The Alabama Attorney General fails in his most important duty

Chief Justice Roy Moore of Alabama may be forgiven for his order to the probate judges of his state directing them to disregard the SSM order of an Alabama federal judge. I say this because a less decorous person might rightfully label him nuts. I am far more bothered by the behavior of Alabama’s Attorney General.

2According to the Washington Post, the Alabama Attorney General, Mr. Luther Strange, told his state’s probate judges that he cannot advise them what to do regarding the issuance of marriage licenses to same sex couples and suggested they seek help elsewhere. That was an abdication of his most essential duty–to insure that Alabama follows the rule of law.

That the Attorney General does not like the ruling of the federal judge or that the Alabama Attorney General must deal with Chief Justice Moore is no excuse. A federal judge has said that Alabama must allow SSM and that declaration in our federal system is binding. That’s it–game over, at least for now. It is not debatable.

The Alabama Attorney General should tell the people of Alabama, and especially the probate judges, that they have an obligation to follow the rule of law. After all, the rule of law only matters when you don’t like the results.


38 responses

  1. RGK,
    I don’t want to stir the pot, so I’ll keep my comments to a minimum. I do not appreciate state officials who break their oaths to uphold the Constitution, and will vote to remove them from office when I detect them. I don’t care which side of the debate they are on. Rule of law is more important to me than the latest piddling game of politics. People may rock the boat, but only an idiot takes an axe to the hull to spite the others.


  2. We have seen an increase in Attorneys General and Assistant AGs trying to circumvent the rule of law because of base politics.

    Add the Strange guy to the list.

  3. Maybe a dissenting view is needed here.

    What if a federal judge issues a flagrantly unconstitutional order, or where subject matter jurisdiction or personal jurisdiction is lacking, or maybe he’s gone off his rocker and orders people to, say, stand on their heads for 15 minutes at noon every day?

    I mean, there is a point at which it’s the federal judge who’s the threat to the rule of law, not those who disregard his orders. Right?

  4. JMRJ,
    That’s what the Courts of Appeals and (in extreme cases) the Supreme Court are for. That is also what impeachment is for. Federal district court judges decide the law in our country, and their decisions are binding. The buck has to stop somewhere, and between Article 3 and 28 USC, we have decided that federal district courts are where the buck stops.

  5. So, you’re sitting down there at the Court of Appeals with your application for a writ of this or that and it’s 11:55 and the on call judge is in the bathroom and hasn’t seen your papers yet and there’s no way he will in five minutes.

    So when noon arrives and there’s no writ yet, the County Clerk or whomever needs to stand on his or her head under penalty of contempt? The “rule of law” requires this?

  6. RGK, isn’t your outrage selective? All AG Strange (a more appropriate name for an Alabama AG is unimaginable) is doing is what you federal district and appellate judges do every day: willfully defy the “binding” precedent of your courts.

    When the offending judges have to trade in their black robes for pink jumpsuits, justice will be served.

  7. You presuppose a traditional court system, where those courts are required to superintend inferior courts. That we don’t have one is the ultimate threat to the rule of law.

  8. What if it’s an order that no one appeals because, say, they just don’t have the resources to do that, and everyone knows that’s why, so technically the order stands. Or, through some incredible screw up the state’s attorney misses the deadline and an appeal is jurisdictionally barred. And instead of requiring clerks to issue marriage licenses to same sex couples it orders them not to issue marriage licenses to persons of different races.

    It’s a technically, facially valid order.

    Clerks have to follow it, under penalty of contempt, and this is the ‘rule of law’ in action?

  9. The Alabama Attorney General’s stance is particularly galling when you consider that probate judges in Alabama are not required to be lawyers and most of their jurisdiction is essentially ministerial in nature (name changes, marriage licenses, certifying public records, etc.).

    Curiously, the Alabama Code does not describe the issuance of marriage licenses in terms typically considered ministerial – saying the judges “may issue” marriage licenses instead of “shall issue” (Alabama Code §30.1.9) – contrasted with the offending portion of the code which does say “no marriage license shall be issued” (Alabama Code §30.1.19(d)). I assume this is the basis of action for the judges who have decided to issue no marriage licenses at all, which I assume the Judge will take up at the hearing she has set for tomorrow.

  10. And what would you propose that we do to federal judges who break their oaths to uphold the Constitution? If the rule of law is that important to you, lawlessness on the bench and the lack of enforcement by SCOTUS must concern you, as well.

  11. Amen to that. AG’s are more often acting as politicians campaigning for their next job at the public trough. The ‘Bama AG has a lot of company.

  12. JMRJ,
    Remember that lawyers are real people as well, and we tend to understand that we sometimes make mistakes. We generally work out the sort of brain farts you describe without prejudicing the client’s rights. For example, a late appeal may be allowed, or the judge may issue an amended order.

    I don’t know what you mean by superintending inferior courts. Or what a traditional court system is. Could you explain?


  13. Yes, what you suggest is accurate. Someone smarter than me will surely find a way to argue that the esteemed Attorney General of the United States of America is as shameless a politician as any preening, pompous, political state’s attorney general out there. Just sayin’. This entire episode is disgusting to this “traditional” lawyer who has seen our “profession” go to hell and that now includes the bench. Just me grumping away today . . . . . I’ll now let the scholars and legal experts figure this one out as I sit on the sidelines and perhaps learn something.

  14. Lawyers? “Real People”? Surely you jest.

    My examples are mainly a mild polemic directed to the host, a self-described “legal positivist” who, to be consistent, would have to concede that he would order the enforcement of even the most ridiculous technically valid order because there are no other criteria by which to judge.

    But of course any other legal positivist is welcome to engage too.

    Don’t take it too seriously.

  15. Judge,

    Look what you started.

    I think I’m glad that the gin was a little watered down the other night. I tremble to think what kind of controversy you’d start on this blawg if the gin was full strength.

  16. Judge Granade is taking a conservative view of the scope of her injunction. She denied the plaintiffs’ motion for contempt against the Mobile probate “judge” on the basis that the injunction did not clearly bind him, and invited the plaintiffs to amend their complaint if they wanted to add additional defendants or even new plaintiffs. The plaintiffs immediately followed that course. A hearing is set for tomorrow (Thursday) on the motion to amend (and for an extension of the injunction accordingly). All these details and more (with links to the documents) can be found in Lyle Denniston’s coverage at SCOTUSBlog.

  17. JMJR, If no personal jurisdiction, how contempt? Mandatory order so validity may be challenged in contempt proceeding. In any event the trial judge is not the last word. There are also Supreme Court Justices in addition to Circuit Judges. In a Cal contempt of the legislature case Reed issues habeas corpus when bail was denied in state courts and wrote a long essay on the All Writs Act. In any event disobedience, particularly to test validity is not always destructive of the Rule of Law and the Natural Law tradition does not demand disobedience unless the order is to do an immoral act, and would often counsel obedience because of the duty to support a mostly moral legal order in service of the common good

  18. JMJR You have a very odd notion of the Natural Law tradition. It is not the case that a judge enforcing a valid order is entitled to refuse enforcement because of moral issues about the order nor may he refuse to enforce an immoral but valid law. In most instances he would not himself be doing an immoral act, and if he viewed enforcement as immoral on his part then his duty is to resign rather than enforce. Issues of scandal should not arise because judge is a role.

  19. MOK We have had more than one very political AGUSA. At old age we all feel like a survivor from a better generation. A rocker is waiting for you here at the home for grumpy old lawyers.

  20. Repenting, thank you for the thoughtful response.

    I agree with you that in just about every instance, resignation in protest is a better option than disobedience. It’s a curious fact that this isn’t practiced more. People love their jobs too much.

    For clarity’s sake, let’s stay away from moral considerations and stick with the standing on your head at noon example. Not immoral, just ludicrous, because there is natural reason as well as natural law.

    But then you run into: “Experience and not logic is the life of the law.” to quote (probably technically but not substantially inaccurately) one of the Judge’s heroes.

    Go back to the 19th and maybe early 20th century and you find a few courts here and there saying that the law will not countenance an absurdity; but of course that presupposes that everyone knows what an absurdity is, which is more or less unarguably true but then a positivist can’t or won’t accept that, and so as positivism takes hold in the later 20th century the phrase more or less disappears.

    Positivism, nihilism, reductionism and so forth – all of them ultimately incoherent – can be harmless intellectual affectations when confined to the academy as a thought experiment. Let loose upon the justice system they are a towering menace, very socially destructive.

  21. HA! Of course, you make a valid point. Politics in the AG’s office is certainly nothing new. The present occupant is simply a prime example of what has too often occurred before. As for that “rocker” – I prefer my recliner – more comfortable for napping.

  22. Hideous, if not flagrantly unconstitutional, decisions have been handed down from time to time (Dredd Scott, Plessy, Schenck come to mind). Everyone from appeals judges to probate judges to the beat cop have no choice but to get in line and follow, because ours is a society that cherishes the rule of law. Strange and Moore are playing a dangerous game called nullification. That didn’t work out so well in 1861 and it’s not going to work now.

  23. Marcos, aren’t you being a little melodramatic? Especially with that 1861 reference. Careful, might be some johnny rebs reading here.

    Beyond that, getting in line, following and obeying do not, in and of themselves, get to wear the mantle of “cherish the rule of law”. And positivists can’t even possibly believe there is any such thing as the rule of law, at least not if they intend to retain any consistency.

  24. Judge:
    The inaction by General Strange seems to me to be the essence of your phrase that law is “politics by other means.” However, there must be a sanction for those who would ignore the lawful mandate of the Alabama federal court–or any court. Otherwise, a court order is not just violated, but violated with impunity. I eagerly await how this is going to be played out with the hope that Alabama state officials recognize, as soon as possible, that the Supremacy Clause is in the U.S. Constitution is there for perfectly valid reasons.

  25. In a British common law system, the highest court is charged with supervision of all lower courts, there are no decisions without precedential effect. and certiorari relief is available as a matter of right. In our system, the Supreme Court does not correct errors, which is why precedent is almost meaningless.

  26. On whom is the decision of the U.S. District Judge binding? All state, county, and local officials in Alabama? Just certain officials? Just the officials in her district? Just the parties to the litigation? Thanks.

  27. Matt: The question that you are asking was addressed extensively in the comments to yesterday’s post by Judge Kopf, and is also addressed in my comment at 9:52 am today on this post.

  28. The headlines I’ve seen so far are pretty inaccurate (typical, I know). Here’s the order:

    The order says that “Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Act . . .” It does not compel or mandate him to issue a marriage license to anyone. So, there’s still (in my mind) the question of whether Davis can simply refuse to issue marriage licenses to all couples.

  29. “there’s still (in my mind) the question of whether Davis can simply refuse to issue marriage licenses to all couples.”

    Imagine the lawsuits for damages naming Davis (or other probate “judges”) if he refused to issue any marriage licenses at all — but apparently it’s moot since he is.

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