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Judicial allocation aggravates senators

By MARY SELL, Alabama Daily News

When the state’s record $2.7 billion General Fund budget was approved in the Senate, there was one no vote. 

The 2023 spending proposal has a lot of good things in it, Sen. Sam Givhan, R-Huntsville said, but his dissenting vote was about a few things not in it, including money to fund additional circuit and district judgeships in Madison County and other growing parts of the state.

“I feel like I’m stuck between two rocks here,” Givhan told Alabama Daily News. “So voting no on the budgets is a small gesture on my part to say everyone is not OK with this.”

One of those rocks is Jefferson County and its well-stacked legislative delegation. Still the largest county in the state, Jefferson County has more judges than it actually needs, according to the judicial reallocation commission created in a 2017 law.

The other rock is a refusal by some fiscal conservative budget leaders in the state to pony up millions of dollars for more judges for Madison County when they say Jefferson County has too many. 

“We have to come up with a comprehensive way of handling judges,” Givhan said. “Just to continue the status quo is wearing thin with me.”

If they wanted to, Givhan said his colleagues could put more judges where they’re needed.

“… We could take some of those funds, swallow hard, leave Jefferson County alone and go fund some new judgeships.”

Senate General Fund budget committee chairman Sen. Greg Albritton said lawmakers have already acted on the judge issue and the 2017 law needs to be applied.

“I think it’s a judicial issue, not a legislative issue,” he told Alabama Daily News recently.

“… In my mind, we have legislatively done what we need to do,” Albritton said. “We have provided the means to have that inequity resolved.”

Five years ago, Sen. Arthur Orr, R-Decatur, passed legislation to establish a Judicial Resource Allocation Commission, chaired by the Alabama chief justice, to identify areas of the state where judges are needed and where there are more than needed for the caseload.

The law also says that when a sitting judge retires or dies, the commission “shall have 30 days to determine whether to reallocate such judgeship to another district or circuit.”

No circuit or district judgeships have been reallocated since the law went into effect. Chief Justice Tom Parker told Alabama Daily News that even if the Judicial Resources Allocation Commission were able to reallocate all judgeships that need to be reallocated, there would still be a need for additional new judgeships in Alabama.

“Currently, there is a need for 12 additional circuit judgeships and eight additional district judgeships in Alabama,” Parker said. “The language in the Judicial Resources Allocation Commission Act is very limiting.  A judgeship may only be reallocated when a vacancy occurs due to the death, retirement, removal, or resignation of a judge.  Additionally, only one judgeship can be reallocated from any judicial circuit in a two-year period.”

Orr said last week the commission is not working as intended.

“And that leaves a county like Madison County in the lurch,” Orr said. “I think politically there’s an unfortunate squabble about Jefferson County not wanting to lose any of their judgeships, that revenue funding them, to high-growth areas.”

Jefferson County’s legislative delegation is large, diverse and powerful, totaling 24 Democrat and Republican lawmakers. In the Senate alone, it includes longtime Democrat leader Rodger Smitherman, D-Birmingham, President Pro Tem Greg Reed, R-Jasper, and Rules Chair Sen. Jabo Waggoner, R-Vestavia Hills.

Smitherman, D-Birmingham, said if judges are needed in areas of the state, the Legislature should fund them without taking seats away from his county.

“I would support finding ways to do that,” Smitherman said. “…But I haven’t heard any argument for why judgeships should be taken away from Jefferson County.”

Smitherman also said the largest county in the state often sees complex court cases that take more time to litigate.

“The sheer volume of the cases we have here and the complexity of these cases (require more judges),” he said.

Per the reallocation law, the commission reports each year on the number of judges needed around the state. In a Jan. 5 letter, Parker recommended the Legislature create 12 circuit judgeships in seven circuits around the state, including three in Madison County, two in the circuit that includes Autauga, Chilton and Elmore counties, and two each in Mobile and Baldwin counties.  

The total cost for one year would be about $5.4 million.

The commission also recommended the creation of eight district judgeships. They’re ranked by need in Baldwin, Shelby, Madison, Mobile, Etowah, DeKalb, Cullman and Tuscaloosa counties.

The cost would be about $2.8 million, according to Parker’s letter.

According to the commission, Madison County has the largest shortage of circuit judges. It needs 10.3 and has 7. The same report says Jefferson County’s circuit court needs 19 judges but has 27. That’s the largest surplus in the 41 circuits.  Madison County is now home to the state’s largest city and 388,513 people, per the 2020 census. But it has almost a quarter the number of circuit judges as Jefferson County, population 674,721.

On the district court side, there are 68 courts — Jefferson County has two — and Baldwin County has the greatest need with two judges. The Jefferson-Birmingham court has nearly two surplus judges.

“We’ve got a process in place, we have to bite the bullet and put the judgeships that are already being paid for in the counties that have the higher needs,” Orr said.

Givhan sponsored two bills this session to get more judgeships. Senate Bill 82 is a constitutional amendment that, if approved by voters, would allow the Legislature to make an initial appointment to a newly created judgeship to be filled in the same manner as a vacancy. The bill was approved in the Senate Judiciary Committee last week and awaits a Senate vote.

Senate Bill 103, as introduced, provides for one additional circuit court judgeship in the Madison and Baldwin county circuits and the Autauga, Chilton and Elmore counties circuit. The cost would be about $1.3 million per year.

In addition, this bill provides that the Judicial Resources Allocation Commission reallocate the first vacant circuit judgeship, that becomes vacant after the effective date of this bill, to the 23rd Judicial Circuit. Givhan’s bill was in Senate Judiciary Committee last week, but he moved to carry it over, meaning it wouldn’t get a vote.

“I wanted to get the conversation started,” Givhan said.

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