Wednesday, February 11, 2015

Is Alabama Chief Justice Roy Moore Like Orville Faubus or Willis Van Devanter?

by Michael Dorf

Yesterday the buzz was all about the SCOTUS refusal to stay the same-sex marriage order in Alabama and the mixed reaction thereto by Alabama probate judges caught between the federal courts and a directive from Alabama Chief Justice Roy Moore. My own comments thereon can be found in NY Times, LA Times, the Wall Street Journaland a widely published AP story (e.g., here).

In this post, I want to consider a puzzle raised by Moore's directive at which I hint in the Times quote: Assuming that Moore is correct that lower federal court rulings do not generally bind state courts, does that have any relevance with respect to marriage licenses? Or, as the title of today's post indicates: Is Moore simply defying federal law (qua Faubus) or is he a sophisticated, albeit conservative, practitioner of the art of judicial federalism (qua Van Devanter)?

Let's entertain the possibility that CJ Moore is a latter-day Van Devanter. Despite his past history of defying the federal courts, the prima facie argument for Moore as master of procedural federalism is pretty good. It begins with the proposition--which I defended on this blog last fall (here and here), that decisions of lower federal courts on questions of federal law are not binding precedents for state courts. Then, CJ Moore adds that Alabama probate judges are within the judicial branch in Alabama, and thus not subject to supervision by the Attorney General, the defendant in the lawsuit that resulted in the invalidation of the state SSM ban. Thus, Judge Moore concludes, the probate judges are not bound by either precedent or preclusion to follow the district court order, and so he can order them to follow state law until it's invalidated by his court or by the SCOTUS.

So far, so good, which is why I said in the Times story linked above that I thought Judge Moore had "some cards to play." But I went on to say that he holds a losing hand because couples who want to marry could simply sue the probate judges in federal court. I continue to think that's right, but I want to raise an objection. Ordinarily, if a party is dissatisfied with an outcome in state court, she needs to appeal within the state court system rather than suing the state court judge in federal court. Indeed, the federal Anti-Injunction Act forbids federal courts from staying state court proceedings. So why do I think that a same-sex couple can sue a state probate judge in federal court?

To begin, as a technical matter, the Anti-Injunction Act doesn't apply, as it only forbids federal court orders that "stay proceedings" in state courts. In suing to enjoin a state probate judge to grant a marriage license, a same-sex couple would not be seeking to stop any ongoing proceeding. Furthermore, even if the Anti-Injunction Act did apply, plaintiffs suing to vindicate their civil rights under 42 U.S.C. 1983 would fall within an exception recognized by Mitchum v. Foster.

To be sure, there are also judge-made doctrines of abstention and comity that limit the ability of federal courts to interfere with state courts, but none of them would appear to apply here for the fundamental reason that a suit to compel Alabama probate judges to issue marriage licenses would not interfere with the performance of any adjudicatory duties by the probate judges.

In Alabama, probate judges issue marriage licenses. In other states, county clerks or other administrative officials grant such licenses. Whether such officials are subject to suit in federal court should not depend on whether the officials are technically considered part of the state judicial or executive branch, because (except for limited purposes not relevant here), states may structure their branches of government however they like. What matters is the function performed by the official being enjoined.

Here's a hypothetical to illustrate my point. Suppose that Alabama classifies all state, county, and municipal police officers as "judicial" officers, going so far as to call them "judges." Now suppose that "Judge Davis" (i.e., police officer Davis) uses excessive force in arresting suspect Peters. Is the fact that Davis has the word "Judge" in his title any obstacle at all to a federal court 1983 action against him by Peters? Certainly not. Again, what matters is the function the official performs, not the label the state chooses to attach to that official.

Does it matter that Alabama probate judges also perform adjudicatory functions? It's conceivable (but just barely) that the hybrid nature of a probate judge's duties might be relevant to whether she could be sued for money damages, because judges have absolute immunity for official acts, whereas executive officials only have qualified immunity. But even if the probate judge's absolute judicial immunity bled over a bit into her performance of non-adjudicatory functions, that would only be relevant to damages actions, not to actions for injunctive relief of the sort now contemplated in Alabama.

Accordingly, I conclude that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda.

15 comments:

Joe said...

I appreciate this discussion & got tired of a professor at PrawfsBlawg trying to insist that he was "right." At best, he was partially right. And, the fact that some media reactions (and others) don't see all the nuances doesn't change that.

t jones said...

"[S]o he can order them to follow state law until it's invalidated by his court or by the SCOTUS"

Does the Alabama Chief Justice have some type of non-appellate oversight power over the state's lower courts? How can he "order" as opposed to "advise" probate judges about how to apply a federal court ruling the Alabama Supreme Court has not ruled on?

Michael C. Dorf said...

The scope of the Alabama Chief Justice's authority to issue orders to Alabama probate judges in a non-adjudicatory context is a question of Alabama law about which I pretend to have no expertise.

GunningforGunners said...

@Michael C. Dorf Do you not pretend to have expertise re: Alabama law, or do you pretend not to have expertise? Your comment is ambiguously worded.

Joe said...

The King plaintiffs' attorneys are on the line and wish to note that Prof. Dorf objectively is saying that he does have expertise in Alabama law but is only pretending (for curious reasons they will now explain) to not have it.

Michael C. Dorf said...

If there were a "like" button on my blog, I would "like" Joe's last comment. Accordingly, I hereby pretend to "like" it, i.e., I like it.

Will Martinez said...

Some thoughts on your puzzle.

Even if we accept the propriety of Justice Moore’s proposition (i.e., that statutory or constitutional interpretive rulings from lower federal courts cannot bind state courts), that rationale would not preclude private litigants from seeking a prospective injunction in federal court mandating that state probate courts issue marital licenses.

As you point out, state judges generally enjoy complete judicial immunity from federal suit when carrying out their official acts. However, the application of the immunity doesn’t derive from the judge’s status, but rather the nature of his contested act. See, Kalina v. Flecther, 522 U.S. 118 (1997) (holding, “[i]n determining immunity, we examine the nature of the function performed, not the identity of the actor who performed it.”). Thus, the shield of judicial immunity may be overcome where: 1) the judicial action is taken in complete absence of all jurisdiction; or 2) the official act is non-judicial in nature. See, Mireles v. Waco, 502 U.S. 9 (1991). Since Alabama probate judges are statutorily authorized to issue marriage licenses, the immunity question must center on whether issuing marriage licenses constitute a “judicial” or a “non-judicial” act. Given that marriage licenses issuances are a perfunctory duty normally falling within the province of county or municipal clerks; it seems readily apparent that the duty qualifies as more of an administrative or ministerial function, rather than an adjudicatory one. See, Forrester v. White, 484 U.S. 219 (1988) (holding, “[t]ruly judicial acts, however, must be distinguished from the administrative, legislative, or executive functions that judges may occasionally be assigned by law to perform.”). Thus, if Alabama residents were denied a marriage license at the probate court based on the state law’s prohibition of same-gendered marriage, then those individuals could seek an injunction from a federal district court without running afoul of the judicial immunity bar.

Interestingly, the wrinkle to your puzzle arises from the Strange v. Searcy case itself (i.e., the case from the Southern District of Alabama that SCOTUS refused to stay on Monday). Searcy originated as an adoption petition by a same-sex stepparent (originally married in California) seeking to legally adopt her spouse’s child in Alabama. Judge Davis, the Mobile County Probate Judge, denied the petition because Alabama law expressly prohibits the recognition of a same-gendered individual as a spouse. The Alabama Civil Court of Appeals affirmed. See, In re Adoption of KRS, 109 So.3d 176 (Ala. Civ. App. 2012). Subsequently, Searcy filed her federal district court action challenging the constitutionality of Alabama’s same-sex marriage ban.

Applying your judicial immunity issue here, the problem with Searcy’s case is that she would not immediately be entitled to Section 1983 injunctive relief upon filing, since adoption in Alabama generally require a judge to employ a “best-interest-of-the-child” determination—arguably an adjudicatory function. Rather, Searcy would have to first obtain a declaratory judgment (which she now possesses since no appellate stay was imposed), and then apply for prospective injunctive relief against the probate court if she is denied the adoption petition going forward. See, 42 U.S.§ 1983 (permitting injunctive relief against a judicial officer after “a declaratory decree was violated”).

However, as a side note, Professor Wassermen at Prawfsblog directed my attention to a more problematic issue for Searcy—subject-matter jurisdiction. By filing her federal complaint after losing in the state appeals court, it seems Searcy’s current case might be outrightly precluded by the Rooker-Feldman doctrine.

David Ziff said...

Prof. Dorf, a question related (tangentially) to this issue and your earlier posts on state courts following lower federal courts on issues of federal law. You posed a hypothetical of a state court adopting a rule that looks to a geographically distant federal court of appeals, or even your blog, as a definitive source of federal law. But what about a similar state-court rule that applied not to determinations of federal law, but to determinations of sister-state law in cases where the forum's law didn't apply? The Supremacy Clause doesn't do any work in that circumstance. Would such rules be constitutional? If not, then perhaps the reason for the lack of constitutionality in the "sister state" hypo does some of the work in your federal law hypo. If such rules are constitutional, however, then I wonder what the problem is in federal-law cases if the Supremacy Clause isn't really doing the work.

Anyway, I wrote a bit that here, in case you're interested: https://ziffblog.wordpress.com/2015/02/11/alabama-same-sex-marriage-and-the-variousness-of-federal-law/

[Also, I want to add that I too "like" Joe's comment.]

Michael C. Dorf said...

Will Martinez makes a couple of very interesting points about Searcy itself but as I read his analysis and Howard's, they at most show that something may have been wrong in that case. A different same-sex couple simply seeking a marriage license could sue in federal court, as the first part of Will's analysis confirms.

David, thanks for your marvelous post and question. I need to think about it some more, but my inclination is to say that: 1) You're right that it's not the Supremacy Clause that does the work in your hypo; but 2) I think that the forum court does not ultimately have the latitude to apply its own law about how to ascertain the foreign state's law, although in many cases that won't be a constraint because the foreign state won't have law on how to ascertain its own law.

Let me illustrate with a further twist. Suppose that in your hypo WA had a state constitutional rule that said that "authoritative advisory opinions of the State Attorney General on the meaning of civil rights laws shall be treated as binding on the courts unless unreasonable." Now suppose that the NY courts, if applying their own approach, would not give any deference to the WA AG's construction of WA law but instead would predict what the WA SCt would do based on its past precedents. Shouldn't it nonetheless treat the AG's advisory opinions as conclusive if reasonable? And if so, isn't that because the foreign state's methods of interpretation are bound up in the foreign state's laws?

If I'm right about that, then maybe you're right that I don't need the Supremacy Clause for the parallel conclusion in the state/federal case.

Thanks!

David Ziff said...

Thank you for the kind comment Prof. Dorf. I've done a bit more thinking, focusing on your "state AG" hypothetical, and here's where I wound up: In between the choice-of-law question and the content-of-law question there's perhaps an intermediate step: Is there actually a gap in the foreign law that needs to be filled by the forum court's content-of-law rule? (Or perhaps it makes more sense to break the content-of-law question into two parts: Is there foreign law on point? If not, how to fill the gap?)

I think the foreign law does have some pull on the "Is there a gap?" question, which is why in your AG hypo, assuming the Full Faith and Credit Clause said Washington law needed to apply, then the FFC Clause would also require the New York court to recognize the absence of a "gap" to fill in Washington law.

But once that intermediate question is answered with the existence of a gap, I still think the foreign court's interests are exhausted and the forum court can apply whatever gap-filling rule it wants. Making sure the "gap" is not illusory seems enough to protect whatever interest the sister state or the federal government has under the Constitution.

I set that point out using more words here: https://ziffblog.wordpress.com/2015/02/12/the-variousness-of-federal-law-part-ii/

Michael C. Dorf said...

David: I think we are now in pretty much complete agreement. If the foreign jurisdiction has laws for determining its own law's content, then the forum court should apply those. If there's a gap, then I agree that it's permissible for the forum court to use its own methods for figuring out what the foreign jurisdiction's law is--but perhaps that's because this is simply what it means for there to be a gap.

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