Mobile County is seeing something of a rarity this election season — a judicial race where there are actually multiple candidates battling for the job.

While it’s not exactly a rule that incumbent judges won’t face a challenge, most of those currently on the bench in Mobile County have had little to no competition for their jobs since first donning the robe. Several current judges were appointed to fill out the terms of others who were retiring or leaving for other reasons and by the time their first election rolled around nobody else qualified to run against them.

The stories in the legal community are common — lawyers who thought about running but were scared they’d face political payback if they did, or never again be able to practice before a judge they challenged and lost to. Others say the incumbents’ financial resources and political clout simply make running against a sitting judge somewhat akin to charging a machine gun nest.

As a result, the county’s Judicial Nominating Commission has seemingly become more important than the ballot box in choosing who will serve as a judge in Mobile County.

Appointed versus elected
Several current circuit judges were appointed through the commission and many have never faced opposition as sitting judges. Lagniappe called all the offices of current sitting judges last week to see how many had faced opposition in an election as a circuit court judge.

Judge Donald Banks, who will retire this month, said he never faced opposition.

“I ran four times, all unopposed,” he said. “That’s the way you want to run.”

Banks announced his retirement late last year. The retirement announcement meant someone would be appointed to fill his seat. Attorney Walter Honeycutt was among those selected by the Judicial Nominating Committee and recently appointed by Gov. Robert Bentley. Because of the appointment, Honeycutt will have to run in the next primary election – in 2018.

Judge Sarah Stewart has never had opposition. Judge Robert Smith has never had opposition after being appointed by the commission. Judge John R. Lockett also never had opposition. Judge Ben Brooks said he ran a “heated” election for an open seat three and a half years ago.

Former Circuit Court Judge Joseph “Rusty” Johnston said he never faced opposition in four elections and said “very few” of his colleagues did as sitting judges.

“It’s rare,” he said. “The only people who face opposition tend to be the ones who have just gone off the deep end.”

Johnston said reasons can vary, from a lawyer being afraid to run against a sitting judge to facing a political juggernaut. With judges in control of appointing attorneys for lucrative indigent defense work, some lawyers say the fear of having an upset judge stop handing them that work is enough to forestall a longshot leap into the political arena.

“Some is fear, some is just knowing it’s going to be pretty hard raising money,” Johnston said.

District Judge George Hardesty also said it’s rare for someone to run against a sitting judge.

Judge Rosemary Chambers was appointed in 1992 and had opposition in 1994, according to her office. She hasn’t had opposition since. Judge Edmond G. Naman, Judge Roderick P. Stout and Judge Michael Youngpeter did not returns calls for comment on Monday.

Johnston admitted to talking one prospective candidate out of the running against a judge and said it’s not unusual for judges or friends of judges to try to talk potential candidates out of challenging a sitting judge.

But Lockett said judges try not to get involved in elections because the person they pull against could “end up next door,” working with them on the court.

“We try collectively and individually to avoid that kind of situation,” Lockett said.

March 1 election
Attorney James Patterson said he immediately began feeling “pressure” once he entered the race for Circuit Judge Charlie Graddick’s seat on the bench two days before the qualifying deadline. His opponent, attorney Allen Ritchie, however says he is unaware of any pressure on Patterson.

Ritchie’s close friendship with District Attorney Ashley Rich’s husband — he was in the Richs’ wedding — and his relationship with sitting Circuit Court Judge Jay York — Ritchie is York’s brother-in-law — seemingly give him a leg up in the race, while Patterson positions himself as the outsider.

Despite the connections, Ritchie says the DA hasn’t had a “big role” in his campaign and York has remained uninvolved.
“Jay has maintained his neutrality,” Ritchie said. “ … I don’t want to put him in a compromising position.”

Ritchie said he didn’t decide to run for the seat based on those connections, though.

“I don’t want to ride somebody’s coattails,” he said. “I want to earn it on my own merits.”

Though Patterson declined to get too specific, he says he definitely felt there wasn’t much fanfare surrounding Graddick having to leave his seat this cycle because of age, and that he was encouraged right before qualifying ended to get into the race so it wouldn’t just be a coronation.

Frequently in the past when a Circuit Court seat has opened, a district judge has moved to run for the spot, but that wasn’t the case this year. Hardesty said he thought about running for Graddick’s seat, but decided against it when he realized he’d be up for re-election for his own seat as well. He said he wasn’t pressured against running.

“You can’t run for two positions,” Hardesty said. “I chose to stay here.”

Hardesty said “a lot of people” were surprised Ritchie was the only applicant to qualify early on for an open Circuit Court seat. He called it is unusual.

The Commission
With the election bearing down in less than a month, and with the ink hardly dry on a new appointment, former judge Johnston has been openly questioning the nominating process in general and particularly the legality of Graddick’s continued service on the county’s Judicial Nominating Commission.

Johnston said Graddick’s election to a second term on the commission is in violation of a 1980s amendment allowing for the formation of the commission, which selects three qualified attorneys and sends their names to the governor, who selects one as a new judge in the event of a vacancy.

The commission consists of five members: two from the legal community, appointed by the Mobile Bar Association; two members from outside the legal community, appointed by the local legislative delegation; and one circuit judge, appointed by the group of judges to serve as chairman. Terms on the commission last six years.

Graddick filled the expiring term of Herman Thomas as chairman of the commission when Thomas resigned. Graddick was officially elected in September 2012, after receiving a letter from Probate Judge Don Davis stating the seat was vacant in late August of that year. The letter suggests records concerning who was serving on the commission at what time may have been rather lax.  

“The last record the court has concerning the Circuit Court’s member of the commission is a letter from the late Judge Robert F. Kendall dated March 4, 1999, which reported that Judge Kendall had been appointed to serve on the commission and his term would expire on January 19, 2005,” the letter reads. “I seem to recall that following Judge Kendall’s death, former Mobile County Circuit Judge Herman Thomas was appointed to serve on the commission. However, there is no documentation to support this recollection.”

Johnston said ignoring the law when it comes to judicial appointments is a risky proposition.

“Why take the chance when you’re going to be appointing someone who’s going to be ruling on death penalty cases?” Johnston asked. “Why take the chance? They challenge everything later on.”

Davis’ letter goes on to state the most recent term, filled by Thomas’ successor, should have expired Jan. 9, 2011. Probate Court records indicate Graddick was elected roughly two weeks after the letter was sent.

In a previous interview, Graddick said he didn’t succeed himself, since he simply filled out Thomas’ term and wasn’t elected until 2012. But Johnston disagrees.

“No one had ever succeeded themselves in that manner, or in any other manner,” Johnston said.

Court records show Judge Braxton Kittrell and Kendall took turns serving on the commission in the 1990s to avoid running afoul of the amendment. Asked for clarification, Kittrell said he doesn’t know if what Graddick did was “succeed himself,” but Kittrell was willing to give him the benefit of the doubt.

“If [Graddick] did it, I’m sure he did it properly,” Kittrell said.

Kittrell added most judges in his experience would prefer not to serve on the commission because they didn’t want to “offend” lawyers by not picking them for the nomination.

Scott Hoyem, spokesman for the Administrative Office of Courts, said the amendment precluding someone from succeeding himself is “ambiguous” regarding an unexpired term. Johnston called that a “diplomatic” answer.

Graddick is overseeing the sentencing phase of a capital murder case and did not immediately respond to requests for comment for this story.

Despite criticism that it’s too political, former commission member and current State Rep. Chris Pringle (R-Mobile) said the system works for the county.

“It’s as apolitical as possible,” he said. “The system is not going to be perfect because it was created by humans. Nobody has presented a plan that can work better.”