On June 14, of this year, Judge William Shashy, a Circuit Judge in Montgomery County issued an order in the case Barbour County, Alabama, et al. V. Michael Haley, et al. The order is the product of litigation initiated in the early 1990s by most county commissions and sheriffs of the state. The litigation was initiated in an effort to force the State of Alabama Department of Corrections to comply with Alabama law and remove state prisoners from county jails in a timely manner.

The judge's order is comprehensive and could have far reaching consequences. Judge Shashy gets right to the point when he stated that, "… the Commissioner of the Department of Corrections has willfully and deliberately chosen to violate the duties imposed on him…" He went on to say that, "The Court is therefore left with no alternative, but to fine the Defendants for each state inmate left in the county jails."

The following are restatements of the ten major provisions contained in the order. Also provided below is a list indicating the amounts to be received by each county in the form of coercive monetary sanctions as required in provision 1.

1. The Commissioner of the Department of Corrections and the State of Alabama are hereby assessed and the Counties are hereby awarded coercive monetary sanctions from September 3, 2001 to April 16, 2002 in the amount of $2,161,276.00. Unless the conditions as stated in paragraph 2 of this order are satisfied, this Court hereby orders the Defendants and the State Comptroller to issue state warrants to each county on July 26, 2002 in the amounts set out in Plaintiff Class' Exhibit 4, Table 4, which is attached hereto.

2. If, within thirty (30) days from the date of this Order, the Defendants fully comply with the orders of this Court and purge themselves of contempt and file a notice with the Court, certifying under oath the fact of compliance, then this Court will issue an order to the Special Master to recalculate coercive sanctions starting with December 3, 2001. Thus, if the Defendants remove all state inmates from the county jails who are being held in violation of the 30-day Order within thirty days from this Order, then Defendants will not be charged with coercive monetary sanctions from September 3, 2001 through December 2, 2001, which will result in a reduction of the sanctions by over $500,000.00.

3. Beginning sixty (60) days from the date of this Order, the $26 per day coercive sanction will increase to $50 per day for every inmate held in a county jail past the 30-day Order.

4. If the Commissioner of the Department of Corrections has not purged himself of contempt ninety (90) days from the date of this Order, then the counties and sheriffs may petition this Court for more severe sanctions, including coercive incarceration.

5. Pursuant to the Findings and Recommendations of the Special Master, the Defendants are hereby ordered, by July 26, 2002, to pay to Webb & Eley, P.C., counsel for the Counties and Sheriffs, attorney's fees and expenses, which were reasonably incurred in the amount of $153,824.39. It is this Court's understanding that this money will be reimbursed to the counties.

6. Pursuant to the Findings and Recommendations of the Special Master, it is further ordered that the Department eliminate immediately its practice of reclassifying state inmates contrary to the sentencing orders entered by the courts of this State. To that end, it is hereby further ordered as follows:

A. The "Sheriff's Hold" designation should be eliminated immediately and replaced with a code for "Judge's Order," but only after the Department has received a written and amended sentencing order from the sentencing judge;

B. The code "RE" should be abolished immediately;

C. The "PC" code shall be abolished immediately. The Department's practice of refusing to transfer inmates into the system with pending charges shall be eliminated, unless ordered by a Court.

7. The matter relating to inmates sentenced to boot camp is again referred to the Special Master to make further findings and recommendations after more evidence has been presented on the issue. The Special Master shall file such recommendations on August 1, 2002.

8. Based on the Findings and Recommendations of the Special Master, a validation form shall be established for use by jail personnel by which officials of county jails may notify the Department of any state inmates who are transferred to another county jail, released on appeal bond, or otherwise no longer in jail. The parties shall jointly prepare a form within fourteen (14) days from the date of this Order. If the parties cannot agree, then the Special Master shall devise the form. After the form is completed, the sheriffs of each county within the Plaintiff Class must accurately complete and timely return the form to the Department once a month. Once the process for using a validation form has been implemented, the sheriffs required to file lists of state-ready inmates under paragraph 3 of this Court's Order entered February 15, 2002 will be relieved of that obligation.

9. The Commissioner shall prepare a written policy on accepting state inmates from county jails, which complies fully with the orders of this Court and provisions of state law. The Commissioner shall file a certified copy of this policy with the Court within 60 days from the date of this Order. The Commissioner shall serve a copy to the Special Master and to all counsel of record.

10. The Commissioner, beginning July 26, 2002, shall file weekly reports with the Special Master and the Court. This report should list each of the 67 counties and beside each county, list the number of state inmates being held in each county jail past this Court's 30-day Order. A total should be given for all counties. The Commissioner should not file lists of names of the inmates but only the numbers of inmates held in violation of this Court's order by county, with the total given for all counties. The Commissioner shall serve a copy to the Special Master and to all counsel of record.

There are several things county officials should keep in mind as they contemplate what this order holds for the future. First, the order can be appealed and no one knows how long it would take the Alabama Supreme Court to issue an opinion. There is a strong likelihood that the Supreme Court would issue an opinion and send the case back to the trial court with instructions for further proceedings. It may be many months or years before the case would be brought to a conclusion.

Second, if the case does reach the Alabama Supreme Court, the court will be faced with the problem of determining the affect on the case of Amendment Number 582 to the Alabama Constitution. The amendment provides as follows:

"No order of a state court, which requires disbursement of state funds, shall be bind- ing on the state or any state official until the order has been approved by a simple majority of both houses of the Legislature. This amendment shall not apply to orders, judgments, or decrees requir- ing payment of compensation for the taking of property by eminent domain or arising out of challenges to taxation or to such other orders, judgments, or decrees as may be other- wise required by statute, or settled principles of Alabama common law as decided by the Alabama appellate courts, not inconsistent with other provi- sions of this Constitution. Nothing herein shall be con- strued to preclude a court from making findings of fact or con- clusions of law and orders relating thereto, that standards required by the United States Constitution, the Constitution of Alabama of 1901, laws of this state or of the United States, or rules or regulations promulgated pursuant thereto, are not being met, and from ordering the responsible entity or entities to comply with such standards."

The defendants in the case will contend before the Supreme Court that the monetary sanctions in the order cannot be paid unless the Alabama Legislature approves them. Judge Shashy addressed this issue in his order and concluded that the amendment does not apply to coercive monetary sanctions or attorney fees awarded by the court. If the Supreme Court thinks that Amendment 582 does apply to the monetary sanctions ordered, the plaintiffs (counties and sheriffs) would have to wait until the Alabama Legislature comes into session and convince it to appropriate the money ordered to be paid.

Finally, if the Supreme Court agrees with Judge Shashy, there will likely be a round of legal maneuvering aimed at determining how the courts can force the state to pay the money.

There is one particular provision in Judge Shashy's order that is clearly not affected by Amendment 582. The order states that if the Commissioner of the Department of Corrections does not purge himself of contempt within a certain period, the counties and sheriffs may petition the court for more sanctions, "including coercive incarceration." Stated differently, if the Commissioner does not comply with the order, the judge may order him to be put in jail.

The Board of Directors of the Association of County Commissions of Alabama, at a meeting held on June 27, 2002, discussed this case at length. They specifically addressed the issue of taking steps to have the Commissioner of Corrections incarcerated if he does not comply with the judges' order. The Board members authorized the attorneys representing the counties and sheriffs in the case to file proper motions to have the Commissioner incarcerated if he does not comply.

County officials should be very pleased with Judge Shashy's order. County commissions and sheriffs have waited years for an order of this nature. Everyone should keep in mind, however, that the case is far from over.