Alabama Chief Justice Perry O. Hooper, Sr., RIP
Perry Hooper, Sr., former Chief Justice of the Alabama Supreme Court, died last week at the age of 91. Hooper was the first Republican Chief Justice of Alabama since Reconstruction, and his 1994 election victory was one of several that started the Republican Party on its way to statewide dominance.
In those elections, Fob James was elected Governor, Jeff Sessions became Attorney General, and Jim Bennett was elected Secretary of State. On the Alabama appellate courts, John Crawley was elected to the Alabama Court of Civil Appeals.
Hooper served as Probate Judge and Circuit Judge in Montgomery County for a total of 18 years before retiring in 1983. When he qualified to run for Chief Justice in 1994, he was 69 years old, one year away from the age limit for Alabama judicial candidates. Even though he simply wanted to make a difference, Hooper defeated the incumbent Chief Justice, Sonny Hornsby, but needed the help of the courts to prevail.
In addition, he had to overcome the Plaintiff’s trial bar, which provided “unstinting support” to Hornsby, as Michael DeBow, a Professor at the Cumberland School of Law, has written. DeBow explains, “Hooper based his campaign on a critique of Alabama’s civil justice system and the failure of the ‘Hornsby Court’ to rein in its excesses.” Hooper espoused the separation of powers, with due respect for the different roles of the legislature and the judiciary. He also criticized the proposed settlement of a lawsuit challenging the at-large election of the justices on Alabama’s Supreme Court and the judges on the courts of appeals; the settlement would expand the courts, setting aside two seats on each court so that black voters would have at least two “representatives” on the court.
The election was extraordinarily tight. When the official count was complete, Hooper led by a small margin, but there were a number of unnotarized, unwitnessed absentee ballots. Alabama law said that a valid absentee ballot had to be notarized or witnessed, and those ballots were neither. Nonetheless, the Alabama Supreme Court, in an unsigned 4-1 per curiam opinion over the dissent of Associate Justice Hugh Maddox, held that they should be counted on the theory that they “substantially complied” with the statute.
The federal courts, however, settled the dispute in Hooper’s favor, concluding that changing the standard for counting absentee ballots would violate the rights of other voters. The U.S. District Court in Mobile reviewed the practices of election officials in all 67 counties of Alabama and found that only one of them counted unnotarized and unwitnessed absentee ballots. As the Eleventh Circuit observed, changing that practice after the votes had been cast “would depreciate the votes of the members of the Roe Class [which supported Hooper] and deprive plaintiff Hooper of the office of Chief Justice of Alabama.”
On October 20, 1995, some nine months after the election, Hooper was sworn in as Chief Justice. With time and reinforcements, he helped bring about a change in the court’s jurisprudence. Harold See joined him on the court in 1996, and two conservative Democrats, Maddox and Associate Justice Gorman Houston, switched parties. By 1998, there was a Republican majority on the Alabama Supreme Court.
One 1997 opinion, in which he dissented, shows Hooper’s commitment to the rule of law and his respect for the separation of powers. In 1993, a trial judge found the State’s system of educational funding unconstitutional, and there was no appeal. After a change in administrations, the State sought to vacate the judgment, but the trial court said no, and so did the Alabama Supreme Court. It did so, however, over a dissent from Chief Justice Hooper and partial dissents from Justices Maddox and Houston. The court did give the Legislature a year to come up with the necessary additional funding.
In his dissent, Chief Justice Hooper said that the court should revisit the finding of unconstitutionality. He explained that the trial judge “construed the word ‘liberal’ as that word is used in the Alabama Constitution to require equitable funding for education” and wondered how the judge found liability and remedy in that word. Hooper, who was a state court trial judge earlier in his career, observed, “As a judge, I am constitutionally and morally constrained from imposing my idea of what is a liberal education upon the people of this state.” Indeed, implementing the trial court’s judgment and remedy “would mean a judge assuming powers that were never intended for him to resume.”
In the end, after Chief Justice Hooper retired from the court in 2000, the Alabama Supreme Court dismissed the so-called Equity Funding case. Its opinion started with the separation of powers provision of the Alabama Constitution, which states, in part, that the court “never shall exercise the legislative and executive powers, or wither of them; to the end that it may be a government of laws and not of men.” The court noted, “[P]ronounc[ing]… a specific remedy ‘from the bench’ would necessarily represent the exercise of the power of that branch of government charged by the people of the State of Alabama with the sole duty to administer state to public schools: the Alabama Legislature.”
Chief Justice Hooper led the way to a sounder Alabama Supreme Court that respected the rule of law and the separation of powers. In Courting Votes in Alabama, Win Johnson wrote, “Faithful judges, judges who will not take a reward, judges who love the law of God and are humble in the face of legislative enactments, are good judges.” Johnson was writing about the judicial fight to seat Chief Justice Hooper, and he got the man right.