Shrinking State Court Budgets: Not Just A New York Thing
Sam Favate, The Wall Street Journal
January 26, 2012
In an economy where every industry seems to have its own set of problems, the country’s court systems are no different.
Speaking at the New York State Bar Association’s annual meeting yesterday, American Bar Association President William Robinson III said New York’s struggle to keep courts functioning wasn’t unique, but praised the state bar’s report for highlighting the problems caused by $170 million in budget cuts for the 2011-12 period, the New York Law Journal reported.
In the report, which we covered here, the New York State Bar Association details widespread court delays, shortages of experienced personnel, reduced jury pools, and other problems Robinson called “beyond compelling.”
Forty-two state court systems had significant budget cuts last year, according to the National Center for State Courts. Robinson told the group, “As difficult as funding woes have been in New York, as you know, you are not alone in this country. Courts across our nation are trying to survive with similarly anemic court budgets.”
The Judiciary has proposed a $2.4 billion budget for the fiscal year beginning April 1, which would essentially be flat.
Some states’ court funding issues are worse that New York’s, according to Elaine R. Jones, director-counsel emeritus of the NAACP Legal Defense and Educational Fund, who was a panelist at the meeting. She mentioned California, where some courts have closed for several days each month, amid layoffs of court personnel.
Jones mentioned that Georgia has had to rely on interns to keep the clerk’s office at the state’s highest court operating, and the state has solicited donations of pens and pencils from Westlaw and other vendors, NYLJ reported.
The ABA adopted a resolution last summer which urges state, territorial and local bar associations to document the impact of funding cutbacks on their justice systems and to publicize the effects of those cuts. The resolution can be seen here.
Court officials in Pennsylvania’s Allegheny County, which includes Pittsburgh, have frozen hiring and proposed cuts that include the possible elimination of judicial seats, to fill a $3.5 million hole, Pittsburgh Live reported.
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Opelika attorney selected to Fellows Program
January 22, 2012
Opelika attorney William F. Horsley has been selected to join the Alabama Law Foundation’s Fellows Program.
Horsley, an attorney with Samford & Denson LLP, holds bachelor’s and law degrees from the University of Alabama.
The Fellows Program was established in 1995 to honor Alabama bar members for outstanding service and commitment. Those chosen to become Fellows are given the opportunity to increase their leadership roles through the Alabama Law Foundation.
As leaders in the legal community, fellows provide financial and personal support for the Alabama Law Foundation, the charitable arm of the Alabama State Bar.
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Bill would raise pay for state's judges - Planned increases would be paid for by boosting court fees
Jimmie E. Gates, The Clarion-Ledger (Mississippi)
Jan. 24, 2012
Raising civil cases filing fees and other court fees is being proposed to give state's judges their first pay raise in nine years.
A bill will be filed in the Legislature this session to boost judicial salaries over a four-year period.
Mississippi judges are the lowest paid in the country, according to the National Center for State Courts.
"Some people say now is not the time. If this is not the time, then when?" Mississippi's Chief Justice William Waller asked Tuesday during a discussion at the Capitol Bar Association luncheon in Jackson.
Under the proposal, each year from Jan. 1, 2013, through Jan. 1, 2016, judges' salaries would increase.
The chief justice's salary would increase from $115,390 to $159,000 after Jan. 1, 2016. Presiding justices' salaries would increase from $113,190 to $154,833 and associate justices salary would go from $112,530 to $152,250.
The chief judge of Mississippi Court of Appeals would increase from $108,130 to $147,578 by 2016. Court of Appeals associate judges would see their salary increase from $105,050 to $144,827.
Chancery and circuit judges salary would go from $104,170 to $136,000. County Court judges also would get a salary increase.
The proposed raises would be paid for by a $40 increase in civil case filing fees and an increase in other fees, including state Supreme Court docket fees.
Waller said he and House Judiciary Committee Chairman Mark Baker, R-Brandon, will tweak the bill before it is filed next week.
Last year's efforts to pass a pay raise bill failed.
Waller said he believes this year's bill has a better chance of passing because the money to fund it won't come from the state's general fund.
Waller said there is a basic policy decision to answer: "Is the judiciary important in this society? And are we interested in the best and brightest on the bench."
Waller said some judges have left the bench because of the pay.
Former Warren County Circuit Judge Frank Vollor said money was the reason he retired in 2009 after 20 years on the bench.
"We didn't have a penny to spare," Vollor said of his $104,170 a year salary.
Vollor said his family had borrowed money for his children's college education and his last child was starting college and he didn't want to have to borrow more money.
"Judges sacrifice a lot," Vollor said. "We expect a lot out of judges and we need to pay them adequately."
Mississippi College School of Law Professor Matt Steffey, a panelist at the luncheon, said something is dramatically wrong when a veteran judge earns less than a rookie associate at a large law firm.
Attorneys and others overall seemed to support the pay raise for judges.
But one attorney asked during the question-and-answer portion of the discussion why judges who drag their feet ruling on motions should be rewarded with a pay increase.
Waller said there are rules in place dealing with the length of time judges should take to rule on motions. The rule generally says judges should rule within six months.
But some judges have taken a year or longer to do so.
Vollor said if it is a problem now with judges taking a long time to rule, it will only get worse if more qualified judges leave the bench.
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Beavers Withdraws Bill to Strip Power from Courts
By Erik Schelzig, Associated Press
January 24, 2012
NASHVILLE, Tenn. -- The sponsor of a proposal to strip state courts of the power to block laws enacted by the Tennessee General Assembly quietly withdrew the bill on Monday after receiving heavy criticism from both sides of the political aisle.
Senate Judiciary Chairwoman Mae Beavers, R-Mt. Juliet, announced without any specific explanation she was abandoning four bills including the judicial oversight measure.
"Or speaker pro tem has been telling us we need to withdraw bills or we need to dispose of them in some way," she in brief remarks on the Senate floor. "So I'm going to do everything I can to honor that request."
Beavers last week told The Associated Press that the bill was aimed at reeling in what she called out-of-control courts.
"As we've come down through the years, they've used case law to rule on things and we've gotten farther and farther from the constitution," she said. "The courts have taken on a whole new supremacy, where they're making the policy instead of the legislative bodies making the policy."
That approach was disputed by several Senate colleagues, including by Speaker Ron Ramsey, R-Blountville, who said that even though he often disagrees with judicial decision, Beavers' proposal would go too far.
"That is crossing the line on separation of powers between the legislative and judicial branches," he said. "Because we make the law and they interpret the law. If you don't like what they're coming down with, then you do everything you can to change the court."
Democratic Sen. Roy Herron, a Dresden attorney, said judicial oversight is a fundamental part of the way state government works.
"Democracy is threatened by those who would take away the independence of the judiciary," he said. "We ought to look very carefully before the politicians begin to take away the independence of the judiciary in Tennessee."
Fellow Democratic Sen. Andy Berke, a Chattanooga attorney, said it's unlikely Beavers' bill would have survived a legal challenge.
"We in government shouldn't be part of a power grab," he said. "Any time you try to grab another branch's powers, the court is likely going to invalidate that."
The judicial oversight measure was one of several Republican measures introduced in the GOP-controlled Legislature this session taking takes affecting the courts, including efforts to change the way judges are disciplined and taking the first step toward approving a constitutional amendment to resolve legal questions about the way appeals judges are appointed and retained.
Ramsey said he is joined by Gov. Bill Haslam and House Speaker Beth Harwell in opposing the popular election of Supreme Court justices.
"I'm not in favor of statewide election of judges -- I've been very plain with that," Ramsey said. "Yet at the same time I think when the words are plainly in our constitution that judges shall be elected by the qualified voters of our state, that we need to amend the constitution and take that out."
Allan Ramsaur, executive director of the Tennessee Bar Association, said he sees the changes as unnecessary because the state Supreme Court has upheld the current system under which the governor appoints appeals judges and they stand for yes-no retention votes after that.
"But if the General Assembly decides a constitutional amendment is necessary, we'll support that, too," he said.
Both chambers would have to approve the proposed constitutional amendment this session in order to keep it on track for going before the voters in 2014. Otherwise, the earliest such a measure could go on the ballot would be in 2018.
Ramsey has said he also expects to make progress this year on efforts to make the attorney general a popularly elected position, rather than one that's appointed by the state Supreme Court.
Ramsey also said fellow Republicans this year said he also expects lawmakers will replace a commission that disciplines Tennessee judges to promote greater transparency. Fellow Republican Sen. Mike Faulk last week filed a bill to replace the Court of the Judiciary with a 16-person Board of Judicial Conduct.
The new panel would have to make quarterly reports to the Legislature on complaints and disciplinary action against judges.
Shelby County Criminal Judge Chris Craft, the judiciary court's presiding judge, acknowledged in legislative hearings last year that panel could have been more transparent in the past, and that officials were working on ways to be open about the types of cases it handles and the kinds of cases that have to be dismissed.
According to the panel's annual report released in August, of the 334 cases disposed of last year, 314, or 94 percent, were dismissed.
Lawyers welcome the proposals in Faulk's bill, Ramsaur said.
"We think a strong and independent body to handle judicial discipline is important," he said.
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Georgia Supreme Court justice calls for judicial overhaul
By Steve Crawford, The Augusta Chronicle
January 19, 20212
Georgia’s “two-headed” appellate court system needs to be overhauled to create a less confusing set of courts with more clearly defined roles, a state Supreme Court justice told members of the Augusta Bar Association on Thursday evening.
“I think it is time to take a look at the appellate system,” said Justice David E. Nahmias, addressing fellow attorneys at the Augusta Country Club. “I’m trying to start this conversation now because it takes a long time get these types of changes accomplished.”
Nahmias, who was appointed to the Supreme Court in 2009 by Gov. Sonny Perdue and won a statewide election in 2010, gave a brief history lesson on the origins of the Supreme Court and the Court of Appeals, which he explained came into existence through piecemeal efforts of state legislators reacting to needs as they arose. He said it really doesn’t compare with federal judiciary system, which may seem “divinely inspired” as it is set down in the U.S. Constitution.
“When you look at the system in Georgia, it was not divinely inspired, but really cobbled together over the years,” he said, pointing out that the state didn’t even have a supreme court to hear appeals for its first 70 years.
Nahmias has plenty of experience with the federal system. After graduating from Harvard University in 1991, he worked as a clerk for Judge Laurence H. Silberman of the U.S. Circuit Court of Appeals for the District of Columbia and for U.S. Supreme Court Justice Antonin Scalia. Before he was appointed to the Georgia high court, Nahmias served as the U.S. attorney in Atlanta for more than four years.
Nahmias said Georgia’s appellate courts are probably the busiest in the nation when you look at the number of cases per judge. The Court of Appeals has 12 judges. Nahmias is one of seven Supreme Court justices, who hand down about 350 decisions each year.
“The Court of Appeals is even busier,” he said, explaining that the caseload has swelled in the past 20 years with Georgia’s population boom.
Besides cases that are handled by relatively few judges, Nahmias said the types of cases that state law dictates must be handled by each court make little sense, such as the number of property disputes and divorces that must be appealed directly to the Supreme Court. He said fewer than half the cases his court hears would be heard in other states’ supreme courts.
“It’s amazing the system works as well as it does,” he said. “It’s just a strange one.”
Nahmias said he believes the state constitution has given the Legislature the latitude to make the kinds of changes needed, but it won’t be a quick fix.
Reducing the number of cases the Supreme Court hears would mean that more judges would be needed on the Court of Appeals. He encouraged the members of the bar to consider the issue and come up with their own recommendations.
“It’s something that is going to need a lot of input to make it happen,” he said.
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The cost of justice: Alabama’s latest example of money’s effect on electio ns – [Editorial]
The Anniston Star
Jan 12, 2012
In years past, Alabama judicial races set spending records for candidates and special-interest groups. But this year’s race for the Republican nomination for state Supreme Court chief justice will likely not draw the sort of money of earlier campaigns.
It’s not because politically minded donors aren’t willing to cough up contributions. Instead, giving will be low because the primary is March 13, instead of in June, so the fundraising period is shorter. Despite this limitation, candidates for Alabama’s highest judicial office are on the fundraising trail because they know campaigning will be difficult without contributions.
If no Democratic candidate qualifies to run, whoever wins the Republican race will be the chief justice — shades of the days when Alabama was a one-party state.
Of the three candidates vying for the nomination, Mobile circuit judge and former state attorney general Charles Graddick has the largest war chest. With $346,519 in the bank and more coming in, he already is running television ads. If he raises his $1 million goal, he will become a familiar television name and face by the time the election rolls around. Incumbent Chief Justice Chuck Malone is running second with $269,515. He has waited for the Alabama-LSU football game to pass before starting his television ad campaign.
Both Graddick and Malone are getting money from business groups that feel those candidates will hand down business-friendly rulings that have become the hallmark of the Republican-dominated court.
The third candidate, former Chief Justice Roy Moore, is not getting this sort of fiscal support. He announced that he will not accept money from special-interest groups, and he isn’t getting any. Supporters who Moore describes as “friends of mine who believe in what I stand for” have contributed $78,000. It appears Moore will have to rely on name-recognition already in place rather than a well-financed ad campaign to introduce himself to people who do not know him.
Once again, Alabama is witnessing how important money is in a modern political campaign. And because money is important, who gives the money becomes important as well. Although this editorial board has not supported Moore in his quests for higher office, he should have the same opportunity as other qualified candidates to get his message across. However, the way campaigns are financed today, that is not likely to happen.
When the election is over, the victor will owe his victory as much to the interests and individuals who paid for his campaign as to the people who voted for him.
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Chief justice says courts will face tough year
By Benjamin Bullard, The Cullman Times
January 11, 2012
CULLMAN — The state’s highest judicial official urged local Republicans and state representatives to remember Alabama courts’ ongoing woes with slashed funding as they head into the election season, as well as into the coming 2012 legislative session.
Chief Justice Chuck Malone, who spoke before a crowd of Republicans Saturday as part of his statewide re-election bid, cautioned that the worst may not be over for a court system already poorer and more meagerly-staffed than an ever-increasing case load allows.
Malone said legislators, accounting officials and Gov. Robert Bentley haven’t assured judges at every level statewide that 2012 won’t be a repeat of 2011’s unprecedented budget cuts — or worse.
“Ladies and gentlemen, this is a tough year,” Malone told the crowd. “I presented our budget [for 2011], and they said, ‘What would you do with a 25 percent cut [in 2012] from where you are right now?’ That would be devastating.”
Malone said even an additional year in which the court system maintained level funding — a strong possibility given the freezes that the state’s court system has already struggled under — would diminish the efficiency and services it currently provides.
“We’d still be laying off people,” he said. “As the third branch of government, we receive about 8.6 percent of the [state] general fund. We were asked, after I had made my proposal, what would be the effect of a 25 percent cut, and what would be the effect of level funding — all of which would require cuts for us,” Malone explained after the event. “For the third branch of government, we’re at a point where we can’t take it — I mean, we literally have to have an increase to get by.
“Level funding still puts us behind where we are now — we still have mandatory increases in our costs. I’m trying as best I can to let everybody understand how critical the court system is to our economy — because domestic lawsuits go on and on, and you still have people working while their personal lives are in disarray. You’ve got businesses that can’t collect on their debts; they can’t foreclose; they can’t do anything in a timely manner as they should. Not to mention on the criminal side; there are supposed to be speedy trials for the accused, and the DAs need funding on the state side. It affects us all.”
In spite of the dire discussion of where the state’s court system may be headed, Malone kept his tone upbeat as he asked local party members to choose him ahead of Republican Chief Justice opponents Charlie Graddick and Roy Moore in the March party primary. Malone is seeking his first elected term to the Chief Justice’s seat after being appointed by Gov. Robert Bentley in 2011.
“Let me just tell you — [your local elected representatives] have a job they have to do. My job is to educate; to show transparency in what we’re doing; to be responsible with what we’ve been given,” he said. “My wife keeps our checkbook, and she won’t even let me have a check. When I ask her for a check, she says, ‘What are you going to do with it; why are you buying it — and do we really need it?’ Those are fair questions, aren’t they? And that’s what our legislature has to do too.
“We’re going to be responsible with what we’re doing; we’re going to show our representatives and senators how to help solve this problem, and I ask for your vote,” said Malone. “We didn’t get here overnight, and I’m just going to tell you — it’s going to take a long time to change this, and we’re going to do it. I’m an optimist.”
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Bankrolling the court – [Editorial]
By Mike Hollis, The Huntsville Times
January 13, 2012
Justice isn't actually on the auction block in Alabama, but don't hold it against the voters if they have gotten that impression over the years.
Consider the huge sums of campaign money contributed by groups interested in the outcome of the kinds of cases that go before the Alabama Supreme Court.
According to a recent report, candidates for just three of the nine places on the state Supreme court spent more than $3.1 million in donations in the 2010 elections. But Alabama wasn't No. 1 that year, as it has been in some other elections, according to the Brennan Center for Justice, the National Institute on Money in State Politics, and Justice at Stake. Pennsylvania came in at $5.4 million.
Indeed, Alabama was in top place for the years when candidates raised $40.1 million, making it "easily the most costly state in the 2000-2009 decade," according to the report.
This is nothing less than a tawdry spectacle.
Nationally, one of the top 10 "Super Spenders" in 2010 was the Business Council of Alabama, which contributed $1.3 million to court races.
Fundraising for the chief justice race in Alabama seems to be somewhat off the torrid pace of other elections. (Candidate qualifying for the March 13 primary will end today at 5 p.m.)
Charlie Graddick, a Circuit Court judge in Mobile who is a former attorney general, recently reported raising $346,519 toward his $1 million goal for the campaign.
That compares to $269,515 for appointed Chief Justice Chuck Malone, who is running his first race for the post, and $78,000 for former Chief Justice Roy Moore. Graddick and Malone have loaned their campaigns $100,000 each.
The Business Council of Alabama had not contributed to any of the campaigns for the most recent tally. But The Birmingham News reported that campaign finance disclosures for Graddick and Malone show them receiving money from the insurance, medical, corporate, banker, retailer, construction and real estate sources behind the Republican takeover of the state appellate courts since the 1990s. Today, Republicans hold all the seats on Alabama's three appellate courts.
Graddick also raised $55,000 directly and indirectly from plaintiff trial lawyers, who usually give generously to Democratic candidates.
Moore raised $50,000 from Michael Peroutka, who was the presidential candidate for the Constitution Party in 2004. His second-largest donor was Fairfield businessman Pete Hanna, who gave $25,000.
To run a competitive race for the court, candidates must buy TV ads to become known and deliver their message statement. And TV spots are expensive. In 2010, Alabama's Supreme Court candidates ran more than 9,000 ads backed by more than 900 independently financed spots.
No, justice isn't for sale in Alabama. But it is expensive.
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TN judicial ethics reform will promote impartiality – [Editorial]
The Daily News Journal, Murfreesboro, Tenn.
January 16, 2012
We believe a new ethics code for Tennessee judges will help ensure that justice is blind in this state.
The revamped Code of Judicial Conduct, recommended by the Tennessee Bar Association and approved by the state Supreme Court, offers the first major revisions in more than 20 years.
Perhaps the most significant change in the new code, which takes effect in July, is more specific guidance on when a judge should step down from a case. This rule would force a judge to recuse him or herself if the judge had received a level of campaign support from a litigant that would cause a reasonable person to question whether the judge can be fair.
Judges also will be required to step down from a case if they have previously presided over a judicial settlement conference or mediation in the same matter.
In all situations in which a judge has been asked to step down but refused, the judge will be required to give a written explanation of why the motion was denied, and that decision can be immediately appealed, while the remainder of the case is put on hold, to a higher court.
With the adoption of the new code, Tennessee joins 14 states that have addressed recusal reform since the U.S. Supreme Court's 2009 decision in Caperton vs. Massey. In that case the majority ruled that a West Virginia Supreme Court justice should have stepped down from a case involving A.T. Massey Coal Co. The judge in question had received more than $3 million in campaign support from the company's CEO.
It is that kind of unfortunate situation that makes judicial reform a necessity, and we are pleased that new ethics rules should prevent that sort of cronyism in Tennessee courts.
Also worth noting is that Justice At Stake, a Washington campaign to reduce the influence of money and politics in state and federal courts, agrees.
"Tennessee, overnight, has one of the best policies in the nation," said Charles Hall, a member of Justice At Stake.
Indeed, these "new recusal rules are going to give all litigants more confidence," Tennessee Chief Justice Cornelia A. Clark said.
In addition to the changes in recusal rules is a controversial restriction on judges from making political donations, a free speech issue for sure that may be challenged. One compromise in that rule is a provision that allows judges to buy tickets to political fundraisers and dinners.
However, we hope judges would be happy to hold themselves above politics and beyond reproach, not buddy-buddy with any candidate or political party that may be even remotely involved in future cases. After all, there's no need to risk giving even a hint of partiality. A judge's reputation, along with sound judgment, may be his or her most important attribute.
And while critics complain that assurance comes at the expense of judges' First Amendment rights, we believe that concern is overridden by the need to keep money and politics out of our courts.
After all, justice is something that should never be for sale.
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Lawmakers expect to fix JeffCo shortfall
Antrenise Cole, Birmingham Business Journal
January 13, 2012
Local officials say a legislative fix for Jefferson County’s $40 million general fund shortfall is likely when the Alabama Legislature begins its next session in February.
But whether that fix will include a new occupational tax, a separate tax increase or other measures remains to be seen.
A group of state lawmakers, Jefferson County commissioners, businesses leaders and others have met privately in recent months to gather information and come up with solutions to resolve the county’s general fund woes.
James Pratt III, Alabama State Bar president and the facilitator of the meetings, said the group has made considerable progress,, and he feels confident that Alabama legislators will address the county’s financial problems.
“I have learned to hope for the best and plan for the worst, so we’re working hard to get a legislative response to some of the problems,” he said.
Pratt said he believes lawmakers will implement a long-term solution in the upcoming session. Jefferson County’s general fund shortfall stems from the loss of $66 million in revenue from the county’s occupational tax, which was ruled unconstitutional in March 2011 after a court ruled the act that created the tax violated notice requirements.
In addition, Jefferson County, filed the largest municipal bankruptcy in U.S. history in November, seeking court protection with more than $4.23 billion in outstanding debt.
State Sen. Linda Coleman, D-Birmingham, said she is hopeful that the legislative delegation will come to a consensus on a solution for Jefferson County’s general fund. She is on board with passing a new occupational tax, she said.
“We have all seen the results of those funds not being available for the county to use, so I’m very hopeful and optimistic that the delegation will come together and do what is right and restore the occupational tax,” she said.
Coleman said that another proposal that will be up for discussion is giving the commission limited home rule to increase certain taxes.
“It is important that the county be given some limited home rule, so that they can solve their own problems,” she said. “It’s kind of hard for people to do a job when their hands are tied because they don’t have the tools or authority to make certain decisions.”
State Rep. Paul DeMarco, R-Homewood, said he is optimistic that the local legislative delegation will agree on a solution to help resolve some of the county’s debt issues.
However, he said with the county being in bankruptcy, he thinks it would be a mistake not to look for long-term solutions.
DeMarco said dating back to the last session, the legislative delegation has been discussing and trying to agree on proposals to remove the earmarks on tax dollars, fix some of the long-standing rules of the personnel board that don’t effectively use tax dollars and improve the way the county operates and manages its budget.
In order to cut expenses, the county has drastically reduced capital expenditures, shuttered county facilities, laid off more than 500 employees, eliminated overtime, cut work hours to as low as 32 hours per week for remaining hourly employees and suspended hiring in many job classifications.
The county commission is also moving forward with plans to abandon five economic-development contracts in an effort to save an estimated $2.5 million a year.
If Alabama lawmakers don’t come to a consensus on a legislative fix to generate replacement revenue for the county’s ailing general fund, more drastic cuts are expected to be made to county’s workforce and services.
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MBA billboard ads urge voters to support more funding for the state’s court system
By Chris Reidy, Boston Globe
January 17, 2012
The Massachusetts Bar Association, or MBA, said it is launching an unprecedented marketing campaign that seeks to persuade voters to urge their legislators to approve additional spending for the state’s court system.
Billboard ads urge motorists to visit the association’s website at www.massbar.org, which features videos that describe the effects of underfunded courts. The billboard message is: “What if you couldn’t be heard? Underfunded courts do affect you. Find out how.”
In a statement, association president Richard P. Campbell said: “Understandably, the average citizen may not appreciate the irreplaceable role courts play in their security, livelihood, and freedoms. This significant communication will attempt to change that.”
Campbell added: “We’ve never done this before. The fact that the MBA has committed to elevating awareness in this fashion is a clear indication of how dire the circumstances have gotten in the courtroom atmosphere and operations.”
According to the MBA, the trial court is currently operating on a fiscal year budget of $541.3 million. That amount is “inadequate.” At least $52.6 million more in additional annual funding is needed, the MBA said.
Post-tornado law would allow Alabama residents to hire private insurance adusters
By Robin DeMonia, The Birmingham News
January 6, 2012
BIRMINGHAM, Alabama -- State insurance officials and others are working on legislation that would let Alabamians with insurance claims hire their own adjusters, clarifying what has been a gray area of the law.
If passed, there'd be no question Alabamians could hire so-called public adjusters to help establish the scope of their losses and probably get more money from their insurance companies.
The tradeoff, according to a national insurance trade group that opposes the idea, would likely be higher insurance rates.
"Public adjusters are unnecessary and do more harm than good because they drive up costs," said Monique Kabitzke, the Southern regional manager for the Property and Casualty Insurers Association of America.
The role of public adjusters has been debated in the state in the past, but the discussion has become more pointed since the devastating tornado outbreak last April, which generated more than 117,000 claims totaling at least $2.2 billion.
Legislation was proposed last year to license and regulate public adjusters in Alabama, but it was dropped because of objections from the Alabama State Bar. Now, the Bar is working with state insurance regulators and industry groups on a compromise measure for the legislative session starting in February.
"The reality is that there are public adjusters in Alabama, but we don't know how many because there is no law that compels their registration," said Ragan Ingram, chief of staff at the Insurance Department. "A law would provide standards of education and training and would allow the state to know who is assisting Alabama consumers."
Alabama is one of six states with no law regarding public adjusters, who work for policyholders as opposed to insurance companies. All of Alabama's neighboring states license public adjusters; Louisiana, Mississippi and Tennessee passed laws after Hurricane Katrina in 2005.
The National Association of Public Insurance Adjusters said the absence of a law doesn't mean adjusters can't work legally in Alabama. But it does leave them operating on uncertain and unregulated ground.
Rose Hill of Pratt City said she'd never heard about public adjusters before a tornado hit her home April 27. She became a fan when an acquaintance hooked her up with Dean Cavalieri, a public adjuster from Florida who helped convince State Farm that her damaged house should be demolished.
"Having a public adjuster was a big help to me," she said. "The tornado, this was my first time being in one. There was a lot of stuff for me to handle that I wasn't prepared for."
Working by referrals
Cavalieri said a former client who'd used his services in Texas referred Hill to him, and he worked with some other storm victims through referrals. But he said he did not actively solicit business in the state and was cautious in his dealings because of the lack of state regulation.
"I'm not doing a lot in Alabama because of the licensing situation, and what I'm doing is on a consultant basis," he said. "We'd like to help a lot more people out up there."
In the weeks after the storms, some public adjusters were soliciting business in Alabama, prompting warnings from the State Bar that they weren't licensed in the state and some of their conduct could be prosecuted as practicing law without a license.
State Bar President Jim Pratt said public adjusters who stray into legal territory is a problem that should be addressed by any law passed in Alabama. While adjusters can help clients determine the value of their losses and present findings to an insurance company, they should not be able to negotiate a settlement if the company balks at the results, he said.
Alabama's law would be based on a national model passed by the National Association of Insurance Commissioners in 2005. But Pratt said the model does not set the proper boundaries for work that should be left to lawyers, nor do any of the 44 state laws already on the books.
But Pratt said he hopes Alabama legislation can be made better because he likes the concept of regulating the industry.
"If we're going to have public adjusters, they need to be licensed and regulated and limited so the consuming public is protected," he said.
The issue of practicing law without a license was raised elsewhere in the past, and the National Association of Public Insurance Adjusters believes its members are well aware of the limits of what they can do. The association believes the state's law primarily needs to make sure those who hold themselves out as public adjusters are legitimate.
"The purpose of the legislation is to protect consumers from unscrupulous and unregistered adjusters," said Brian Goodwin, the national public adjuster group's lawyer.
No complaints filed
The state Insurance Department said complaints have been lodged in past years about roofers negotiating insurance claims for Alabama policyholders. But no complaints have been generated about public adjusting activity since April 27's storms, Ingram said.
That is likely to change if Alabama passes the law and clears the way for public adjusters to flood the state, Kabitzke said.
The Property and Casualty Insurers Association said Florida, which has more public adjusters than any other state, has received hundreds of complaints since 2004 about fraud related to public adjusters and has revised its law to address the problem.
Among other things, the property and casualty group said, public adjusters are paid a percentage of their clients' settlements -- 15 percent on average -- and have an incentive to maximize and even inflate the scope of the damage.
The group cites examples where states with public adjusters had higher average claims than states without public adjusters. Among the examples: Mississippi's 2010 average homeowners claim was $9,141 compared to $7,892 in Alabama. The average claim was 16 percent higher in Mississippi even though Alabama's median home value was higher, the insurers said.
Public adjusters don't dispute that their customers tend to collect more. But they say that doesn't illustrate a problem; it shows the value of hiring an expert to document and collect on the full value of a loss. "Public adjusters work to make sure insureds get what they're entitled to -- nothing more, nothing less," Goodwin said.
But the Property and Casualty Insurers Association said higher claims ultimately affect premiums. For example, it said, Mississippi's average homeowner premium was $980 in 2008 compared to $871 for Alabama -- 12.5 percent higher.
Kabitzke said that ought to be alarming considering the upward pressure that is already being felt on insurance rates in Alabama. "We can show that over the years, the frequency and severity of national disasters in that state are increasing," she said.
The group's members include Alabama's politically powerful Alfa Insurance Co., which dropped 73,000 policies after its claims from April 27 topped $400 million. Alfa spokesman Jeff Helms said the company won't take any position on any legislation regarding public adjusters until it sees the bill.
But public adjusters say disasters like the one Alabama experienced April 27 demonstrate why policyholders need access to their own experts. "Most people in their life do not go through a claim like this, so how do they know what they need to do?" Cavalieri asked.
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Ventiere chosen for Leadership Forum
THE GREENVILLE ADVOCATE
January 3, 2012
MONTGOMERY — Greenville lawyer Jessica Lynn Ventiere has been selected as one of 30 lawyers from throughout the state to participate in the Alabama State Bar’s Leadership Forum, a program to identify future leaders of the profession.
“The Leadership Forum is the state bar’s first comprehensive program to provide leadership training to a group of promising attorneys from diverse backgrounds who aspire to become leaders in their profession and community and who serve as role models in matters of ethics and professionalism,” said State Bar President James R. Pratt, III, of Birmingham.
This year, 71 applications were received from private practitioners, government and corporate lawyers throughout the state. These applicants included practitioners in small, medium and large-size firms as well as sole practitioners.
After a rigorous selection process, 12 women and 18 men were selected. While there is no age requirement, participants must have practiced law for not less than five nor more than 15 years. Candidates are selected based on their demonstration of outstanding leadership qualities and service to their communities.
Leadership Forum graduates return to their communities with a unique set of skills.
“Lawyers are trained problem-solvers. They naturally gravitate toward positions of leadership because those positions call into play their creativity and critical thinking skills,” Pratt said.
Many of the more than 200 previous forum graduates have gone on to hold elected leadership positions in the state Legislature, within their firms, in the state bar and other service groups.
In order to graduate, participants are required to attend five separate training sessions including a two-day orientation program. The curriculum features professional facilitators and prominent speakers from various disciplines who inform participants about leadership principles and techniques, the importance of effective leaders in organizations to maximize efficiency and effectiveness, and the challenges and rewards of leadership in action.
See also, “Grimes chosen for leadership forum.”
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Egos Aside, Trial Lawyers Are Pretty Good at Predicting Verdicts
Joe Palazzolo, The Wall Street Journal
January 6, 2012
How good are you, experienced civil trial lawyer, at predicting jury verdicts? We imagine a few of you are known around the firm for your preternatural eye for separating the good cases from the dogs, for knowing when to settle and when to press on, or you’re known for thinking you have this talent and telling everyone so.
But every lawyer needs a second opinion, or even a 20th, from their colleagues, and they’d do well to heed them, according to a new study in the Journal of Empirical Legal Studies.
In the study, experienced trial attorneys were shown short descriptions of real civil cases (in California) and asked to predict the outcome in four rounds.
In the first round, they gave their own opinion. In Round Two, they were allowed to view the opinion of another experienced trial lawyer and revise their estimate as they saw fit. In Round Three, they were forced to negotiate a single estimate. And in the fourth round, they made a final estimate, with the option of drawing on their previous predictions or disregarding them.
You see where this is going, right? The trial attorneys let their egos get in the way, and they paid for it.
About 83% of the attorneys gave their own opinion more weight than their partner’s opinion, and 53% ignored their partner’s opinion entirely.
The attorneys made more accurate predictions when they treated their partner as an equal and gave his or her opinion 50% weight, said Jonas Jacobson, a trial consultant in San Francisco who co-authored the study, in an email. But attorneys slid backwards in the fourth round, when left again to their own devices.
When researchers averaged the opinions of all the attorneys in the study — tapping into the “wisdom of the crowd” — they came within 25% of the actual verdict — remarkable, considering the case descriptions were only a few basic paragraphs.
“This suggests that, as a group, the attorneys were able to distill what really matters from a few key facts. Of course this requires them to be willing to average with each other,” Jacobson said.
The study’s moral is simple, he said.
“No matter how confident you are in your own opinion, trust the opinion of an experienced partner. Even better, find the opinions of 20 experienced attorneys and statistically combine them. Attorneys’ predictions of jury verdicts will be much more accurate for it.”
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In Europe, Debt Crisis Raises Questions about Regulating Lawyers
By Joe Palazzolo, The Wall Street Journal
January 5, 2012
The largest bar associations in Europe and the U.S. are urging the head of the International Monetary Fund to help them fight proposals to regulate the legal profession in countries hit hard by the debt crisis.
The American Bar Association and the Council of Bars and Law Societies of Europe say measures in Ireland, Greece and Portugal threaten “one of the core principles of the legal profession: regulation independent from the executive branch of the state.”
The groups on Thursday made public a letter sent last month to Christine Lagarde, IMF’s managing director, asking her to pass on their concerns within her organization and to her counterparts at the European Commission and the European Central Bank. Lagarde was the first female chairman of global law firm Baker & McKenzie.
Lawyers in Europe are largely self-regulated. In the U.S., the courts regulate the professions but rely heavily on bar associations.
In particular, the groups criticized a bill in Ireland that would establish a regulator for the industry in that country whose members would be appointed by the Irish justice minister. The Irish government would be able to remove a member at anytime.
Ireland made a commitment to regulate aspects of the legal profession, as part of an aid package from the EU and IMF.
“We are convinced that without a guarantee of independence — which is fundamental to the profession — it is impossible for lawyers to fulfill their professional and legal role,” according to the letter, which was signed by Georges-Albert Dal, president of the CCBE, and Bill Robinson, head of the ABA.
The groups said they were investigating similar developments in Greece and Portugal that appear to be based on a “purely economic approach.”
Some in the legal profession say the concerns are overstated.
Colin Scott, a professor at UCD School of Law in Dublin, noted that governments in England, Wales and a number of Australian states appoint regulators to oversee the legal profession. And in many countries the profession is dependent on the state for fees across much of the criminal justice system, but one argues that taking the fees compromises the independence of lawyers, Scott wrote in a recent letter to the Irish Times.
Birmingham lawyers make Alabama State Bar leadership forum
By Antrenise Cole, Birmingham Business Journal
December 29, 2011
Thirteen Birmingham area lawyers have been selected by the Alabama State Bar to participate in its leadership forum, a program to identify future leaders of the profession.
This year, 71 applications were received from private practitioners, government and corporate lawyers throughout the state. After a rigorous selection process, 30 lawyers were chosen to receive training based on their demonstration of outstanding leadership qualities and service to their communities.
To graduate, participants are required to attend five separate training sessions, including a two-day orientation program.
Here are the local members of the leadership forum class of 2012:
Sela Stroud Blanton, Bainbridge Mims Rogers & Smith LLP; Katherine Rogers Brown, White Arnold & Dowd PC; Allison Michelle Lee Dearing, Alabama Coalition Against Domestic Violence; William Roland Hankins Jr., ARK Real Estate Strategies; Carolyn Ngoc Lam, Ford & Harrison LLP; Charles Price II, Haskell Slaughter Young & Rediker LLC ; Edward Simmons Sledge IV, Maynard Cooper & Gale PC ; Julian Houston Smith III, Balch & Bingham LLP; Ethan Tyler Tidmore, Bradley Arant Boult Cummings LLP; Bradley Arant Boult Cummings LLP Stephen Cochran Wallace, 10th Jud. Cir., Criminal Division; Huey Thomas Wells III, Starnes Davis Florie LLP; Jamie Alisa Tharp Wilson, Benton & Centeno LLP; and Onwotta Tameka Wren, The Wiggins Law Firm.
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Jefferson County officials and Alabama lawmakers meet to find fix to financial woes
By Barnett Wright, The Birmingham News
January 5, 2012
VESTAVIA HILLS, Ala. -- A group of state lawmakers, Jefferson County commissioners and health-care professionals met privately this week to discuss ways to address the county's general fund crisis and other matters.
The three-hour meeting at Vestavia Hills City Hall included Commission President David Carrington; state Rep. Paul DeMarco, R-Homewood; and state Sen. Jabo Waggoner, R-Vestavia Hills.
Tuesday's meeting was the latest in a series of behind-the-scenes efforts among commissioners, Jefferson County legislators, business leaders and others to find ways to solve the county's massive general fund woes, participants said.
They declined to elaborate on the substance of Tuesday's discussion, but said the smaller meetings are a change from last year's larger meetings among legislators and commissioners, which they said accomplished nothing.
Other elected officials at the meeting were County Commissioner Sandra Little Brown; state Sen. Linda Coleman, D-Birmingham; and state Rep. Oliver Robinson, D-Birmingham.
"We are trying to figure out where the consensus is," DeMarco said Wednesday. "I've asked David (Carrington) for budget numbers. They're saying they need $40 million, and we're trying to figure out how do we find resolution to this thing."
Commissioners have said the county government needs revenue to avoid being forced to cut an additional $40 million from a 2012 general fund budget that stands at $217.8 million. That budget already is $94.6 million leaner than the one approved the previous year.
The county occupational tax, which generated $66 million in fiscal 2010, was thrown out last year by the Alabama Supreme Court because of a technical defect in how the state Legislature enacted it. But some legislators have resisted enacting a replacement tax.
County officials have said additional jobs and services could be lost if help does not come from lawmakers during the legislative session that begins in February.
"Several of us met with legislators, an ongoing series of meetings -- individually and collectively," Carrington said. "We are trying to develop an approach for a general fund fix. Trying to answer questions. Trying to address the issues. Trying to come to some consensus."
Some on the commission and in the legislative delegation said they had been unaware of the meeting.
"I'm disappointed," Commissioner Joe Knight said. "There are five of us. We have a lot of problems, and it's going to take all five of us working together to fix the problems. That's not a good way to start the new year."
State Rep. John Rogers, D-Birmingham, said, "It galls me a little bit, but if that's the way they want to play the game, I know how to play the same kind of game. They might be playing hardball, but I got a baseball bat."
The Tuesday meeting was called by Jim Pratt, the Birmingham lawyer who is president of the Alabama State Bar and facilitator between county officials and state lawmakers.
The county's financial crisis "is clearly the framework of the primary problem, but there are many pieces to that," Pratt said Wednesday. "Every meeting has been about a different subject, just trying to see if we would find anything we could start building some consensus and some agreement on."
Pratt said he plans to continue meeting with commissioners, lawmakers and others in the community to find a fix for the county.
Last month, he hosted a cocktail reception for members of the commission, the business community and the local delegation. This week, representatives from St. Vincent's and Brookwood Medical Center met with county officials and lawmakers, Pratt said.
"I've been trying to invite folks to the meetings that are the best sources of information for whatever we're talking about," he said. "So if you want to talk about indigent care in Jefferson County, there are people with expertise in that particular subject."
The group represented a cross-section of elected officials from "both sides of the house and both parties," Coleman said. "It's not about a majority party or a minority party. This is about Jefferson County."
Officials defended the more private meeting because earlier gatherings at Vulcan and the Jefferson County Board of Education building in Homewood, attended by county commissioners and more than two dozen lawmakers, became chaotic, they said.
"It became showtime. ... We are just trying another strategy because that one did not work," Waggoner said.
Pratt said, "consensus has to start somewhere. ... It's more productive to get a smaller group together to see if you can build some consensus with the smaller group and then allow that group to take those positive developments to the bigger groups."
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OUR VIEW: In state judicial elections, too often voters don't know who they're voting for or against – [Editorial]
By Birmingham News
January 3, 2012
Charles Hall, spokesman for the judicial watchdog group Justice at Stake, said voters know so little about most judicial candidates, that judicial elections are "an exercise in blindfolded democracy."
We couldn't agree more. That's yet another reason why, for years, we have supported some sort of system in which judges are appointed and then reaffirmed or dismissed by voters in retention elections.
At one time or another, both the Republican and Democratic parties have supported appointing judges. That usually has been when they aren't doing so well in partisan judicial elections.
In Alabama, elections are held for all judicial races, from the state Supreme Court all the way down to state district court and probate judges. As Hall told News staff writer Eric Velasco in a story published Thursday, "Voters are at a huge disadvantage when it comes to electing judges. By the time you get down to the local judges, it's like pulling names out of a hat."
Such a crapshoot can put barely qualified lawyers on the bench, with the authority to take away a person's freedom, possessions or life. Not long ago in Jefferson County, a circuit judge who could sentence a person to death wasn't even qualified as a lawyer to defend a capital case in circuit court.
Yet, many voters seem more concerned whether a judicial candidate has a "D" or an "R" beside his name. The law is not partisan, so judges shouldn't be elected in partisan races. Even efforts to do away with partisan judicial elections have failed in recent years, though.
Then there's the influence of money on Alabama judicial elections, a phenomenon well-known nationally.
The New Politics of Judicial Elections 2009-2010 report, put together by various judicial watchdog groups, in November found Alabama was second in the nation in judicial campaign contributions and spending for that period. Between 2000 and 2010, Alabama judicial candidates raised $44.2 million, more than any other state. Second-place Ohio was at $24.1 million over that period, and Ohio has nearly three times the registered voters as Alabama.
Even though many of Alabama's judicial candidates, mainly for the state Supreme Court, spend millions of dollars on television and other advertising, voters still know little about them. Hall said that's why voting levels drop by as much as 25 percent in judicial races as opposed to races for legislative and executive branch positions.
The Legislature should improve the situation. Setting more strict qualifications, rather than simply having a minimum amount of experience and being a member of the state bar, would be a start. Another improvement would be to do away with party labels in judicial elections.
The best step would be to do away with elections altogether and have judges at all levels appointed in a fair process that considers qualifications and legal experience most of all. Then, after a certain amount of time -- say, six years -- the judge would stand alone in a retention election to keep him or her accountable to the public.
That way, we would have more qualified judges and not judges who just happened to be members of a particular political party or who can raise the most money to saturate the market with sound-bite TV advertisements.
If voters don't really know whom they're voting for or against in judicial elections, the Legislature should at least make sure those who are elected are well-qualified, have integrity, are fair and have an even temperament.
That's not always going to happen with blindfolded democracy.
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Supreme Court to impose new ethics rules
Written by Brian Haas, The Tennessean (Nashville)
January 4, 2012
The Tennessee Supreme Court will impose new judicial ethics rules outlining new recusal procedures for judges and limiting their political activities.
The changes, which will take effect July 1, represent the first major overhaul to the rules that govern judges’ conduct in 20 years and are based on 2007 American Bar Association recommendations that nearly two-dozen states have adopted. The new rules came in response to a request from the Tennessee Bar Association to overhaul the state’s ethical guidelines.
In July, judges will have to better explain if they deny requests to remove themselves from cases, called a recusal. Judges will have to provide a written explanation in such cases and attorneys will have a faster process to appeal a denial.
Another major change is in judges’ political activities. No longer will they be allowed to make contributions to political campaigns or political organizations. The courts will allow judges to continue to buy tickets to attend campaign events.
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