On April 30, 2012, the state of Alabama took a monumental step in passing a Private Judging Act – one of the few states so far to do so. This act went into effect July 1, 2012. (Act. No. 2012-266, and codified at §12-17-350 et seq.)
The main purpose of the Private Judging Act was to provide another option for parties and their attorneys to move their cases forward in a timely manner, finalize them and hopefully reduce costs. By electing this process, the trial court’s case load would be reduced providing other cases the opportunity to be heard earlier. The Private Judging Act also added another benefit: the Presiding Judge in the circuit where the case was filed would no longer have to manage or hear motions on the case. The private judging case would be treated as any other pending case before any of our sitting state judges.
Unfortunately, it appears the powers that be at the time must have felt they lacked control over private judges and the process. As we took two steps forward on July 1, 2012, we were mandated to take a step backwards on July 13, 2012, when the Administrative Director of Courts issued the following directives to be effective immediately: the Interim Administrative Procedures Regarding Private Judges. In part, some of the 15 new directives were common sense procedures already in place for all state judges and licensed attorneys. Another reason for the mandated directives may have been that private judges were not part of the Unified Judicial System, and the system needed to be set apart from the private judges. The directives seemed to prevent some of what the Private Judging Act was intended to do – which was to remove some of the case load burden from the courts and judges.
Under sections (L) and (N) of the directives, the Presiding Judge in the circuit where the case was filed would have to make rulings on disqualifications and interventions. This would have been unique to private judges, whereas that is not the procedure for a regular sitting judge. It also defeats the purpose of reducing the number of cases pending before state judges, not to mention the time required to schedule and hear these motions. The other grave concern was Section (O), which addressed the jurisdiction of a private judge to hear post-judgment motions. If a judgment rendered during a private judging case is deemed to be final upon its entry, then all post-trial motions would be heard by the Presiding Judge. However, the problem with this section was that the Presiding Judge did not hear the case initially and would not be in the best position to hear said motions as the trier of fact (in this case, the private judge). This makes no sense and, once again, defeats the whole purpose of the Private Judging Act. Sections 4(b) and (e) of the Act address a private judge’s general powers and their jurisdictional authority. Section (O) of the mandated directive seemed to be in direct conflict with the Act and would create unnecessary work and expense for all involved.
Subsequently, several parties attempted to have discussions with the Administrative Director of Courts to address the stated concerns with little or no cooperation. In January 2013, a new Chief Justice was elected and he appointed a new Administrative Director of Courts who was agreeable to having conversations with both active and retired judges about the controversial directives. After some consideration, the new Director issued the following directive on May 1, 2014:
“After discussions with active and private judges across the state, it appears no valid need exists for the Administrative Directive, Interim Administrative Procedures Regarding Private Judges, issued July 13, 2012, to remain in effect, and it is hereby rescinded, effective immediately.”
According to the Alabama Center for Dispute Resolution, there have been only 11 reported cases tried by private judges since the Act was passed. Of those 11 tried, 10 were domestic relations cases. That number will soon increase to 12 domestic relations cases, as this author just completed one. As a private judge and a former domestic relations judge, I also had concerns about the now rescinded directives and wondered if they deterred parties, through their attorneys, from electing to use a private judge.
Now that the directives have been rescinded, one would hope that it will bring clarity and renewed purpose to the Private Judging Act. Hopefully more parties, through their attorneys, will elect to take advantage of the benefits gained by having a private judge, which include:
A. The specialized expertise of the private judge;
B. Expediency (matters are heard promptly);
C. More cost effective;
D. Fewer delays;
E. Private judges only preside over one case at a time;
F. Timeliness of final orders;
G. The trial of the case can occur anywhere;
H. All rules of evidence and procedure are in place.
Private judging may be only one of a very few processes from which parties, their attorneys, and the State Judiciary benefit. If you really want to know how it works, talk to parties, attorneys and private judges who have been involved in a private judging case. It does work!