Posted on 11/13/2003 3:01:59 AM PST by Proverbs 3-5
It seems to me that based on this AG Pryor should be opposing the rogue federal judge and not prosecuting Chief Justice Moore... Moore is not guilt of breaking any law but in not following a federal judges order that is not based on any law...
Sunday, April 27, 1997 Religious Display Proper By Bill Pryor
The display of the Ten Commandments in the Alabama courtroom of Judge Roy Moore is not an establishment of religion. In its landmark school prayer ruling of 1962, the U.S. Supreme Court acknowledged, "The history of man is inseparable from the history of religion." In my judgment, the best example of that inseparable history is the Ten Commandments, which are the cornerstone of law for Western civilization.
Moore's display is not unique. The courtroom of the U.S. Supreme Court, for example, has three depictions of the Ten Commandments carvings on the front doors; a representation directly above the seat of the chief justice; and a depiction of Moses holding tablets on a sidewall. The courtrooms of the Supreme Court of Pennsylvania contain large murals depicting Moses and the Ten Commandments, Jesus preaching the Beatitudes, and Jesus walking on water.
Two respected courts have ruled that public displays of the Ten Commandments do not violate the First Amendment. In 1973, a federal court of appeals ruled that a Ten Commandments monument on the grounds of a Utah courthouse did not violate the First Amendment. In 1995, the Supreme Court of Colorado upheld a similar monument on thegrounds of the state Capitol.
The judge's display of the Ten Commandments is one of several decorations in his courtroom. He also displays portraits of Presidents Washington and Lincoln, the seal ofthe state of Alabama, an American flag, and copies of the Mayflower Compact and the Declaration of Independence. Those documents and many others from our history contain several references to God. I suppose the ACLU will next want to remove Jefferson's references to the Creator from the Declaration of Independence.
The First Amendment does not prohibit an acknowledgment of God. That is why the courts have upheld the motto "In God We Trust" on our currency and the invocations that begin sessions of Congress, federal courts, and other public bodies. As the U.S. Supreme Court stated in 1952, "We are a religious people whose institutions presuppose a Supreme Being." That is why, in the end, the court will uphold Judge Moore's display of the Ten Commandments.
http://www.ago.state.al.us/issue/display.htm
Until the people understand judges are honored literally royalty and therefore above the laws of this land any discussion here is feckless.
For those of you who have been in the military Judge Moore disobeyed a direct order from a superior "officer" in not removing the Ten Commandments--that is all this is about...sorry!
Amen! Thank God for men like Judge Moore.
Maybe this will begin to expose the judiciary are indeed royalty and break that down to where ALL people in this land are under the Constitution. I fully rely on your nick in this regard--Prov 3:5.
Goodness, you can't possibly be making a comparison here.....can you?
It seems to me that based on this AG Pryor should be opposing the rogue federal judge and not prosecuting Chief Justice Moore... Moore is not guilt of breaking any law but in not following a federal judges order that is not based on any law...
It's too bad you didn't poke around a bit more on the Alabama Attorney General's website. You would've found this letter (in pdf format) from Pryor to the minority leader of the Alabama H of R concerning Moore's lawsuit:
August 20, 2003
The Honorable Jim Carns
Minority Leader, Alabama House of Representatives
Alabama State House
Montgomery, Alabama 36130
Re: Your Letter Concerning “Ten Commandments Memorial Lawsuit”
Dear Representative Carns:
Thank you for your letter of August 18, 2003, requesting that I address several questions
regarding the lawsuits against Chief Justice Moore regarding the monument containing the Ten
Commandments that he installed in the rotunda of the Judicial Building. My Office has a “longstanding
policy . . . not to render opinions on matters being litigated in a court of competent
jurisdiction.” Opinion to Hon. Sidney W. Fuller, dated Oct. 14, 1986, A.G. No. 87-00006, at 4.
Because your questions concern elementary principles of constitutional law, I am pleased to
respond to your questions in a less formal manner.
As you are aware, I have been active in defending displays of the Ten Commandments
throughout my tenure as Attorney General. In 1998, I defended the propriety of then-Circuit
Judge Moore’s right to display a wooden plaque with the Ten Commandments in his courtroom
in the Etowah County Courthouse.
See Ex parte State ex rel. James, 711 So. 2d 952, 954 (Ala.1998). I also filed a friend-of-the-court brief in the Supreme Court of the United States in
support of a Ten Commandments monument in Elkhart, Indiana.
See Brief for the States ofAlabama et al., as
Amici Curiae, Supp. Pet. for Cert., City of Elkhart v. Books, 532 U.S. 1058(2001) (No. 00-1407). I continue to believe that the Ten Commandments can be displayed
constitutionally, as they are in the building of the U. S. Supreme Court. In addition, I have
actively defended the sovereign immunity of this State, under the Eleventh Amendment, all the
way to the Supreme Court of the United States and won.
See Bd. of Trustees of Univ. of Ala. atBirmingham v. Garrett
, 531 U.S. 356 (2001) (upholding state sovereign immunity against privatesuit for money damages under Title I of the Americans with Disabilities Act);
Kimel v. State Bd.of Regents
, 528 U.S. 62 (2000) (upholding state sovereign immunity against private suit formoney damages under the Age Discrimination in Employment Act). Finally, I have successfully
defended state officials in lawsuits filed by attorneys of the Southern Poverty Law Center all the
way to the Supreme Court,
see Alexander v. Sandoval, 532 U.S. 275 (2001) (dismissing lawsuitchallenging the administration of Alabama driver’s license examinations only in English
language), and lawsuits filed by the ACLU and Americans United for Separation of Church and
State.
See Chandler v. Siegelman, 230 F. 3d 1313, 1317 (11th Cir. 2000) (upholding right ofBill Pryor
ATTORNEY GENERAL
Alabama State House
11 South Union Street
Montgomery, AL 36130
(334) 242-7300
www.ago.state.al.us
The Honorable Jim Carns
August 20, 2003
Page 2
________________________
students to engage in voluntary, student-initiated prayer in public schools),
cert. denied, 533 U.S.916 (2001). Thus, your questions tread familiar ground for my Office.
I will address each of your questions in turn. Due to the number of questions you pose,
and your need for a prompt response by 10:00 a.m., Wednesday, August 20, my responses to
some of the more straightforward issues will necessarily be brief.
1. The Eleventh Amendment provides for sovereign immunity from citizens
bringing suit against his/her state in federal court; therefore, under what
provision or claim has the State of Alabama waived this immunity or
consented to this suit?
The State of Alabama is not a party to either of the cases against Chief Justice Moore and
has neither waived its immunity nor consented to suit. “Unless a State has waived its Eleventh
Amendment immunity or Congress has overridden it, . . . a State cannot be sued directly in its
own name regardless of the relief sought.”
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985).That does not end the analysis of this issue, however
. Chief Justice Moore can be named as adefendant in his official capacity under
Ex parte Young, 209 U.S. 123 (1908), which allows afederal court to enter an injunction against a state official.
2. What authority or jurisdiction does the federal court have to enforce the
injunction against an unnamed party (i.e. the State of Alabama and/or the
Associate Justices of the Alabama Supreme Court)?
Inasmuch as the State of Alabama cannot technically be named as a defendant in the
lawsuits against the Chief Justice, an injunction cannot be enforced against the State directly, that
is, in its own name. Although Chief Justice Moore in his official capacity is the defendant in
both of the cases brought against him, the State of Alabama and its Judicial System remain real
parties in interest in both cases. The Supreme Court has explained,
Official-capacity suits “generally represent only another way of pleading an
action against an entity of which an officer is an agent.” As long as the
government entity receives notice and an opportunity to respond, an officialcapacity
suit is, in all respects other than name, to be treated as a suit against the
entity. It is
not a suit against the official personally, for the real party in interestis the entity
.Graham
, 473 U.S. at 165–66 (emphasis added) (citations omitted) (quoting Monell v. N.Y. CityDep’t of Soc. Servs.
, 436 U.S. 658, 690 n.55 (1978)).The Honorable Jim Carns
August 20, 2003
Page 3
________________________
An injunction can be enforced against state officials consistent with
Ex parte Young.Under Federal Rule of Civil Procedure 65, an injunction “is binding only upon the parties to the
action, their officers, agents, servants, employees, and attorneys, and upon those persons in
active concert or participation with them who receive actual notice of the order by personal
service or otherwise.” Thus, under Rule 65 state officials who are “agents, servants, employees,
and attorneys” of Chief Justice Moore are bound by the court’s injunction. In addition, any other
state officials who have notice of the injunction and act “in active concert or participation” with
the Chief Justice or his “officers, agents, servants, employees, and attorneys” are similarly bound
by the injunction.
Eleventh Circuit caselaw also provides authority for holding a nonparty with notice of an
injunction in contempt even when the nonparty is not “in active concert or participation” with a
party. In
United States v. Hall, 472 F.2d 261 (5th Cir. 1972), then-district judge Gerald BardTjoflat held defendant Hall in contempt for violating a desegregation order that (among other
things) restricted access to a high school campus after racial unrest at the school. The court of
appeals affirmed and held that “the activities of persons contributing to racial disorder at [the
school] imperiled the court’s fundamental power to make a binding adjudication between the
parties properly before it,” thus justifying holding Hall in contempt of the district court’s
injunction even though he was not acting in concert or participation with a party.
Id. at 265.3. Can the State of Alabama be ordered to enforce a federal court order in
violation of the Tenth and Eleventh Amendments?
Although the State of Alabama cannot be directly ordered (that is, in its own name) to
enforce a federal court order in the cases against the Chief Justice, the Supreme Court ruled in
Exparte Young
that a state official, such as the Chief Justice, associate justices, or other stateofficials, can be ordered to obey a federal court order, and such an order would not violate the
Eleventh Amendment. I am aware of no authority holding that an order such as the one entered
by Judge Myron H. Thompson on August 5, 2003, would violate the Tenth Amendment.
4. Under what authority can the federal court find the State of Alabama in
contempt of the injunction if the State of Alabama in [sic] not a party to the
suit?
Although the State of Alabama cannot be held in contempt of the injunction entered by
Judge Thompson, state officials can be held in contempt for violating an injunction applicable to
them.
Alabama v. Newman, 683 F.2d 1312, 1318 (11th Cir. 1982).The Honorable Jim Carns
August 20, 2003
Page 4
________________________
5. If the Ten Commandments memorial is not removed within the prescribed
time as ordered by the court, what recourse does the State of Alabama have
against the federal government?
The proper procedure for obtaining a stay of a decision by a federal court of appeals is to
request such a stay under Federal Rule of Appellate Procedure 41 before the appellate court
issues its mandate to the district court to carry out the decision. If the appellate court denies the
stay, the party can ask a Justice of the Supreme Court of the United States to grant a stay under
Supreme Court Rule 23. Unfortunately, Chief Justice Moore’s attorneys did not follow these
standard procedures.
After the Eleventh Circuit issues its mandate, a party may move to recall the mandate
under Rule 41-1 of the rules of that court. As the court of appeals explained yesterday in
denying the Chief Justice’s motion to recall the mandate, however, “[t]he burden that an
appellant must carry before a mandate can be recalled once it has issued is far more onerous than
a showing that will justify staying the issuance of a mandate initially under Rule 41(b). The
United States Supreme Court has instructed . . . that a federal court’s power to recall a mandate
‘can be exercised only in extraordinary circumstances,’ because ‘it is one of last resort, to be held
in reserve against grave, unforeseen contingencies.’ ”
Glassroth v. Moore, Nos. 02-16708-DD &02-16949-DD, at 2-3 (11th Cir. Aug. 19, 2003) (quoting
Calderon v. Thompson, 523 U.S. 538,550 (1998)). Because the Chief Justice did not make the required showing, the court of appeals
denied his motion.
Id. at 3.The proper procedure for obtaining a stay of an injunction such as the one entered on
August 5 is to request a stay pending appeal to the court of appeals under Federal Rule of
Appellate Procedure 8. Unfortunately, Chief Justice Moore’s attorneys have not appealed Judge
Thompson’s injunction. They belatedly asked the district court to stay its injunction pending
consideration of the Chief Justice’s petition for writ of mandamus or prohibition in the Supreme
Court of the United States. The district court denied this request on the grounds that the
injunction had not been appealed and that there was little, if any, likelihood that the petition for
writ of mandamus or prohibition would be successful. The Chief Justice’s attorneys then asked
the court of appeals for a stay, but because the Chief Justice’s appeals were closed after the
mandate issued on July 30, 2003, the clerk’s office could not even file and process the motion.
Memorandum to All Parties and Counsel from Thomas K. Kahn, Clerk, (by Nicole Jones Deputy
Clerk) in
Glassroth v. Moore, Nos. 02-16708 (11th Cir. Aug. 19, 2003). Because properprocedures for obtaining a stay were not followed by Chief Justice Moore’s attorneys, state
officials must obey the district court order unless the Supreme Court says otherwise.
The Honorable Jim Carns
August 20, 2003
Page 5
________________________
6. The state Attorney General has the duty to protect the state from wrongful
interference by any party, including the federal government; what steps do you intend to
take in this regard?
In accordance with my statutory authority to direct “[a]ll litigation concerning the interest
of the state” under section 36-15-21 of the Code of Alabama, I offered to assign attorneys from
my Office to defend the Chief Justice when the lawsuits were filed against him. As you know,
my Office has a fine record of success in the Supreme Court of the United States and the United
States Court of Appeals for the Eleventh Circuit. I also offered to appoint Jay Sekulow, who has
won several religious freedom cases in the Supreme Court, to represent the Chief Justice. From
1997 to 2001, I appointed Mr. Sekulow to represent Alabama officials in the
Chandler schoolprayercontroversy. Together we won a ruling from the Eleventh Circuit protecting student-led
prayer.
See Chandler v. Siegelman, 230 F.3d at 1317.The Chief Justice instead insisted that two private, out-of-state attorneys, Herb Titus and
Steve Melchior, be appointed to represent him at no cost to the taxpayers. Out of respect for the
Chief Justice and the separation of powers, I appointed those two private attorneys to represent
him. Two assistant attorneys general in my Office represented Dr. Rich Hobson, the
Administrative Director of Courts, who was named as a co-defendant in the
Maddox case. Dr.Hobson was dismissed as a defendant several months before trial last year. Since then, my
assistants have not been counsel in the cases. The day-to-day management of the litigation
remains in the hands of the Chief Justice and his private attorneys. So far, they have been
unsuccessful in their defense, and they have not requested my representation.
7. Does the office of the state Attorney General intend to enforce the
injunction? If so, by what means and under what authority?
I have already stated that “I will exercise any authority provided to me, under Alabama
law, to bring the State into compliance with the injunction of the federal court, unless and until
the Supreme Court of the United States rules in favor of Chief Justice Moore.” I have no direct
authority under state law over the management of the State Judicial Building. I will continue,
however, to advise state officials of their legal duty to obey the federal injunction on pain of
contempt sanctions. I also will vigorously defend those state officials who exercise their
authority under state law to ensure compliance with the federal injunction. I fully expect that I
will be called to fulfill that duty soon, and I am hopeful that the State will avoid paying fines
from taxpayer funds for the refusal of the Chief Justice to follow court orders.
The Honorable Jim Carns
August 20, 2003
Page 6
________________________
8. In the event that the state enforces the injunction, will the State of
Alabama have abdicated its power under the tenth and eleventh amendments
to the federal government?
The power of the States under the Tenth and Eleventh Amendments to the United States
Constitution does not include the power of state officials to violate other provisions of the United
States Constitution and federal law. Compliance by state officials with a valid federal court
order would involve no abdication of any power whatsoever. As the Supremacy Clause of the
Constitution expressly states, “This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. Const. art. VI, cl. 2.
9. Do the Associate Justices have the authority to overrule Chief Justice
Moore on the issue of removing the Ten Commandments memorial?
Yes. Under section 12-5-20 of the Code of Alabama, “[t]he 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.”
Ala. Code § 12-5-20 (1995). Under that provision, “[a] majority of all the justices shall
constitute a quorum for such purpose. The concurrence of a majority of all the justices shall be
sufficient to determine the question of whether and how such decision shall be so reviewed,
countermanded, overruled, modified or amended.”
Id. The Supreme Court would also have theauthority to direct the Chief Justice to remove the monument through the enforcement of a rule
under section 6.11 of Amendment 328 to the Constitution of Alabama of 1901. That section
grants the Supreme Court of Alabama the power to “make and promulgate rules governing the
administration of all courts.” Ala. Const. amend. 328, § 6.11.
10. Does the State of Alabama intend to pay fines to the federal court/federal
government when the state has not been properly pled in the suit as a party?
I am hopeful that, by working with other responsible state officials, the taxpayers will
avoid paying fines for the refusal of the Chief Justice to obey court orders. Because the Chief
Justice has refused to follow court orders and lost at every stage of this lawsuit, there is a risk the
court will order state officials to pay fines from taxpayer funds. As the Eleventh Circuit has
noted, “ ‘[c]ivil contempt may . . . be punished by a remedial fine, which compensates the party
who won the injunction for the effects of his opponent’s noncompliance. . . . If (a state official)
refuses to adhere to a court order, a financial penalty may be the most effective means of
insuring compliance.’ ”
Newman v. Alabama, 683 F.2d 1312, 1318 (11th Cir. 1982) (quotingHutto v. Finney
, 437 U.S. 678, 691 (1978)).The Honorable Jim Carns
August 20, 2003
Page 7
________________________
In
Hutto v. Finney, the Supreme Court held that an “award of attorney’s fees for bad faithserved the same purpose as a remedial fine imposed for civil contempt,”
id. at 691, and that “nouseful purpose would be served by requiring” a district court to rephrase an order directing that
“the fees ‘are to be paid out of Department of Correction funds.’ ”
Id. at 692. The Court notedthat it had “previously approved directives that were comparable in their actual impact on the
State without pausing to attach significance to the language used [by] the District Court. Even if
it might have been better form to omit the reference to the Department of Correction, the use of
that language is surely not reversible error.”
Id. at 692-93 (footnote omitted); see also id. at 692n.20 (citing
Milliken v. Bradley, 433 U.S. 267 (1977), as example of instance in which SupremeCourt affirmed award to be paid by state treasurer to a litigant). The law is well established on
this point.
Thank you again for your letter. I hope my responses will clear up any confusion on the
authority of the federal courts to enforce their injunctions and the obligations of state officials to
follow court orders.
Sincerely,
Bill Pryor
Attorney General
With all due respect to AL AG Pryor, I for one do not support him. He and Chief Justice Moore took an oath to defend the US Constitution and that of the state of Alabama. Pryor is not the US AG - given a conflict his legal responsibility is to defend his state. Justice Moore is not the federal congress - Judge Thompson & the 11th Circuit Court justices all admitted that fact - no law was written, thus no law can be violated. What Thompson et al did was issue a "ruling" (not a law) forcing Chief Justice Moore to reject his Oath (to GOD) of Ofiice. I have nothing but contempt for those that believe otherwise.
Sadly, America is under a feudal system where the judges are our lords and we are vassals with hopefully some fief.
Judge Moore may just be the man to finally expose that...
Moore rejected Pryor's offer to hire Jay Sekulow to represent Moore. Sekulow has a proven record of winning these types of cases for the state of Alabama (and in other jurisdictions, I might add). Moore lost the case at every level--district court, appellate court, Supreme Court--with the lawyers he himself picked to represent him.
Additionally, Moore's lawyers failed to ask for a routine stay when he appealed to the US Supreme Court, doing so only belatedly and after the time period for asking for a routine stay had expired, and they lost the motion. Moore's lawyers also failed to object to awarding of legal fees to the plaintiffs, legal fees which will come out of the the Alabama taxpayer's pockets.
These were choices Moore made, and now he's suffering the consequences.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.