If the Legislature can’t find a way to increase the funding for state courts in the next legislative session, judges may attempt a lawsuit to force their hand. Either way, the financial troubles for Alabama’s judiciary will likely be coming to a head in 2019.

Since May, the 13th Judicial Circuit in Mobile County has had to reduce services and lay off employees to keep its doors open in the face of a continued funding shortfall at the state level, and things are only expected to get worse when the fiscal year ends Sept. 30.

Thanks in part to the efforts of Mobile County’s legislative delegation, Alabama’s 2018 budget included a $2.5 million increase for the state judicial system. But despite what some in Mobile had hoped, none of those additional dollars wound up coming directly to local courts.

However, with a new chief justice atop Alabama’s Unified Judicial System and an election year in the rearview mirror, Mobile County’s Presiding Circuit Judge John Lockett is hopeful state legislators will make an increase in court funding a top priority next year.

Lockett said “local court cost bills, a state funding increase and litigation” would all be on the table going forward. As a co-equal branch of  government, the judiciary could consider legal action against the state to secure the funding needed to perform its constitutional duties.

Lockett told Lagniappe he’s not sure a legal fight is necessary just yet, though, and even if a lawsuit were filed today, it would take longer to resolve than a legislative solution.

“Frankly, now that there’s a change in leadership, both candidates [for chief justice] have indicated their first goal is going to be supporting the trial courts,” Lockett said. “I’ve also spoken with one candidate who basically said he has no problems pursuing litigation if it’s needed. It’s an arrow in the quiver if other things don’t work out.”

If a lawsuit to secure court funding is “an arrow in the quiver,” it’s one first-term Mobile County Circuit Judge James Patterson has been sharpening for some time. While it hasn’t been widely supported, Patterson has already drafted a lawsuit he describes as “a strike” that could let local courts adequately fund themselves.

Alabama’s Legislature depends on the state courts for funding because court fees, which have been increased incrementally over the years, generate millions for the state general fund. There are roughly 40 statewide filing fees, but there are also fees at the local level, including five collected in Mobile County. They can range anywhere from 25 cents to $300.

Alabama courts collected $166 million in 2011, but more than 40 percent of that went to noncourt functions. Locally, Mobile County courts collected and disbursed more than $7 million to noncourt functions in 2016, including $4.5 million that went directly to the state general fund.

Yet, the same courts needed $400,000 from the Mobile County Commission less than a year ago to keep from reducing services.

By the end of September, the circuit will have limited its service hours, reduced the number of weeks available for jury trials and laid off more than a dozen employees.

The circuit clerk’s office was understaffed by as many as 19 employees before any of those layoffs occurred.

Patterson said he’s considering a lawsuit because he doesn’t believe money intended to fund the judicial system should be subsidizing other state functions when state courts are already struggling to perform their basic constitutional duties.

He said the Legislature has been using court costs “basically as a tax,” but one that doesn’t affect most people until they need to access Alabama’s judicial system.

“They want to say ‘no new taxes,’ yet they’ve turned us into a funding source for the state of Alabama,” he said. “Of the money we collected last year, $40,000 went to paint the American Village at Montevallo. I think before we paint the American Village, we ought to make sure Mrs. Jane Doe can get in front of a judge to get a protection-from-abuse order.”

Put simply, Patterson’s lawsuit would sue Mobile County Court Clerk JoJo Schwarzauer in an attempt to enjoin her from sending fees collected locally to the state until adequate funding for the local court system has been secured. Schwarzauer declined to comment on the proposed lawsuit but said she is aware of it and other possible efforts to address local judicial funding.

Exactly which judge would hear a case like that hasn’t been sorted out. Patterson said most of the judges on the local bench weren’t interested, but he doesn’t believe it would present a conflict of interest because the clerk’s office doesn’t work for judges — it works with them.

“This isn’t to save lawyers a fee during litigation or to make sure I’ve got somebody reading briefs for me. It’s because the clerk’s office is simply undermanned,” Patterson said. “We can’t effectively handle what we’re asked to do, and you can feel it every day.”

He said inefficiencies in the courts often end up costing the public, adding that one of his recent criminal cases was delayed because the Alabama Department of Corrections didn’t receive an order requesting a prisoner transfer. Because the other defendants were represented by public defenders, he said the state was likely billed for a hearing that didn’t happen.

Patterson, who was elected in 2016 as a bit of a political outsider, said he’d file his lawsuit today but was asked to hold off to give legislators another shot at addressing judicial funding. Still, he’s not as hopeful as Lockett is about a resolution during the 2019 regular session.

“I think they’re reaching out to other people now to make sure they understand this is critical, but they also need to know that some of us are ready to take action if they don’t,” he said. “A circuit judge could absolutely rule this unconstitutional. The problem is, it’s policial and you put a target on your back, but I don’t think of things politically. If this makes me a one-term judge, so be it. I’ll go down in flames.”