As the pair were preparing for a capital murder trial Monday morning, District Attorney Ashley Rich said prosecutors such as Tandice Hogan are the reason she was willing to file a lawsuit to increase county funding for her office back in 2012.
“She’s exactly what this trial has been about,” Rich said of Hogan. “Here she is, a prosecutor trying a capital murder case, making less than municipal attorneys who prosecute misdemeanors.”
As the two made their way to court, they were less than two weeks removed from a significant victory in a four-year legal battle with the Mobile County Commission after the Alabama Supreme Court ruled in Rich’s favor March 11.
In the lawsuit, Rich claimed two local laws passed in the 1980s require the County Commission to match salary adjustments at the county level and also the state level — a change that could bring the starting salaries for assistant district attorneys up from $46,000 to as high as $103,000 and result in millions of dollars in back pay owed to the DA’s office.
On the contrary, two county commissioners — Connie Hudson and Merceria Ludgood — continue to maintain it is “fundamentally unfair” for the county to make up for cuts to Rich’s funding on the state level.
The lawsuit has cost Mobile County’s taxpayers nearly half a million dollars and, despite the high court’s decision, the legal struggle doesn’t appear to be over just yet. As of March 22, Rich was still offering to settle the matter under conditions “much less costly than” those ordered in court.
After the ruling
On behalf of two of the commissioners, the county’s outside legal counsel, LaVeeda Battle, has stated multiple times since the March 11 ruling that the county would continue to “explore all legal options.”
Battle also said in statements to the local media the ruling meant ADAs could be paid salaries as high as $300,000 and, in total, the County Commission could be on the hook for an additional $3 million per year as a result of the lawsuit.
Rich was quick to call those claims “ridiculous,” “outlandish” and unproductive. Based on the numbers outlined in the lawsuit, ADAs in the office were making anywhere from $46,000 to $123,000 during the legal row, but the Supreme Court’s ruling has authorized a pay range from $103,00 to $245,000.
However, in a prepared statement on March 16, Rich again said she had no intention of seeking compensation at those levels and was only looking for the “basic funding needed to adequately prosecute criminals.”
“Despite a very favorable ruling from the Alabama Supreme Court, I remain willing to compromise and have today formally offered to cut in half the amount owed to my office by the county,” Rich wrote. “I have proposed a pay scale far less than the one required by law and upheld by the Alabama Supreme Court.”In the salary schedule her office released last week, Rich laid out a range that includes a $63,830 salary for first-year prosecutors and a $153,875 salary for a chief ADA with six years of experience. However, those figures do not include two 5 percent cost-of-living adjustments the county denied ADAs in 2014 and 2015 while the lawsuit was pending.
Attorneys who fought on Rich’s behalf described the proposed settlement as “a major concession” because it’s less than the amount authorized by the court’s ruling. It also doesn’t factor in COLAs on the state level.
Rich said the purpose of the proposed schedule was to bring salaries in Mobile County in line with those in other large Alabama cities like Montgomery. Concluding the news release, Rich said it was time for Mobile County to “fulfill its legal and moral obligation” to properly fund her office and “settle this matter before any further unnecessary legal proceedings occur.”
Only a day later, though, the commission fired back with a statement from Battle accusing Rich of making public statements about “what would normally be confidential settlement negotiations” and omitting several details of her settlement terms in her statements to the press.
“She is demanding just under $5 million in back pay for salaries she has not even paid her employees and asking for additional amounts above the salary schedule she provided to the public,” Battle wrote. “These confusing messages about what in fact can be done to resolve this matter are exactly why the county is interested in seeking some clarification about the Supreme Court’s decision, and exploring all legal options at this point.”
Battle included a letter from Rich’s attorney, Jeff Hartley, sent to the county’s legal staff. Hartley’s letter does indeed include several stipulations Rich neglected to disclose in her own statement to the media. Those included requests that the county provide $4.8 million in back pay, pick up Rich’s $250,000 legal bill and agree to local legislation cementing the newly modified salary schedule.
Rich’s statement also failed to directly mention the inclusion of the county’s COLAs, which would add roughly 10 percent to each of the salaries listed in her schedule — something clearly pointed out Hartley’s correspondence.
When asked about the omission, Rich said, “that was so much to release at one time.” She went on to say back pay was not as significant to the lawsuit as the issue over salary schedule, though it’s important to note $4.8 million is only half of what the court ordered the county to pay.
The stipulations Rich offered will only be good through Wednesday, March 23, but in the final lines it says the settlement proposal would be “immediately rescinded if any type of pleading is filed with the Alabama Supreme Court seeking reconsideration, clarification, rehearing or any other such relief.”
Possibility for rehearing
As of Monday, court records indicated the county has taken no further action despite claims that “all legal options” were still being explored.
However, a professor with Jones School of Law in Montgomery, with whom Lagniappe spoke under the condition of anonymity, said there aren’t very many options left after a ruling from the state’s highest court.
The professor said the only recourse he sees for the county would be a request that the Supreme Court entertain a rehearing of the same case, which would need to be filed in court by March 25 and gain approval from five of the nine justices. Otherwise the court’s ruling would be finalized and the issue won’t be considered again unless it’s brought up in another case. The same professor added that even if a request for rehearing is filed, they are seldom granted — with usually one or two being approved in an average year.
As for this particular case, he said it would be “a pretty heavy lift” for the county’s legal team considering the court voted 8-1 against the case less than two weeks ago.
“They’ve given it full consideration, and given that it’s a full opinion with concurrences, including input from the chief justice, it would be difficult,” he said. “It’s not impossible, but it’s an uphill march.”
He also said Alabama’s Supreme Court is the last stop for issues regarding state law, adding that this case focused on two Alabama statutes, and because it never raised claims or questions of constitutionality, it’s also unlikely to be considered in federal court.
Funding could remain problematic
Since the court reached a decision earlier this month, Battle and Commissioner Hudson have stuck with the interpretation that the ruling would leave the county on the hook for an additional $3 million per year.
Hudson has described it as a “devastating blow,” one commissioners — with the exception of President Jerry Carl — believe is unfair when compared to other Alabama counties. In a prepared statement authorized by Hudson’s office March 17, Battle again said adequately funding Rich’s office should be the state’s responsibility.
“The Mobile County Commission has the daunting task of balancing the needs of multiple county departments, including providing partial funding for public safety resources in Mobile County within an annual budget,” Battle wrote. “Some may think the county is responsible for filling in the gaps in public safety funding created by cuts in state funding, but the county still believes the law protects the county from being saddled with the state’s financial responsibility to pay for its employees.”
Though the DA’s office is a state agency prosecuting state laws with funding from Alabama’s Office of Prosecution Services, it currently gets the largest portion of its funding from the county. This year, the office will receive approximately $1.6 million from Mobile County compared to $829,977 from the state, which is nearly a 50 percent reduction since 2007.
It’s a problem the Mobile County legislative delegation is aware of, which seemed evident when a bill pushing a 5 percent liquor tax to fund the DA’s office saw bipartisan support in Montgomery.
Even though the Supreme Court’s ruling appears to have put an end to that proposal, Rep. David Sessions (R-Grand Bay) said funding state prosecutors is something all of Alabama needs to continue to work on instead looking for county-by-county solutions.
He said Rich had a “valid point” in her concerns over funding and over the state’s allocations to public defense. Rich has also raised concerns previously about the state’s funding of criminal defense outpacing its allocations for prosecution.
Rich told Lagniappe 40 percent of the cases her office prosecuted in 2015 were handled by indigent defense attorneys, and those attorneys billed the state for more than $3.6 million — roughly 10 times more than the $356,000 her office used to prosecute them.
According to the office of Gov. Robert Bentley, the Fair Trial Tax Fund Expenditures in FY 2015 for Mobile County was just under $4 million.
“Look at the John DeBlase case. The taxpayers had to pay a huge amount of money for his defense because he had to have a court-appointed defense attorney,” Sessions said, referring to a capital murder trial where the defendant was convicted of killing his two young children. “That came out of the budget that pays the DAs. I’m not saying we need to not allow these people a defense, I’m just wondering how much of our taxpayer dollars should go toward it.”
Sessions said measures like Mobile County’s proposed hike on liquor taxes only address the problem in a certain area, but he said the state is facing funding issues that make a statewide solution challenging.
“We have a funding issue. I know a lot of people want to say we have a spending problem, but since 2010 we’ve gotten down to 5,000 to 6,000 employees,” Sessions said. “Revenues have just not rebounded to levels they were before 2008, and when you’re talking about 2008 versus 2017, you have a lot less revenue to work with. It’s been somewhat of a trying situation.”
With the Alabama Legislature still working to hammer out an agreeable budget and the possibility of a special session becoming more likely, a solution at the state level through the Office of Prosecution Services doesn’t seem plausible this year or any time soon.
As for the County Commission, Hudson addressed the issue most recently on Tuesday in her regular email to constituents, which read, “The Supreme Court ruling did not address the county’s argument, based on clear evidence, that the 1982 and 1988 local acts are unconstitutional. We contend that the constitutional requirements to enact the laws were never met before the acts were signed into law. In addition, the ruling fails to clarify the issue of salary retroactivity for ADA positions.
“The county intends to request clarification from the Alabama Supreme Court through a reconsideration process for interpretation of the salary retroactivity and other points that are vague and unclear. Clarification of such key issues could make the difference of several million dollars.”
At press time, Lagniappe learned Hudson and Ludgood would travel with attorneys representing the county in the case to Montgomery March 23 to meet with the local legislative delegation in an attempt to overturn the local law Rich cited to compel the county to pay.
Update: On Wednesday, March 23, both Rich and Hudson traveled to Montgomery to address legislators about the two state laws that would require the Commission provide the District Attorney’s Office the addtional funding.
A Mobile County spoksperson wouldn’t confirm the trip to the state House, but a Lagniappe reporter in Montgomery has. The local delegation has yet to take any action but did take comments from Hudson, Rich and Attorney LaVeeda Battle.