73 The Alabama Lawyer 434 (2012). Are You Ready for Private Judging?.

• Author: By Wendy B. Crew, Judge R.A. "Sonny" Ferguson, Jr. and Dean J. Noah Funderburg

Alabama Bar Journal

2012.

73 The Alabama Lawyer 434 (2012).

Are You Ready for Private Judging?

Are You Ready for Private Judging?By Wendy B. Crew, Judge R.A. "Sonny" Ferguson, Jr. and Dean J. Noah FunderburgOn April 30, 2012, Governor Robert Bentley signed into law an Act that provides for "private judges" to be utilized in certain non-jury cases in Alabama. The Act became effective July 1, 2012, and is codified at Ala. Code §12-17-350 et seq. (1975, as amended). Although cases have already been set before private judges, a brief summary of the history of this legislation will promote broader understanding of the application and uses of private judges.

New, novel option for Alabama

Last year, a task force created by then current Chief Justice Sue Bell Cobb explored ways to relieve crowded dockets and reduce court costs. The task force seriously considered two options, one familiar and one quite new. The familiar option was arbitration. The novel option was the use of private judges. The private judge option provided the simplest approach for quickly enacting legislation because it had the added benefit of relieving some of the stress on the state's judicial system. The choice of a private judge is not to replace publicly elected or appointed judges, but, rather, is a vehicle to help enhance our judicial system and provide another option to parties in resolving their legal issues.

The task force, consisting of a trial lawyer, an academician and three judges, sought out specific ways to improve judicial administration in domestic relations cases. Because of the greater certainty about the full application of all laws and procedures, as well as the retention of appeal rights, this task force viewed private judging as a better option than arbitration.

Embraced by other states

Several states have statutes that provide for private judges. California, Indiana, Colorado, Texas, and Ohio have all implemented some form of this system. As early as the 1970s, the initial concept for a private judge arose from a creative reading of California's referee statute that allowed judges, with the consent of the parties, to refer "any or all issues" to a referee for determination. California has a constitutional provision allowing the appointment of "temporary judges." Initially, the use of a private judge was seen as a limited and...