Posted on 11/14/2017 10:45:45 AM PST by Mafe
On Monday, a fifth woman came forward with allegations that Roy Moore sexually assaulted her when she was 16 years old and he was a prosecutor in Etowah County, Ala. The accusations to date are both plausible and disgusting. When Moore was in his early thirties, he allegedly sought out and sexually assaulted numerous teenage girls, including a 14-year-old.
Moore has denied it, sort of, although his weird interview with Sean Hannity on Friday left the strong impression that the charges are most likely true. Yet it’s hard to understand why voters in Alabama are only just now realizing that he is unfit for office.
They should have known years ago, when his contempt for the rule of law twice got him removed from the Alabama Supreme Court. It’s worth recounting those incidents because they reveal that Moore is no conservative and has little use for the American constitutional order that conservatives hold dear. That he was embraced by a significant number of social conservatives, and still enjoys significant support among some evangelicals, is yet another sign that the conservative movement has lost its way.
(Excerpt) Read more at thefederalist.com ...
More tut-tutting from the lace cuff and snuffbox toffs of the GOPe.
You are correct that different rules apply, but I’m not sure what to do about it. I don’t want to be one who doesn’t play by the rules. Do you?
We need lie-detector tests for everyone.
Moore should first pay for his own private confidential tests and then reveal the results if appropriate.
.
“Liberals are the ones who ignore the law to impose there own beliefs.”
Baloney. By that standard, Rosa Parks should have sat in the designated black seats and the blacks should have sat in their legally specified zone in the cafe section of Woolworths.
We aren’t little automatons following unconstitutional and inane rulings. The very court that said his commandments had to go, displays those very commandments on THEIR building.
Common sense isn’t so common anymore.
Can anyone tell me when “The Federalist” actually turned into “The Statist” ?
And since Marbury vs Madison, all USSC rulings have been considered the law of the land. So not only did he not uphold the superior courts orders, he refused to uphold the law of the land.
How exactly do you come to the conclusion that an Appellate Decision involving a Municipality is Binding on the several States?? I know what the previous scumbag lawyers in black dresses with cute little hammers said, but the US Constitution says differently.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.
Furthermore, his decision to Order No Sodomy Certificates is on strong ground:
A recent detailed study of the courts of all 50 states and the District of Columbia determined that 46 states and the District of Columbia adopt the position that the precedents of lower federal courts are not binding in their jurisdictions. Wayne A. Logan, A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights, 90 Notre Dame L. Rev. 235, 280-81 (2014). The position of three other states is uncertain. Only one state (Delaware) defers to the constitutional decisions of lower federal courts. Id. At 281.
Federal courts have recognized that state-court review of constitutional questions is independent of the same authority lodged in the lower federal courts. “In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is a parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.” United States ex rel.Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970).
Although consistency between state and federal courts is desirable in that it promotes respect for the law and prevents litigants from forum-shopping, there is nothing inherently offensive about two sovereigns reaching different legal conclusions. Indeed, such results were contemplated by our federal system, and neither sovereign is required to, nor expected to, yield to the other.
Surrick v. Killion, 449 F. 3d 520, 535 (3rd Cir. 2006).
The United States Supreme Court has acknowledged that state courts “possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law.” Asarco Inc. v. Kadish, 490 U.S. 605, 617 (1989). Two justices of the United States Supreme Court in special writings have elaborated on this principle.
The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court’s interpretation of federal law give way to a (lower) federal court’s interpretation. In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.
Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J., concurring). See also Steffel v. Thompson, 415 U.S. 452, 482, n. 3 (1974) (Rehnquist, J., concurring) (noting that a lower- federal-court decision “would not be accorded the stare decisis effect in state court that it would have in a subsequent proceeding within the same federal jurisdiction. Although the state court would not be compelled to follow the federal holding, the opinion might, of course, be viewed as highly persuasive.”).
For the above reasons, I am of the opinion that an Alabama probate judge may deliver his own considered opinion, subject to review, on the issues raised in Searcy and Strawser and is not required to defer to federal district and circuit court rulings on the same questions.
IV. Conclusion
In fulfillment of my obligations as Administrative Head of the Unified Judicial System, I have herein offered you my considered guidance on how the recent orders from the United States District Court in Mobile affect your duties as an Alabama probate judge. Because, as demonstrated above, Alabama probate judges are not bound by Judge Granade’s orders in the Searcy and Strawser cases, they would in my view be acting in violation of their oaths to uphold the Alabama Constitution if they issued marriage licenses prohibited under Alabama law.
APPENDIX
The reasoning employed by Judge Granade in dismissing Governor Bentley with prejudice on August 28, 2014, namely that his general authority to enforce the laws was insufficient to make him a defendant, also applies to Attorney General Strange, who is the sole remaining defendant in both Searcy and Strawser.
I.
How the Alabama Attorney General came to be the sole defendant in each case
A. Searcy
The complaint in Searcy named five defendants in both their individual and official capacities: Robert Bentley, Governor; Luther Strange III, Attorney General; Don Davis, Mobile County Judge of Probate; Catherine Donald, State Registrar of Vital Statistics; and Nancy Buckner, Commissioner of the Department of Human Resources.
On May 30, 2014, Judge Davis filed a motion to dismiss. He explained that in December 2011 Cari Searcy had filed in his court a petition for a step-parent adoption of the son of Kimberly McKeand. See § 26-10A-27, Ala. Code 1975. In April 2012, Judge Davis denied the petition on the ground that Alabama law did not recognize Searcy as McKeand’s spouse. Searcy appealed, and the Court of Civil Appeals affirmed. Inre Adoption of K.R.S., 109 So. 3d 176 (2012). Once his decision was appealed, Judge Davis argued, he lost jurisdiction of the case and was thus unable to provide relief to the plaintiffs.
On June 3, 2014, Commissioner Buckner filed a motion to dismiss, alleging lack of standing, namely that Searcy had suffered no injury traceable to Buckner’s actions that a court order could redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In her complaint Searcy alleged that Buckner “has the authority and power to ... amend birth certificates to reflect the adoption of a child.” However, in her motion to dismiss, Buckner explained that such authority resides solely with the Department of Vital Statistics.
On June 6, 2014, Governor Bentley and Attorney General Strange filed a joint motion to dismiss. The motion argued that Governor Bentley’s general authority over the executive branch was insufficient to name him as a defendant when he had no direct enforcement responsibility for the Amendment, the Act, or the adoption statute. Merely suing Governor Bentley as a representative of the State was no different than suing the State itself, an action forbidden by the Eleventh Amendment. While seeking a dismissal of all claims against Governor Bentley, the Attorney General agreed to remain in the suit in his official capacity “to defend the validity of Alabama’s marriage laws.”
On June 24, 2014, the plaintiffs responded to the motions to dismiss. They volunteered to dismiss all claims against Davis, Donald, and Buckner and to dismiss the individual capacity claims against Bentley and Strange. However, they argued that the official-capacity claims against both Bentley and Strange should remain in the case. On July 14, 2014, Davis and the plaintiffs filed a joint stipulation for Davis’s dismissal. On July 18, the court entered an order to dismiss Davis with prejudice if no other party objected by July 25.
On July 30, 2014, Magistrate Judge Katherine Nelson acknowledged the stipulation of dismissal of all claims against Davis, Donald, and Buckner. She also recommended granting Governor Bentley’s motion to dismiss on the ground that his relationship to the acts complained of was “’too attenuated to establish that he was responsible for’ implementation of the challenged laws.” Report and Recommendation of July 30, 2014 (quoting Women’s Emergency Network v. Bush, 323 F.3d 937, 949 (11th Cir. 2003)). Judge Granade adopted the Magistrate’s recommendation and, on August 28, dismissed with prejudice the claims against Bentley, Buckner, and Donald. The only remaining defendant in the case was the Attorney General in his official capacity.
B. Strawser
Because the complaint in Strawser named “the State of Alabama” as the sole defendant, the Attorney General filed a motion to dismiss on the ground of sovereign immunity. In an order dated October 21, 2014, Magistrate Judge William E. Cassady, providing free legal advice, advised the Strawser plaintiffs
that rather than filing a substantive response in opposition to the defendant’s motion to dismiss, they may well desire to respond by filing a motion to dismiss the State of Alabama and substitute as the proper defendant ... Luther Strange, in his official capacity as the Attorney General of the State of Alabama.
The order contained a detailed footnote advising these pro-se plaintiffs that “[t]he Eleventh Amendment bars suits against an unconsenting State by one of its citizens.” The footnote included as supporting authority three citations and parenthetical supporting quotations from United States Supreme Court cases. Order of Oct. 21, 2014, at 1 n.1. In a second footnote, Magistrate Cassady continued the plaintiffs’ legal education by explaining that “’official-capacity actions for prospective relief are not treated as actions against the State.’” Order of Oct. 21, 2014, at 2 n.2 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)). Dutifully following this advice from the court, the plaintiffs on November 13, 2014 filed a “Motion to Amend Complaint and Change Defendant.” The Attorney General did not object to the motion.
Thus, by dismissal of all defendants except the Attorney General in Searcy, and the substitution, with court assistance, of the Attorney General for the State of Alabama in Strawser, Luther Strange in his official capacity became the sole defendant in each case.
II.
The Attorney General is not a proper defendant in these cases
The issuance of marriage licenses in Alabama is controlled by Chapter 1 (”Marriage”) of Title 30 (”Marital and Domestic Relations”). Section 30-1-9, Ala. Code 1975, states: “No marriage shall be solemnized without a license. Marriage licenses may be issued by the judges of probate of the several counties.” The duty is discretionary because certain prerequisites must be satisfied before a license may be issued, such as, where applicable, the age and parental consent requirements of § 30-1-4 & -5, Ala. Code 1975. The probate judge must maintain a register of all licenses issued, § 30-1-12, Ala. Code 1975, which is to include certificates of solemnization received from those who perform weddings. § 30- 1-13, Ala. Code 1975. “It is the duty of the judge of probate to give notice to the district attorney of all offenses under this chapter.” § 30-1-18, Ala. Code 1975. “No marriage license shall be issued in the State of Alabama to parties of the same sex.” § 30-1-19(d), Ala. Code 1975.
By contrast to the exclusive statutory duty of probate judges to issue and record marriage licenses, and to monitor this process, including solemnizations, for offenses, the Attorney General has no duties in this area.
As an officer of the State, the Attorney General shares the immunity of the State from private law suits in federal court. “[T]he Eleventh Amendment prohibits suits against state officials where the state is, in fact, the real party in interest.” Summit Medical Associates, P.C. v. Pryor, 180 F. 3d 1326, 1336 (11th Cir. 1999). “The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” Hawaii v. Gordon, 373 U.S. 57, 58 (1963). An exception exists to this rule for actions taken by state officials that violate the Constitution. “The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state official’s action is not one against the State.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). This principle, first articulated in Ex parte Young, 209 U.S. 123 (1908), “has not been provided an expansive interpretation.” Pennhurst, 465 U.S. at 102. Actions for damages are precluded, but generally prospective actions for declaratory and injunctive relief are permitted.
Nonetheless, a key requirement of an Ex parte Young action against a state official is that “such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” 209 U.S. at 157. The Court elaborated:
“In the present case, as we have said, neither of the State officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former, as the executive of the State was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the State in litigation involving the enforcement of its statutes. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons.”
209 U.S. at 157 (quoting Fitts v. McGhee, 172 U.S. 516, 530 (1899)).
The situation described in Ex parte Young is exactly what has occurred in this case. The Alabama Attorney General does not hold a “special relation to the particular statute alleged to be unconstitutional,” nor is he “expressly directed to see to its enforcement.” Those duties and responsibilities lie with the judges of probate in the judicial branch. In the passage that immediately precedes the one quoted in Ex parte Young, the Court in Fitts underscored this point:
It is to be observed that neither the Attorney General of Alabama nor the Solicitor of the Eleventh Judicial Circuit of the State appear to have been charged by law with any special duty in connection with the act of February 9, 1895.
....
There is a wide difference between a suit against individuals, holding official positions under a State, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a State merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the State.
Fitts v. McGhee, 172 U.S. at 529-30. Recapping its discussion of Fitts, the court in Ex parte Young stated: “As no state officer who was made a party bore any close official connection with the [act at issue], the making of such officer a party defendant was a simple effort to test the constitutionality of such act in that way, and there is no principle upon which it could be done.” 209 U.S. at 156 (emphasis added).
Making the Attorney General, who is not the official chiefly responsible for enforcing the marriage laws, the sole defendant in this case was a convenient means of making the State of Alabama the defendant, a methodology condemned by Ex parte Young as unconstitutional under the Eleventh Amendment. Because both Searcy and Strawser were in substance actions against the State rather than against one of its officers, the United States district court lacked jurisdiction and its judgment is void. The tenor of Judge Granade’s orders indicates that she intends the orders to be applicable to all state officials merely because the Attorney General is the defendant. Such an assumption violates the Eleventh Amendment. “Holding that a state official’s obligation to execute the laws is a sufficient connection to the enforcement of a challenged statute would extend Young beyond what the Supreme Court has intended and held.” Children’s Healthcare Is A Legal Duty v. Deters, 92 F. 3d 1412, 1416 (6th Cir. 1996).
The Tenth Circuit in a very similar case came to the same conclusion. Two women who desired to be married to each other filed an action against the Governor and the Attorney General of Oklahoma seeking to have that state’s marriage amendment declared unconstitutional. The Tenth Circuit held that they lacked standing to sue these officials. “[T]he Oklahoma officials’ generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce.” Bishop v. Oklahoma, 333 F. App’x 361, 365 (10th Cir. 2009) (unpublished). Noting that marriage licenses in Oklahoma were issued by district-court clerks who were part of the judicial branch, the court stated: “Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage.” 333 F. App’x at 365. Stating that “[t]hese claims are simply not connected to the duties of the Attorney General” and citing the specificity requirement of Ex parte Young, the court ordered dismissal of the claims against the Attorney General for lack of subject-matter jurisdiction under the Eleventh Amendment. Id.
In a later published case the Tenth Circuit noted that the holding in Bishop that the Attorney General was not a proper defendant in a challenge to Oklahoma’s prohibition on same-sex marriage “turned on the conclusion that marriage licensing and recognition in Oklahoma were ‘within the administration of the judiciary.’” Kitchen v. Herbert, 755 F.3d 1193, 1202 (10th Cir. 2014). The parallels with Searcy and Strawser are too obvious to require elaboration.
The Attorney General’s agreement to litigate this case with himself as the sole defendant cannot confer subject- matter jurisdiction that is otherwise not present. “The jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation or by prior action or consent of the parties.” American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 (1951) (emphasis added). “’It needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case.’” Id. at 18 n.17 (quoting People’s Bank v. Calhoun, 102 U.S. 256, 260-61 (1880)). See also Boumatic, L.L.C. v. Idento Operations, BV, 759 F. 3d 790, 793 (7th Cir. 2014) (”Litigants cannot confer subject-matter jurisdiction by agreement or omission ....”); SmallBizPros, Inc. v. MacDonald, 618 F. 3d 458, 464 n.4 (5th Cir. 2010). (”[P]arties cannot confer jurisdiction by agreement where it otherwise would not lie ....”).
Further, because the Attorney General neither caused the plaintiffs’ alleged injuries nor is able to redress them, the parties also lack standing to sue him as a defendant. “To have standing the plaintiffs must demonstrate injury in fact, causation, and redressability.” I.L. v. Alabama, 739 F.3d 1273, 1278 (11th Cir. 2014). Accordingly, the federal court in Mobile lacked jurisdiction on this basis also. Alabama law agrees with these propositions:
“Actions or opinions are denominated ‘advisory,’” and, therefore, not justiciable, ... “where, by reason of inadequacy of parties defendant, the judgment could not be sufficiently conclusive.” E. Borchard, Declaratory Judgments 31 (1934) (emphasis added). “’Actions for declaratory judgments brought by individuals to test or challenge the propriety of public action often fail on this ground, ... because the ... public officer or other person selected as a defendant has ... no special duties in relation to the matters which would be affected by any eventual judgment.’” Rogers v. Alabama Bd. of Educ., 392 So.2d 235, 237 (Ala. Civ. App. 1980) (emphasis added) (quoting E. Borchard, Declaratory Judgments 76 (2d ed. 1941)). “’The absence of adversary or the correct adversary parties is in principle fatal. A mere difference of opinion or disagreement or argument on a legal question affords inadequate ground for invoking the judicial power.’” Id. (emphasis added).
Stamps v. Jefferson County Bd. of Educ., 642 So. 2d 941, 944 (Ala. 1994) (emphasis in original).
“Does a “conservative” follow “perverted” law?”
Every conservative should come to that conclusion individually.
However, if you ask: Should a Judge follow a superior court order?
That is a completely different question. And the answer is clearly yes. Without question.
Or give up his seat.
You are conflating the latitude we have as individual citizens with the latitude of an Officer of the Law and a Judge on the bench. They are entirely different.
If the Judge’s conscience would not let him carry out those superior court orders he should have recused or resigned. But to order a contrary action is, literally, criminal.
Alinsky! Alinsky! Alinsky! Alinsky! Alinsky! Alinsky!
4. “Make the enemy live up to their own book of rules.”
Saul Alinsky’s Rules from Rules for Radicals
Saul Alinsky describes 24 rules in Rules for Radicals. Of those 24 rules, 13 are rules of “power tactics”:
1. “Power is not only what you have but what the enemy
thinks you have.”
2. “Never go outside the experience of your people.”
3. “Wherever possible go outside of the experience of the
enemy.”
4. “Make the enemy live up to their own book of rules.”
5. “Ridicule is man’s most potent weapon.”
6. “A good tactic is one that your people enjoy.”
7. “A tactic that drags on too long becomes a drag.”
8. “Keep the pressure on, with different tactics and
actions, and utilize all events of the period for your purpose.”
9. “The threat is usually more terrifying than the thing
itself.”
10. “The major premise for tactics is the development of
operations that will maintain a constant pressure upon the opposition.”
11. “If you push a negative hard and deep enough it will
break through into its counterside.”
12. “The price of a successful attack is a constructive
alternative.”
13. “Pick the target, freeze it, personalize it, and polarize it.”
The remaining 11 rules Alinsky describes are concerned with “the ethics of means and ends”:
1. “One’s concern with the ethics of means and ends varies inversely with one’s personal interest in the issue … Accompanying this rule is the parallel one that one’s concern with the ethics of means and ends varies inversely with one’s distance from the scene of conflict.”
2. “The judgment of the ethics of means is dependent upon the political position of those sitting in judgment.”
3. “In war the end justifies almost any means.”
4. “Judgment must be made in the context of the times in which the action occurred and not from any other chronological vantage point.”
5. “Concern with ethics increases with the number of means available and vice versa.”
6. “The less important the end to be desired, the more one can afford to engage in ethical evaluations of means.”
7. “Generally success or failure is a mighty determinant of ethics.”
8. “The morality of a means depends upon whether the means is being employed at a time of imminent defeat or imminent victory.”
9. “Any effective means is automatically judged by the opposition as being unethical.”
10. “You do what you can with what you have and clothe it with moral garments.”
11. “Goals must be phrased in general terms like ‘Liberty, Equality, Fraternity,’ ‘Of the Common Welfare,’ ‘Pursuit of Happiness,’ or ‘Bread and Peace.’”
BS - he found their orders faulty and unfounded and he was right.
Of course when a Democrat does it - it’s always prim and proper.
You’d best get your head out of your ass. Nobody tells me who my “betters” are.
Your contention is that because he was answering to a higher law, not of this earth, he was entirely justified...as an officer of the court...in defying a superior court order.
And you cite the founders as your basis.
However, every one of the founders would have resigned their official position before defying what they were sworn to uphold.
And no legal scholar would support your position on the matter.
I don’t see any point in following the rules if my enemies aren’t going to. Hypothetically if every state that had a pro-marriage law that was overturned by a federal judge, refused to comply with the judge’s ruling, and kept doing that even after the SCOTUS ruling, there’s no doubt in my mind that the feds would eventually cave. They simply don’t have the time or resources to enforce things like that.
I still read articles at their website, but I no longer give them my unconditional trust on Conservative issues.
As to Judge Moore, I refuse to calmly deliver a politically priceless U.S. Senate seat to the Democrat Party based on unverifiable 40 year old accusations against Judge Moore.
Madison’s #40 addressed solely whether the convention in 1788 had exceeded its granted authority by the states.
His argument was that yes, it had exceeded its authority, but the product of the convention (The Constitution) was so desirable it should be put to the states for ratification anyway. The states then ratified it after the anti-Federalists won the concession on the Bill of Rights.
That is a very far piece from an officer of the court defying the order of a superior court.
You are misreading #40. Especially if you think Judge Moore was somehow following their example.
“One more question, how many times was Judge Moore arrested or became a wanted Federal fugitive for not accepting his suspension?”
He wasn’t suspended. He was removed and that removal was validated by the Alabama Supreme Court without his vote.
But there is no doubt the Federal Judge could have had him imprisoned for contempt. Why he did not is a mystery to me.
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