A recent ruling by the Alabama Supreme Court could affect who serves on the bench of the Mobile County Probate Court when Judge Don Davis can not.
In a petition for writ of mandamus related to a local adoption case, a party only identified by the initials K.R. asked that the order granting the initial adoption of her biological child be set aside. In addition, the filing also asked the Supreme Court to set aside several rulings by attorney J. Michael Druhan in his capacity as a temporary judge of probate because he was illegally appointed to the the position.
The petition challenges three orders entered by Davis and Druhan: the initial adoption order, Druhan’s denial of a supplemental motion by K.R. to have him recuse himself and Druhan’s denial of K.R.’s motion to “alter, amend, or vacate” a portion of a July 2015 order prohibiting the parties from “publicly discussing matters related to the adoption proceedings.”
While the court held the initial adoption order could stand because the writ wasn’t filed within the appropriate 14-day window for it to be considered, it found merit in the issues related to Druhan.
Since there was evidence to suggest Druhan was appointed by the probate clerk and no evidence to support his appointment by Mobile County Circuit Presiding Judge Charles Graddick, the court ruled for K.R.
“The clerk of the probate court had no authority, however, to appoint Druhan as a temporary probate judge,” the order reads. “Following a recusal by Judge Davis, either Judge Davis or his clerk must certify the fact of Judge Davis’s recusal to the presiding judge of the Mobile Circuit Court, who would then appoint a temporary probate judge to replace the recused Judge Davis. We agree with K.R. that Druhan was not appointed pursuant to the applicable rules governing such appointments and that his orders are therefore void.”
The court notes attorneys for the other side argued the writ was filed 17 days after the ruling in question and therefore again missed the deadline for timeliness, but the court found it could consider the writ because it involves a question of the Probate Court’s jurisdiction.
While the ruling could potentially have a major impact on the way the Probate Court operates, Davis said the Supreme Court was ruling without all the evidence, given that its order was based on a writ of mandamus and not an appeal.
“In a writ of mandamus, the higher court considers whatever the parties give to them,” Davis said. “In an appeal, there would be a record of appeal and [all evidence] goes up.”
In this case, Davis said, neither party submitted as evidence a 2010 order from Graddick appointing Druhan and others as temporary judges of probate. Davis said attorneys in the case have already petitioned the Supreme Court to reconsider the order based on the evidence.
Davis said he didn’t want to speculate on any changes the court might have to make if the case doesn’t go his way once it’s reconsidered.
Druhan, the Probate Court’s general counsel, is listed among a bevy of attorneys appointed to fill in for Davis in the 2010 order. In addition, Probate Court Chief of Staff Mark Erwin is listed, along with Jerome C. Carter, J. Randall Crane, J. Marshall Gardner, Duane A. Graham, Denise Littleton, Y.D. Lott Jr., Beth Marietta Lyons, Jean Powers and Edward B. McDermott.
Erwin said attorneys are staff at the court do not receive compensation for serving on the bench above what they are paid in salary.
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