergefell on this Courts existing orders in API.
The impact of Obergefell was simply not, and could not be,
the subject of the Administrative Order.
2.

The Administrative Order Properly Described the


Judgment Issued in Obergefell and Provided No
Legal Guidance on Obergefells Precedential
Effect.

The JICs further faults the Chief Justice for allegedly


failing to include a complete description of the Supreme
Courts holding in Obergefell. (JIC at 37). Yet, this again
ignores the plain text of the Administrative Order and the
actual

scope

of

the

judgment

in

Obergefell.

The

Administrative Order correctly states that Obergefell held


the marriage laws in Michigan, Kentucky, Ohio, and Tennessee
unconstitutional.

(C.690-91)
17

(discussing

Obergefell).

Notably, this description of Obergefell is identical to that


of

the

Supreme

Courts

discussion

in

its

opinion.

See

Obergefell v. Hodges, 135 S. Ct. 2584, 2593 (2015) (noting


that the state laws being challenged in the appeal come from
Michigan, Kentucky, Ohio, and Tennessee); id. at 2605 (the
State laws challenged by Petitioners in these cases are now
held invalid to the extent they exclude same-sex couples from
civil marriage) (emphasis added); id. at 2608 (reversing the
judgment of the Sixth Circuit in the matter dealing with the
laws challenged by the specific petitioners in Michigan,
Kentucky,

Ohio,

and

Tennessee).

Chief

Justice

Moores

description in Obergefell identically matched the language of


the judgment issued by the Supreme Court. It omitted nothing
concerning the actual judgment, and thus was not misleading.
The JIC also contends that Obergefell became immediately
operative and binding on all people, in all states. (JIC at
37). The JICs contention of wrongdoing by Chief Justice Moore
misunderstands the operation of a Supreme Court judgment
versus the operation of Supreme Court precedent. The Supreme
Courts judgment represents its final determination of the
rights and obligations of the parties in a case. Blacks Law
Dictionary 918 (9th ed. 2009) (emphasis added). Supreme Court

18

precedent, however, furnishes a basis for determining later


cases

involving

Dictionary

1295

Administrative

similar
(9th

Order

facts

ed.

or

2009)

plainly

issues.

Blacks

Law

(emphasis

added).

The

described

the

operation

of

Obergefell in appropriate, non-misleading terms. (C.691-92)


(describing the Supreme Courts Obergefell judgment).
The Supreme Courts judgment in Obergefell immediately
bound the parties to that decision i.e., Michigan, Kentucky,
Ohio, and Tennessee. See Obergefell, 135 S. Ct. at 2605
(striking down the marriage laws of the states that were party
to the appeal). The Supreme Courts precedent, however, would
need to be applied by subsequent courts to make it of binding
effect elsewhere. The precedent cited in the Administrative
Order also made this distinction abundantly clear. (C.692)
(discussing,

inter

alia,

the

post-Obergefell

decision

in

Marie v. Mosier). In Marie, the District of Kansas noted that


one
must
remember
what
was
at
issue
in Obergefell, and what was not. That case
considered same-sex marriage bans enacted in
Michigan, Ohio, Kentucky, and Tennessee. It did not
rule, at least not directly, on Kansas' ban against
such marriages. The Court's job now is to
apply Obergefell to the Kansas laws, and this Order
does so.
Marie v. Mosier, 122 F. Supp. 3d 1085, 1090 (D. Kan. 2015).

19

What the court in Marie recognized, and the JIC and COJ
stubbornly

refuse

to

understand,

was

that

subsequent

decisions in the jurisdictions outside of the Sixth Circuit


were

still

necessary

to

give

effect

to

Supreme

Court

precedent. Notably, even proponents of the Supreme Courts


Obergefell decision recognized this fundamental principle of
constitutional jurisprudence. Indeed,
[a]n injunction prohibiting enforcement of a
constitutionally invalid law only benefits the named
plaintiffs and only binds the named defendants. . .
As to non-parties, the force of the judgment and
opinion derives entirely from the doctrine of
precedent. . . . precedent never directly regulates
executive officials real-world conduct or obligates
them to act (or refrain from acting) in any way. An
officials failure to abide by even binding
precedent as opposed to a judgment is not subject
to contempt of court or other direct enforcement.
An individual seeking the benefit of precedent must
initiate new litigation and obtain a new injunction
compelling those officials to act or not to act as
to them.
Josh Blackmun & Howard Wasserman, The Process of Marriage
Equality, 43 Hastings Const. L.Q. 243, 250 (2016) (emphasis
added); see also Fed. R. Civ. P. 65(d)(2) (a federal court
injunction binds only the (A) parties; (B) the parties
officers, agents, servants, employees, and attorneys; (C) and
other persons who are in active concert or participation with
(a) or (B)).

20

The JICs contention is thus based on an inappropriate


understanding of this critical distinction. That erroneous
interpretation

of

precedent

also

resulted

in

baseless

charge concerning Chief Justice Moores Administrative Order.


Based on its fatally flawed rationale, the JIC accused Chief
Justice Moore of advocating a position that Obergefell [did]
not impact Alabama. (JIC at 41 n.9). The plain text of the
Administrative Order demonstrates the fallacy of this claim.
Chief Justice Moore did not say that Obergefell had no
impact on Alabama law, but specifically stated that the impact
of that precedent could only be determined by this Court.
(C.691) (discussing this Courts order requiring the parties
in API to submit briefs concerning the effect of the Supreme
Courts decision on this Courts existing orders (emphasis
original)); (C.692) (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. (emphasis original)); (C.692-93)
(noting that the decision of this Court on the effect of
Obergefell was yet to be determined); (C.693) (stating that

21

the Administrative Order was only operative [u]ntil further


decision by the Alabama Supreme Court. (emphasis original)).
As the plain language of the Administrative Order clearly
demonstrates, Chief Justice Moore could not and did not
provide any guidance, make any legal determinations, or issue
any judgment concerning the effect of Obergefell in Alabama.
The

Administrative

Order

expressly

reserved

such

determination for this Court. Thus, the contention of the JIC


that the Administrative Order was incomplete and misleading
is incorrect (JIC at 37-38), and the COJs conclusion (C.1135)
based

upon

that

contention

must

be

reversed.

The

Administrative Order was not incomplete, as it provided a


complete and accurate representation of the effect of the
Obergefell

judgment.

The

Administrative

Order

was

not

misleading because it properly left resolution of the effect


of Obergefell precedent to this entire Court. The COJs
decision below ignores the plain text of the Administrative
Order,

misunderstands

the

operation

of

precedent, and therefore must be reversed.

22

Supreme

Court

3.

Confusion Existed among Alabama Probate Judges


concerning
the
Proper
Understanding
of
Obergefell.

Perhaps sensing that the plain text of the Administrative


Order undermines any claims of unethical conduct by Chief
Justice

Moore,

the

JIC

retreats

to

the

claim

that

the

Administrative Order should never have been issued because


there was no confusion or uncertainty among Alabama probate
judges. (JIC at 39). The JICs only refuge for such a position
was

statement

by

the

Attorney

General

and

generic

assertion by the class representative in Strawser. (JIC at


39-40). Neither of these assertions undermines the undeniable
and indisputable fact that confusion very much existed at the
time of the Administrative Order.
As the Administrative Order demonstrates, probate judges
were

acting

inconsistently

concerning

the

issuance

of

marriage licenses post-Obergefell. (C.691) (Many probate


judges are issuing marriage licenses to same-sex couples in
accordance

with

Obergefell;

others

are

issuing

marriage

licenses only to couples of the opposite gender or have ceased


issuing all marriage licensed.). Submissions to this Court
in API conclusively establish that Chief Justice Moores
assertion

was

factual

and

correct.

23

Compare

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)

(indicating he understood his legal duties to require the


issuance

of

licenses

to

same-sex

couples),

with

Judge

Williams Response to June 2, 2015 Motion, API, Case No.


1140460 (Ala. June 10, 2015) (indicating his understanding
that the district court did not have jurisdiction to enter an
injunction against him and that the Supreme Court also did
not have jurisdiction over the issue and thus any decision by
it would be invalid).
Probate

judges

in

Alabama

were

applying

the

law

inconsistently, resulting in disparate outcomes throughout


the state. Such inconsistency, confusion, and uncertainty
negatively impacted the administration of justice in Alabama.
Chief Justice Moore acted in conformity with his statutory
authority to take affirmative and appropriate action to
correct or alleviate any condition or situation adversely
affecting the administration of justice within the state,
Ala.

Code

12-2-30(7)

(1975),

and

to

issue

any

order

necessary for the orderly administration of justice within


the state. Ala. Code 12-2-30(8) (1975).

24

4.
The

The Administrative Order Did Not Direct Probate


Judges to do Anything.

JICs

contention

that

the

Administrative

Order

directed Alabama probate judges to defy a federal injunction


once again ignores the plain text of the Administrative Order.
(JIC at 45-46). The fatal flaw in the JICs reasoning arises
from its contention that Chief Justice Moore ordered probate
judges to do something they were not already required to do,
namely abide by this Courts decision in API until it was
reversed or otherwise decided. (JIC at 47). The obligation
upon Alabama probate judges was imposed by this Courts
decision in API, not by the Administrative Order.
Indeed, this Court imposed the pertinent obligation on
probate judges by stating:
As it has done for approximately two centuries,
Alabama laws allows for marriage only between one
man and one woman. Alabama probate judges have a
ministerial duty not to issue any marriage license
contrary to this law. Nothing in the United States
Constitution alters or overrides this duty.
The named respondents are ordered to discontinue the
issuance of marriage licenses to same-sex couples.
. . . Subject to further order of this Court. . .
each probate judge is temporarily enjoined from
issuing any marriage license contrary to Alabama
law.
(C.888) (emphasis added). As this Court made abundantly clear
in its API order, probate judges had a ministerial duty not
25

to issue marriage licenses to same-sex couples until further


order of this Court. (C.888) (emphasis added).
The Administrative Order merely restates this Courts
directive, almost verbatim.
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
[Alabama law] remain in full force and effect.
(C.693) (emphasis original). The language of Chief Justice
Moores Administrative Order is identical to that of this
Court in API. This Courts order in API stated that probate
judges cannot issue marriage licenses contrary to Alabama
law, and the Administrative Order merely states the legal
truism that an order by this Court remains in effect until
this

Court

orders

otherwise,

and

that

this

Court

was

continuing to review the matter on which it asked further


briefing. Thus, the directive to the probate judges came from
this Courts order in API, not the Administrative Order.
The Administrative Order merely restated the duty already
imposed on Alabama probate judges by this Court. Chief Justice
Moore

therefore

did

not

order

the

probate

judges

to

do

anything they were not already ordered to do by this Court.


The JIC contends that Chief Justice Moores language in the

26

Administrative Order somehow directed Alabama probate judges


to do something new. (JIC at 45). By the JICs own admission,
the

only

new

thing

the

Administrative

Order

allegedly

directed probate judges to do was to comply with law that is


in full force and effect. (JIC at 47). If this Court had
already imposed a duty to comply with Alabama law on probate
judges, which it unquestionably had done in API, then probate
judges were already required to comply with law that is in
full force and effect. (JIC at 47).
The Administrative Orders quotation of this Court in
API thus did nothing but reiterate a preexisting obligation
incumbent on probate judges in Alabama. This is a far cry
from ordering them to openly defy a federal court injunction,
and reflects the black letter principle that orders of this
Court remain operative and in effect until reversed by this
Court

or

court

of

competent

jurisdiction.

See,

e.g.,

Wightman v. Karsner, 20 Ala. 446, 454 (Ala. 1852) (When a


court

has

jurisdiction,

it

has

right

to

decide

every

question which occurs in the cause: and whether it decision


be correct or otherwise, its judgment, until reversed, is
regarded as binding). In 1997, this Court reiterated this
legal truism: It is for the court of first instance to

27

determine the question of the validity of the law, and until


its decision is reversed for error by orderly review, either
by itself or by a higher court, its orders based on its
decision are to be respected. . . Ex parte Metropolitan Life,
Ins. Co., 707 So.2d 229, 231-32 (Ala. 1997) (quoting Howat v.
Kansas, 258 U.S. 181, 189-90 (1922)).
The JICs remarkable contention thus ignores over a
century

of

precedent

and

should

be

rejected.

The

COJs

judgment based upon the same contention must be reversed.


IV. THE COJS IMPERMISSIBLE SUBSTANTIVE USE OF CHIEF JUSTICE
MOORES 2003 CONVICTION CONSTITUTES REVERSIBLE ERROR.
The JIC does not dispute that the COJ used evidence from
the 2003 proceeding to prove guilt in the current case, an
impermissible action under Rule 404, Ala. R. Evid., Hayes v.
Alabama Court of the Judiciary, 437 So.2d 1276, 1278 (Ala.
1983), and the COJs own orders in this case. Instead, despite
being clearly violative of Rule 404, the JIC attempts to
justify the COJs actions and shield them from reversal. Those
efforts fall far short of the mark.
A.

Rule 404s Prohibition Is Not Contingent On The


Scope Of The Impermissible Use Of Evidence.

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

percentage of evidence being violative of its commands. The


JIC ignores the indisputable fact that those two exhibits
were the subject of a pretrial dispute and orders of the COJ
(see

Principal

attempted

to

Br.

at

establish

74-76),
guilt

on

precisely
an

because

impermissible

they
basis,

namely ascribing actions in 2016 to traits of character


supposedly

demonstrated

in

2003.

Rule

404s

prohibition

applies to any use of such evidence to prove conduct in


conformity therewith. Rule 404, Ala. R. Evid. (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.). The prohibition applies regardless of the size
and scope of the evidence used improperly.
The JIC also urges rejection of Chief Justice Moores
Rule 404 objection because the use of the improper evidence
amounted to little more than a single page of text in the
COJs 50-page final judgment. (JIC at 64). Again, a violation
of Rule 404 is not predicated on how lengthy the discussion
concerning the impermissible use of evidence is. Indeed, the
violation is the impermissible use of evidence at all. The
JICs attempted justifications must be rejected.

29

B.

The COJs Impermissible Use Of Evidence Was Central


To Its Entire Conclusion.

The JICs erroneous attempt to justify the impermissible


use of evidence by noting the allegedly minimal discussion of
it also ignores a critical fact. The COJs discussion of the
impermissible evidence was central to its entire conclusion.
In II(A) of its opinion, the COJ addressed Charges 1-5.
That section, therefore, is the heart of its opinion. (See
C.1119-1137). The first six pages the COJs discussion are
merely descriptive and provide no substantive analysis. The
impermissible use of evidence begins immediately upon the
COJs

discussion

outlining

its

findings

and

drawing

conclusions. (C.1126). Of the dozen pages that express the


COJs condemnation of the Chief Justice, nearly half directly
relate to its use of the 2003 case to ascribe guilt in 2016.
(C.1126-1130).
Therefore, the JICs statement that the improper passages
amount to little more than a single page of text in a 50page opinion (JIC at 64) ignores the COJs critical reliance
on that evidence. And, even more to the point, the COJ used
the 2003 events to prove that the Chief Justice acted in bad
faith in 2016, a necessary element of proof to transform legal
error into an ethical violation. See In re Sheffield, 465
30

So.2d 350, 358 (Ala. 1984). Contrary to the JICs assertions,


the improper use of the 2003 evidence to find guilt in the
2016

case

was

central

to

the

COJs

opinion.

Such

use

unquestionably violates Rule 404.


C.

The COJs Impermissible Use of Evidence Falls Under


No Exception.

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

appears twice in Rule 404(b), but only as a requirement that


the defendant be informed of the prosecutions intent to
introduce other-acts evidence, not as a category of such
evidence. The JICs statement that Rule 404s other-acts
exceptions
demonstrably

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.

The COJs Error Was Not Harmless.

Contrary to the JICs contention (JIC at 69-70), the


COJs impermissible use of evidence did not result in mere
harmless error. A judgment may be reversed on the basis of
evidentiary error if the error complained of has probably
injuriously affected substantial rights of the parties. Rule
45, Ala. R. App. P. The Chief Justices burden is to show
that the error probably affected his substantial rights in an
injurious manner.

That evidence of guilt and sanctions were heard in one


proceeding at trial (JIC at 68) is beside the point. The Chief
Justice challenges the impermissible use of evidence from
2003 to establish guilt in this case.
32

As this Court has said: In such cases, there is always


the possibility, often the probability, that the prejudicial
statement entered into the judgment, and the harmless error
rule is not intended to save such a verdict from appellate
condemnation. Stain v. State, 138 So.2d 703, 706 (Ala. 1961)
(emphasis added). That the error in using the 2003 evidence
to prove guilt in this case probably affected the judgment is
indisputable, given the major employment of that evidence by
the COJ in its reasoning.
The inquiry cannot be merely whether there was
enough to support the result, apart from the phase
affected by the error. It is rather, even so, whether
the error itself had substantial influence. If so,
or if one is left in grave doubt, the conviction
cannot stand.
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
The JIC attempts to transform the harmless-error test
into a but for rule, stating that Chief Justice Moore has
failed to show that there is any likelihood whatsoever that
the result of the trial would be different if only the COJ
had not drawn this parallel. (JIC at 70). Evidentiary error,
however, can require reversal without having to show that the
outcome would have been different. See United States v.
Raineri, 42 F.3d 36, 42 (1st Cir. 1994) (stating that error
affecting the substantial rights of the defendant is not a
33

but for test). Chief Justice Moores substantial rights


were

undoubtedly

affected

by

the

impermissible

use

of

which

is

evidence, and its use was not harmless.


Harmless

error

is

defined

as

an

error

trivial or formal or merely academic ... and in no way


affected the final outcome of the case. Ex parte Hutcherson,
677 So.2d 1205, 1209 (Ala. 1996) (emphasis added) (quoting
Blacks Law Dictionary 718 (6th ed. 1990)). The COJs heavy
reliance on evidence from 2003 to prove guilt in 2016 does
not fall into the category of small errors or defects that
have little, if any, likelihood of having changed the result
of the trial. Chapman v. California, 386 U.S. 18, 22 (1967)
(discussing harmless-error statutes).
In Hayes, this Court rejected a Rule 404(b) challenge
because [o]ur search of the record does not reveal that [the
previous case] was ever used to influence the court to find
the judge guilty. Hayes, 437 So.2d at 1279. By contrast,
such influence exists in a major way in this case. Indeed,
the majority of the COJs rationale was premised on Chief
Justice Moores 2003 case. (See C.1126-27). The impermissible
use of evidence was thus critical to the COJs finding below,

34

and such a substantial use of impermissible evidence mandates


reversal.
V.

CHARGE 6 WAS NEVER ISSUED AND IS NOT BEFORE THE COJ.


The JIC claims that this case is about the rule of law.

(JIC at 19). Should not the JIC then set an example by


respecting the legal rules that govern its own actions? Those
rules are constitutionally mandated, Art. VI, 156(c), Ala.
Const. 1901, and were not adopted by this Court as an exercise
in futility. Yet once again the JIC wearies the Court with
multiple excuses for not following its own rules.
A.

The JIC Failed To Provide The Requisite Notice For


Charge 6.

The JIC does not contend that it provided the notice


required by Rule 6. Rule 6A states: Proceedings may be
instituted by the commission only upon a verified complaint
filed either by a member of the public or by a member of the
commission or the commissions staff. Rule 6A, R.P. Ala. Ct.
Jud. (emphasis added). The January 2016 complaint upon which
this proceeding is based made no allegation that the Chief
Justice was disqualified from participating in any further
proceedings in the API case. Upon deciding to investigate the
complaint, the Commission, as required by Rule 6C, advised
Chief Justice Moore of those aspects of the complaint that it
35

then

considered

worthy

of

some

investigation.

Alleged

disqualification from further participation in the API case


was not included in the JIC investigation. (C.394-95).
As a result of the investigation the JIC instituted, Rule
6D required the JIC to serve upon Chief Justice Moore every
six

weeks

thereafter

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.
Rule

6D,

R.P.

Ala.

Ct.

Jud.

(emphasis

added).

In

two

subsequent six-week letters, the JIC did not modify its


previous

statements

and

never

included

any

mention

of

prospective disqualification in the API case. (C.396-97).


Because of these mandatory requirements, Chief Justice Moore
was on notice that his future participation in the API case
was not a matter the JIC was investigating.
Nonetheless, the JIC argues that it provided informal
notice which, though not in conformity with the rules, was
sufficient to satisfy them. (JIC at 71). In fact, the JIC
seeks refuge for its blatant rule violations by noting only
that it provided hundreds of pages of supporting documents.
(JIC at 71). Undoubtedly, Rule 6 does not lay upon a judge

36

under

investigation

the

burden

of

searching

through

voluminous disclosures to discern a hidden ethical charge not


plainly and clearly disclosed as the rules require.
Based on its indisputably deficient notice under the
rules, the JIC also contends that Chief Justice Moore was
under actual notice by reason of questions posed at a
hearing. (JIC at 71-72). But again, no mention was made at
that hearing of a forthcoming charge based on those questions.
The JIC then purports to blame Chief Justice Moore for failing
to object to the lack of notice of the JICs undisclosed
charge at the hearing. Rule 6, however, does not and cannot
lay the burden of objecting to lack of notice on a judge who
has no legal notice of such charge. At any rate, Chief Justice
Moore argued that Charge 6 was not properly before the COJ.
Rule 6 in unequivocal terms places the burden upon the
JIC to provide formal written notice of charges. A judge may
rightly assume that the only charges that will appear in a
formal complaint to the COJ are those of which he was notified
in conformity with Rule 6. These procedures protect the judge
from surprise charges in the complaint of which he had neither
been notified nor had a full opportunity to respond.

37

The JICs multifaceted argument can be boiled down to a


simple

erroneous

proposition:

that

it

may

ignore

the

mandatory language of Rule 6 at its pleasure, assuming the


judge under investigation did not object to that about which
he had no actual knowledge or sufficient notice. Such a bald
assertion

runs

unjustifiable

roughshod

and

over

the

unconscionable

rules

burden

and

on

imposes

Chief

an

Justice

Moore. Just as [j]udges are not like pigs, hunting for


truffles buried in briefs, United States v. Dunkel, 927 F.
2d 955, 956 (7th Cir. 1991), neither are they required to
search through an undifferentiated mass of papers in search
of ethical charges otherwise undisclosed.
The January 22, 2016 Third Supplement to the Complaint
centered

on

the

Administrative

Order.

(C.711-12).

The

February 29, 2016, Complaint, as the JIC noted, was merely


a restatement of some of the issues . . . regarding the third
supplement to the complaint in the January 22, 2016, letter
of investigation. (C.714). Recusal could not be an issue until
the March 4, 2016, Order from this Court in API. All the
complaints occurred prior to the March 2016 Order from this
Court in API. None of the subsequent six-week letters of
investigation modified or mentioned the recusal issue in

38

Charge 6. (See C.714-716). Charge 6 was first mentioned when


the JIC issued the Charges. In Chief Justice Moores response
to Charge 6, after being confronted with it for the first
time, he objected to it as improper and contrary to Rule 6.
Charge 6 must be dismissed because (1) there was never a
verified complaint for Charge 6; (2) the JIC never voted on
Charge 6, because there was no verified complaint on which to
vote; (3) the JIC never issued a letter of investigation on
Charge 6; and (4) the JIC never issued a six-week letter
regarding Charge 6.
B.

This Courts Mandatory Rules Are Not Contingent On


Chief Justice Moore Being Prejudiced By The JICs
Failure To Follow Them.

The JIC also contends that no prejudice resulted from


its failure to follow Rule 6. (JIC at 73-74). But, the JIC
may not flout the rules it is subject to and claim that its
failure to follow them is harmless because no prejudice
resulted from their unlawful actions. Rule 6 contains no
harmless error exception. If the JIC may at will ignore
governing law, why does JIC Rule 19 permit a judge aggrieved
by

any

violation

of

these

Rules

to

institute

formal

proceeding before the COJ or this Court? Chief Justice Moore


is certainly aggrieved by being faced with a charge in the

39

complaint that triggered his automatic suspension from office


of which he had no legally sufficient or actual notice. Chief
Justice Moore presented the JICs violation of Rule 6 as a
Rule 19 grievance in the Motion to Dismiss. (C.358). In
support of its no-prejudice argument, the JIC cites two 40year-old

cases

from

other

jurisdictions.

Whatever

lax

procedures other states may have excused a generation ago


does not license the JIC to ignore current Alabama law.
Because the requirements of Rule 6 are mandatory, and
not optional or discretionary, the JIC has forfeited Charge
6 by its failure to follow the law.3
VI. THE COJS UNPRECEDENTED SANCTION IMPERMISSIBLY FLOUTED
RULE 16 AND MUST BE REVERSED.
A.

This Court May Review


Sanction In This Case.

The

COJs

Unprecedented

The Alabama Constitution states: A judge aggrieved by a


decision of the Court of the Judiciary may appeal to the
Supreme Court. The Supreme Court shall review the record of
the proceedings on the law and the facts. Art. VI, 157(b),
Ala. Const. 1901. This Court has interpreted 157(b) to mean

On the merits of the charge that the Chief Justice should


have recused in API II, please see the lengthy and wellreasoned Statement of Nonrecusal of the Chief Justice filed
in the API case. (C.971-981).
40

that if the findings of the COJ are supported by clear and


convincing evidence, this Court has no power to review the
sanction imposed. See Boggan v. Judicial Inquiry Commn, 759
So.2d 550, 555 (Ala. 1999) (holding that if the record 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); Hayes v. Alabama Court of Judiciary,
437 So.2d 1276, 1279-80 (Ala. 1983) (same); In re Samford,
352 So.2d 1126, 1129 (Ala. 1977) (holding that the orders of
the Court of the Judiciary are entitled to a presumption of
correctness

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

proceedings on the law and the facts. Such a mandate requires


this Court to review a sanction that is contrary to the law.
Unlawful sentences are always subject to review and reversal

41

by this Court. Where unauthorized sentence is imposed by the


trial court, on appeal the judgment of conviction may be
affirmed and the case remanded for proper sentence. Ex parte
Casey, 852 So.2d 175, 181 (Ala. 2002) (quoting Pounders v.
State,

74

So.2d

640,

641

(Ala.

App.

1954)).

Indeed,

challenge to an illegal sentence is jurisdictional and can be


raised at any time. Ex parte Batey, 958 So.2d 339, 341 (Ala.
2006) (quoting Ginn v. State, 894 So.2d 793, 796 (Ala. Crim.
App. 2004)).
Rule 16 does not permit a sanction of removal without a
unanimous vote of the COJ. See Rule 16, R.P. Ala. Ct. Jud.
(With respect to removal from office, the Court shall convict
only with the concurrence of all members sitting. (emphasis
added)). Though admittedly lacking the requisite unanimity
(C.1143), the COJ nonetheless imposed a de facto removal
through a misuse of its suspension power. Nothing in Boggan,
Hayes, or Samford requires this Court to defer to a sanction
that violates the rules promulgated by this Court to govern
the COJ. Were it otherwise, the COJ could impose a removal
sanction (expressly calling it as such) with less than a
unanimous vote, admit plainly that it is violating Rule 16,
and

yet

even

that

open

defiance

42

of

the

law

would

be

unreviewable by this Court, rendering the review afforded by


157(b) entirely meaningless. Such is not, and cannot be,
the law. And what the COJ and JIC lack the power to do
expressly and openly, they also lack the power to do impliedly
and covertly, through the use of clever labels.
That questions of law are reviewed de novo by this Court
is a well-settled proposition. Ex Parte Graham, 702 So.2d
1215, 1221 (Ala. 1997) ([O]n appeal, the ruling on a question
of law carries no presumption of correctness, and this Courts
review is de novo.). Whether the COJ correctly interpreted
and applied the meaning of Rule 16 is a question of law that
is subject to de novo review. See Girard v. State, 883 So.2d
717,

719

(Ala.

2003)

(The

interpretation

of

statute

involves a question of law and an appellate court reviews a


trial courts interpretation de novo, without any presumption
of correctness.); Big Valley Home Ctr., Inc. v. Mullican,
774 So.2d 558, 560 (Ala. 2000) (It is clear that a majority
of jurisdictions, including Alabama, afford de novo review of
rulings

on

questions

of

law.);

Ex

parte

Bd.

of

Zoning

Adjustment, 636 So.2d 415, 417 (Ala. 1994) (presumption [of


correctness] has no application when the trial court is shown
to have improperly applied the law to the facts).

43

The COJs interpretation of its authority under Rule 16


is therefore a question of statutory interpretation and is
entitled to no presumption of correctness. Thus, even if this
Court

finds

that

the

charges

were

proved

by

clear

and

convincing evidence, which it certainly should not,4 it must


still review the sanction under the de novo standard and
afford the COJs decision no presumption of correctness.
Contrary to the COJs decision and the JICs contention
(JIC at 57-59), a plain text reading of Rule 16 mandates a
finding that the COJs de facto removal without the unanimous
concurrence of all members is unauthorized and unlawful. The
COJ cannot simply ignore the mandates of Rule 16. Likewise,
the COJ cannot simply ignore the canons of construction and
this

Courts

precedent

prohibiting

an

imposition

of

sanction rendering the unanimity provision of Rule 16 a


nullity. The deceptive use of alternative remedies to achieve
a result aimed at circumventing the mandatory requirements of
the rules promulgated by this Court is improper. See Jefferson
Cnty. Commn v. F.O.P, 543 So. 2d 198, 200 n.1 (Ala. 1989)
(holding that a trial courts use of an alternative remedy to

See supra Section III.


44

avoid the imposition of certain requirements of the rules is


impermissible).
B.

The COJs Unprecedented Suspension Is Impermissible


As A Matter Of Law.

The JIC cites two instances in which the COJ imposed


suspension without pay for the remainder of a judges term,
concluding that the Chief Justices argument that suspension
without pay for the remainder of a judges term is wholly
unprecedented or unsupported by Alabama law is simply wrong.
(JIC at 54-55). But those cases are from 1983, almost two
decades before the unanimity rule was adopted. The JIC fails
to address the Chief Justices analysis of those cases:
Before the amendment of Rule 16 in 2001, the
COJ suspended three judges for the remainder of
their terms. See Appendix B. Because a unanimous
vote was not required for removal between 1974 and
2001, the COJ was not subject to the unanimity rule.
Of the three cases of suspension for term, one was
only 39 days. ...
In the other two instances, suspension without
pay for term was imposed in conjunction with a
suspension with pay to provide a 6-month severance
payment, a benefit that would have been unavailable
under a sentence of removal. ... Those suspensions
were not imposed to evade the unanimity requirement,
which did not exist at that time, but to provide a
soft landing with severance pay.
(Principal Br. at 38-39).
The

Chief

Justice

argued

45

that

the

length

of

his

suspension

was

not

only

unprecedented,5

but

also

impermissible. Lacking unanimity, the COJ accomplished the


same result as removal by suspending the Chief Justice without
pay for the remainder of his term. In so doing, the COJ
changed the mandatory unanimity requirement into mere surplus
language that has no independent effect. Under the JICs
contention (JIC at 54), a six-judge majority can remove any
judge from office merely by suspending that judge without pay
for the rest of the judges term. Such a misuse of Rule 16 is
contrary to every applicable canon of construction, as ample
precedent demonstrates. (See Principal Br. at 26-36). Because
the

sentence

is

transparent

evasion

of

the

unanimity

requirement of Rule 16, the judgment must be reversed.


The JIC contends that the punishment imposed by the COJ

The JIC notes a decision of the COJ entered after the


filing of the Chief Justices brief in which it imposed an
11-month suspension without pay on a judge, supposedly
undercutting the Chief Justices assertion in his Principal
Brief that [s]ince adoption of the unanimity requirement, no
suspension has ever exceeded six months. (JIC at 56 n.11).
See Final Judgment, In the Matter of Armstead Lester Hayes
III (COJ No. 49, Jan. 5, 2017). An 11-month suspension without
pay only exceeds the next-longest suspension by 5 months.
Chief Justice Moores suspension without pay exceeds the
previous record by 21 months and exceeds the new record
suspension by 16 months. The COJs recent decision thus
provides no support for upholding Chief Justice Moores
unprecedented suspension.
46

was not a de facto removal. (JIC at 57-58). This claim has no


merit and is belied by the treatment of Chief Justice Moore
immediately upon imposition of the impermissible sanction.
Immediately following the COJs sanction, Chief Justice Moore
received a letter from Acting Chief Justice Stuart ordering
him to remove his personal items from his office and to return
all of his keys. (See Exhibit A, Motion to Countermand the
October 11 Letter of Acting Chief Justice Lyn Stuart in regard
to Removal of Personal Effects from the Judicial Building
Countermand Motion, Case No. 1160002 (Ala. Oct. 14, 2016)).
Chief Justice Moores name was immediately removed from the
Courts letterhead. (Id.). On October 13, 2016, Chief Justice
Moores clerks and staff were fired, ordered to remove all of
their personal effects from the office, and ordered to return
their keys. (See Affidavit of Chief Justice Moore in support
of

Countermand

Motion

5).

Chief

Justice

Moores

biographical page on this Courts website has also been


modified to note that his term ended in 2016.6 Ordering the
Chief Justice to permanently vacate the building, permanently

Supreme Court of Alabama, Biography of Chief Justice Roy


Moore,
http://judicial.alabama.gov/Bios/rmoore.cfm
(last
visited Jan. 30, 2016).
47

stripping him of access to the building, firing his clerks


and

staff,

and

updating

his

biographical

information

to

indicate his term ended in 2016 all demonstrate unequivocally


removal, not suspension. These are acts of permanence aimed
at removing any vestige of the Chief Justice from this Court.
The JICs contention has no merit.
Chief Justice Moore is not alone in his concern about
the COJs flouting of the unanimity requirement for removal.
Trial judges, both active and retired, have expressed great
concern

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

compensation to be reinstated retroactive to the COJs order


on September 30, 2016.
Challenges to an unlawful sanction are jurisdictional.
Ex parte Batey, 958 So. 2d 339, 341 (Ala. 2006) (quoting Ginn
v. State, 894 So.2d 793, 796 (Ala. Crim. App. 2004)). The
COJs admission that it did not have the requisite unanimity
to impose removal makes its imposition of de facto removal an
49

unlawful order. The COJs flagrant violation of its own rules


thus removes its order from the bounds of the COJs lawful
jurisdiction. As such, it is not merely voidable, but void ab
initio. Lamar v. Commrs Court of Marshall Cnty., 21 Ala.
772, 776 (1852) (judgments rendered in excess of the specific
authority granted to a court are not merely voidable, but
void). Therefore, each aspect of the unlawful sanction upon
Chief Justice Moore were impermissible from the moment it was
imposed, including the suspension of his pay. He is thus
entitled to reinstatement and retroactive payment of those
salaries and benefits lost during the entire time the void
sanction was being imposed.
CONCLUSION
For all these reasons, the judgment of the COJ must be
reversed,

and

the

charges

against

Chief

Justice

Moore

dismissed. Chief Justice Moore must be reinstated to his


elected office as Chief Justice of this Court.

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

Attorneys for Petitioner

LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854
(407) 875-1776 (tel)
(407) 875-0770 (fax)

Admitted pro hac vice

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

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