Most people consider Alabama's judicial reform to have taken roughly a decade. However, judicial reform throughout the state of Alabama as well as the nation has taken much longer. Nationally, the initial judicial reform efforts were a part of the general reform movement beginning around the turn of the twentieth century. Alabama did not join the reformed ranks until the 1970s. The road to reform in Alabama was not an easy one.
In 1798, the Mississippi Territory was created by an Act of Congress. The Act provided for the Presidential appointment, for life, with Senate confirmation of three judges (Peter Bryan Bruin, William McGuire, and Daniel Tilton) for the Territory. This gave Alabama their first structured and formal judicial system. The territory also adopted a code of civil and criminal laws that were based on the laws of the Northwest Ordinance. Throughout the first ten years of the Mississippi Territory, more counties as well as separate judicial districts were created in what is now Alabama. Eventually, the Alabama area was organized into seven counties in which a judge had to hold court twice a year. The Alabama Territory was established in 1817 and in 1818 the Territorial Legislature created three judicial districts. In 1819, Congress passed an establishing act which authorized the Territory to write a constitution in preparation for statehood.
In 1819, Alabama Territory held a Constitutional Convention in which Alabama's first state Constitution was adopted. The Constitution provided for: universal white manhood suffrage, no property qualifications were required to hold public office, the Legislature was made the strongest branch of government, the Governor was to be elected for two year terms, and Sheriffs and county court clerks were also to be elected by popular vote. Clement Comer Clay probably had the most influence in creating the provisions of the State's first judicial system. Clay even wrote the Alabama Territory petition for statehood and chaired the committee charged with writing the original draft of the Constitution. Once Alabama became a state, Clay was elected as the first Chief Justice of Alabama. During this time, judges were appointed by the Legislature for life. There was an age limit of 70 years. Overall, the Legislature controlled the judiciary and the judiciary was not a coequal branch of government.
Following the adoption of the 1819 Constitution, additional circuits were added to the original five. In 1830, the term for circuit judges was set at 6 years. In 1832, a separate Supreme Court was established and consisted of 3 justices elected by both houses of the Legislature for 6 year terms. Beginning in 1850, circuit judges were elected by popular vote instead of appointed. During this time, there was very little change in the judiciary. The most significant change was the popular election of judges and justices. The Legislature still had control of the judiciary. The judiciary was not a system at all, but a collection of courts with different funding sources, rules of procedure, and did not consist of any elements of a unified structure with centralized administration.
The 1901 Constitution was the most restrictive constitution of any state and left the judiciary essentially as it was. However, the legislative branch received more power. In 1915, Governor Emmet O'Neal called for revision and reform of the 1901 Constitution, establishing the 1901 Constitution as the baseline for reform. Many provisions have been changed by Acts of Congress and federal court decisions. Most of the 1901 Constitution kept its basic structure except for Article VI, The Judicial Department, which was revised in 1973. At the end of Governor O'Neal's term he delivered a report to the Legislature, in which he devoted a major part of his report to a review of the judiciary and called for extensive judicial reform. His report was met with limited success. Governor O'Neal recognized that Alabama was behind other states in the judiciary and that there was an imperative need for judicial reform. While a big push for judicial reform was stated in Governor O'Neal's 1915 report, he started looking more closely to the judiciary a few years before in 1912. In 1912, he appointed a committee to study the judiciary. The results of this study lead to the 1915 Special Commission on the Judiciary, appointed by the Legislature, which reviewed many of the procedures of the judiciary and find ways to simplify their methods of practice and procedure. If judicial reform in the State of Alabama has a specific and identifiable beginning, it is the 1912 O'Neal study committee which resulted in the 1915 Special Commission on the Judiciary.
The Alabama Legislature established a Judiciary Advisory Council and a Commission for Judicial Reform in 1955. The Council consisted of three members of the Senate and four members of the House of Representatives. These members had the responsibility of appointing between seven and eighteen members form the Bench and Bar of the State of Alabama to serve as the Commission for Judicial Reform. In 1956, the Legislature funded the Commission. Members of the Commission included several judges, justices, and attorneys from the state of Alabama. The Commission did significant work in 1957 when they created a new set of rules on pleading and practice. These rules would bring about innovation in the Alabama judicial system. However, the State was not ready to adopt new rules and ignored the work of the Commission until 1971. The work of the Commission for Judicial Reform represented the modern day beginnings of the spirit of reform which would carry over into the 1970s and result in the new judicial system.
In 1961, Act 61-74 was established by the Legislature. This Act created a Judicial Conference for the State of Alabama. The Conference was charged with the responsibility of making a continuous study of the administration of justice in the state and to present reports to each regular session of the Legislature with recommendation for improvements in the judicial administration and rules of practice. The Alabama judiciary was being changed a little at a time. That same year, Howell Heflin was elected president of the Alabama Bar Association. During his presidency, he created numerous committees related to judicial reform. One of those included a committee to review the feasibility of a Citizen's Conference on State Courts. The first Citizen's Conference was held in 1966. This Conference made several recommendations including: creation of a judicial administrative office, abolishment of the office of Justice of the Peace, a uniform statewide system of lower courts, merit selection of judges, and an independent judicial commission. Everything, except for merit selection of judges, was incorporated into the reformed Alabama judicial system.
Apart from the work of the Conference and from the general effort being led by Heflin to reform the judiciary, in 1967 the Legislature created a Constitutional Revision Commission to recommend procedures for revising the 1901 Constitution. There was enough support to establish an ad hoc committee to study the best approach to revision. In April 1967, a resolution was introduced calling for a Joint House-Senate Constitutional Revision Committee. After the resolution was passed a committee of 6 was designated to review the general problem of constitutional revision. The committee proposed that a preliminary study be undertaken by a Constitutional Revision Commission which would serve in an advisory capacity to a constitutional convention and also report to any special or regular session of the Legislature.
At that time neither Governor Lurleen B. Wallace nor the Legislature was receptive to any proposals that could lead to comprehensive revision of the Constitution. That changed in 1969, however, when Governor Albert Brewer took office. He was very interested in the idea of constitutional revision. With Governor Brewer, the idea of creating a Constitutional Commission had the support of the Administration. In September 1969, the Legislature created the Alabama Constitutional Commission (Act 69-753) which called for a 21 member commission that included 14 appointees of the Governor, the Senate president, the Speaker of the House, 3 designees of the Speaker, and 2 designees of the Senate president. $100,000 was appropriated for the work of the Commission.
Howell Heflin was elected Chief Justice of the Supreme Court of Alabama in 1970. He was a strong believer in the doctrine of separation of powers and thought that state judiciaries throughout the nation were not holding up their share of the load. He immediately started working on making Alabama's court system a co-equal branch of government. Heflin believed that to allow the state courts to improve themselves it was necessary for the legislature to transfer rule-making authority in judicial matters to the courts. He asked the Legislature for a Department of Court Management to help carry out the mandate that the Chief Justice of Alabama had to see "that the business of the several courts is carried out with proper dispatch." He also asked the Legislature for many reforms that pertained to the judicial system of Alabama that would give the judicial branch more authority including 2 constitutional amendments that would need to be voted on by the citizens of Alabama. The legislature enacted all of the measures Heflin requested. After these early successes, which involved creating a Department of Court Management and a Permanent Study Commission on the Alabama Judicial System and the Alabama Law Institute, Heflin focused on the Constitutional Commission. He knew constitutional revision was needed.
In 1973, the Second Citizens' Conference on State Courts was held and the chair of the Constitutional Commission met with the Conference. With respect to the Judicial Article, the Conference an Commission forces combined to work for constitutional revision. The Commission's report was due to be presented to the Legislature on May 1st.
As Chief Justice, Heflin met with the Commission several times to discuss the revision of the Judicial Article, or Article VI of the Constitution of 1901. The Commission knew that the Legislature could not handle the entire package at one time, so they decided that the portion of the new constitution dealing with the judiciary, Article VI, would be the only section introduced in 1973. Heflin, and other interested parties, had the role of getting the Judicial Article through the Legislature and ratified in a public referendum. Heflin knew that attempting to change and revise an entire section of the constitution would not be an easy task and that he needed support from every segment of the state's populous. Support from citizens who work in fields not related to the law needed to be the forefront for revision of the judicial portion of the 1901 constitution to be successful.
With the help of the Citizens' Conference and the American Judicature Society, Heflin arranged for the Second Citizens' Conference on Alabama State Courts to convene in Birmingham, April 5-7, 1973, less than a month before the legislature convened. Over 200 citizens attended the three-day conference. The conference recognized the improvements made in the state's judiciary in the 2 previous years under Heflin's leadership, called for additional improvements and reforms, and urged the Legislature to let the voters decide the fate of the proposed Judicial Article.