Moore storms out of lottery selecting his appeal judges

No lottery can go before an Alabama court peacefully.

Just as court staff prepared to draw names of retired judges to hear suspended Chief Justice Roy Moore's appeal of his ethics convictions last month, Philip Jauregui, an attorney for Moore, introduced a motion to continue the lottery.  The Alabama Supreme Court recused itself from hearing Moore's appeal earlier this week.

But with Moore looking on in the Alabama Supreme Court chambers, acting Chief Justice Lyn Stuart – standing next to the bench in a blue dress without a robe – told court staff to start the drawing of names for the special Supreme Court for Moore’s appeal. Stuart said there was “no court to rule" on Jauregui's motion.

“The court is recused,” she said.

“There’s a court right here,” Jauregui said, pointing at the empty chairs of the Alabama Supreme Court. When Stuart directed staff to continue drawing, Moore, Jauregui and a handful of supporters got up and left the court.

Moore – suspended over a Jan. 6 order to probate judges telling them they had a “ministerial duty” to not issue marriage licenses to same-sex couples – called the procedure a “charade” after his departure. The suspended chief justice said his pool should come from active judges subject to election.

“They should be using sitting judges, accountable to the people in accordance with the constitutional framework,” he said.

The drawing continued in Moore’s absence. Court Clerk Julia Weller drew judges' names from a gold-colored box held over her head. Weller handed each name to Confidential Assistant Beth Haisten, who read the name aloud in the Supreme Court chamber. The paper was then handed to a third employee and placed in a shallow, green-enameled bowl.

A similar procedure – using the same box – was used to select the special Supreme Court that heard and eventually rejected Moore’s appeal of his 2003 removal over his refusal to obey a federal court’s order to remove a Ten Commandments monument from the Heflin-Torbert Judicial Building.

The pool of 50 judges includes former Gov. John Patterson, who sat for 13 years on the Alabama Court of Criminal Appeals and served as chief justice for Moore’s 2004 panel; former Supreme Court Justice Ralph Cook and former Montgomery County Circuit Judge Charles Price.

Under the procedure outlined by the Alabama Supreme Court in an order earlier this week, the first seven judges on the list will serve.

Price, who currently serves on the Alabama Ethics Commission, was one of the first seven names drawn. The others were Frank L. McGuire III, a former Covington County District Judge; retired Circuit Judge H. Edward McFerrin, who presided over Butler, Crenshaw and Lowndes counties; retired Madison County District Judge Susan T. Moquin; retired Jefferson County Circuit Judge Daniel J. Reynolds Jr.; retired Lee County District Judge Michael A. Nix and retired Baldwin County Circuit Judge Robert E. Wilters.

Should any of those seven be unwilling or unable to serve, the courts will ask the next judge on the list to serve until seven judges come aboard.

Moore’s Jan. 6 order came six months after the U.S. Supreme Court struck down state same-sex marriage bans in Obergefell v. Hodges. The Court of the Judiciary on Sept. 30 found Moore guilty of violating six Canons of Judicial Conduct over his Jan. 6 order, including failure to act impartially; promote confidence in the law and uphold the integrity and independence of the judiciary.

The court wrote in its opinion that “the undeniable consequence of the January 6, 2016 order was to order and direct the probate judges to deny marriage licenses in direct defiance of the United State Supreme Court.”

The court suspended Moore for the rest of his term, which runs through January 2019.

Moore and his attorneys argue he was providing guidance to probate judges about a pre-Obergefell lawsuit that was still pending before the court, a position he maintained on Thursday. The court asked the chief justice to vacate his office earlier this month.

The chief justice said Thursday that sealed proceedings in his case would suggest that Stuart and Justices Mike Bolin and James Main should have recused themselves from establishing the special Supreme Court procedure.

Had they recused themselves, he argued, the court would have gone with the method outlined by Justices Tom Parker and Kelli Wise in dissents to the state Supreme Court's recusal opinion, which would have created a pool of elected judges.

“I believe this is a political process,” he said. “I believe it’s brought about by someone who wants to be chief justice and by others who want to control that office. It’s a high office and if you can’t get it by election, you get it another way.”

It is not clear when the special Supreme Court will be officially seated, or rule on Moore’s appeal.