Date: Wed Nov 05 18:26:43 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: The Pray Fray
At 03:49 PM 11/5/97 0600, you wrote:
Thanks for the heads up on the escalation of the prayer issue. I'm afraid I agree with you regarding a coming confrontation. Considering the status of his own case, the wisdom of Judge Moore in getting involved is perhaps unwise.
Glad to hear it. For our discussions I'll assign to you the task of defining how to insure against such things in the future when men use their government positions for religious purposes.
I honestly can't predict what'll happen next, although I can see a number of options for the players, including Judge DeMent. I'm told my office has filed a notice of appeal from Judge DeMent's order, and I'm sure it'll have all the legal assistance they need, crawling out of the woodwork.
The next question is: if I were Judge DeMent, what would I do? If I were Bill Pryor and wanted to play peacemaker (probably not politically expedient), what would I do? One thing Judge DeMent can do is enjoin Judge Moore from enforcing his order as applied to the state school board. Something Attorney General Bill Pryor could do is ask Judge DeMent or the 11th Circuit to stay enforcement of DeMent's order pending the appeal, which would effectively moot Judge Moore's order, or the necessity of it. But there has been a direct slap in the face of the federal courts by Judge Moore, and Judge DeMent's reaction is something I can't predict with certainty. Judge DeMent won't want to make Judge Moore a martyr, but you can't have people flaunting federal authority the way he's done it. Something else that could happen is the ACLU could intervene in Judge Moore's case and move to recuse him on the basis that he has a personal interest in the outcome by virtue of his own case that's pending in the Alabama Supreme Court. OR, Judge DeMent could, on motion of the ACLU, make the Etowah County plaintiffs defendants in the case before Judge DeMent, and apply the order to Etowah Count directly.
The peacemaker, if one were to step forward, would get the ACLU and the state defendants in the case before Judge DeMent to try and agree to modify his injunction from last Thursday, to remove the objectionable or questionable parts, reserving the rights of the parties to appeal the merits and everything else to the Eleventh Circuit, and staying its effect pending the appeal. The TRO Judge Moore issued dissolves automatically within ten days unless extended following a hearing, and if the parties before Judge DeMent did what I suggest, it would be mooted pending the Eleventh Circuit appeal, and he could "save face." If he declines to do so, the ACLU would have no alternative but move for Moore's recusal and to mandamus him in the state courts if he fails to do so. Whoo boy! This is a law professor's dream hypothetical.
The AP article carried some rather positive statements from the Governor as well. Being an assistant (or is it THE assistant) Attorney General, and holding the convictions about such issues as you do, how would/could you defend him? Would defending him not be part of your job description?
Defend who? Moore? Interesting question. The majority of what I did in the beginning of my practice, and a large extent still of what I do, is telling federal courts when they do and don't have jurisdiction to involve themselves in state court proceedings. For the most part they don't, and I'm very successful at defending state judges on such issues.
The problem here, is that it looks like what Moore did comes within an exception to the usual defenses I assert. Generally, federal courts can't enjoin state proceedings except where necessary "in aid of their jurisdiction." This is gonna' fall within that exception.
As to defending him considering my own personal convictions, I could do it with my eyes closed, except for that exception. I don't have to take a position on the merits of a judge's ruling to defend the state court's independence from federal court interference. And I frequently tell my judge clients I won't suggest to them how to rule in a particular case just because there's a federal lawsuit out there. This case, however, for legal/procedural/jurisdictional reasons is going to be a loser if Judge DeMent chooses. I'm not in the habit of defending no win cases, and would be looking for a compromise to avoid the state federal conflict. Finally, although I COULD do it without much heartache in the ordinary case, my office wouldn't even ask me to, at least they never have asked me to take on a client or an issue I had serious moral reservations about. Here there's plenty of other lawyers in the office and outside who are happy to do it. I would, however, offer whatever legal advice and background assistance that was asked for, simply because they're dealing with an area of the law that's one of my areas of expertise and they should be prepared for the arguments they're going to encounter. Whether I agree with the merits or not, failure to offer to keep them straight on the procedural and jurisdictional issues would be doing my client the State a disservice.
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