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OPINION

Somebody say something

In this season of motion picture accolades, Alabama’s “best actor” award goes to Chief Justice Roy Moore, starring in a continuing saga of abuse of power. However, Moore’s “performance” is facilitated by the neglect manifest in the failure of other entities to address his professional lunacy.

The Cast. The cast includes present and former justices of the Alabama Supreme Court. As Chief Justice, Moore is the administrative head of Alabama’s court system, but he, like each of the Associate Justices of the Supreme Court, has but one vote in the cases they decide. His individual, personal view of the law is not binding on any other Alabama judge or lawyer. Since the justices are independently elected to office, Moore is not their “supervisor.”

Associate Justices have an affirmative professional duty to reject (1) Moore’s extrajudicial positions on a legal issue pending before the Court, (2) his continued affiliation with a Foundation (chaired by his wife, Kayla) that is a litigant in the Supreme Court on an issue upon which Moore has publicly expressed an opinion, and (3) his directive to probate judges to repudiate a U.S. Supreme Court ruling.

How? By exercising their power under Section 12-5-20 of the Code of Alabama, which grants them “the power and authority to review, countermand, overrule, modify or amend any administrative decision by either the Chief Justice or the Administrative Director of Court.” Thus, the justices may lawfully rescind Moore’s administrative directive to probate judges to refuse to issue marriage licenses to same-sex couples. Surely they must understand the Supremacy Clause in the U.S. Constitution. Surely they must place the integrity and reputation of the court above political fealty to a colleague. And yet, the justices are silent.

The Producer. That would be the Judicial Inquiry Commission, which has neglected its duty for 12 months. The pending complaint against Moore alleges wrongdoing associated with specific acts. Moore does not dispute the facts. JIC’s sole responsibility is to determine whether the allegations are sufficient to support a recommendation to the Court of the Judiciary. That is not a 12-month undertaking. And yet, JIC is silent.

The Director. The Court of the Judiciary controls the action. In March 2013, citing “serious violations of judicial ethics”, the Court of the Judiciary publicly reprimanded and censured a district judge in Walker County for essentially the same violations alleged in the Moore complaint. The Court found that he violated specific provisions of the Canons of Judicial Ethics which govern the professional conduct of Alabama’s judges. It took 45 days to conclude the complaint. And yet, the Court of the Judiciary is silent.

The Theaters. The Alabama State Bar is the parent organization of the theaters (lawyers) where the patrons (the public) are viewing Moore’s movie. The Bar enjoys the legislative privilege of managing and policing lawyers and is specifically charged in Section 34-3-43 (a) (7) of the Code of Alabama to “do such things as in its judgment may tend to improve the educational and ethical standing of bench and bar.” The State Bar also administers the Alabama Rules of Professional Conduct which define a lawyer’s obligations to the judicial system, to the public, and to the profession. Rule 8.4 assigns “professional misconduct” to any lawyer who (1) engages in “conduct that is prejudicial to the administration of justice,” (2) “knowingly assist[s] a judge or judicial officer in conduct that is a violation of applicable ... law, or (3) engages in “any other conduct that adversely reflects on his fitness to practice law.”
While the state bar does not discipline judges, its duty to fulfill the aforementioned responsibilities justifies condemnation of Roy Moore’s conduct from its leaders, former presidents, and members. Protection of the public is a paramount duty of the state bar and the 67 county bars. Their silent acceptance of willfully unprofessional and unlawful conduct by the state’s highest-ranking judge is an abandonment of their duty to serve the public. And yet, the state and county bars are silent.

We have seen this movie before. In the 1960s, its star was an executive, not a judicial, demagogue. Back then, as now, the cast, producer, director and theaters were silent. Today – 50 years later – his performance is still an embarrassment to Alabama.

Somebody say something.

Vanzetta Penn McPherson is a retired U.S. magistrate judge for the Middle District of Alabama. Send email to mcphersonscribe@knology.net.