CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 3/14/2023 1

Removal of an Elected Official 

as a Violation of Voting Rights 

Kuhn v. Thompson 

(Mark E. Fuller, M.D. Ala. 2:03-cv-1136) 

A 2003 complaint challenged the disciplinary removal of Alabama’s 

chief justice for his violating a federal order to remove a Ten Commandments monument from the court building’s rotunda. The district judge denied the plaintiffs immediate injunctive relief and 

granted the defendants’ motion to dismiss the complaint. (1) The 

defendants were entitled to Younger v. Harris abstention because 

the chief justice’s appeal to Alabama’s supreme court was still pending. (2) The defendants were entitled to judicial immunity. (3) The 

plaintiffs failed to state a valid claim because the right to elect the 

chief justice did not include a right to keep him in office for his 

whole term. 

Subject: Filling vacancies. Topics: Matters for state courts; 42 

U.S.C. § 1983; enforcing orders. 

On Thursday, November 20, 2003, five voters filed a federal complaint in the 

Middle District of Alabama against the nine members of the Alabama Court 

of the Judiciary, challenging removal of the state’s elected chief justice by the 

defendants, an appointed body, as a violation of voting rights.1 With their 

complaint, the plaintiffs filed motions for a temporary restraining order and 

a preliminary injunction.2

The chief justice was removed from office because he violated an order 

by District Judge Myron H. Thompson by refusing to remove from the rotunda of Alabama’s Judicial Building a granite Ten Commandments monument, the installation of which fulfilled a campaign promise.3

1. Complaint, Kuhn v. Thompson, No. 2:03-cv-1136 (M.D. Ala. Nov. 20, 2003), D.E. 1; 

Kuhn v. Thompson, 304 F. Supp. 2d 1313, 1317, 1320 & nn.1–2 (M.D. Ala. 2004); see

Moore’s Ouster Challenged, Montgomery Advertiser, Nov. 21, 2003, at C1. 

2. Temporary-Restraining-Order Motion, Kuhn, No. 2:03-cv-1136 (M.D. Ala. Nov. 20, 

2003), D.E. 5; Preliminary-Injunction Motion, id. (Nov. 20, 2003), D.E. 3; Kuhn, 304 F. 

Supp. 2d at 1320–21. 

3. Kuhn, 304 F. Supp. 2d at 1318–20; see Glassroth v. Moore, 278 F. Supp. 2d 1272 (M.D. 

Ala. 2003) (August 18, 2003, denial of a motion to stay the injunction); Glassroth v. Moore, 

275 F. Supp. 2d 1347 (M.D. Ala. 2003) (dissolving the injunction stay and ordering removal 

of the monument within fifteen days); Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003) 

(affirming a finding of an Establishment Clause violation); Glassroth v. Moore, 242 F. Supp. 

2d 1068 (M.D. Ala. 2002) (staying the injunction pending appeal); Glassroth v. Moore, 242 

F. Supp. 2d 1067 (ordering removal of the monument); Glassroth v. Moore, 229 F. Supp. 2d 

1290 (M.D. Ala. 2002) (finding an Establishment Clause violation); see also Glassroth v. 

Moore, 229 F. Supp. 2d 1283 (M.D. Ala. 2002) (denying a motion for recusal of the districtcourt judge because the judge was more accommodating of the plaintiffs than of the chief 

justice in scheduling proceedings); McGinley v. Houston, 361 F.3d 1328 (11th Cir. 2004) 

(affirming the dismissal of an action challenging the removal of the monument as establishing nontheistic beliefs); Alabama Judge Is Removed, Wash. Post, Nov. 14, 2003, at A3; Jeffrey 
Removal of an Elected Official as a Violation of Voting Rights 

2 Federal Judicial Center 3/14/2023 

After a telephonic hearing on the day after the complaint was filed, Judge 

Mark E. Fuller denied the plaintiffs a temporary restraining order.4

 On January 23, 2004, Judge Fuller granted the defendants’ motion to dismiss the 

complaint.5

Because the chief justice’s appeal to Alabama’s supreme court seeking reversal of his removal was still pending, the defendants were entitled to the 

federal court’s abstention pursuant to Younger v. Harris.

6

 The defendants 

were also entitled to judicial immunity from the plaintiffs’ claims under 42 

U.S.C. § 1983, because “in any action brought against a judicial officer for an 

act or omission taken in such officer’s judicial capacity, injunctive relief shall 

not be granted unless a declaratory decree was violated or declaratory relief 

was unavailable.”7

Judge Fuller also ruled that the plaintiffs failed to state a valid claim.8 The 

voters’ right to elect the chief justice did not include a right to keep him in 

office for his whole term.9 Nor did the plaintiffs allege intentional discrimination or some other valid equal-protection claim.10

The ousted chief justice’s state-court appeal was unsuccessful,11 and he 

was replaced on June 23, 2004.12 In November 2012, he was again elected 

chief justice,13 but Alabama’s Court of the Judiciary suspended him for the 

remainder of his term in September 2016 for instructing probate judges to 

defy federal-court rulings on same-sex marriage.14

Gettleman, Alabama Panel Ousts Judge Over Ten Commandments, N.Y. Times, Nov. 14, 

2003, at A16; Moore Pledges to Continue Crusade, Montgomery Advertiser, Nov. 14, 2003, at 

A9. 

4. Order, Kuhn, No. 2:03-cv-1136 (M.D. Ala. Nov. 21, 2003), D.E. 11; Minutes, id. (Nov. 

21, 2003), D.E. 13; Kuhn, 304 F. Supp. 2d at 1321. 

Judge Fuller resigned on August 1, 2015. Federal Judicial Center Biographical Directory 

of Article III Federal Judges, www.fjc.gov/history/judges. 

5. Kuhn, 304 F. Supp. 2d 1313; Docket Sheet, Kuhn, No. 2:03-cv-1136 (M.D. Ala. Nov. 

20, 2003). 

6. Kuhn, 304 F. Supp. 2d at 1323–28; see Younger v. Harris, 401 U.S. 37 (1971). 

7. Kuhn, 304 F. Supp. 2d at 1321–23; 42 U.S.C. § 1983. 

8. Kuhn, 304 F. Supp. 2d at 1328–37. 

9. Id. at 1329–31, 1333–37. 

10. Id. at 1331–33. 

11. See Ariel Hart, Alabama Justice’s Ouster Upheld in Ten Commandments Case, N.Y. 

Times, May 1, 2004, at A9; Moore Loses Bid to Regain Job, Montgomery Advertiser, May 1, 

2004, at A1. 

12. See Nabers State’s New Chief Justice, Montgomery Advertiser, June 23, 2004, at A1. 

13. See Moore Wins Old Job Back, Montgomery Advertiser, Nov. 7, 2012, at A1. 

14. See Brian Lyman, Court Rules Alabama Chief Justice Roy Moore Violated Ethical 

Rules in Issuing His Same-Sex Marriage Order, Montgomery Advertiser, Oct. 1, 2016, at A8; 

Campbell Robertson, Chief Justice in Alabama Is Suspended a Second Time, N.Y. Times, Oct. 

1, 2016, at A9; see also Brian Lyman, Court to Hear Moore Appeal, Montgomery Advertiser, 

Oct. 27, 2016, at A7 (“The Alabama Supreme Court will recuse itself from suspended Chief 

Justice Roy Moore’s appeal of his ethics convictions, and defer to a special court to hear the 

appeal.”).