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Thursday, February 05, 2015

Roy Moore gets it right

And without bigoted or anti-federal rhetoric.

Moore sent a memo on Tuesday to all state Probate Judges, explaining why probate judges are not bound by two recent district court decisions invalidating state marriage-equality bans. (Ed Whelan analyzes the memo at NRO). Moore makes two points, both correct: 1) The attorney general, the only defendant in both Alabama cases, is part of the executive branch while probate judges (who issue marriage licenses) are part of the judicial branch, thus the AG exercises no supervisory authority over them; and 2) federal lower-court precedent is not binding on state courts.* The memo includes an appendix analyzing how the Alabama AG came to be the sole defendant in the two Alabama cases and why he is not, in fact, the appropriate defendant in cases challenging the refusal to issue marriage licenses when (as in Alabama) that task rests with judges or court clerks.

* Citing a  recent article by FSU's Wayne Logan.

Posted by Howard Wasserman on February 5, 2015 at 10:13 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink

Comments

As to Sam's question, it looks to me (fwiw) that the AG agreed to stand in his official capacity to defend the law. The memo argues this doesn't matter; you can't use consent here to obtain jurisdiction. The rules of consent is more complicated in 11A cases but then it is noted the 11A might be besides the point.

Either way, sounds like an argument to make on appeal. He is saying not only that the probate judges need not follow the judge, but is challenging the merits of her opinion. And provides an expansive appendix.

To belabor the point, if he is going to press that, he should have done more to spell out how probate judges have two masters here & even though the district ruling is not binding on them, they still have to concern themselves with the federal Constitution. The right answer there is at least unclear & this leads a "right" memo to provide more caution.

Posted by: Joe | Feb 7, 2015 10:19:38 AM

There are procedural devices available to address the problem Jack addresses. One is the defendant class action, possibly paired with a plaintiff class as well: representatives of the class of all Alabama same-sex couples seeking a marriage license could in principle sue representatives of the class of all Alabama probate judges. Certify both classes, get a favorable judgment, and you're all set. For a lot of reasons, defendant class actions are rare, but the device would address Jack's concern.

I'm not aware of any defendant class action against state officials under Ex parte Young. There's a curious theoretical wrinkle if you think through it. One account of Young is that the state official doesn't get immunity because he or she isn't acting as the "state" at all when acting outside the law--immunity is the rule, and Young is the exception for what might be described as abberant behavior. But the defendant class action depends on the premise that the alleged violations are the norm. Young could still supply a justification for getting around the 11th Amendment, but it does change one's perspective on the "ultra vires" account when there aren't any state officers who would count as the state for 11th Amendment purposes because all are violating federal law.

Posted by: Steve H | Feb 6, 2015 11:04:26 AM

Hard for me to see how one can have it both ways: probate judges are part of the judicial branch and so do not fall under the purview of the AG; and yet, probate judges granting licenses are acting administratively, not as judicial officers, and so do not fall under the purview of the CJ. Something has to give. There has be to some way to get statewide application of a decision that doesn't require suing every individual probate judge for a license. My understanding is that, at least in some other states, the structure of state government has been such that there is one responsible person who has been sued. I would think that'd be the case in Alabama too (though I admit to complete ignorance--beyond Moore's memo--on that question).

More to the point though, you write that when probate judges are granting licenses "the probate judges [are] performing an administrative (rather than judicial) function." But the "administrative" role seems to be *precisely* the function over which Moore has authority. I take it that he could not order them to make a certain decision qua judicial officers on a judicial question. But on an administrative question, he surely has authority. See, e.g., Moore's memo p. 3 ("The chief justice of the supreme court shall be the administrative head of the judicial system." Art. VI, § 149, Ala. Const. 1901.) If it's an administrative function, then the administrative head should, once bound by a court decision, need to communicate that to those over whom the state constitution makes him "head."

Posted by: Jack | Feb 6, 2015 10:37:12 AM

But he isn't ultimately responsible for decisions as to licenses. That is entirely with the probate judges performing an administrative (rather than judicial) function. So a court cannot compel Moore to issue a marriage license, since Moore is not charged under state law with granting those licenses. The plaintiffs need to sue the relevant probate judges, just as plaintiffs in other states have sued the relevant county clerk.

Posted by: Howard Wasserman | Feb 6, 2015 9:58:23 AM

Moore's memo also seems to present a strong argument for why *he* would be the appropriate responsible official. He is the administrative head of the judicial branch, under whose authority the probate judges conduct their administrative duties. I should think a suit against him in that capacity would have the potential to bind all the probate judges in the state.

Posted by: Jack | Feb 6, 2015 9:40:18 AM

"Miranda was a direct appeal from a criminal prosecution; the 11th Amendment does not come into play in that context."

Thus underlining the complexities (convolutions) involved here.

Moore need not be "inaccurate." He has a responsibility for the "orderly administration of justice within the state." To "get it right," he has to set forth the best advice here. His key focus was on their responsibility in enforcing state law. But, they also have to enforce federal law.

The reader is left somewhat underwhelmed on the complexities of that, including in effect needless (see Sam's comment) risks being taken at least w/o full warning of BOTH constitutional requirements that must be taken into consideration. It's a matter of opinion, but sorry, think his memo did not fully "get it right" regarding the duty he set forth.

Posted by: Joe | Feb 6, 2015 12:39:39 AM

Steve H and Howard, I appreciate your comments, but again I have to disagree. First let me say, that of course courts do not decide issues in the abstract, if what you mean by "abstract" is outside of the context of a case or controversy. Moore’s memorandum notwithstanding, courts decide legal questions that arise in cases or controversies and do not issue advisory opinions on legal questions not properly before them. Moreover, it is true that a district court opinion is not binding on nonparties and that district courts usually do not treat horizontal courts' opinions as precedent. However, it is important to unpack and be clear about a few issues.

First, there is a difference between a person/entity being "bound" by a decision – in either the res judicata sense or in the sense that the person/entity is subject to the injunctive power of the court - and the power of a court to declare what the law is. Clearly federal district courts have the power to declare state laws unconstitutional. A discussion of Marbury v. Madison is unnecessary here as I am confident that all sides agree with the uncontroversial point that federal district courts have original jurisdiction to hear facial constitutional challenges to state or federal law. In a facial constitutional challenge, a declaration that a law is unconstitutional is not limited to any one person, party, entity, or class. It is a legal declaration (and being declaratory it gives notice to all) about the status of a law. It is a statement that the piece of legislation/state constitutional provision/ordinance/statute in question is, in fact, not actually a “law” by operation of the Supremacy Clause. Something that is not a law at all cannot be legally enforced.

Now, it is true that another horizontal (e.g. another district court in the district) or the court of a co-equal sovereign (e.g. a state trial court) could, tomorrow, decide the constitutional question otherwise. State courts are not bound by the decisions of federal courts (save decisions by the Supreme Court on issues of federal law), and district courts are not bound by the decisions of other district courts. However, this situation is not unique to the district courts. The federal courts of appeal also are not obliged (at least by an external authority) to treat prior circuit court decisions of the same circuit as binding in subsequent cases. The fact that they do this is, in most circuits, a fairly recent development. The custom is, in most circuits, the result of federal common law that gradually developed within that circuit and was later codified by that circuit into binding circuit rules. But it was not always so. Prior to around ~1960s, many if not most circuit courts treated decisions by previous panel decisions from the same circuit (and even, in some cases, en banc decisions) as persuasive but not binding authority. So fifty years or so ago, the following scenario was not uncommon: panel A would find a law constitutional; a couple of years later, panel B would find the same law unconstitutional. This state of affairs was not ideal for the uniform application of law within the circuit, which is undoubtedly why circuits began to move to the “rule of the circuit” model that we have now.

But, during the many decades of Article III judging that occurred prior to implementation of the “rule of the circuit” model, what then was the legal consequence of a panel decision that held a state law unconstitutional? After all, it was possible that a future panel (or even the same panel) many come to the opposite decision in subsequent case. Nonetheless, the legal consequence was that the law was unconstitutional in that circuit until another court said otherwise. It was –and is - a last-in-time rule – it is the same rule we use when legislative bodies enact conflicting provisions of law. In fact, it is the same rule we use when a district court fails to properly apply issue preclusion and a third district court has to resolve the conflict. It is both well-settled and highly intuitive: the last pronouncement by a court (with jurisdiction to hear the matter) is controlling until another court pronounces otherwise. This is the rule that applies to a district court ruling on the facial constitutionality of a law. If you know of a Supreme Court case that says otherwise, I would be grateful to know of it.

This history notwithstanding, it is not difficult to see why advocates (and sometimes executive branch officials and others) sometimes adopt the position that district court declarations regarding constitutionality are somehow not “law” except with respect to the parties to the case at bar. This idea seems to be an extrapolation from the rule that a district court holding only serves as res judicata for the parties to the action. This, as I stated earlier, is of course true, but it is also immaterial here because a declaration that a law is unconstitutional is not a “rule of the case.” It is a statement about the status of a law, not about the legal rights of the parties at bar. The court may go on to also issue a holding regarding the legal rights of the parties at bar (which the district court in Mobile did), and that holding IS a rule of the case that is only binding on the parties at bar. But the constitutional holding is not a rule of the case.

Given that horizontal and co-sovereign courts are at liberty to create conflicting law, we might predict that we would constantly be faced with conflicts that would call into doubt the constitutional status of laws. However, in practice this issue very rarely arises because a number of mechanisms exist to avoid these conflicts. Stays, interlocutory appeals, abstention and other comity-related doctrines operate to ensure that, in general, courts are competent at avoiding conflicts on constitutional questions among horizontal courts and co-sovereign courts, pending final resolution of the question by the Supreme Court.

Posted by: Anon | Feb 5, 2015 11:47:09 PM

Man, you are dogged. You may be right that probate judges aren't enjoined. But CJ Moore raises the Eleventh Amd issue, as an attempt to make the decisions a complete nullity. You are right that this Eleventh Amd issue overlaps with Will; but turning the focus to Will makes it all the more clear that "I'm the wrong guy" is waived if not raised below.

Posted by: Sam | Feb 5, 2015 10:39:21 PM

It wouldn't matter, though, because the plaintiffs still don't have an appropriate defendant--a probate judge--as a defendant to enjoin.

An overlooked aspect of these sorts of constitutional cases is that it really isn't about the 11th Amendment at all. Under Will v. Michigan Dept. of State Police, a state is not a person subject to suit or liability under § 1983, which is the source of these constitutional challenges. So there really isn't a waiver--§ 1983 by its terms only imposes liability on persons, meaning individual officers. And it has to be the appropriate individual officer.

Posted by: Howard Wasserman | Feb 5, 2015 10:21:27 PM

On the Eleventh Amendment issue, it would be interesting to know whether the AG argued that he was an inappropriate defendant (and was therefore immune). If he did not, and lulled the Potts into unquestioningly following the Magistrate's advice to name him, then there ought to be some sort of Eleventh Amendment waiver issue. ("ought" being my way of seeing "I don't know if that's the law but it should be!")

Posted by: Sam | Feb 5, 2015 10:14:41 PM

Miranda was a direct appeal from a criminal prosecution; the 11th Amendment does not come into play in that context. But this is not a criminal case--this is a preemptive action in equity to enjoin enforcement of the law. Noonan's book is great. But it should not be read to suggest, descriptively, that anything Moore said here was inaccurate.

Posted by: Howard Wasserman | Feb 5, 2015 5:57:40 PM

Thanks. I do think a state can waive immunity so in that sense can be sued in their names. Cases like "Miranda v. Arizona" is also somewhat confusing. But, 11A law does get convoluted at some point. I am somewhat influenced here by Judge Noonan's book on this subject.

As to the second point. The memorandum is written in the tenor of fulfilling his duties regarding the "orderly administration of justice within the state." In this respect, Sam's concerns are relevant and seem sound. And, the "binding federal precedent" is the whole point, obviously. But, the memorandum ends in a fashion imho that focuses on only one thing the judge has to take into consideration when so determining.

The memorandum on the whole is a lot better than that letter he wrote.

Posted by: Joe | Feb 5, 2015 5:39:34 PM

A State never can be sued in its own name, even for a 14th Amendment violation. The plaintiffs need to sue the executive officer responsible for enforcing the law, which in this case will be the probate judge(s) who will refuse to grant the couple a license.

But they do have a duty to enforce state law, in the absence of binding federal commands to the contrary. If the 14th Amendment is silent (as many people believe it is), then state law is all that is left.

Posted by: Howard Wasserman | Feb 5, 2015 5:11:41 PM

1. So, a state cannot be sued in this case even allegedly to redress a breach of the 14A?

2. Sure. But, since they are required to enforce the federal Constitution, it still is relevant. To fully "get it right," I personally think he should have noted that they don't only have a duty to enforce state law. He ends on that note. Again, I can't take this totally at face value.

Posted by: Joe | Feb 5, 2015 5:02:59 PM

1) The 11th Amendment is avoided under Ex Parte Young only by suing the "responsible" executive officer (that is, responsible for enforcing the law), which is defined by state law. Courts interpret Young to mean that the 11th Amendment still bars actions against any state officer who is not the appropriate responsible officer. Moore's point is that neither the AG nor Governor are appropriate defendants, because they are not charged with issuing licenses (and thus with "enforcing" the ban on same-sex marriage).

2) But if the decision striking it down is not binding precedent, then the federal Constitution is not in play, at least beyond each judge's own interpretation of it. And if they don't interpret the federal Constitution to require marriage equality and they issue the license, they would be in violation of state law.

3) Moore covers that in the first part of the memo and its seems pretty clear. The AG was enjoined, but the AG exercises no supervisory authority or control over state judges.

Posted by: Howard Wasserman | Feb 5, 2015 4:41:25 PM

1. He says the federal judge here was wrong on 11A grounds. Is he right? I was under the impression the 14A trumps the 11A here -- this is not merely a damage claim or an argument of congressional power invaded by a state, but a constitutional rights argument based on the 14A. Did he cover this?

2. Per an earlier comment, he does reference that state judges are "bound" to the Constitution of the U.S. But, yes, the memo ends with him saying they would be in violation of the state constitution ... full stop ... if they issue marriage licenses in violation of state law.

Yeah. The whole point is that the law was struck down on federal constitutional grounds. They have to follow that too. This is sort of relevant and skipped over. Given the party involved, I can't take that at face value. And, on that level, the federal judge provides what THAT Constitution demands, even if she does not directly bound the probate judges.

3. The fact that lower federal courts don't bind the states as a general matter isn't a controversial statement. It should be obvious by now. The only thing there is to determine if the state officers are somehow w/i the ambit of said court rulings as defendants or the like.

Posted by: Joe | Feb 5, 2015 4:10:45 PM

No. A court--any court, including SCOTUS--does not declare laws unconstitutional in the abstract. It does so in the context of issuing an order binding only on particular people. In this case, that is on the Attorney General of Alabama and no one else. No probate judge is bound by that order (or by the AG's efforts to comply with the order).

The court's declaration that the law is unconstitutional only has meaning as precedent in a subsequent lawsuit by a different couple seeking a license from a probate judge. And it is not even binding precedent at that--a different district judge *on the same court* can reach the opposite conclusion and uphold Alabama's prohibition.

There thus is no sense in which they are acting illegally. No court order binds them to do or not do anything. And no court decision has conclusively established the constitutionality of Alabama law.

Posted by: Howard Wasserman | Feb 5, 2015 2:32:24 PM

[Second time trying to post this, which got eaten up on the first try:]

Anon -

First, two hypotheticals:

(1) Tomorrow, another district judge in Alabama reaches precisely the opposite result on the legal question, and issues a DJ saying that the relevant statutes are constitutional. What then?

(2) Now imagine both DJs were issued the same day: one says constitutional, one not. What then?

District courts don't declare what the law is as a general matter; they decide legal questions in service of a judgment in a dispute between adverse parties. Parties that aren't bound by the judgment (in the ordinary sense) can argue that the district court was wrong on the law, and in fact the very same district judge can change his or her mind tomorrow without giving any weight at all to the prior decision.

A third hypothetical:

-Suppose a district judge issues a DJ saying a given patent is valid and infringed by party X. The patentee then sues party Y for infringement. Can party Y dispute that the patent is valid? If not, what's the difference between the patent case and the constitutional one?

Posted by: Steve H | Feb 5, 2015 2:29:25 PM

Anon -

First, two hypotheticals:

(1) Tomorrow, another district judge in Alabama reaches precisely the opposite result on the legal question, and issues a DJ saying that the relevant statutes are constitutional. What then?

(2) Now imagine both DJs were issued the same day: one says constitutional, one not. What then?

District courts don't declare what the law is as a general matter; they decide legal questions in service of a judgment in a dispute between adverse parties. Parties that aren't bound by the judgment (in the ordinary sense) can argue that the district court was wrong on the law, and in fact the very same district judge can change his or her mind tomorrow without giving any weight at all to the prior decision.

A third hypothetical:

-Suppose a district judge issues a DJ saying a given patent is valid and infringed by party X. The patentee then sues party Y for infringement. Can party Y dispute that the patent is valid? If not, what's the difference between the patent case and the constitutional one?

Posted by: Steve H | Feb 5, 2015 2:27:55 PM

With all due respect, this is just a terribly wrong statement of the both the issues and the law. The issue here is not whether the district court has the power to enjoin (or otherwise compel) the probate judges to issue licenses to same sex couples. The district court determined that ALA.CONST.ART. I, § 36.03 and ALA.CODE § 30-1-19 were unconstitutional under the 14th Amendment. Those laws are no longer enforceable in Alabama until another court decides that they are enforceable. To suggest otherwise is to suggest that federal district courts lack the power to declare laws (whether they are state or federal laws) unconstitutional, which is incorrect. If the Eleventh Circuit were to decline to hear an appeal from the district court’s ruling, and if the Supreme Court were likewise to deny certiorari, then the district court’s opinion would be the final word on the constitutionality of the law in question. Of course, in this instance, we know that is not going to happen as the Eleventh Circuit already is entertaining an appeal from a substantially similar ruling in Florida, and the Supreme Court has granted certiorari in two cases, the resolution of which will likely likewise either ratify or reverse the district court’s decision in Alabama. But to say that district courts lack the power to declare laws unconstitutional is simply wrong.
Consequently, the district court’s ruling has the consequence of rendering unenforceable the provision of Alabama law (and Alabama’s constitution) that prohibits the issuing of licenses to same sex couples. In so holding, the district court stated that failing to issue a licenses to couple based solely on the fact that the couple is same sex violates the U.S. Constitution. That is the state of the law in Alabama until another court - that has jurisdiction to hear this issue - decides that it is not.
Probate judges - while unarguably “judges” - lack both original and appellate jurisdiction over this issue – probate courts are not courts of general jurisdiction (not to mention the very important point that no one has petitioned them to resolve an actual case or controversy). A probate judge, therefore, has no power to independently overrule the decision by the district court. Further, in issuing a license, a probate judge is not operating in a judicial capacity. In issuing licenses, a probate judge is acting in an executive capacity (meaning, incidentally, that she is subject to suit under Sec. 1983 if she fails to issue a license and thereby deprives a party of a constitutionally protected interest). It makes no difference whether probate judges are “members” of the judiciary (they are), it matters only whether what they are doing constitutes a judicial or executive act. Issuing licenses (in that it does not involve a case or controversy) is an executive act. Therefore, the probate judges have no independent judicial authority to overrule (or even decide the legal question at issue in) the district court’s opinion.
Every state actor is independently charged with upholding the law in the execution of their official duties. Consequently, if the probate judges decline to uphold what has been declared the state of the law in Alabama, they will be acting illegally.
This is, of course, just an unfortunate delay tactic. The same legal argument was used by probate judges in Alabama in 1970 (three years after Loving) in explaining their “legal right” to continue to decline to issue licenses to interracial couples. It was a losing argument then, as it is, obviously, now.

Posted by: Anon | Feb 5, 2015 2:03:05 PM

1) A probate judge who insisted on being sued before granting a license wouldn't be liable for damages, in all likelihood, but would be on the hook (in official capacity) for attorneys fees, which could be substantial. A waste of government resources.

2) Chief Justice Moore goes beyond telling probate judges to use their own judgment; he then declares that in his view, "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." While that's just presented as "his view," most probate judges will take the hint. Strange that he doesn't mention in the same breath that they also swear, in their oaths, to uphold the federal constitution.

Posted by: Sam | Feb 5, 2015 1:48:04 PM

They won't be liable for damages, but they will be liable for attorney's fees because the plaintiff is a prevailing party (of course, the state will pay those fees).

Sam, fair point. And perhaps Moore should have laid-out the practical effects (a new lawsuit, same result, attorney's fees). It's worth noting that Moore is not advising them as their attorney, so the tenor of his advice is different.

Posted by: Howard Wasserman | Feb 5, 2015 1:47:45 PM

I agree on both points, Howard. I would also note that Moore properly referred to the fact that the state probate judges would have to reach their own conclusions on the underlying constitutional question. In other words, he did not tell the probate judges to *reject* a constitutional right to same-sex marriage; he told the judges to consider the question without deference to any decisions of a lower federal court. I'm sure some news outlets will misreport this as a memo instructing Alabama judges to ignore the federal constitution, which it most assuredly is not.

This goes to Sam's point. Moore isn't saying, "wait until you're enjoined," he's saying "figure out the answer for yourselves."

Also, I don't see how these judges could possibly be liable for damages.

Posted by: Steve H | Feb 5, 2015 1:42:23 PM

"gets it right"??

You really think that this is good advice, taking into account not only formalities and "what you can get away with, without being in contempt" but also "what other things you ought to consider in deciding how to act"? If I had a client who was a Probate Judge, I would at least point out that if somebody comes to you and asks for a license, and you refuse, then you can look forward to your own lawsuit which you will probably lose and you will probably be on the hook for attorneys fees.

This is related to my main problem with your continued analysis - not that you aren't technically "correct," but that the law "on the ground" is better served by a culture in which local officials don't all insist that they be sued in their own cases. "Binding" in legal terms is not the same thing as "do I really want to fight this when I will probably lose - is this really the hill I want to die on?"

Posted by: Sam | Feb 5, 2015 1:35:32 PM

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