Lawsuit contests perpetual appointment to Baldwin County court

District courts in the state of Alabama are courts of limited jurisdiction, attorney Austin Burdick explained, typically presiding over misdemeanor criminal cases, civil claims of less than $10,000 and some felony proceedings. On the other hand, circuit courts have general jurisdiction, where more serious and most legal matters can be disposed of.

Presiding Baldwin County District Court Judge Michelle Thomason was appointed to the bench by Gov. Bob Riley in 2006 and subsequently reelected to two six-year terms in 2008 and 2014. After running a close-but-unsuccessful statewide campaign for Alabama Court of Civil Appeals in 2018, she was unopposed on the ballot in 2020 and in January, took the oath of office for a third term.

But for more than a decade, Burdick claims, Thomason has been serving in perpetuity as a special appointed circuit court judge, purportedly presiding over matters beyond her authority. When the Bessemer-based attorney was hired to step into a 7-year-old divorce case in Baldwin County last year, he sought Thomason’s recusal based on an alleged conflict of interest and the jurisdictional question.

In the motion, Burdick claimed state law limits the duration of special court appointments to 180 consecutive days and “the successive reappointments of Thomason to hear circuit court cases for more than a decade is a blatant act of voter disenfranchisement.”

Thomason, who denied a similar motion to recuse years earlier, denied it again, and higher courts declined to entertain appeals. So in July, Burdick took the complaint to federal court, where he named Secretary of State John Merrill as a defendant.

“The law allows for a special circuit court judge to fill in on a limited basis if the circuit court judge gets ill, or there’s some need on a very temporary basis for a short period of time,” Burdick said last week. “But, it does not allow for a perpetual unending appointment.”

The most recent order appointing Thomason to the circuit court was signed by then-Presiding Judge Scott Taylor in 2018. It noted the appointment was temporary and advised that Thomason is authorized to preside over matters including, but not limited to, “taking felony pleas, undertaking matters in cases with pending charges that have been bound over and awaiting action by grand jury, conducting civil and criminal jury and non-jury trials, sentencings and revocations, to include Domestic Relations cases and protection from abuse cases.” The order remains in effect “until further orders from the court.”

Although the court could not speak to Burdick’s complaint specifically, current Presiding Circuit Court Judge Clark Stankoski answered written questions to note District Court Judge William Scully is also appointed to the circuit court annually or semi-annually. Using caseload studies, the Alabama Administrative Office of Courts determined Baldwin County is currently understaffed by two circuit judges and one district judge, Stankoski said.

“For comparison, Baldwin County is larger, population-wise, than Montgomery County,” he wrote. “Montgomery County has nine circuit judges and three district judges. We have five circuit judges and two district judges.”

Stankoski’s own docket, which he claims is representative of the other judges in the circuit, includes 377 pending civil cases and 858 pending criminal cases as of Friday, he said. According to a legislative report earlier this year, “Circuit Court judges in fiscal year 2019 had an average caseload/filings per judge of 2,132. The statewide average is 1,390, putting Baldwin County at 4th most busy circuit court in the state.”

Stankoski said aside from a few logistical changes, it has been business as usual during the COVID-19 pandemic, and any backlog is the result of existing staffing and judge shortages. The county held 32 jury trials in 2020 (26 criminal and 6 civil), and has conducted 40 jury trials to date in 2021 (23 criminal and 17 civil).

Burdick said the caseload is a convenient excuse.

“There’s a lot of problems with the finances of the court, and I think this is something that has been a way to try and deal with those problems,” he said. “Instead of hiring new circuit court judges, we’re just asking district court judges to do that job. But we don’t really have the authority to ask them to do that under the Constitution. Whether it’s intentional or not, it’s misleading and it’s not accurately informing the electorate of what they’re voting for, when we’ve got somebody serving in an office they didn’t run for.”

Stankoski said only the Legislature has the authority to add judge positions in district or circuit courts, and recent efforts have been unsuccessful. Just this year, Senate Bill 286 sought to add one circuit court judge in Baldwin County, but it died in committee. A separate House bill to recall willing retired judges back to active duty also died in committee. If the Legislature ever does create a new position, the language in the bill will specify whether it will be filled with an appointment or an election.

In Taylor’s order appointing Thomason, he cited Rule 13 of the Alabama Rules of Judicial Administration which notes that although such appointments are temporary, the “assignment shall continue until revoked by the presiding judge or until the assigned judge leaves office, whichever comes first.”

Burdick said Thomason’s perpetual appointment is “a pretty broad interpretation of that authority.” He said Merrill was named as a defendant because of his responsibility to ensure elections are “fair” and “open.”

“The problem is we have a judge who is running as a district court judge, the voters are told she’s a district court judge, and Alabama law tells us what district court judges may do and it’s very limited,” he said. “And then instead of taking the office she was elected to, she is taking the office of a circuit court judge, so the voters are really being disenfranchised.”

In a motion to dismiss filed Aug. 10, Merrill claims the plaintiff has no standing to file the complaint, didn’t specify an injury, and he is protected by sovereign immunity.

“The plaintiff complains that ‘she and the voters of Baldwin County’ have been ‘deprived of voting for a competent circuit court judicial candidate.’” he argued. “The theory seems to be that had Judge Taylor not specifically appointed Judge Thomason, the plaintiff and the voters of Baldwin County would have gotten to vote for another circuit judge in a special election. Second, plaintiff complains that her ‘due process right to have her case heard by a court of competent jurisdiction’ has been violated. That injury is not concrete.”