The state argued in a new brief filed in federal court that the state’s minimum wage law — which prevents cities from raising their minimum wages — is not racially motivated but is instead an ordinary piece of economic legislation aimed at maintaining a uniform wage floor across the state.
Attorney General Steve Marshall filed the brief last week in the 11th Circuit Court of Appeals as part of ongoing litigation over the law passed in 2016 after Birmingham attempted to raise its minimum wage to $10 an hour.
The state’s minimum wage is currently at the federal minimum of $7.25, and a number of cities in other states have raised their minimum wages higher than the minimum set in those states. New York City and Seattle have minimum wages higher than $15 an hour.
Lawmakers passed the Alabama Uniform Minimum Wage and Right-to-Work Act quickly after Birmingham voted to raise its minimum wage. The law required a uniform minimum wage across the state — at the federal minimum.
The Alabama NAACP, Greater Birmingham Ministries, the Alabama Legislative Black Caucus and others sued state officials, saying the law purposely discriminated against Birmingham’s black citizens by denying them economic opportunities on account of their race and that the Legislature’s actions violated the political process and Birmingham residents’ voting rights by transferring control from the majority-black Birmingham City Council to the majority-white Alabama Legislature.
The plaintiffs argued the law is an example of Alabama’s majority-white Legislature exerting too much authority over a majority-black city.
A lower federal district court had dismissed the suit before the three-judge panel of the 11th Circuit reversed that decision, holding that plaintiffs’ racial discrimination claims could move forward. It shot down aspects of the lawsuit that dealt with voting rights and political process claims.
But that’s when the full court stepped in again and agreed to rehear the decision to allow the case to move forward.
Marshall’s brief argues that the plaintiffs have failed to establish their claims of intentional racial discrimination.
Many legislators and businesses argued that the state law was needed to promote economic stability and job growth, and there was no evidence that anyone acted for racist reasons, Marshall argued in his brief. The state argues that the argument is over economics and not racism.
The attorney general, defending the state against the lawsuit, argued that more is needed to back up the charges of racism.
Lawyers for the state went a step further, arguing the case should be dismissed because the plaintiffs sued the wrong defendants. Marshall said the plaintiffs allege that they have been harmed because their employers are not paying what they are entitled to under the Birmingham ordinance.
That dispute, Marshall said, should be litigated between employees and employers, not between employees and the attorney general.
A number of states — Texas, Arkansas, Georgia, Indiana, Louisiana and Missouri — have filed briefs in support of the state. Business interest groups have also backed the state including the Alabama Retail Association, the Business Council of Alabama, the Alabama Grocers Association and others.
The federal minimum wage was last raised to $7.25 a decade ago, and it hasn’t been adjusted since. Twenty-nine states and the District of Columbia has state minimum wages higher than the federal minimum.
The full court will decide later this year whether to dismiss the case or allow it to move forward. They’ll reconsider the same issues the three-judge panel decided on — whether there is a plausible case that state lawmakers discriminated intentionally based on the race of Birmingham’s residents.
Plaintiffs have until May 15 to file reply briefs. The 11th Circuit will hear oral arguments in the case the week of June 24, 2019.
New marshal installed at Alabama Supreme Court
In a packed Courtroom at the Supreme Court of Alabama on Wednesday, February 12, 2020, a historic “passing of the torch” ceremony was held to swear-in the Thirteenth Marshal of the Appellate Courts of Alabama, Earl Marsh, Jr., and to honor his beloved predecessor, Willie L. James, who retired January 1, 2020. James was appointed in 2001 as the first African-American Marshall of the appellate courts, and Marsh served as Chief Deputy Marshal since 2017.
Chief Justice Tom Parker welcomed Marsh’s recent promotion to Marshal: “Marshal Marsh has been a blessing to our whole building from when he first joined our Marshal’s Office in 2017. When our beloved Marshal Willie James retired at the first of this year, we turned to Marsh as the natural successor. Marsh brings the professionalism and dedication that we need for the essential duties of keeping the Heflin-Torbert Judicial Building safe and secure for our Courts, employees, and the public.”
Marshal Marsh was sworn in by Chief Justice Parker on January 27, but the Supreme Court of Alabama, members of the Court of Criminal Appeals and the Court of Civil Appeals, along with many friends and family of Marshal Marsh, and employees from throughout the Heflin-Torbert Judicial Building, gathered to witness the February 12 ceremony honoring both the new Marshal, Marsh, and the retired Marshal, James.
First, retired Marshal James was recognized by Senior Associate Justice Mike Bolin for his years of faithful and loyal service to the Courts and members of the judicial building, and for being “one of the best men I’ve ever known.” Marshal James, with many of his family members in attendance, was presented with two framed commendations — one from the Supreme Court Justices and one from Governor Kay Ivey — for his years of service in law enforcement, including his days with the Montgomery Police Department and his decades of service in the Marshal’s office.
Next, Marshal Marsh was sworn in with his wife Jennifer holding a Bible by his side. In brief remarks, Marsh thanked God, his family, and those in attendance for their support and for entrusting him to provide a “blanket of protection” around the Courts and personnel under his care.
Marshal Marsh, a native of Greenville, Alabama, served his country twice in the United States Army, and has served his state in various law enforcement roles. Marsh served in the Department of Corrections at Holman Prison, graduated from the Montgomery Police Academy, and served as a deputy in the Lowndes County Sheriff’s department.
Marshal Marsh and his wife, Jennifer, reside in Deatsville, Alabama. They are active members of their church, Big Union Christian Church in Lowndes County.
For more information about Marshal Marsh, see his bio on the Supreme Court’s website here.
Bills could improve access to diversion programs, report notes high fees and roadblocks
Bills recently introduced in the Alabama House and Senate aim to improve access to specialized courts and diversion programs, meant to get people the help they need and keep them from behind bars.
Even with more access to those programs and courts, however, many can’t afford the exorbitant fees to remain free, according to a report released this week by an Alabama nonprofit criminal justice reform advocacy group, which also found racial disparities and a lack of critical information on outcomes.
Sen Cam Ward, R-Alabaster, told APR on Wednesday that his bill would help provide access to those programs to people who live in smaller communities, which don’t have the money to afford them, by allowing judges to transfer municipal cases to circuit and district courts that do.
Each participant – the defendant, the municipal court and the county court – would have to agree to transfer a case, according to the legislation.
“You increase the opportunities for diversion, and smaller towns don’t have it,” Ward said. “It gives them a chance to avoid going to prison or going to jail.”
In order for a presiding circuit judge to transfer a case, all parties would have to agree to do so, and the defendant would have to qualify for the drug court, mental health court, veteran’s court or diversion program, according to the bills.
Rep. Jim Hill, R-Moody, introduced the House’s version of the bill. Attempts to reach Hill on Wednesday were unsuccessful.
The legislation promises a way out of serving time in county jails and prisons for low-level crimes, but even with more access, many of those programs are too costly for participants to afford, according to a report released Monday by Alabama Appleseed, which in 2018 and 2019 surveyed 1,011 people who had participated in those specialized courts and diversion programs.
What researchers at Alabama Appleseed found was that most people in those programs are poor, making less than $14,999 a year, and paid a median of $1,600 for those diversion programs, or more than 10 percent of their income.
“Close to half used high-cost payday or title loan,” according to the report. “More than eight in ten gave up a necessity like food, rent, or prescription medication.”
Carla Crowder, executive director of Alabama Appleseed, in a message to APR on Wednesday said that to the extent that the legislation expands access to diversion, it looks like a step in the right direction.
“But so much more is needed. Real reform of Alabama’s inconsistent patchwork of diversion programs means no one is excluded because they’re too poor to pay all the fees, or cannot take off work, or have small children to care for. And our research found all of these scenarios are far too common
Crowder said that there’s also concern that the change could create new revenue streams for the various entities involved, which could result in more hardships for vulnerable low-income people charged with crimes.
“Oftentimes new diversion programs spring up as a way to collect money from vulnerable people desperate to stay out of jail or prison. The last thing we need is more of that,” Crowder said.
Ward told APR that there are good points raised in the Appleseed report, and while he doesn’t agree with all of the report’s suggestions for fixes, he does believe there’s room for improvement.
Among the report’s recommendations for legislators is to “Establish and enforce uniform statewide standards for all diversion programs and alternatives to incarceration.”
Ward agrees, and said the state has “a sporadic nature of diversion programs. Some counties that work great, some not so much. Some, it’s a pay-to-play system.”
“I do think some of these are absorbing, so I think Appleseed was correct on that,” Ward said.
Ward also said there needs to be more uniformity among the many different specialized courts and referral programs, and he agrees with the report’s finding that there needs to be more transparency on the outcomes of such programs.
Read the full report here.
Among the the reports findings are:
Disturbing Racial Disparities
In 2018, the Alabama Department of Corrections had 20,585 inmates in its custody population. Of those, 43 percent were white, while 56 percent were black.
The same year the population of Community Corrections programs was nearly 60 percent white and 40 percent black.
“The disparity between the racial demographics of the population in custody, who must bear the violence, danger, and misery of Alabama’s prisons, and the racial demographics of those in Community Corrections, who enjoy a measure of liberty, is striking,” the report reads.
In Baldwin County, 18 months in a pretrial diversion program can cost a person $3,010.
The report notes that in Lee County, traffic cases can be disposed of through pretrial diversion for $673, DUIs are $1,183, while felony drug offenses cost $1,713.
“Participants deemed poor enough for an appointed attorney can be required to pay an additional $500 in appointed attorneys fees, pushing the total cost for a felony above $2,000,” the report reads.
Of those polled by researchers 57 percent said they’d gone without food to pay to remain in the programs, 30 percent said they’d forgone paying on medical bills or for medication to do so and 12 percent said they failed to pay child support due to the costly programs.
“42% admitted to committing a crime to pay diversion costs and fees; 29% sold drugs; 24% stole,” the report reads.
Lack of data, roadblocks to success
“Alabama does not maintain any data on drug courts. The state does not maintain information about demographics, cost to participants, criminal charges, recidivism rates, length of time in drug court before graduation or termination, or any other data that would permit researchers, legislators, judges or anyone else to assess the efficacy of its drug courts.”
Researchers noted in the report that there is an employee of the Administrative Office of Courts who is doing some of that research, but that it’s unclear if that data, if completed, will be made public.
The difficulty of getting to required drug court appearances is exacerbated because “people are required to plead in to and attend drug courts in the jurisdiction where they are charged, not the jurisdiction where they live.”
One man, whom researchers witnessed at a drug court in Marengo County, had to drive from his home in Etowah County to get to the court, a 364-mile round trip.
“For drug court participants who don’t have licenses or who lack access to a vehicle of their own, this is a terrible obstacle, even an impossible one,” the report reads.
Andrew Brasher confirmed to 11th Circuit Court of Appeals
Tuesday, the U.S. Senate voted to confirm former Alabama Solicitor General Andrew Brasher to the United States Court of Appeals for the 11th Circuit Court. U.S. Senator Richard Shelby, R-Alabama, voted for Brasher’s confirmation; but Sen. Doug Jones, D-Alabama, voted against.
“Andrew Brasher’s confirmation to sit on the U.S. Court of Appeals for the Eleventh Circuit is a testament to his vast legal ability and commitment to upholding the rule of law as it is written,” said Senator Shelby. “I believe Judge Brasher has served with impartiality, integrity, and purpose as a district judge, and I am confident he will continue to do so in this new capacity. I commend President Trump on his decision to nominate Judge Brasher to the Eleventh Circuit and know that his dedication to justice will contribute to the respected standards of our nation’s judicial system.”
Brasher was nominated by President Donald J. Trump (R) in November 2019.
Alabama Attorney General Steve Marshall (R) praised the U. S. Senate for its confirmation of Judge Brasher.
“The Senate’s confirmation of Judge Andrew Brasher to the U.S. Court of Appeals is a victory for the rule of law,” said AG Marshall. “Judge Brasher’s deep record of public service, combined with his impeccable legal credentials, more than qualify him for a seat on the 11th Circuit Court of Appeals. I am especially proud of his contributions as Solicitor General for the State of Alabama, where he successfully argued cases before the Alabama Supreme Court, the 11th Circuit Court of Appeals and the U.S. Supreme Court. Without a doubt, Judge Brasher will bring a renewed focus to upholding the law as he assumes his new position on the federal appeals court.”
U.S. Senator and former Texas Solicitor General Ted Cruz, R-Texas, said, “One of the most important legal developments of the last quarter-century is the rise of state solicitors general. State attorneys general are recruiting top-tier legal talents and empowering them to have a significant impact on major constitutional issues being litigated across the country. Unsurprisingly, that top-tier legal talent is more and more being looked to for judicial nominations.”
Brasher’s confirmation raises the number of former state attorney generals appointed to the federal bench by Pres. Trump to 26.
“They’re all outstanding lawyers with remarkable academic records and were distinguished practitioners long before they came to the attorney general’s office,” Marshall said. “But beyond that, solicitor generals were involved in the most significant constitutional cases around the country, which is, I think, a perfect training ground for individuals who ultimately make those decisions.”
Republican Attorney General Association (RAGA) Chairman and Louisiana Attorney General Jeff Landry saod, “If you really want to impact policy—which is kind of sad when you think about it—really, AGs have been able to impact policy greater than anybody of the legislature right now, because of the litigious nature of our [political] environment. So it’s been a great way to actually get some things done.”
RAGA Executive Director Adam Piper added, “When you have folks who for eight years were the last line of defense for our nation and the rule of law, it’s a pretty good predictor [that] these folks are rock solid, making them one heck of a farm team and a pretty easy call-up. It’s not a risky move as we saw with frankly a lot of the Bush judges. You were taking folks up and kind of like shaking a Magic 8 Ball hoping they’re gonna be conservative judges.”
Brasher has served as a district judge for the Middle District of Alabama since May 2019, having been first nominated by President Trump in April 2018. Prior to his time as a district judge, he served as the solicitor general of the state of Alabama. In this capacity, he argued cases in front of the U.S. Supreme Court, the U.S. Court of Appeals for the Eleventh Circuit, and the Alabama Supreme Court. Brasher tried cases in Federal and State courts, during which he won two “Best Brief Award” honors from the National Association of Attorneys General. Before his appointment as Solicitor General in 2014, he served for several years as Deputy Solicitor General.
Prior to joining the Alabama Attorney General’s office, Brasher practiced in the litigation and white collar criminal defense practice groups in the Birmingham office of Bradley Arant Boult Cummings LLP. Brasher also served as a law clerk to Judge William H. Pryor, Jr., of the U.S. Court of Appeals for the Eleventh Circuit after earning his Jaw degree from Harvard Law School, where he graduated cum laude. During his time at Harvard, he was a member of the Harvard Law Review and winner of the Victor Brudney Prize. He was also the first of his family to graduate from law school. Judge Brasher received his Bachelor of Arts with honors from Samford University in Birmingham, where he graduated summa cum laude and currently serves on the Board of Overseers.
Brasher’s confirmation was opposed by many in the Senate.
U.S. Senator Chris Coons, D-Deleware, said in opposition to Brasher’s confirmation, “Voting rights are at the very foundation of civil liberties and civil rights in our society, and we should be doing everything possible to protect and defend them. I’m gravely concerned that Judge Andrew Brasher, if confirmed to the Eleventh Circuit, would only continue the efforts to roll them back. Judge Brasher’s record and lack of candor during his confirmation hearing show that he is unfit for this appellate judgeship in the Eleventh Circuit, and I will be voting no.”
Andrew Gillum is a former Mayor of Tallahassee and was the 2018 Democratic nominee for governor of Florida and is a fellow at People For the American Way.
“I am deeply, deeply disturbed about the nomination of Andrew Brasher to the Eleventh Circuit Court of Appeals,” Gillum wrote in opposition. “This nomination is being engineered by the Trump White House and Senate Republicans with a very specific agenda in mind. This nomination is a very deliberate nail in the coffin of voting rights in the Eleventh Circuit, at a very deliberately chosen time in our history.”
Benard Simelton is the President of the Alabama State Conference of the NAACP.
“From Selma to Shelby County, Alabama is ground zero for voting rights,” Simelton said. “Andrew Brasher has been on the wrong side of every voting rights case he has touched. His nomination is a slap in the face to African Americans, and in particular to our heroes like John Lewis and Dr. Martin Luther King, who risked their lives to get us the vote. As we celebrate the 55th anniversary of Selma, we call upon every senator to honor those who marched by voting against Brasher’s confirmation.”
U.S. Senator Doug Jones, D-Alabama, was a “No” vote on Brasher’s confirmation.
Sen. Jones said recently, “In To Kill a Mockingbird, Atticus Finch said, “The one thing that doesn’t abide by majority rule is a person’s conscience.” All along, my conscience has been my guide. But voting my conscience does not require courage — it simply requires doing what I know is right.”
“Another good, solid conservative judge has been confirmed, yet Doug Jones voted no. Just the latest reminder that we MUST #DumpDoug!” Senate candidate Congressman Bradley Byrne, R-Montrose, said on social media. “In the Senate, I’ll vote to confirm President Trump’s judges and work to make sure our Constitution is protected against activist judges.”
Report: Cost to operate county jails, sheriff’s departments increased by $93 million since 2014
The Association of County Commissions of Alabama (ACCA) released an updated research publication yesterday showing that the cost to operate county jails and sheriff’s departments statewide increased by $93 million from 2014 to 2019.
The research publication, named “Alabama’s Unresolved Inmate Crisis,” was updated from its initial release back in December to include data from the 2019 fiscal year from Alabama county governments. ACCA’s research highlights the growth of state inmates in county jails over the past five years.
“Funding the growing needs of county jails and sheriff’s departments since 2015 has been done by reducing other services at the local level, ” ACCA Executive Director Sonny Brasfield said in the report. “For counties, that’s really the only option available.
“At this point, we’re very concerned that counties will soon have to look at reducing law enforcement costs to pay for the parole and probation violators and Class D felons who — since 2015 — now have to sit in the county jail, where taxpayers pay for their medical care, lawsuits and housing.”
Based on the recent data collected from a January 2020 survey of all 67 counties, the publication’s most significant findings show:
- County jail operation costs increased by $43 million from 2014 to 2019, which is nearly three times the rate of inflation during that time period.
- County sheriff’s department operation costs increased by $50 million from 2014 to 2019, more than two and half times the rate of inflation.
- Combined county jail and sheriff’s department operation costs increased by $93 million from 2014 to 2019, nearly three times the rate of inflation.
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