No Moore

Hate group leader Mat Staver has sent out an email on behalf of Liberty Counsel titled: “COJ Throws Out Rule of Law in Moore Case.” Mr. Staver has some interesting ideas regarding the rule of law given that he helped to facilitate a parental kidnapping in 2009. That aside, Staver’s arguments right hollow:

Last Friday the Court of the Judiciary (COJ) issued a decision that defies the rule of law. The public should carefully review the facts of this case. Below are several irrefutable points in chronological order. 

Suffice it to say that the public is not a participant in this matter.

The Judicial Inquiry Commission (JIC) violated the Alabama Constitution and JIC Rule 5, which require confidentiality of the JIC investigation phase before a charge is filed. A week before the charges were filed, the Montgomery Advertiser received information, that could have only come from the JIC, that the investigation was complete and charges would be forthcoming. The day prior to the charges, Moore’s counsel was contacted by the New York Times stating the JIC would issue a charge that day or the next day. The next day, the charges were filed.

There is not a shred of proof in support of that statement. A leak could have come from a nonprofessional staffer. Moreover, a leak (if there was one) had no influence on the proceedings. There was no jury pool to contaminate. Staver made this point in his closing argument to the Court of the Judiciary. It had no effect.

JIC Rule 6 requires that: 1) The JIC may only investigate a matter upon receiving a Verified Complaint; 2) Within 70 days of receiving a Verified Complaint, the JIC must vote whether to investigate; 3) If the JIC votes to investigate a Verified Complaint, it must provide the complaint to the judge; 4) Every six weeks the JIC must notify the judge that it is still investigating the Verified Complaint. Charge 6 alleges that the Chief Justice should have recused himself from participating in the March 2016 decision. The JIC failed to comply with all four requirements. The JIC never received a Verified Complaint, never voted on Charge 6, never sent the Chief the Verified Complaint because there was no such complaint and never sent the Chief letters every six weeks. The Chief cannot legally be convicted on Charge 6, but the COJ did so anyway.

Charge 6 was that he failed to abstain from public comment about a pending proceeding in his own court. Moore was found guilty of all six charges. The other five charges were:

  • Canon 1, in that he failed to uphold the integrity and independence of the judiciary.
  • Canon 2, in that he failed to avoid impropriety and the appearance of impropriety in all his activities.
  • Canon 2A, in that he failed to respect and comply with the law and
    failed to conduct himself at all times in a manner that promotes public
    confidence in the integrity and impartiality of the judiciary.
  • Canon 2B, in that he failed to avoid conduct prejudicial to the
    administration of justice that brings the judicial office into
  • Canon 3, in that he failed to perform the duties of his office impartially.

Even if Staver is correct, the remaining five charges effect the same result. What is Staver’s point? A technical error in one of the six charges?

Charges 1 through 5 allege the Chief ordered probate judges to disobey a federal court injunction and the U.S. Supreme Court Obergefell (same-sex marriage opinion) by issuing the January 6, 2016 Administrative Order.

Staver makes nine points about the above. Among these are:

Paragraph 10 stated: “I am not at liberty to provide any guidance to the Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court. That issue remains before the entire Court which continues to deliberate on the matter.”

The orders of the Alabama Supreme Court were then irrelevant based on over 200 years of precedence. Moore knew that. Yet at the end of the AO Moore wrote that these probate judges had a ministerial duty not to issue marriage licenses to same-sex couples.

The Alabama Supreme Court’s March 2015 orders remained in effect and would continue to remain in effect until the Alabama Supreme Court ruled upon them. …

Bullshit. The Supreme Court ruled that gay couples had a constitutional right to marry. Moore obstructed and frustrated those rights.

Since the Alabama Supreme Court 2015 orders remained in effect at the time of the January 6, 2016 Administrative Order, that Administrative Order did not create any new obligation or duty on the probate judges. It merely reported on the status of the case pending before the Alabama Supreme Court.

Even Staver, as idiotic as he is, knows that the Alabama Supreme Court orders were nullified with the ruling in Obergefell.

Returning to the main arguments:

COJ Rule 16 requires that a unanimous 9-0 decision is required to remove a judge from the bench. The COJ did not have a 9-0 unanimous decision to remove the Chief Justice. The COJ order states: “A majority of this court also agrees with the JIC that the only appropriate sanction for Chief Justice Moore is removal from office. Removal of a judge from office, however, requires ‘the concurrence of all members sitting.’ Rule 16, R.P. Ala. Ct. Jud.” …

“To suspend Chief Justice Moore for the rest of his term without pay is the same as removal. The COJ lacked the unanimous votes to remove the Chief, so the majority ignored the law and the rules,” said Mat Staver, Founder and Chairman of Liberty Counsel.

Staver is saying that they effectively removed Moore from the bench without a unanimous ruling. Section 6.18 of the Judicial Article of the Alabama Constitution provides the COJ with the authority to suspend without pay. If Staver feels that his client was treated unfairly he can file an appeal within 30 days. Moore would have to post a bond for expected court costs. My guess is that an appeal would go nowhere.

“Justice has left Montgomery. It now appears that certain members of the COJ had their mind made up even before the hearings in August and September. No amount of evidence could have stopped the COJ from reaching its predetermined verdict. The JIC and the COJ violate the law with impunity and then have the nerve to charge Chief Justice Moore with violating the law. The violation of the law by both the JIC and the COJ is obvious and disappointing,” said Staver.

There is nothing in the record to suggest that the outcome of this case was predetermined. The bottom line — what will never change — is that Roy Moore instructed subordinate judges to defy the Supreme Court of the United States.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.