Justiciability

[Douglas Laycock]

        Art Spitzer says the defendants are the ACLU, the Free Thought
Association, and the plaintiffs who lacked standing in federal court.  It is
not clear what the Alabama court could or would order these defendants to do
or refrain from doing.  It might be hard to sustain US Supreme Court
jurisdiction on the theory Michael outlined -- that the state court issued
an order on federal law grounds that limits the rights of *defendants.*

        On the other hand, it is generally the rule that in a proper
declaratory judgment action, the court should declare the rights of the
parties no matter who wins.  That is, a motion to dismiss the declaratory
action on the ground that defendants are right on the merits should be
denied; instead, the Court should issue a judgment declaring that defendants
are right on the merits.  So the state court can realign Judge Moore as a
plaintiff and declare that it is unconstitutional for Judge Moore to post
the Ten Commandments.

        Such a declaration would be binding on Judge Moore although a
declaratory judgment by itself carries no further enforcement mechanism.  He
may be able to seek cert on the ground that he is bound by an erroneous
interpretation of federal law.

        If he simply ignores the declaratory judgment, the usual enforcement
mechanism would be for the other side to seek an injunction enforcing the
declaratory judgment -- "further relief" in the language of Rule 57.  Such a
motion would raise the question whether these plaintiffs who lacked standing
when they were just complaining now have standing when they hold a
declaratory judgment.

        Might the Court view the suit as collusive on the jurisdictional
issue?  If there is no real case or controversy between these parties, and
if they all studiously refrained from raising that issue, is the Court bound
by ASARCO to decide the merits?  I haven't read ASARCO, but the answer might
be yes.  The Court might decide that *it* lacks jurisdiction, but it cannot
vacate and remand with instructions to dismiss for lack of jurisdiction --
if the state courts want to take jurisdiction over this, they can, and their
desire to do so does not present a federal question.

        Combining what Michael has told us about ASARCO with what I know
about declaratory judgments, the answer might be that Judge Moore can file a
cert petition if he loses, but that the ACLU cannot file a cert petition if
it loses.  The uneven allocation of risk does not seem very sporting, but
there it is.

        To clarify another mystery in the case, my understanding is that
Judge Moore sits in a rural county, that the declaratory judgment action was
filed in Montgomery, and one state trial court has now declared on practice
in another state trial court.  If Michael is right that the executive
enforces court orders in Alabama, it would have been enough for the governor
to order law officials not to enforce; calling out the Guard was
showboating.  (Surprise, surprise.)  But maybe he feared that some county
official, reporting to an independently elected sheriff and not required to
take orders from the governor, might try to enforce it.

Douglas Laycock
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705

512-471-3275 (voice)
512-471-6988 (fax)
dlaycock at mail.law.utexas.edu