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Retired judges to hear appeal in Alabama 10 Commandments case

Seven retired judges, including a former governor, were selected randomly in a lottery Monday to hear Roy Moore’s appeal of his ouster as chief justice in his Ten Commandments monument case.
Former Alabama Supreme Court Chief Justice Roy Moore.Dave Martin / AP
/ Source: The Associated Press

Seven retired judges, including a former governor, were selected randomly in a lottery Monday to hear Roy Moore’s appeal of his ouster as chief justice, the latest unprecedented twist in his Ten Commandments case.

The drawing came just hours after all eight Supreme Court justices disqualified themselves from hearing the appeal because of their earlier involvement in the monument case.

Moore was ousted on Nov. 13 by a judicial ethics panel for refusing to obey a federal judge’s order to remove his 5,300-pound Ten Commandments monument from the rotunda of the state judicial building. The eight justices had the monument moved to a storage room in August after Moore refused to do so.

To pick a replacement court for Moore’s appeal, the names of all of the state’s retired circuit, district and appeals court judges — except those physically unable to serve — were placed in a box and the seven names were drawn by Supreme Court Clerk Bob Esdale.

Only six members of the court are required to hear a case, but seven were chosen in order to avoid a tie vote.

Former governor on panel
The seven chosen include former Gov. John Patterson, who is also a retired criminal appeals court judge, and retired Supreme Court Justice Janie Shores.

Troy King, legal adviser to Gov. Bob Riley, said the governor had agreed to certify the seven judges.

Acting Chief Justice Gorman Houston called the proceeding “absolutely historic” — and “a tragedy.” He said the only similar case occurred during an unsuccessful attempt by the Legislature to impeach several Supreme Court Justices in 1829.

Former Supreme Court Chief Justice C. C. “Bo” Torbert said he believes the drawing of the judges for the special court is unprecedented.

“I don’t recall anything like this,” Torbert said.

‘Questions of impartiality’
A Moore attorney said two of the replacement judges appear to have conflicts, but he did not provide names.

“The process produced at least two additional justices where questions of impartiality will likely require their recusal or disqualification from this appointed court,” Phillip Jauregui said.

Jauregui also wanted Houston to have no part in the selection of replacement justices because of comments he had made to news reporters and because of the part he and the other justices played in having the monument moved.

Moore, who is known nationally as “the Ten Commandments judge,” had the granite monument moved into the judicial building on July 31, 2001, saying the Ten Commandments represent the moral foundation of American law. A federal judge found the monument to be an unconstitutional promotion of religion by government following a trial in 2002.