MONTGOMERY, Ala. — A special Supreme Court is expected to be appointed today in Alabama to hear the appeal of suspended Chief Justice Roy Moore as the sitting justices on the court recused themselves out of a desire to keep the ruling impartial.
“Because the justices have personal knowledge of the facts and circumstances underlying this appeal, this appeal presents a situation in which all the justices’ impartiality might be questioned,” the court wrote in a 5-3 vote on Monday.
Seven judges are expected to be appointed this afternoon from among a pool of 50 retired appellate, circuit and district judges. Acting Chief Justice Lyn Stuart and Gov. Robert Bentley will work together to randomly draw names, and then select the first seven who are qualified to hear the appeal.
Liberty Counsel, which is representing Moore in court, believes that the justices who hear the case should be active rather than retired as they would then be accountable to the public.
“In order for Chief Justice Moore to have a fair and objective panel of judge who will adhere to the rule of law, it is critical that elected judges hear Moore’s appeal because they are accountable to the public,” said Founder Mat Staver in a statement. “Yet in this unprecedented twist, all the replacement judges will be retired. Chief Justice Moore is merely asking for the same thing any citizen is entitled to receive—equal justice under the law.”
Moore had filed a motion to recuse Justices Lynn Stuart, Michael Bolin, James, Main and Greg Shaw due to a conflict of interest, and said that these should have no part in selecting replacements either.
However, Stuart will be instrumental in the selection process this afternoon. She had been under criticism for ordering Moore to remove his belongings from the court, since his case was still on appeal.
As previously reported, last month, the Court of the Judiciary (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 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 of all ethics charges.
Liberty Counsel has objected to the COJ’s decision to suspend Moore for the remainder of his term, opining that the term-long punishment is tantamount to removal—and removal cannot take place without a unanimous vote, which there was not. There was only a unanimous vote on suspension but not 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,” the COJ had written in its decision. “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.”