MONTGOMERY, Ala. — Attorneys for Alabama Chief Justice Roy Moore have appealed his suspension from the bench, and are asserting that his suspension is tantamount to removal, which is a violation of state procedural rules since there was not a unanimous agreement to remove Moore as required by law.
“Under the COJ (Court of the Judiciary) rules, removal requires a unanimous 9-0 vote by the members of the COJ, which is made up of judges, a lawyer and laypeople. Absent a 9-0 unanimous vote, the COJ cannot remove a judge from the bench,” Liberty Counsel said in a statement on Wednesday.
“But in an unbelievable violation of the law, the COJ suspended him without pay for the remainder of his term. When his term expires, he will be ineligible to run again for election as judge due to his age. So the suspension until the end of his term is a de facto removal from the bench,” it explained.
As previously reported, last Friday, the COJ declared Moore guilty of failing to “perform the duties of his office impartially,” failing to “avoid impropriety,” failing to “respect and comply with the law” and failing to “abstain from public comment about a pending proceeding in his own court,” among other charges.
“For these violations, Chief Justice Moore is hereby suspended from office without pay for the remainder of his term. This suspension is effective immediately,” it declared.
The COJ said that Moore was not removed from the bench because a unanimous vote is required for removal, and the COJ was not in unison about how the matter should be handled. The COJ had the choices of acquittal, a statement of censure, suspension or removal.
“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,” it wrote. “It is clear there was not a unanimous concurrence to remove the Chief from office, so the COJ suspends him for the remainder of his term.”
But Mat Staver of Liberty Counsel, who represented Moore before the COJ, opined that the term-long suspension is “the same as removal.”
“The COJ lacked the unanimous votes to remove the chief, so the majority instead chose to ignore the law and the rules,” he said.
The controversy surrounding Moore began in 2013 when two lesbians in the state sued Gov. Robert Bentley, Attorney General Luther Strange and Mobile County Probate Judge Don Davis—among others—in an attempt to overturn Alabama’s marriage amendment after one of the women was denied from adopting the other woman’s child.
In January 2015, U.S. District Judge Ginny Granade ruled in favor of the women, prompting Moore to send a memo to probate judges throughout the state, advising that they are not required to issue “marriage” licenses to same-sex couples as he believed that Grenade’s ruling only applied to the two women.
Moore also wrote a letter to Gov. Robert Bentley, urging him to “uphold and support the Alabama Constitution with respect to marriage, both for the welfare of this state and for our posterity.”
“Be advised that I will stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority,” he stated.
The Southern Poverty Law Center (SPLC) then filed a judicial ethics complaint against Moore over his letter to Gov. Bentley, and the homosexual activist group Human Rights Campaign (HRC) submitted 28,000 petition signatures to the JIC calling for Moore’s removal.
As confusion ensued over Moore’s letter to probate judges, one judge, John Enslen of Elmore County, asked the full Alabama Supreme Court for further guidance. In March 2015, six of the nine judges of the Alabama Supreme Court released a historic order halting the issuance of same-sex “marriage” licenses in the state. Moore recused himself from the matter and was not included in the order.
“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman,” the 148-page order read. “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.”
Three months after the Alabama Supreme Court issued its order, the U.S. Supreme Court ruled in Obergefell v. Hodges. The Alabama court did not immediately lift its order following the ruling as it took time sorting through the matter.
Therefore, in January, Moore sent another letter advising that the full court’s previous instructions remained in effect until it issued directives in light of the U.S. Supreme Court ruling in Obergefell.
“Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect,” he wrote on Jan. 6.
But he also noted that his memo did not weigh in on how June’s U.S. Supreme Court ruling has impact on the Alabama Supreme Court’s directive, and said that it was not his place to make that determination.
“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,” Moore wrote.
In March, the court finally issued its opinions on the matter, dismissing all outstanding cases before the bench.
In May, the Alabama Judicial Inquiry Commission (JIC) announced that it had filed ethics charges against Moore, and suspended the chief justice while he faced a trial before the COJ.
Moore argued during his trial that he had not issued any orders, but only a status update as the Alabama Supreme Court had not rescinded its previous order following Obergefell. The COJ did not believe Moore and found him guilty on all ethics charges.
“Liberty Counsel and the chief justice have appealed this case to the Alabama Supreme Court,” Staver announced on Wednesday. “These baseless charges should be dismissed and the chief justice should be reinstated.”