Less than a week after a local judge ordered the Mobile County Circuit Clerk’s office to start withholding money it collects on behalf of the state, Attorney General Steve Marshall’s office has gotten involved and the Alabama Supreme Court has been asked to step in as well.
As Lagniappe reported, Mobile County Circuit Judge Jim Patterson filed an unusual motion in a criminal case last month that identified Alabama’s insufficient judicial funding as the cause of a woman, Mandy Brady, being inadvertently released from jail ahead of her meth trafficking trial.
After the mistake occurred, Patterson subpoenaed Mobile Metro Jail Warden Trey Oliver and Mobile County Circuit Clerk JoJo Schwarzauer to testify about what led to the mistake.
Schwarzauer testified that an employee in her office failed to send an order to the jail in time notifying corrections officers that Brady’s bond had been revoked — a situation she said has become more common because her office is understaffed, and in some cases undertrained.
In an email that has since become part of the public court record, Schwarzauer indicated the employee who made the mistake had not received the same amount of training she would have if the office was being funded at the proper level.
“The clerk that made this error has only been doing dockets since January. Back when we had enough employees, a clerk would be trained for almost [four years] before she would be put on a judge’s docket,” Schwarzauer wrote. “Not an excuse just unfortunately the way it is…”
After taking testimony from Schwarzauer and Oliver, Patterson filed an order that essentially repackaged an idea he’s considered filing as a separate civil lawsuit for some time.
Put simply, Patterson’s reasoning is: If judges and clerks have a constitutional obligation to run the justice system but can’t afford to so adequately, then laws that redirect funds collected in local courts to the state government are unconstitutional as applied. He also notes that some of those laws were specifically intended to fund the courts.
In the injunction filed Sept. 24, Patterson ordered Schwarzauer, whose duties as clerk include disbursing monies collected from local courts to the state, to begin withholding “10 percent of court fees and costs collected from litigants in Mobile County starting Oct. 1 and continuing month to month until such time as [the state] has adequately and reasonably funded her office.”
Alabama courts collected $166 million in 2011, more than 40 percent of which went to non-court functions. Mobile County courts collected and disbursed more than $7 million to noncourt functions in 2016 alone including $4.5 million that went directly to the state’s general fund.
Patterson’s order argues those types of disbursements are unconstitutional because they prevent local funds from going to support a local court system struggling to administer justice in a constitutionally adequate way.
If Patterson’s approach were successful in Mobile County, it may be attempted in other circuits. Given those implications, it didn’t take the state long to step into the criminal case challenging Patterson’s authority to declare unconstitutional the statutes governing the distribution of those court fees in the middle of an unrelated criminal trial.
Last week Deputy Attorney General James W. Davis filed a notice of appearance on behalf of the state in Brady’s case and petitioned the Alabama Supreme Court through writ of mandamus to vacate Patterson’s Sept. 24 order instructing Schwarzauer to withhold funds from the state.
“As the Alabama Supreme Court [has] held, it violates due process for a court to take up issues that are not presented in the case before it, and a court that does so exceeds its authority by issuing an improper advisory opinion,” Davis wrote. “This court essentially converted this [criminal] action to one against the state, in violation of the state’s sovereign immunity.”
Davis made those comments in a motion seeking a stay on Patterson’s injunction until it can be reviewed by the state supreme court. The motion was filed Oct. 1, the same day she was ordered to start withholding funds.
Davis also made the argument that, without granting the stay of his own order, Patterson would likely be harming the state of Alabama and the local court system he set out to defend.
“If this action is not stayed, the circuit clerk’s failure to distribute funds as required by statute would harm the state and the public interest (as well as Mobile County itself),” he wrote. “Filing fees fund the county where the fees are paid, the provision of counsel for criminal defendants, and other important judicial and public safety functions.”
So far, the Attorney General’s Office and Alabama’s Administrative Office of Courts have declined to comment on the situation because it involves pending litigation and an active criminal case. It’s also unclear how this unrelated legal issue will impact Brady’s trial. After spending a month as a fugitive, she was arrested and taken into custody on Sept. 21.
While Patterson’s order appears to be far from final, the funding shortfall in local courts has at least been addressed temporarily.
The 13th Circuit managed to stave off another wave of layoffs due to a one-year appropriation of $300,000 from the Mobile County Commission based on assurances from Presiding Judge John Lockett that a long-term solution would be pursued. Local judges are already working with Mobile’s delegation of lawmakers on passing a local bill that would generate additional judicial funding through new court fees in the next regular session.
Lagniappe will have more on what that bill might look like once those details become clear.
This page is available to subscribers. Click here to sign in or get access.
It looks like you are opening this page from the Facebook App. This article needs to be opened in the browser.
iOS: Tap the three dots in the top right, then tap on "Open in Safari".
Android: Tap the Settings icon (it looks like three horizontal lines), then tap App Settings, then toggle the "Open links externally" setting to On (it should turn from gray to blue).