Balancing Judgeships in Alabama

As part of her “Access to Justice” initiative, Alabama Supreme Court Chief Justice Sue Bell Cobb is preparing to seek a reallocation of judgeships among Alabama counties. She knows she’s walking into a buzz saw, so she is intentionally tiptoeing in slowly, and she wants lots of company. She wants to make sure the bench (judges) and bar are on record as supporting her initiative before she spends her precious political capital on it.

First, I must apologize for my recent absence from the family law blog. No excuse; I just let other things get in the way, and I’m sorry. Thank you, Terry, for encouraging me to continue this work. And what better reason to resume posting than to explore the inequity in the way judges are distributed among Alabama counties now and to explore Justice Cobb’s proposed solution.

Here is the outline she shared with the lawyers attending the Family Law Retreat to the Beach this weekend. The problem, briefly, is that judges in some Alabama counties are overworked, with caseloads (measured in caseload minutes per judge) more than three times the caseload of the least busy judges. If you’re like me and want to know where your county lies in this busyness pecking order, jump to the last page of her outline, where she ranks the judicial circuits from the most caseload minutes per judge (Madison County) to the least caseload minutes per judge (Clay and Coosa Counties).

You can quibble with Justice Cobb’s figures, as some of the lawyers did this weekend. For example, some circuits record a separate case for each charge in a criminal proceeding, while others record one case per defendant. Justice Cobb insists, however, that part of her initiative would be a standardization in the way the judicial system calculates caseload minutes for all judges.

Justice Cobb’s proposal, which is the product of a year’s work from a committee of 13 Alabama state judges, is not simply to add judgeships; that would be too expensive. Here’s a new one for me, and it may be for you as well. The cost of adding a single judgeship in Alabama, including salary, staff, benefits, equipment, office and courtroom space, is about $500,000 per year. The cost of adding the several dozen judgeships that would be needed would be prohibitive, so no one is suggesting we do that.

Instead, the suggestion is to make two key changes in the allocation of judgeships. First, Justice Cobb suggests that we stop treating circuit judges and district court judges differently. Make all judges circuit judges so all judges would be eligible to hear all cases. Justice Cobb says the cost of this change (I presume from a slight salary increase for district judges) is about $100,000 per year. In state budget terms, that’s pocket change, a no-brainer. Among other benefits, it would result in every county’s having a circuit judge residing in that county. That probably needs to happen right away.

The second proposal is more fundamental and therefore more incendiary. Justice Cobb suggests that the state keep a running tally of the caseload minutes per judge of each circuit in relation to the caseload minutes per judge of all circuits. When one of the judges in a circuit with low caseload minutes per judge dies, retires, resigns, is removed from office, or declines to run for re-election, the Supreme Court may eliminate the vacated judgeship and create a new judgeship in a circuit with high caseload minutes.

To reduce the role that politics plays whenever judgeships are involved, Justice Cobb’s proposal includes a Judicial Allocation Commission that seems designed to work like the US Defense Base Closing and Realignment Commission. The Judicial Allocation Commission would make its recommendations for terminating judgeships and creating judgeships in other circuits based strictly on the statistical data from each circuit’s caseload. The recommendation of the Judicial Allocation Commission would be implemented unless six of the nine justices on the Supreme Court voted to disapprove it.

There would clearly be some winners and some losers if Justice Cobb’s proposal becomes law. First, of course, the state would be better off if judgeships are distributed in a more equitable way, so let’s acknowledge that the entire state would be a winner. And counties like Madison, Mobile, Baldwin, Tuscaloosa, and Shelby look like direct winners, because they would be in line to receive additional judgeships because of their present high caseload minutes per judge.

To see who the losers would be, all you have to do is flip to that last page and see what counties are near the bottom of the list (the lowest caseload minutes per judge).

One change that probably needs to be made to Justice Cobb’s proposal if it is to have any practical benefit is recalibrating the events that would make a judgeship eligible to be terminated. Judges are almost always loyal to the staff who works for them. If a judge knew that retirement would cause his or her staff to lose their jobs and that this could be avoided by a half-hearted attempt to be re-elected at no cost to the judge, it’s hard to see how the judge would elect to retire. Better to hand-pick your successor, “announce” that you are running for re-election, and then proceed with all intentionality to lose. It’s not clear what the grounds for terminating a judgeship should be, but they will need to be broader than this if the rebalancing is going to have any teeth.

There will be a great deal of conversation about this proposal before it gets introduced to the legislature. It will be interesting to see who aligns themselves in favor of it, who opposes it, and who works behind the scenes to make it as ineffective as possible.