MEMORANDUM IN SUPPORT OF MOTION TO RECUSE / DISQUALIFY
ACTING CHIEF JUSTICE AND ASSOCIATE JUSTICE J. GORMAN HOUSTON, JR.

COMES NOW Roy S. Moore (hereinafter, “Chief Justice Moore”), Defendant below, and submits the following memorandum in support of the Motion to Recuse / Disqualify Alabama Supreme Court Acting Chief Justice and Associate Justice J. Gorman Houston, Jr.

I. Justice Gorman Houston Has Made Improper Public Comments Regarding Chief Justice Moore’s Case.

Justice Gorman Houston has made public statements (1) that he will not recuse himself if Chief Justice Roy Moore appeals the Court of the Judiciary decision to the Alabama Supreme Court; (2) that, if Justices of this Court recuse themselves, Justice Houston will likely be involved in the process of finding replacement Justices; (3) that, should Chief Justice Moore be unsuccessful in the appeal of his removal from office, Justice Houston will “assist” Governor Bob Riley in determining Chief Justice Moore’s replacement. (See Exhibit 5, 7, attached hereto and incorporated herein by reference.) These statements about an impending case before the Alabama Supreme Court require Justice Houston to recuse and/or disqualify himself from Chief Justice Moore’s appeal.

In August of 2003, Justice Houston discussed Chief Justice Moore’s actions with the Mobile Register shortly after he and the associate justices of this Court ordered the monument removed. Justice Houston explained that he did so because “it was important, he said, to avoid fines and preserve the rule of law, the concept that the law applies equally to every person.” (See Exhibit 4, attached hereto and incorporated herein by reference.) Justice Houston continued:

“‘Somebody is disappointed in almost all those cases in the way it came out,’ Houston said, adding that he wondered what would happen if those unhappy plaintiffs and defendants tried to follow Moore’s lead and defy court orders affecting them. ‘It would be chaos.’”

(Id.) At trial and even before, Chief Justice Moore’s argument as to why he did not remove the monument was, in part, that he did not believe that the court order to remove the monument was legal, constitutional, or binding upon him. His defense in this case directly addressed the concern that Justice Houston expressed about parties “follow[ing] Moore’s lead,” a concern expressly raised by the prosecutor, Attorney General Pryor, before the Court of the Judiciary. The Court below rejected Chief Justice Moore’s argument that he was upholding his oath and complying with the law, i.e., the Constitution, which would therefore generate greater public respect for the law and the judicial system. Justice Houston’s public criticism of Chief Justice Moore’s actions — actions that were scrutinized at trial and will be reviewed on appeal — and his concern expressed about the “chaos” he believes would ensue, plainly demonstrates Justice Houston’s predilections about the merits of Chief Justice Moore’s case.

Less than a week before Chief Justice Moore’s notice of appeal or this memorandum was filed, Justice Houston told the Huntsville Times that he would not recuse himself from this case and that, indeed, “any questions about possibly appointing temporary justices could be worked out between the governor’s office and [Justice Houston].” (See Exhibit 5, attached hereto and incorporated herein by reference.) Justice Houston even offered the suggestion that, if Supreme Court justices recuse themselves, their replacements be chosen by randomly drawing names from a hat. (Id.) Justice Houston’s public statements about how he would involve himself in the selection process for replacement justices is entirely improper.

In an interview with WSFA Channel 12 News, Acting Chief Justice Gorman Houston, was asked: “If Chief Justice Moore appeals to the Supreme Court, would you recuse yourself?” Houston replied:

“Oh, heavens no! Why? Because I don’t have any reason to recuse myself. You try the case based on the evidence that was before the lower court, not based on something we know. Maybe I was wrong. Maybe we didn’t have to remove the monument, or maybe if I wasn’t wrong, maybe he was right and justified and maybe that’s in the record - something that shows that, and if it does, I’ll certainly give him every benefit of the doubt on it.”

(See Exhibit 7, attached hereto and incorporated herein by reference.) Additional examples of Justice Houston’s numerous public statements about Chief Justice Moore’s case are provided in Exhibits 9, 10, 11, 12, 13, 14, 15, 16, 20, and 25, (all attached hereto and incorporated herein by reference).

Canon 3A(6) of the Canons of Judicial Ethics requires that “a judge should abstain from public comment about a pending or impending proceeding in any court ....” Though “abstract legal explications” are not forbidden, “[a] judge is strictly prohibited from public comment on the merits of a pending case.” In re Sheffield, 465 So. 2d 350, 355 (Ala. 1984). Justice Houston’s detailed comments about Chief Justice Moore’s case went well beyond “abstract legal explications.” Justice Houston has repeatedly offered public comments to the press about Chief Justice Moore’s case, including the merits thereof, which is now before this Court. “[A] reasonable person [would] question [Justice Houston’s] ability to ‘hold the balance.’” Id. at 356. In light of Justice Houston’s disregard for Canon 3A(6) of the Canons of Judicial Ethics, he should recuse himself from the case about which he is so eager to publicly discuss.

II. Justice Houston Has a Direct and Significant Interest in the Outcome of Chief Justice Moore’s Appeal That Requires His Disqualification and Recusal.

Justice Houston’s vote or involvement in this case would have a direct effect on his status and authority on the Alabama Supreme Court. As the Senior Associate Justice, Justice Houston is currently operating in the capacity of acting Chief Justice of the Alabama Supreme Court, with all attendant powers and responsibilities. See Ala. Code 1975 § 12-2-6. He will retain said powers until Chief Justice Moore is returned to office or another Chief Justice is appointed because Justice Houston, being over 70 years of age, is ineligible by law to be elected or appointed to a judge’s position. See Ala. Const. of 1901, amend. 328, § 6.16. Therefore, if this Court restores Chief Justice Moore to office, Justice Houston immediately loses his status and authority as acting Chief Justice. If, however, this Court affirms the decision to remove Chief Justice Moore from office, Justice Houston retains his status and authority until such time as a Chief Justice is appointed or otherwise installed. Any involvement by Justice Houston in this case — by a vote cast on the merits or otherwise — will therefore significantly and directly affect his own status, power, and authority on this Court.

Canon 3C(1)(c) of the Canons of Judicial Ethics requires that a judge “disqualify himself in a proceeding in which disqualification is required by law or his impartiality might reasonably be questioned,” including where he has “any ... interest that could be substantially affected by the outcome of the proceeding.” As Justice Houston noted in 1994, “[t]his Court recognizes the importance of judicial impartiality: ‘Implanted in the foundation of public policy is the general rule that no judge shall preside in a case in which he is not wholly free, disinterested, and independent.’” Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994) (quoting Ex parte White, 53 Ala. App. 377, 386, 300 So. 2d 420, 429, cert. denied, 293 Ala. 778, 300 So. 2d 439 (1974)) (emphasis added). Due to the direct and substantial interest that Justice Houston retains in the outcome of Chief Justice Moore’s case, Canon 3 requires that Justice Houston disqualify himself from the appellate proceedings.

Justice Houston should also recuse himself, notwithstanding his personal opinion about whether he could somehow be fair and impartial on this case. Justice Houston has publicly stated, in regard to this case, “So far as I know, I have no reason to recuse myself.” See Huntsville Times article. Nine years ago, however, Justice Houston, writing for this Court, laid out the actual test for recusal: “The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge’s impartiality — whether there is an appearance of impropriety.” Duncan, 638 So. 2d at 1334. The standard for recusal is not subject to the individual judge or justice’s opinion about his own objectivity; rather, the standard “is an objective one: whether a reasonable person knowing everything that the judge knows would have a ‘reasonable basis for questioning the judge’s impartiality.’” Ex parte Bryant, 682 So. 2d 39, 41 (Ala. 1996) (quoting Ex parte Cotton, 638 So. 2d 870, 872 (Ala. 1994)) (Houston, J.). Justice Houston is not only disqualified by his direct interest in this case, but the objective appearance of impropriety that would arise from Justice Houston’s sitting on this case requires that Justice Houston recuse himself from all proceedings in this matter.

III. Justice Houston’s Actions and Statements In Recent Months Indicate That His Impartiality May Reasonably Be Questioned or That He Has a Personal Bias or Prejudice Concerning Chief Justice Moore.

As a colleague of Chief Justice Moore, and as acting Chief Justice, Justice Houston, over the past few months, has made numerous comments and has taken actions demonstrating that his impartiality may reasonably be questioned or that he has a personal bias or prejudice against Chief Justice Moore.

On or about August 21, 2003, Chief Justice Moore was in Gadsden when Justice Houston ordered that the Ten Commandments monument be “shrouded” from view by tall office dividers. Upon learning of Justice Houston’s actions, Chief Justice Moore contacted Justice Houston and a heated verbal exchange occurred that resulted in the shroud being removed. The conflict that arose over this incident may cause Justice Houston to be personally biased against Chief Justice Moore. Justice Houston’s personal involvement with the monument, however, was not confined to shrouding it from public view.

On August 14, 2003, immediately after Chief Justice Moore publicly stated that he would not move the monument in the Alabama Judicial Building, Justice Houston handed out to the press a statement that he was convening at 2:00 p.m. that day a conference of the associate justices to “take whatever steps are necessary” to comply with the orders of the federal courts. (See Exhibit 25.) (See also Exhibits 12 & 15.) Justice Houston, of course, was also one of the associate justices that issued the August 21, 2003 order to have the monument removed. (See Exhibit 8, attached hereto and incorporated herein by reference.) Justice Houston’s direct involvement in removing the monument was not lost on Morris Dees of the Southern Poverty Law Center, who, in a August 25, 2003 Washington Post article, commended Attorney General Bill Pryor — the prosecutor below — for his “actions behind the scenes to orchestrate the state officials handling these things ....” (See Exhibit 24, attached hereto and incorporated herein by reference) (emphasis added). Justice Houston was one of “the state officials handling these things” and orchestrating “behind the scenes,” including the exchange of letters between Justice Houston and Attorney General Pryor. (See Exhibit 22, attached hereto and incorporated herein by reference.) Since the instant appeal involves matters directly related to Chief Justice Moore’s decision not to remove the monument, Justice Houston’s open involvement with the removal of the monument, and his orchestration behind the scenes with the prosecutor below to accomplish the same, add to the appearance of impropriety that would result from Justice Houston’s failure to recuse himself from this case.

Justice Houston, when he assumed the duties of acting Chief Justice, also exercised authority over, and reassigned or fired several of Chief Justice Moore’s office staff, including Chief Justice Moore’s only security officer. (See attached affidavit of Leonard Holifield, attached hereto and incorporated herein by reference as Exhibit 23.) Andrew Dill and Benjamin DuPré were part of Chief Justice Moore’s legal staff until shortly after Chief Justice Moore was disqualified from acting as a judge, when Justice Houston instructed Messrs. Dill and DuPré to sign his office policy which would have, in effect, transferred their oath of loyalty from Chief Justice Moore to Justice Houston. Instead of signing the policy, Messrs. Dill and DuPré resigned. Mr. Dill is now representing Chief Justice Moore on this appeal. Additionally, the very day after the Court of the Judiciary removed Chief Justice Moore from office, Justice Houston fired two of the highest-ranking officials in the Judicial System because of their association with Chief Justice Moore: Dr. Rich Hobson, Administrative Director of Courts, and Tom Parker, Deputy Director of the Administrative Office of Courts. (See affidavit of Richard L. Hobson, Jr., attached hereto and incorporated herein as Exhibit 21.) Justice Houston’s actions against Chief Justice Moore’s employees, and the fact that one of them — Andrew Dill — now represents Chief Justice Moore before this Court, may raise the appearance of impropriety on the part of Justice Houston if he remained on this case.

Justice Houston has also demonstrated his attitude toward Chief Justice Moore through the medium of drama. On November 5, 2003, at a banquet dinner at the University of South Alabama in Mobile (the night before the Alabama Supreme Court was to hold oral arguments there), attended by the associate justices, attorneys, and citizens, Justice Houston organized and participated in a drama characterizing himself and the other associate justices as “modern day Sir Thomas Mores.”[1] Such statements are entirely inappropriate under the circumstances before the Court and raise an appearance of impropriety requiring Justice Houston’s recusal.

Finally, Justice Houston has publicly stated that he will require Chief Justice Moore to pay the cost incurred by Justice Houston for the movement of the Ten Commandments monument to a locked closet or room. (See Exhibits 14, 16, and 20, attached hereto and incorporated herein by reference.) Therefore, if Chief Justice Moore returns and is vindicated, Justice Houston would have to account for his costly decision to move the monument.

Canon 3C(1) of the Canons of Judicial Ethics states that a judge should disqualify himself in a proceeding where “his impartiality might reasonably be questioned” because of “personal bias or prejudice concerning a party,” or because of any other reason. Justice Houston’s recent actions and statements strongly suggest that his impartiality might be reasonably questioned and have also demonstrated a significant personal bias and prejudice against the appellant in this case, Chief Justice Moore.

IV. Justice Houston Should Recuse, As He Has Done Before, Because He Contributed to the Campaign of One of the Parties On Appeal and the Appellant Objects to Him Hearing the Case.

Acting Chief Justice Gorman Houston made monetary campaign contributions to Chief Justice Moore’s campaign for Chief Justice of the Alabama Supreme Court on the 24th day of August, 2000. (See Exhibit 1, attached hereto and incorporated herein by reference.) It should be abundantly clear that Chief Justice Moore objects to Justice Houston hearing this case. Such facts have led Justice Houston to recuse himself in the past.

In the 1995 ballot controversy involving former Chief Justice Perry Hooper, Sr. and former Chief Justice “Sonny” Hornsby, Justice Gorman Houston recused and disqualified himself from the case and filed a formal recusal statement. See Roe v. Mobile County Appointment Bd., 676 So. 2d 1206, 1234-1242 (Ala. 1995). (See also Exhibits 2 & 3, attached hereto and incorporated herein by reference.) In his papers filed to explain his recusal, Justice Houston made it clear that he recused because, in 1993, he “contributed $500 to the Chief Justice Sonny Hornsby Reelection Campaign,” id. at 1237, and because, in light of that fact, the appellants expressly asked Justice Houston to recuse, id. at 1239. (See Exhibit 2.) In fact, the issue of his campaign contribution to Hornsby arose only because Justice Houston issued a memorandum, before he decided to recuse, disclosing the fact of his campaign contribution, and in that memorandum stated that, notwithstanding the campaign contribution to one of the parties in the case, he “believe[d] that [he could] keep the balance nice, clear, and true in answering the certified question addressed to the Supreme Court of Alabama....” Id. at 1238. However, when Algert Agricola, attorney for the appellants, answered with a letter expressing their opinion that Justice Houston should recuse because of the appearance of impropriety, id. at 1239, and attaching a Motion to Recuse to that effect, Justice Houston complied and both recused and disqualified himself from the case. Thus, despite his initial stance that he need not recuse, Justice Houston acquiesced, recused and disqualified himself in a case where (1) he had contributed to one of the parties before the Court and (2) one of the parties objected to Justice Houston sitting on the case because of the appearance of impropriety.

Justice Houston’s determination to stay on this case would further heighten the appearance of impropriety because he once recused and disqualified himself in Roe v. Mobile County Appointment Bd., supra, a case presenting a need to recuse very similar to this case. In the present case, Justice Houston donated money to the campaign of one of the parties on appeal — in this case, Chief Justice Moore. Justice Houston has stated, before the instant motion to recuse was filed, that he did not think he had a reason to recuse. However, one of the parties on appeal — Chief Justice Moore — has now objected to Justice Houston remaining on the case, in part because of Justice Houston’s campaign contribution. As Justice Houston has written for this Court, “Recusal is required ... when the facts are such that it is reasonable for a party, for members of the public, or for counsel to question the impartiality of a [] judge.” Bryant, 682 So. 2d at 41 (quotations and citations omitted). “The focus of our inquiry, therefore, is not whether a particular judge is or is not biased toward the petitioner; the focus is instead on whether a reasonable person would perceive potential bias or a lack of impartiality on the part of the judge in question.” Id. See also Duncan, 638 So. 2d at 1334. For Justice Houston to have removed himself from a case just like this one, but to remain on this one, would cause the reasonable person to question Justice Houston’s motives and impartiality in this case. To maintain judicial consistency, and to avoid the appearance of impropriety, it is incumbent upon Justice Houston to remove himself from this case — by recusal and/or disqualification.

CONCLUSION

Justice Gorman Houston, when writing for the Court, once quoted Justice Jones for “eloquently stat[ing]” the standard a judge must uphold to avoid the appearance of impropriety:

“Paramount to any system of justice is the total impartiality of the court which sits in judgment of any controversy. The appearance of fairness is virtually as important as is fairness itself. One of the essential ingredients of an effective judiciary is the high level of respect afforded it by the citizenry. Except for the impartiality of those who occupy the role of judge, both in act and [in] appearance, the level of respect necessary to a strong and effective judiciary will fail. It is the essence of the system that any position of interest or bias is sufficient cause for disqualification or a judge, and the right to raise and insist upon the causes of disqualification must be zealously guarded.”

Ex parte Bryant, 682 So. 2d 39, 41 (Ala. 1996) (quoting Morgan County Commission v. Powell, 292 Ala. 300, 312, 293 So. 2d 830, 840 (1974)).

For the foregoing reasons, Justice Gorman Houston should recuse / disqualify not only in the instant case as a sitting Justice, but also should recuse / disqualify himself in all proceedings involving the instant case, including any selection process or method to choose any special Judges or Justices to hear the appeal of Chief Justice Moore. If Acting Chief Justice Gorman Houston fails to recuse or disqualify himself as requested, this Court should disqualify him.

Respectfully submitted this 10th day of December, 2003.