July 11, 2022

The Honorable Kay Ivey

Governor of Alabama
600 Dexter Avenue
Montgomery, AL 36130

Re: Unconstitutional Transfer of Judgeship from Jefferson to Madison County

Dear Governor Ivey:

The Southern Poverty Law Center, the American Civil Liberties Union of Alabama, and
the Glasscox Law Firm, LLC write to advise you that the Judicial Resources Allocation
Commission’s (“JRAC”) recent decision to transfer a vacant judgeship from the Tenth Judicial
Circuit, Birmingham Division, in Jefferson County to the 23rd Judicial Circuit in Madison County
was made in violation of the Alabama Constitution. The Alabama Constitution vests the legislature
with the exclusive power to alter the number of judges serving in each circuit. Ala. Const. Art. VI
§ 151. JRAC’s unconstitutional exercise of that authority renders its transfer of the Jefferson
County judgeship null and void. We urge you to refrain from appointing a judge to serve in the
unconstitutionally transferred seat and to instead appoint a judge to fill the vacancy in Jefferson
County from among the three people recommended to you by the Jefferson County Judicial
Commission pursuant to Ala. Const. Jeff. Cnty. § 8.

I. Background

On May 24, 2022, over 30,000 voters went to the ballot box to make their voices heard in
a primary election for a circuit court judgeship in Jefferson County, Alabama. Tiara Young Hudson
defeated Eric Hamilton in a Democratic primary election for a criminal court judgeship in
Alabama’s Tenth Judicial Circuit, Criminal Division, Place 14, located in Birmingham. She earned
nearly 54% of the vote. Facing no Republican challenger in the November general election, Ms.
Hudson was on track to assume the judgeship from Judge Clyde Jones upon the expiration of his
term on January 16, 2023. Ala. Code § 36-3-2. Judge Jones had chosen not to run for reelection.

On June 1, 2022, Judge Jones announced his retirement, effective immediately; he would
not serve out the remaining seven months of his term. His announcement created a vacancy.

The vacancy must be filled according to the process set forth in amendments 83 and 110
to the Alabama Constitution. Those amendments specify that, when judicial vacancies arise in
Jefferson County, the Jefferson County Judicial Commission (“JCJC”) nominates three qualified
individuals, one of whom the Governor selects for appointment. That appointee then holds office
until the next general election occurring at least six months after the vacancy arises—in this case,
until November 5, 2024. JCJC proceeded as constitutionally mandated; it immediately published
a public notice of the vacancy created by Judge Jones’s retirement, stating that it would accept
applications for nominees to fill the seat between June 15 and June 30, 2022. 1

JRAC, however, stepped in to frustrate this constitutional process. JRAC is a “permanent

study commission on the judicial resources in Alabama” created by statute in 2017. Ala. Code §
12-9A-1. JRAC is chaired by the Chief Justice of the Alabama Supreme Court. Its membership
also includes the legal advisor to the Governor, the Attorney General, three incumbent circuit
judges, three incumbent district judges, and three licensed attorneys. Ala. Code § 12-9A-1(a).
JRAC’s primary duty is to “annually review the need for increasing or decreasing the number of
judgeships in each district court and circuit court” and to provide to the Governor and Legislature
a list reflecting each court’s relative needs. Ala. Code § 12-9A-1(d)-(e). This duty is not
constitutionally suspect. A separate provision of the JRAC statute, however, applies when judicial
vacancies arise and purports to give JRAC the power to reallocate those vacant judgeships to other
districts or circuits. Ala. Code § 12-9A-2.

Acting pursuant to that provision, JRAC held a public meeting on June 9, 2022 to consider
the Jefferson County vacancy. 2 JRAC voted 8-3 to transfer the vacant Tenth Judicial Circuit, Place
14 judgeship to the 23rd Judicial Circuit in Madison County. The vote broke along racial lines; all
Black members of the commission voted against transferring the judgeship and all white members
voted in favor. This occasioned the first judgeship transfer in JRAC’s five years of existence.

Members of the public overwhelmingly objected to the transfer. Its effect is to strip a
majority-Black county of a critical resource and to give that resource to a majority-white county.
In theory, JRAC’s vote was based on a caseload study using data from the Administrative Office
of Courts (AOC). 3 The study found that Madison County was most in need of additional judgeships
and Jefferson County least in need. State Senator Roger Smitherman noted, however, that
Jefferson County, unlike Madison County, assigns case numbers in such a way that makes the
county’s caseload appear smaller than it is. Senator Smitherman also noted that he has
consistently found the surplus of $12 million that would be required to fund 20 new
judgeships—the number of new judgeships JRAC has asserted the state needs, funding for
which would obviate any need to reallocate existing judgeships among counties.

JRAC received applications for the new, unconstitutional Madison County judgeship
and selected three candidates to be considered by you for appointment. We understand that
you plan to interview these candidates. We respectfully request that you refrain from taking
any steps to fill this unconstitutionally reallocated judicial position.

1
June 1, 2022 Public Notice, Circuit Court, Criminal Division, Place 14, Birmingham Bar Association,
https://cdn.ymaws.com/birminghambar.org/resource/resmgr/judicial_commission/2022/rename_pl_14_cr_div_-
_public.pdf.
2
June 9, 2022 Notice of Judicial Resources Allocation Meeting, Alabama Administrative Office of Courts,
https://www.alacourt.gov/docs/JRACMeeting-6.9.2022.pdf.
3
See January 5, 2022 Letter to Governor Ivey and Members of the Legislature, Judicial Resources Allocation
Commission, https://www.alacourt.gov/docs/lettertogovleg.152022.pdf.

2
 II. The Judicial Resource Allocation Commission’s transfer of a judgeship from
Jefferson to Madison County is unconstitutional.

The power to change the number of judges in a circuit is the Legislature’s and the
Legislature’s alone. It cannot be shunted to an unelected body.

The legislature may delegate certain duties for efficiency, but it may never delegate its
lawmaking authority. See Parke v. Bradley, 204 Ala. 455, 456 86 So. 28, 29 (1920) (delegations
are always subject to the “clearly implied limitation of the Constitution that the lawmaking power,
invested exclusively in the Legislature, cannot be delegated”); In re Opinions of the Justices, 166
So. 706, 708 (Ala. 1936); State v. Vaughan, 30 Ala. App. 201, 203, 4 So. 2d 5, 7 (Ala. Ct. App.
1941). The Alabama Constitution expressly grants to the Legislature the lawmaking power to alter
the number of judges serving in each circuit and district court in the state.

Under Article Six, Section 151 of the Alabama Constitution, only the Legislature,
incorporating recommendations of the Alabama Supreme Court, may change the number of judges
allocated to a circuit or district. Specifically, Section 151 requires the Supreme Court to establish
criteria for determining the number of judges needed in each circuit and district. Ala. Const. Art.
VI §151(a). If the Court finds that those numbers should be increased or decreased, it must certify
its findings and recommendations to the Legislature. Id. It is then up to the Legislature to introduce
a bill to effectuate the Supreme Court’s findings and recommendations. Id. §151(b). “No change
shall be made in the number of circuit or district judges . . . unless authorized by an act adopted
after the recommendation of the supreme court on such proposal has been filed with the
legislature.” Ala. Const. Art. VI §151(b). In other words, a change to the number of judges in a
circuit or district may be made only after (1) the supreme court issues a recommendation to the
legislature on the change and (2) the legislature passes an act authorizing the change.

Alabama Code Section 12-9A-2, however, usurps the legislature’s role in this process. It
empowers JRAC to change the number of judges in a circuit or district, and thereby to assume a
lawmaking function the Alabama Constitution explicitly and exclusively assigns to the
Legislature. JRAC exercised that unconstitutionally delegated power when it voted to move a
judgeship from the Tenth Judicial Circuit in Jefferson County to the Twenty Third Judicial District
in Madison County.

III. You should not appoint a judge to serve in the unconstitutional Madison County
seat, and instead appoint a judge to fill the Jefferson County vacancy.

You can avert the unconstitutional transfer of the Jefferson County judgeship by declining
to appoint a judge to serve in the transferred seat. The Jefferson County vacancy must be filled in
the manner prescribed by amendments 83 and 110 to the Alabama Constitution; that is, the JCJC
must select three qualified individuals among the applicants for the vacant judgeship, and you must
appoint one of them to serve in the Tenth Judicial Circuit, Criminal Division, Place 14. We
respectfully urge you to adhere to your constitutional duties as described above, and to reject
JRAC’s unlawful efforts to remove a circuit court judgeship from Jefferson County.

We thank you for your attention to this important matter and look forward to your reply at
your earliest opportunity.

3
 Sincerely,

/s/ LaTisha Gotell Faulks

LaTisha Gotell Faulks
AMERICAN CIVIL LIBERTIES UNION OF ALABAMA
P.O. Box 6179
Montgomery, AL 36106
(334) 265-2754
tgfaulks@aclualabama.org

Bradley E. Heard
Jack Genberg
Matletha Bennette
Liza Weisberg
Ahmed K. Soussi
SOUTHERN POVERTY LAW CENTER
PO Box 1287
Decatur, GA 30031
(470) 708-0560
liza.weisberg@splcenter.org

Stan Glasscox
THE GLASSCOX LAW FIRM LLC
600 Lurleen B. Wallace Blvd. S., Suite 180
Tuscaloosa, AL 35401
(205) 323-6170
stan@glasscoxlaw.com

cc: Liz Filmore, Chief of Staff, Office of Governor Kay Ivey

Will Parker, General Counsel, Office of Governor Kay Ivey