Lawyer 1 90 web by Alabama State Bar Association

Attorneys Insurance Mutual of Alabama, Inc. The AIM Board of D ireCtors and l 700+ Su b·

scribing Alabama At[Qrneys are pleased co announce the co mmencement of operatio n of Alabama Anorneys' own malpractice insurance company: If!

DEDICATED co conti nuous service, yea r-afrer-year. to Alabama attorneys.

'" COMMITTED to fair premium rates . • ADMINISTERED in Alabama.

'" INSISTENT on prov iding broad policy cover3ge for its insu reds. If<

ORGANIZED by and for Alabama attorneys and providing its insureds with a vo ice in company goa ls.

The sea rch fo r a rel iable malpractice insurer is now over! Annual premium quotacions are available directly fro m AIM. AHorneys Insurance Mutual of Alabama, Inc. 22 Inverness Center Parkway Suite 340 Birmingham, Alabama 35242-4820

(205)980·0009 (800)526.1246 FAX (205)980·9009

TOOT

~[j'@Wil~@[j'@ ~[j' @ @llil@~ @ 1]@[j' ®

.F01 SOLID

~O®[Q)®Wil® ~[j'®@~~ @@

NEWt Automobile Insurance Law by Davenporr 11 1989

Criminal Offenses & Defenses in Alabama by Chlsrkas, Chiark8s, & Ve/gas

C1982 Criminal Trial Practice 2nd Ed. by Ch iarkas (1 1988 Criminal Trial Practice Forms 2nd Ed. by Cl1iarkas 111988 Divorce. Alimony & Child Custody w I Forms 2nd Ed. by M cCurley & Davis

c 1988 Evidence by Schroed er. Hoffman & Thigpen " 1987 Equity 2nd Ed. Tilley's by Hansforc/Cl 1985 law of Damages 2nd Ed. by Gamble Cl 1988

limitations of Ac tions & Notice Provisions by Hoff Cl 1984 Workmen 's Compensation by Hodd, Hardy & Saad Cl 1982 • Including Current Supplement, if applicable.

BONUS OFFER Buy any 2 o f tt1e above titl es and receive 7 % OFF the TOTAL RETAIL PRICE . or any 3 - 9 % OFF . or any 4 - 12 % OFF . or any 5 - 15 % OFF. or any 6 - 20 96 OFF

THE]if HARRISON COMPANY, PUBLISHERS 3110 C.ootlfo.t P., k' jJ 0 8'0 noo · Hewe,oll. OA 300"-1500

89 -C 3

The Alabama l,," yef

The Alabama

•

3"\Vyer

1VoI.....o ........ '..... ' __ ~ ,1>0 ..................... ~o to. ~I" _ _. '" 100'01

_.1. . . .'. .

....... '19)'16""1

'_11_

t_ . ._... . .

....... ~ i. 1I<'I'..... - .... IOt_I~"OI

.........

~ .~ ...

......I <J1 ."''''''' ........ N ,0 •• n ... , rOo ••• " •• , .....

I-

' _ " , I ... .

. """"- • , .... _ ............... . r_ DwIIoo

... . ,r_......,.......(".. r..-.- "

I ............. • ........ A ' - ''''' ....... .

'......,.,'-....... . .... c....W ..... I ...... · . _ . _ ~=

C.C I,,,.,..,...... ' w " .... _

_If

INSIDE THIS ISSUE _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

An Introduction to federal Administrative lilw Part II: The Availability of Judicial Review - by William l. Andreen .... . . . .................... , ...

In the final j n ~tallmCl1t of ,I two-PMt <,erlc~, Profe~~or Andrl'!'n dj~ru~w~ the availability and ~copc of judicioll review of admlnlSlr.ltlVC rullllg~.

,_ " _1""'_10 ' ~ ' _

noll,

• ..,II-

...... t,,. ..... _

.a..lrH)I COW>IIIIIO'IIOl IW\(lIO W A.... I ......

<Ao<_'

e."" ",'''''''''', _ .. . W, ..... _ . MOoI ..... , , _ ...., . j(Jho [Jo."" ...,

""". VI<_._. O"' ~ II. "".t

11<" .... t " ...... ' _

\0\ ......

tOA.OOl(o-"_"\,. O" .... .....r,!·

',.....,'.......... 10 · ,"' ... I,..... ____ ......., (t.,..., • • '"'~~

• ,t~ . ) ... (, .......",. , .... _ .

rle

, _ _ ~ SoI ..... \o"':I~ ..... I ... '''' " _ . 1 _

. .... c.. ..., "...... I ""'''' • ..... , '''' u-. ' '''''r. .... (..,." "', ..... "'", _ I. "'_ ... ,_ A a - ,.... ...... . 11k "'"'" • .., .. , ~_

_I_

Rule 32, Alabama Rules of Judicial AdministrationChild Support Guidelines - by Judge Ri chard H. Dorrough ....................... .

The Child Suppon Guidelines c5tabli~h(.'(1 by Rule 32 of the AI,1boln1:l Rul~ of )udici,ll Administril tion set parametcf\ (or

juchd:ll :lw.lrds In domc\lic

rcl.lljon~ IlrocCi.!dlng) .

CI~

I Cw-. Oto._ . .... ('~"'. 1'1 .. ,• ..... . T , ...... ,Oifttt~"''',,,,,,,

II ...............

It , ...... ~ , , _

.... . 'OIhO" .. ""' .... 1._""1.

lc'...

t,_' ...... . , ... ("" ... _ ...... ,,_,0010<\1,""""'" _ "e"""",,_,""',<*'01 .""'... ..... ""' .... 1,,_0.....'_., ............ 1"'_" ___. ''"'''''' •,1l1l1i..."l1'-li ,... ,......... e..... s "' ........ _ ' - ' . '(I0I0(1 .... ., ...... L.... <lll~ ....... • lOll'< C....... .......... II,• • , ( ........ 1 , _ .,....~_

_ e..... ,,",,_ ......... ,_...... ,.. ._.·,l ....." .. ',fot.... " ,..cr_

r-., _ _ _ _ _ · " .. t .. ,~

,~c"'~"

...

~._

~ . , .... 0.. ............ /, lIoo. (, , _ _ _ . 'Jfo( ............... ''''' .........., _ . , ... , ... "'"'-_ .. ' ........... . ' ... r .... f'Io< .... I,t._

" (;0' _ _ · '''''r............... ,.t......._ ..

....

_.,_

e-,..,..... , '_.'... ...... ,...... \000II11 _ · I1"e ..... _ , ' ...... " , " _• • ' .... CIo< .... , . - _ """""' " "' ·11 ... "" ... "" ..... ,.r.-oow ,-.... . n .. "....._.11,_

" " " " ' - _ . , .. 0.. .. "" .... " .......

_ _ _ . , ... C....... ~ · '110 (,,,, .... t._1 - - . _ , . ' .... 0..""010 ... _

(

' l'OIO!(....... """",.

_It . . _.~

(:Io,."OIo< ..... ,

..... . '".. c..... w ..... <O«w"""" .......... . ,,,,,, .. , ......." " ' _ , " _ .... · 1.... '''' ... ,

..."_.,.. . ,'""',,.... , I ( _ _ ""'1"" C>o< ... _ ' .... 0 - . ..... _ . .... "" .............. w , _ " _ . .. ",,,... 0.,. ' II" C...... Goo""'" ~ _ _ • " ... , ......

_r ,_'""

_ no,," 0:., ... , Cooll .... .

" .. co ..., \\I.L1 ..... "'" _~ 0' .... Cl<wtl, \\I.~'.," ... _ " ...,." ""• • I .... Ct~ .... ",11 .... 0 ........ , ' - ' _ ' ,."" ...

Pf~ )idt'nt'~

f'xffutlVI'

P.11),:, Dlr~tor'~

Report

Leltel'S to the Editor About Ml'moor\, i\moos

_v. . . ;,. . . . . . . . ,._""_ "._111 .... "..."" ..

... _<01 .............. ..,._..... "'"""'''''''..... _ ' ' , _ 0 1 , . . _ _ I" ......... _ ... _ .... .,.. n..

_.- .._

~.,._

A""'" , ........ "... .. _, ........ ~ .......... _

..... ..,., _ ......"",,_lot U.. _ - - , - ..

I II

u.. .... ...

_____

od."'..'--..., ' ' ' ' __ '''''''''''' ........ ___,ttl ...... . "'" ..... ... ~'

''''

.-~,

AII _ _

~c..,,,.

Lawyers in the Family BUilding i\ldbanld" Courthou~...

Opinion~ of the Gl'nerdl Coun~1 Memor"ll,

CJ"~~lfll"d NOlLtl"

"" ""

_. """-,,,...,. I'IIW

1',0.

8o~

Atdb~m. Sw ~'lo;I

671 · 415

e 8M "ud-!tu~rl rrl SI.fl i\venue · MOilllIOmo;'y. i\I"I}.Im~ 16\01

(205) 26'1·1515

ht'(:urlve Dhl'(;'Ilf Rl'gin.(d T, tl amnN. C/IL Kel'h 8. NO"MIl 01,<'(101 of hecullve i\sslstilnt Ma'gol!lIt 8oonl' p"bllc.tooM 011000' M~'II<'''~ td(('y Adml"lon. 5e<;II't"'Y, NlllmJ J Robbin, Memfxofihlll ~Icrs /lllcr 10 H...... dn~

"'D8'."'"

Commltlt~· 'it'(:rN~'y rlll.Hlel~1 ~'UN"'y

MCl l

l~Wyf' GI~ I,.nlc

IOllA

Kl:'ferrJI

~,e!Jry

i\,t- <;"llt'fVl..rn-

0101.'(;10'

RP(eptIOll' ~1

01.",,, W~ldOl' (,,111.' !.lclnn..., JO\ Melnlnj\/.'r M"I!8I~ Shill,·,

l'.ky DAnlfl "I<;CullQ[h

E~('I~n

i\lab.tnta SIJh' 8J' Center fur I'IOIrnlOll.lI It~ibility 10 19 Sourh Prrry 51'<'('1 ' Momgomrt'f, (20S) 169·151~

lr~n.-.

..... _ I l """ _ ....... ......., .""",bh-...."""""

Fhm~

Join u~ In Birmingham Fcbru,u-y 2 to tt!i('broll(o thl' Bict'nlennlal of the 81 I of Righl~ and have dinner with the Ilonorable Anthony M. Kennc£iy, a~!oOCjale JU)lice of the United Stilles Supreme Couf1, MI . jU)lict' Kennl>dy will address the Fr day night audience on Ihe "Rule of Law." D,lytime activilith indude c::omlm!I(.-'(' Jnd lil~k fnrt'(' m{'('ling~ (lround Birminghilm, 11 Bicentennial luncheon, .lfternoon lectures ,md .1 cockt,lil wCej)llon. For more Informa tion, contact Ihe A1JbJIll<l St.lIt' BM .1t P.O. BOl( 671, Mont· gomery, Alabama 3610 1 or 269· 1515.

\'0"" ... 1001./<1"" __ ..... U O _ III< ..... ..... _

Voo*"'~Irt-

Dio,(lplindry Rl'pclrc

1ho_,....,..."....",___ ."...Jot ")1>""

Comult.lnl'\ ComN

!'MI ...... _ " ' _ ..... ..,

.....

Dl'c1~IOIl~ le8isl~liv(' WrJp-Ujl

"w._.

Recl'n!

'''''"' _ .... v L_ ~ ...... G U.'~I ' .. '0. .... '10 .. n....10_ ,,_"', "'~ 0lI01-0'11), .... 0lil< .. , ""'kotiM 01 ... AI"" ... I ..... " ,

.""101'\' """""".

Cl E OPPOftw1l111"

6df 611cf~ i\11Omey\ Adml1ll'Cl/f~1I 1989

·)0'" ,""'_, _"._"",,,,,"'>o<""""'"opl_, 1'.0p0i ... • '"' C""'!OM ' _ ....... _ . ,.., "o.obI _ _ ..... . ..... y• ..,.. ....... " ,...,

4 5

, .... _ " " " .. _ , A I

~C'>f'tiI!

POSlm,nlt!r: Send addr(.'S~ chanHI:'~ 10 The Alabam.l Law yer, P.O. Box

i\nilt''"t

CoIln ....·1

c-"I

i\s~lstilnt GrIl(',~1

i\",.t~n! Cfl1>\'r~!

RDl.It'n W No.."

lohn A. YunM. IV Counsej Coun{,('1 i\1('~ W I~~""" Coon",l. J. i\nthony "\(:L~ln

i\1~b.lm~ J6IO~

Viv>on F......nun Itut~ Stfl(kl~nd

ne<yl R~nk,n Donnl. ",",..,nO!

4156, Monlgomery. AL 36101. 2

January J 990

<M.t'\

LA WYERS SERVING I'U.J"I..[

President's Page he org.1n l.;;ed bilr rrll (NCr Americoil Is relurning 10 a renewt.-'d commltmcmt to professionali sm. The Image of lawyers Is turning around, and the credit should go to lawyers th em· selves. The answer, dear Brutus, is not in the stars, but in ourselves. Al abama Iilwyers ,He doing th eir part. I am referring to the creation of the AliIbama Capil<ll Represen tation Resource Center loc:ued in M(Jrl tgomery. The resource center is a non.proflt orgalllz:uion providing represen tation to death tCNI pri soners and assis ting auorn eys handlIng capi tol cases. Th e concept of creat· ing a resource center first grew ou t o( concern by federal and state judges thai PfOC(.'Ssi ng death cases through the court system hod rea ched the cri sis stage. Jud ges John Godbold and Paul Roney of the Eleventh Circui t Court of Appeal s, CAINE togeth er wi th former Chle( Justice C.C. Torbert, Jr., requested that the bar stud y this problem. In November 1987, bar President Ben Harri s appointed former Governor Albert Brewer to chair a task force to con· suit with the courts ilnd recommend to the bwrd of commissioners a progra m to allract competent civil trial altorneys to volunteer to represent persons on AlalXlma's death (CNI. The private criminal bar si mply has had to shoulder th e problem too long. Alabanla has one of the rlallOI'l's largest and fa stest grt'IWIng death row 1)OI)ulmlons. There are present ly 109 I>COpie in Al aooma under sentences of death with another 125 people currently fa cing cilpital murder tri<ll s or sen tencing hearings. The problem in Alabama i5 the number of I~rs l1V(Ii lilble to handle the pendi ng cilselwd. Alabamil has the si xth largL-'5t death ra.N l)Opulation In America and Me of the smallest bar-to-prlsoncr ratios among the south· ern states where a majority o( th e capital cases origin ate. For example, Alabama has 70 attorneys per death rCNIln· mate and Mississippi, the next state in line per rati o, has 98 attorneys per c<lpilal defend<lnt. For the past few years, Alabamil has had to rely on oUl-of-state counsel with increa si ng rel!ularily.

Tht! rt!S()tHCe cen ter first btlgan 0 1>1:1'(1ti ons in February 1989 after rect!ivlng grar'lS from the United SlateS AdminIstrative aUlce of Courts and the Alabama law Foundation, the University of Ala· bama, the Southern Poverty law Cen ter and the Southern Prisoners' Defense Committee. The main office is IOCil tcd ill 444 Clay Slreet in M ontgomery imel 0l>crates with an execu tive director and eight stMf members. The resource center was fortunate to aUract aUorney Bryan StEM!n >on as lis first executive director. Stevenson assumed the position with outstanding credentials. He worked as an attorney with the Southern Prisoners' Defense Committee for five yeilrS. l'le eilfm..od his juris doctoriltc at Harvard Law School and also holds a masters degree In public pol icy from the Kcrlnedy School of Govcmrl'1cnt at Harvard Universi ty. I have every con fiden ce the cen ter will function well under his leadership. November 12 and 13, 1989, th e state bm sponsored a Cal)ital RcI)reSentation Resource Center Conference in 8i rmin ghilm. L,,-w/ firms throughO(l1Alab(lmil wi th nine or more members were Invited to send a representa tive. The purpose of Ihe COnferen ce wa s to acquall'll civil tli:.1 lawyers with th e opera tlor) of the resource cen ter and 10 encourage the bar to support and participate In the I)r'()o gram. The opening re l'l'larks by Alabama Chief Justice Hornsby brought th e conference InlO (ocus. NI believe thm cases carryin g the possibility of the death penalty are the most impol1anl cases our courts C(ln hear. There is n01hing I can think of Ihal is more final than death. II is awfully finill:' The chief ju~t ice pointed (Ju t that dc-ath cases in Alabama avt!rage a,lproximately eight years from the day the crime is conunlttcd until the date of execu tion. He sai d, "I believe eight years is too long to complete these cases, and It shou ld be Ihe res l)Onsibllity of our couns, both stole and federal, to insure that more of them do not fa ll throu gh th e cracks as they swing back and forth betv.-cen our systems. "While Ihe righllo fa irness and Justi ce and due process

(continued on P<'Sc 6J

Iilnuary 1990

Executive Director's

Report

Preserving self-regulation n recent months, I have received telephone calls tha t afC disturbing. not so much in their number as In their Inferences. I Wian t to shed some Ught On the substance of these calls

which concern actions pending or being investigated In the area of professional respon sibility. Under Rule 22. I do not necessarily know that a complaint has been made

against a lawyer unless il is personally addressed to me, Even then, I forward 11 din.."Ctly 10 the Center for Professional Responsibility. This is frequently done by my secretary without nly ever kn owing It was In the Dexter Avenue office. My role In the dlscl plirl1lry prOCeSS is lhm of a court clerk; I p!!riecl service of final charges .and receive responsive pleadings if charges are deemed proper by the Disdpiinaf)' Commission. I also can su/). poena witnesses. MOSt often my name Is "siamped" on lhe official papel"i in lhe process. I do nOl, however, servt':' a system Ih11l is on a peq>Clual " wltch路hunt" to " 1)Crsecute" 13wyers, Rccenttelephone Cl1115 from re5l>onden t attorneys or their attorneys too frequently imply thi s to be the case, The four very able lawyers who l)raCtice In the office of the Center for Pro. fesslonal Responsibility, their dedicated support staff and the elected volunteers woo serve on the Disciplinary Boards ilnd the Disciplinary Commission work within a very , finite and sllCCific set of rules, The Code of '>rofessional Responsibility and Rules ol DiscipliniJry Enforce-

The Alabama Lawyer

ment <lIld Procedure ale approved by the SUI)reme Court of A I ~bama , Likewi se. the loc,,1 bar gri evilnce commiU(..>e members who play vital roles in the process are volunleers and your professional peers, Their ta sk Is a thankless one, but necessary, While the vast majority of complaints are w ithout basis, each must be investigated. With increasing fr~ency, lawyers or their attorneys call me to complain Ihey have nOI had an opportunity to respond to a complaint that may have rCilclu.'(1a final siage In the proccu. The record s Simply do not Support their contentions. in most ca5eS, the lawyer has Ignored tilt! initial COml)lalnt or dlsrnl sSt.>d II as baseIt.'ss in his or her own mind , Our stOll( Or a local committee must process each complaint IQ resolution. An 'lUorney 's prompt cooperatioo can cXI:N!ditc an early resolution of a ba!teless complaint. Should formal charges be preferred, then the panel which rtears thc chargcs is designated by a rotation sys\Cm and the 51aff counsel assigned to the case Is likewise rilndomly selected with the on路 ly concern being a possible conflict or overall case load al the time. I am conc~rned Ihal a perception apparently has evolved that by design and intent " the bar goes aflCr lawyer 'X'" or a staff member has 11 personal nlative in the pursuit of a disciplinary action, This Si mply is not true, This reasoning demeans our I>rofesslon's most priled privilege-self-mgulalion , It Impugns the integrity of the vol-

HAMNER

unteers and paid Siaff who ;He working withi n our historic self-regulating process, Professional discipline Is a unpleasant task for both the volunteer and bar professional, but it Is essential. Every lawycr in the stale should read the Code of Professional Responsibility as well as the Rules of Disciplinary Enforcement. Too many criticizing this system have never bothered to read and attempt 10 understand them, You arc encouragL"CI 10 call or wri te Ihe office of the General Counsel for such assls....nce with the process as you may need to better understand a situation you may encounter. O ften a lawyer's interest Is provoked on路 Iy whcl'I a compl"lntlSmade agnlnst him (continued on page 6)

Report (cominuM (rom paEJe

I hope I haw 001exhibited a "thin skin" In discussing Ihis, but I am di5<lPPQinted

when good I~~ and good friends C.:III

or her. This is still not too t<llc. Macking

10 "express

the system, hONC\lCr, Is not m,'Ccsik1,ily

plilln or criticize) in su ch a way as to at· tack the Integrity of ou r process and, Indirectly, my own integrity ilS your c hief

the best dermIS!}. I would ask only Ihal you set!k to un-

the 5)'Slem bc(ore you or your counsel c,Weizc it. Pcrfccllorl may be lacking. but fllimcss to the public and the derslilfl(!

concem" (more often \0 com-

paid i.'XeCulive. Many of these same persons, ill other limes and under other cir-

cumst;lIlces, h~ decried II "lack of pro-

bar member demllnds its inle8rl1y be

fessionalism," It is only when the Issues

ilbovc reproach. This is the only goal of the stille bar for lIS self'fCgulilting process.

ilrc close 10 home Ih;u suddcrlly the sys. [I;m is vieYv'Cd with suspicion. •

President's Page

bama Itl'Nyef'S to come forward with a commitment to do their p..1ft to hell) ease the cri sis of c.Wlt,,1 reprcscntiltlon. I[ would be an easy imd simille reSIX>rlse for any civil [rlalllJW~r 10 decline partlcl p.ltlon in the program by reason· Ing lhat he or she did not have sufficient background and experience In [he hand· ling of crlmln<ll defense mailers. It wa s precisely for this rea son (h<ll the cenwr W,lS cre<lted. With the helll and ass i ~ tance of the center any ci vil triallawycr can adequ<ltely and competently repft.'.. scnl a death rOY>' inmate. I encour"se every lilwycr to consider partlclpatlng in the I)rogrilm. The need and the rew.. rds are great. Although medals and certificates are not given for ~ 3d of profesSionalism, there is sclf· satlsfilction frOIll knowing that a ~ a professional you free ly ch ose nOi to sit bilCk and allow SOmCQne else tod o the work, bot rt.'Sponded, as a professional. to a real need of the legal process. Truly, the reward for public service comes from the quiet voice within each of us which reminds us that we did not alxlicilte, bUI ra thl1r chose 10 dJ§charge our profl1So slana I duty to society In a much-needed ~. If tnc im<lge of lawyers Is to continue to g'ow in the cyt.'S d society It will take each of us doing our l>art. •

(conUnucd (rom pago 4)

must prev.lll, I am COnvinced thai the public has a right to see all ca ses, in· cluding C<'Ipital cases, adjudicated within a reasonable time period and without unnecessary del(lY." Judge Robert S. V,lnce of the Eleventh Circuit Court of Appeals <lIld Judge Sam C. Pointe(, Jr., chid Judge of the NOl1hem District o( Ai(lbama, umresen\t'd the (cd· eml courts nt the conference. Judge Vallct:! commented on the greilt need (or additional lilWyers to represent I>coons sentenced to death as these cases leave the state system and enter the federal courts. He said. "I bcliCYe that l>artici· pat ion in the capita) representation progl'illll is one of the fint.'St f!X.1mplcs of hO\.V the practicing bilf C(ln demonstrate a meaningful commitmen t to exerciSing Ilrofesslonal responsibility. This tYI>C of SCl"lllce separates ItI'N~ as profesSionals from man3sers of the marketplace;' I use [his forum in the hope of adding emphasis to the need (or additional at· torney p<1r1lcip.1tion . The first step has bt'!cn taken with the resQurcc center nowIn full operation. What remains Is for Ala·

We come here today In outrage to rc Illenlbcr and c~lebrate the life of a mal who WilS [he antithesis of outrage. So I is thaI we put aside our outrage for tht moment and think about Bob Vance, Ill( man he wa s and dle life he lived . If, in that process, our outrage In creases, so be il. tf Ihe taking of such i noble life enrilge5 us. Bob would be tht first to teU us thilt we honor him most I>,! remembering the valut'S he held dear. Bob Vance ICJ\ICd life. He lived life ful Iy and wrth gusto. He did not wi!th to die He did not desclVe to die. Bu[ his assas· sins were chea ted If they picked Bot Vance thinking tha t he was afr.lld to die Bob knew that de31h was the bargain WE all make to be hom, and that the lime In bctwt."(!n made the bargain a good one. The lragedy In Rob V.lJ1Ce'S unllmely deJ,h is that he had so much yet to give. \lYe, the beneficiaries of his Intellect and wit, are the ones who howe been robbt.>d by his death . It is not unfilling that Bob's death has corne In this Advent Sc<lson of short dilYS and long nlgh[$. He knew thaI the dilYS will !.OOn lengthen, and th<l! <I time 01 good will and cheer is coming. That is lhe way-Ih~ ol)lIrnistic: and hOI~ul Wily- he alll>roochccl all adversity. I'le al· ways kn(."W, with his unl(lUe confidence, that things would work out, given time. More than any m,IIl I h.:l\'e know-n, Bob V"ncc had perspective. He never lost sight of his 8001 to resolve disputes rea· sonably and JlC<icefully. He could and of· ten did reduce tension In hotly contend· ing groups with his unusu,ll wit. He s"lW {lnd gilYC proportion to issues in terms of their possible solutions. He had the uniQue ability 10 drilw his ci rcles [0 include h s adverSo:1(i~ and to

!i1nUllry 1990

In Memoriam u .s. (1If< LJIr IUnCI:

I~OlnRl

SMITH VAN( F

join them in the search for common ground on which both could honorably stand. It is no wonder Th'" his assassins, who lackt.'d his cilpacity and belief in the rule of law, could not tolerate such II man in their presence. Bob V.lOCi! distru sted accumul{llion5 of 1>oIWcai power, He knew th;:u svch concentrations paved the wily for despotic and lIrbitftuy conduct, l.~n by good pe0-

for him was so great. May they 00 comforted by the certalmy, born of faith, that Bob has entered the greater service of God in His creation and know lhlt their pride in him will grow CYCfI as lhe inlensity of their pain diminishes. Finally, I rc(l(i and saved a poem by Isla Paschal Richardson- nl!VCr dreaming Ih ll l I would ever usc II 011 an occasion such as Ihls. 1·IOWL"'I(!r, II says what I think Bob Is saying now to his (amlly and friend s, If we could but hear him, and I w.mt to share it wilh you In clo. inS:

ple. He mvcrOO our Constitution. He

trustLod an Informed electorate and believed passionately In " c election proeMS. He eschewed the hand· picking of candidatcs. When the

l~islalure

turned

down his propos.11 to require all candidates to file reports of their campaign 11nances before the cle<:tjon, he persuoocd his p..lrty 10 adopt his rule. He Ihen challenged other pllnlcs to fullow his ml rty'~ leild. When his sidll was beat at the poils in the self..'Ction of delcgares to the na· tional corwcntion, he opposed all efforlS to unselll the delegates sc lccu~ bt,I pop.. ulaf vote. Bob Vance COlllinued to develop and use his skill s as a member of our fedel'ill appellate cout! system. '·Iis insistence on a level playing field for contending PiUties in our judicial prIKe'SS was weUknown , So wa s his rccogllilioll that our liberties arc nssurC!d only by our responsible conduct '·Ie believed that a citizen's dUly to I)ay the COSI of governmelll should bear reasonable proportioo 10 the bcnclhs Ihal gO'lCrnment best ~ on him. He dlslrustcd excessi~ gO'lCrnmcnlll1 control. His instincts were for the underdog and the undcrprivll~cd . He partiCiPilIL'Cl in Ihe fi ght to require reapl>or· tionment of stale legislmures dominated by olmresslY(! minorities,

The J\ /i1Oamil LilWYt"1

U,S, CircUli ludge RoJx>lt Smith \{Ince Bob V.lnce gave a good ac;c;ounl of his talents and how he used them. We will not likely see his kind agahl, but he Is 11 role model (or those men and women who knew him and worked wllh him In the Cllllses he promoled. Through aU of hi s WQrk and accomplishments, Bob was sUPI)Or:cd by a 1()Yo Ing wife, Hcten Ril inL"( Van(e, to whom he wa s dCYQled. Th!"!ir marriage was a !huagoo that produced Iv.'O fine sons, Roberl, Jr., and Challes. They have the SUI>port of their memories of iI rLmark· able husoond and father to Cilrry them through their grief in which we aU join. I am sure Ihey knc)\N that their grief, jusl now, ( llilnot be less ~ause their love

To Those I love If I should eYer leave you whom I I~ To go ... Iong Ihe Silent Wi!(, Grieve not nor speak 01 me with tears, 6ut laul:\h and talk of me as If I ~re beside you there. (I'd ( orne-I'd come, could I bUI n'ld II w~yl But would nOl tears and grlel be barriersn And when you hear a song or sec II bird I loYed, Please do nOI let the though t of me be sad " , For I am IOYing you JUSt as I always h.lVt! •.. You Wl!re SO good to me! There were so nlany thlllgs I wanted still to doSo many thlng5 to say to you , , , Remember tha t I did not fe(lr ... II wa s just leaYing you Ihat was so hard 10 (ace .. . ~ Cllnnol see Beyond .. . BUI this I knoYl: I 10Yed you so'tW<lS heaven here with youl (Poem by Isla Paschal Richardson)

- Honorable R. Cliffo rd FUlford, U,S. 811nkrull lcy Court, Uirmlnghanl, AI. b,Ullil

• 7

Letters to the editor Most recent article in "Consultant 's Corner" series

family. That which destroys milfriage, destr0'y'5 human society. Is this debali'lbl~~

In Ihls :lMlcle in the September 1989 Issue of The Alabama La\vyer, you imply that Ihe 'NOrd processor IAbrdPerfect is a produCl of Microsoft. This is incorrect. WordPerfecl is a product of WOrdPerfect Corporation in Orem, Utah, and is not to be confused wi th Microsoft \NQ rd, (\ word processor which is II product of Microsoft. Janice Franks, lilw librarian ~a l Services Corporation of Alabama Monlgomery, Alilbama

In 19n, the legislature of Alabama enacted il 1i\W authorizing m)-fault

No·fault divorce in Alabama The basis of society Is the family, No filmlly, no hum~n society. The basis of the family is manlage. No marriage, no

divorce. No-fault dhorce destroys marriagc. Thilt which deslfO'y'S marriagl:! destr<l'(S human society. Thill which de-

stroys human soclc1V should be prevented. Is this dcbarablcl In 1974, an article was written in The A/.1bamillAwyef uJlIinglhe abolition of no-fault divorce. Nothing was done

about this in Alabama, In other states, hawt"'o'Cr, no-(aul! divorce was c)(tended until now II seems 10 be In full force and cffect throughout this naliOn. In the November 1989 Issue of the American Bllr Assoclallon Journal, there

is a low review article entitled, "No-Fault Divorce: Are Women lo5lnl! the Baltler'

This article quotes quite a number of in-

LAWYERS FOR CHOICE P.O. BOX 55378 BIRMI NGHAM . AL 35255

Join us hi support of t he right of Individuals to live t heir private lives. to make reproductIve choices wIthout int erference from the State. For information. or to make a contributlon. contact us at t he above address. Please be a voice for choice,

cldcnces which seem to ~1Y Ihlll women are losing this b.lltle. It sccms Sir-rnge that aplxHently there arl! no women who think tha t human society needs prolection from no-fault divorc~. If the women wtlro to ilgree that society should not have no-fault divorce, shouldn't they say so, ~ n if they might 1'101 hallC the VOleS In the Legislature to abolish no-fault divorce? I think so. I. Edward Thornton, Mobile, Alabama

Alabama courthouses Your series on Alabama courthouses running In The Alabama Lawyer Is most interesting and I have been following it regularly. My comment Is directed 10 the one on the Limestone County Court· house which rIm llbout slx-elght months ago. You would nol have been I)rlvy to this filCI unless exploring very old local history WlltirlgS. The legend or tradilion In my family has long held that mOSI sessions of the county CourlS untillhe first log courthouse was COrlstructed were held in a tavern and hotcl owned by Thomas I:IIISSon the southeast cornel lac· inglhe courthouse squilre. I+. plaque no.v denoles Ihe site on a present-day drug. store (ront. The lohICrn had a large public room, hence Ihe reasons (or holding court sessions there lind not in private homes. J u~ t thought you might IIkll tQ know. Thomas Bass was nYi great.greal·grand· (.lther. l'le not only ran the firSt publi(; O'JCrnight Stop between "ashville and Montgomery, but also Wil j on a shor1 detour from the Narchel Trace. He had 13 children by two wives, Sarah and Eliubeth, of wOOm nine ,""cre daughters; SCVt"!n married and four named their firs t· born sons Thomas Bass 6<!il)It.'Y, Jones, Fletchl!r ilnd Leslie, respectiY<!ly-the last, my grandfather. Keep UI) the good work. Thomas B, l eslie, St. Louis, Missouri January 1990

Supreme Court of Alabama Notice to Attorneys and Their Staff Your attention Is dlrecl(!d 10 S4!Verai provisions of the appellate rules which will

help In processing your case. Failure 10

brief. (Cet1i1'lcale of service should can· taln name, address and phone number and party represented (or all served.)

s,rictly coml>ly with these rules may result In Ihe dismlSSill of your case.

Briefs- number of copies, color of covers, clc.:

Filing Binding the briefs-Alyt' clasps, SUlpll..OS or other ("steners used to bind the briefs must be covered by Iilpe 10 prC\lCnt any Ir"ljury 10 those handling Ihe briefs. Docket

Regular appeals-l0 CQpics. Rule )2, "RAP, requires the following color of CO'o'Crs 10 be used on briefs-appel-

11Intlbluc, ;l ppelleeJred, intervenor or tlml cus curiae/green, reply/gray. (The

rulesdo not indicme a color (or the covcr of rehearing briefs, but white Is SUI!gested.) (Certifica te of service should

con tain nttffiC, i1ddrcss, phone number

and pmty nmresented for aU served,) Petition fo r writ of cert iora rt-l0 copies

of the pclilioo and supporting brief. No colOl" for ro.-etS Is required, buill any col· ored C(J'o'er Is used- pctitiooerlblue, respondent/red . Pt:lition for wr h of mandamus-IO copies o( the petition and supporting brief, (Certificate of service should can· taln name, addrcsJ, phone number and party represented for all served.)

Petition for permission to appeal-IO copies of the petition and supporting

The A/a/).1ma Law;t'r

Rebec<:a Norris, Diane Dennis or Louise l ivingston .

PaperS shall be deemed filed or\ the day of mallln8 If certified, reS;lffHed, or cx· press mall of IIw Unlled St,lle! Poskil Service is used. Rulc 2S{a), ARAP.

fees:

Sloo Regular

am)e~t

SSO f1!tition for WIlt of Certiorari to Court of Civil Appeals (No docket (ee Is required on criminal certs,) SSO P<!lition for Writ of M"ndamus S50 Petition for Permi ssion to Appcal (If l)CIition for permission to 'mpealls granted, an additional S50 is due,)

Exlension of time for filin g bri efs on

Notice of the trial clerk when appel· lee brief i5 filed: Rule 31(a), ARAP requires that ,he appel. lee 8i'o1! notice of the filing of appellee's brief to the clerk of the trial COurt. Com· pllance with this rule Is necessary in or· der (or the trial clerk to know when to forward the record on (lppeal /0 the appeU<lte cou rt,

appea l:

Second copy o f record on i'l ppea l or appendix:

One seo.'Cfl-day extension of lime, as provided by Rule 31(d), ARAP. m(ly be granted for the appellanl's brief, the (II>pcllce's brief and the appellant's reply brief. Re<IUt"!Sts for extension will be granted over the telephone; hOVVC\lCr, Ihe eKtenslon muSI be confirmed In wrltln8 to this o(flce, statlngti1e exael dille your brief is due, and a coI1l' of Ihe confirma· tion letter sent to opposing counsel. For extensions, please call Sharon Mclain,

Rule 30, ARAP' requires that the parties nle either an append!K or a second copy of the record on appeal. This rule muSI be compli(!(j with before a case can be submitted to the court for a decision, If you pilln 10 use the St'Cond copy of tile record on appeal, you should make iIf· rilngcmen(5 wilh tile derk of tile circuil COUrt to pho(OCOI7t the record for )'OU before the orisinal record on appeal I! sen' 10 this office. •

About Members, Among Firms ABOUT MEMBERS

AMONG FIRMS

Tuskegee .molOl,), Ern~tlnc S, s.,pp was elecled .1 vlc~pr('~idcnl of th(' Nation.ll Bar A5<tOCiation In Oakland, CalifOrnia, in N\7>'l'mber. The Nalion,)1 Bar A~~iation i~ the oldest i1nd lafKe~t minority b<lr as~ociation In Ameri!:... Foundt'<l In 1925, it ~('rves over 12,00:1 lilWyen., Judg('~, 1,1W f.lculty .md admlniMraton., and law students. S.IP!> b 01 pilrlner in 111(' firm of Gray, L.lngford, Sapp & MCGOWoUi in Tu ~ke8ee, AI<lOilmOl.

II. E. Nix, Jr., ilnd Alex l. Hohsford, Ir., .rnnounce the a~sociiltion of Wil· 1I00m Robert ChOlndler wrlh Ihl.' fJrm of Nix & Hohsford, Bell Building. 207 Montgomery Street, Monlgomel)', AlilbamOl.

•

M.lfilyn S, Kavdnaugh announces thl.' rtdoc.1Ilon of hl'r office 10 200 Ru ssell StrCCI, NE, P.O. Box 10052, H urmvrtle, Alilb.:lma 3560 1. Phone (205) 516-4169.

•

Lee Armstrong, formerly staff illlornEY 10 the Chief IU~lice of the AI.lbamOl SUI)K'fI1C Courl, ilnnOUllces his dppointmcnl a~ Univt'rsity Counsel, Auburn University, with offirt"o 011 101 5.1!llford It,lll, Auburn UniVC'f"iity, Ala· 1>..1m,\ 36649-5163. Phonc (2051 844· 5176.

•

Gene Church .1I1nounce ~ Ihilt, ('{(pctiYl' AUKU~I I, 1989, he has wllhdrilwn from thc firm of Rlchilfdson & Churth, ,mel ha ~ opened allew offlc(' (or thl' gent'r,l l pra<:Ii<:e of lilW. The offic;c ,l(ldrc)~ is 107 VII!OIijl' Ea~1 MaU, Il illcyvllle, AIOIb.UI1.1 35565, Phone (2051 466·11505.

•

Kenneth O'Ne.1I Simon, formerty .h~l~tOln l dir('(;tor, division of Enforcenll.!n1 of Ih(' U.S. Secur iti~ ilild Ex· ch.lIlgc C()mmi~sion, h.l~ I)('('n named il p.Htllcr inlhc BitminBh,lm firm of SpOIi n, Gillon, Crooms, 81,111 & Nettles. Office5 <Ire loc.lled OIl 211 7 2nd AV("nut', North, Birnllngh.un, AI.lbam.l 15203. Phone (205) 328-4100.

•

T.lnnf'r, G uin , El y, Lar y & Neiswender, P.c. ilnnounces a ch,lIlge ill th!!ir m.,iling addrc~~ 10 P.o. 80x 032206, TU 5cOIloosa, Alabama 35 403. Thl' firm office remJins ,11 Suite 700, Capitol P.uk Cenler, 2711 Univel"'ilty Boulev.lrd, Tuscaloosa, AI"b"mil 35401. Phone {205} 349-4300.

•

Ian F. Cas ton "nflounces the rcloCilliM of his offices to Suite 607Rivervk'W Office Building, 63 S. Royal Strl..>(1t, Mohile, Alabama, where he will conlinue his PI.1Clice under Ihe fJrm nilnle of Gaston &. Gaston. Phone (205) 433-55BS.

•

fJrit<:hanf, M cCall & lanes Innounc~ Ihal lames C. Hendel"$On h<.l~ loined the firm d~ a I)artner, ,111<1 Robert Bond Higgins hils become associilted wllh th~ firm. Offltl!~ ilre located at BOO Finilllcial Center, 505 North 20th Streel, 6lrmlnghilrll, Alil· bOlma 3520)·2605. Pholle (205) 326· 9190.

•

The firm o( Rushton, Sldkc1y, Johnston & Garrell , P.A .. Montgomery, AI OIbama, ilnllounccs Ih.u Ed· w;ud Burt Locke hij~ become In ;lS' SOCidlC o( the firm. Offices oil"(' Jocdted •1I 184 Commerce Street, MOntgomery, Alab<lmil 36104. Phone (205) 634. 8480.

•

Hand, Arendall, Bedsole, Greaves & lohn~t on announces the opening of il~ office al Suite 310, 1&67 K Strt't'I, NW, Wilshlngton, DC 20006.

•

Barker, Janed;y & Copel ~nd, Poe. OInnounce-; that Reggie Copelilnd, Jr., ha~ withdr.lwn from the firm ~nd thOlt the n.lme of the firm h.~ Ix.-en changed 10 Barker & lanl!(ky, P.c. The firm also announces that Desmond V. Tobias, formerly .15s15t.ll1l OI\lorney gener,,1 for the St,lIe of Florida, has he<;om{' a~!IOCia l ed wilh Ihe firm,

•

The firm of Wil son &. Day announces Ih,11 Christopher 11 . Griffith has becom(' assoclati.'<l wl lh the firm. Offlcl'S Me locilwd ,11 153 Soulh 91h SIr(.'t'I, G"d~dl'l1, Alabilma 35901. Phone (205) 54&-6334.

• The firm of Uhrig, Munger & Howilrd ,mnounce\ Ihl! reloc:a tion of Its offlc~ to 904 Mcr<:hilnb Walk, CenlMI Pdrk Office ComlJlex, IlunlSville, Alilbarn.1, ilrld Ih.ll JOhn C. Llrsen i\ now ,)S~oclOltcd with Ihe firm.

•

l.eitmOln, Sielpl, P.tyne & C4Iml>bell, P.e. "nnoun<:e~ the r('IOCJlion of their offices to a BirminghOlm landmark, TIll' I'lild Ti,l(' Building, Sui te s 300-400, 600 20th Slreet Nonh, Blrr11ln8h.1II1, Alabama 35203. Phone (205) 251-5900, Tht· firm also announces Ihilt Bradley C. Siega l, Shawn Hili Crook .1nd Virginia Keel HOPller have oc'Comc OISSOClil:ed with the firm .

•

The firm of WQlfe, Jones & Boswell thdt Sc:oll A. Rogers has l)C(;ome an ,1s~iaW of the firm. Offic~ Me loc.lletl.11919 Merchant5 Walk, Ilunl5vllle, Alilbam.1 )5801. Phone (205) 534-2205. .lIlnounce~

•

,'antlary 1990

The Birmi'lgham firm Qf Ri ves & Peterson announces that Tho m;u l. O liver, II ;!I'd lalle G reene Ragland have btwme associates of the flrm.

Oliwr received his undergr;:aduotc degree from Auburn University and

his J.D. from Cumberland School of

law. Raglil ild is

m,18",1

C(lm

/dvdc

graduilte of the Uni\lt!rsity of Kentucky <Inri recclv«l her J.D. from the University of Atabilma School of 1..1110'.

•

The firm of She rrill & B.ttls ilnnoum:e5 thaI William G. Mathews is ,15SodatC<l with The firm .11 102

South Jcffel"5On SIIl..'C!, Athens, AlabOlm" 35611. Phone (205) 232-0202.

•

The office of Prince, Coogler, Turner 81 Nolen, P.c. announces that effective October I, 1989, Phil Pool became of counsel with his offlcc IOC.IH.'CI al 2501 61h Slroc1, Tuo;(aloos,l, AlabanM 35401. Phone (205) 345· 1105. He also will mainlain his officc al P.o. Box 609, Mmkel Street, Moundville, Alaeama 35474. Phont' (205) 333·8915 or 371·6337.

•

The firm of Pelers & locken , P.c. anno unce~ 111;,1 Mark l . R(.'fIdln hns 1)(,'(01111.) associil\(.'(/ wilh Ihe firm. Offkt.~ .1fl' locall.'(l <II IGO South Cedar Streel, Mobile, Alabamil 36633. Phone (205) 432·3700.

•

David A. Simon ,lnnounces Ih,lI he has formed a IXlnncr5hip with Robert Alan WiII ~ to be known as Wills & Simon. Offices ;,re located at thc Lamhen Building, P.O. Box 547, B;,y Mlneuc, Alilb..llTIil 36507. Phone (205) 9:17-2411.

•

Dan M, Gibson announces th,ll Mark D. Morrow, a 1989 graduale of the Universilv of Alabama School of l,M', has become associated with him in the practice of I;w,<. O(fices art' 10cah..'(i ,I[ 2918 7th Street, Tusc.lloosil, Alabam<l 35401. PhOne (205) 758· 5521.

•

Hubuard, Wa ldrop, Reynolds, Davis & Mci lwain annO(lnCCS thnl E.

Ke nnelh Aycock has Joined the firm an a~sociil le, Offices arc located .1t 808 Lurleen Wallacc Boulevard North, P.O. Box 2427, TUSC<l loo~a, Alabama 35403. Phone (205) 345· 6789. a~

•

Byrd 81 Silencer announcc~ th.lt David M. Atwell has joined the firm <15,10 associate. Omce~ Me localed al 116 Ea~t Milin Street , DOlhan , Alabama 36301. The mililing .lddr('~~ is 1'.0. Box 536, Dothan, Alab,lOla 36302. PhOr"le (205) 794-0759.

•

The Orm of Tr imm i ~r 81 Associatt.'S, P.c. ,lnnounces that B~n F. Hayley II.I~ br'Collle ,I princilh,1 o( Ihe Orm, 10COlII..'(i at 2737 Highland Avenue South, Birmingham, Alao..lnl<l 35205. HOlYJey IS.1 nl1'mber o( Ihe AmeriCOln Bar AssodoJtion, American BOlr As'\OClation Crl'dit UniOn LlW Committt.'t'. Ala· b.lma Stale Bar and Birmingham BM Association.

•

Mark W, Bond and Brad(ord w. 80les announce the formation o( oJ professional corporation under the name of Bond & Holes, P.c. with offiee~ loe.lted at 10 Inverness Center P,1rkwily, Sui1r.1350, 8irmlnghum, Ala· holm;! 35242. Phone (205) 995·8588.

•

The Ornl of Gamble, G:lmUle & Ca lame ,IflnOUnl.:CS Ih.rt Fr.tnk C. Wilson III, has I><.'CO'TI(' a p.o.Htm.'r In the firm. The nCY.' name of the ntm Is G"mble, G" mble, Cilia me & Wilson. Offices are located al 807 Selma Avenue, P.O. Bo)( 345, Sci mOl, Alabama 36701. Phont"! (205) 875·7810.

•

Slilwell, Anion 81 kr<lcmcr, P.A. ,rn· nounces the reloc.lIion o( Ihl'! T,llla· hasscc office 10 201 Sou lh Monroe Slreet, Suite 200, Talldhasscc, Florid.l 32301. Phone (904) 222-1055.

•

The firm of love, love & Love, P.c. iIOnounces Ih,1[ P.S. M a~we ll has become associated with the Oml. Ofnces arc tocclwd at 117 North Stll.'ct, P.O. Box 517, Talladega, AlnboJrl1<1 35160. Phone (205) 362-6670.

•

The firm of 1..1nlcr, ford, Shiwer &

Payne, P.C. .lnnounct's that JoanMarie Sullivan and David A. Thomas h~ become a~lo()dilK-'d with tnl' fiml , Offices am IOC.llL'(1 ill 200 Wc51 Court Square, Suite 5000, t l untsv11!c, AI.lbam;) 35801.

•

Ritchey & Rilcht.'Y, P.A. ;rnnounccs the relocation of its officl's to 1910 28th ~nuc, South, Bl(mlngh~m, Alabanla 35209·2604. The maillng Old· dress is P.O. Dr,~r 590069, Birmingham, Alabama 35259·0069. Phone (205) 868-6800.

•

Mi\cMillarl Blwdcl lnc. announces thlll Ru fu ~ Cr.lis of Sclll1:l has beerl n;,med vict.... president for law, g<wcrn· mentill a(f3irs (lnd resou rce development for Ihe comp.1ny, Cr~lg has !it'IVl.'d as di n..'Ctor of 1(1\'1, govemment· ill affairs and r~urce dl'yl'lopnlenl in Pine ~m l since 1980. He re<;eiV(.od a B.A, degrt.'l: 1r"I hiStory from Ihe Uni· verslty of Alabama in 1963 .111d 01 Ju ris doctorate from the University's School of \..1W in 1966.

•

The Birmingh'1Il1 firm of Engel, Halrslon 81 Johanson, P.C. ;m nOunt;e~ that Charles R. Johanson, III, is the new Young Member5' Section ReprC!wntati~ to the Boord o( Govcrnoo for the CommerdJllaw league Association for 1989·90. I Ie has been il member of the league since 1978. Johanwn is the 11l1mediate past eh.r irperson of the' Young Members' Sl'cUon of Ihal league. He pfL..... lou\ly held <III ortler offices of the seetloll and sel"\.-\"!d IWO terms on its cxccutillC council. He is currentl y serving on the e.xcculive council of the S<luthern I(cMic;m of the Committee I.JW i.Cague Association. The firm ')Iw Olrmoun c~ Ihat Joseph F. Bulgarella JOined the firm a~ an Jssociate in October 1989. Offices MC located ,11 109 N. 20th Sireet, 4th Floor, Birmingham, Ala· bmm 35237. Phone (205) 326·4600.

•

McDermott, Will & Emery allnounces Ih<ll T. Rolymond Williarm has tOincd it~ Washington, DC office. Wi II iilm~ WilS fomll'rly <l 1>'1rlner with th~ firm of Buchman, O'Brien & Wil!i,lnlS, 11(' n.'Ct'i\o'Cd hi ~ 8.S. in 19&2 ilnd hl~ 1.1.B in 1964 from the Uni\ll.'rsity of AI,lb.lm~.

•

ThirtL'l'fl nt..... a~,>ociilt(... h;M:' joined the Birmingham office of the firm of Bradley, Aranl, ROM! & White. T. M ichad Brown graduated m.'lsna cum I/luc!e from Auburn University in 1966. He r«cil-(l(i iI J.D. deWC'C at Vimdernilt Uni'l('l';ity in 19M. Scott O. Cohen gr,ldu.ued with horlOI'5 In 1986 from W,l ~h lr1!:1ton Unl· \1)r<:l ty. He 1t'C('1\(.'{1J J.D. d('grl'C ill the UniYl!l';ity of Mlchlg.1n Irl 1989. J. p,lol Compton, Jr., is il 5tJ1J!ma cum I,woc' gt,ldu,ltC of Ihe UniVl!rsity of Alabdrll.l. II£! l'<lfned " J.D. d('grl'C from the Unl~rslty or Virginia In 1989. Dc,me K. Corliss e<lrncd .1 B.S. degr("C ("11m /;aude from D\rke Uni· ~rsity In 1967. She earned an M.S. degr!'C <11Ohio StilII' Uniwrsity in 1970 dnd d J.D. dcgrt.'C olt Cumberland School of l..lW in 1989.

Mich.iel S. Denniston e.lrncc:1il B.A. de8rt.'t.' in 1986 dnd .1 1.0. degfl..'c in 1989 (rom the Uniwrsity o( Alab.lma. l. Susan .Doss graduated summa cum 1,1Ude in 1986 and earned a J.D. degree in 1969 from the Uniycrsity of AI<lOOma. Frank C. Galloway, 111, earned .1 SA dt.>gree (rom ahe UniYefSity o( Virginia in 1965 and a J.D. dt.'8rl~ (rom the UniYersity of Alabama in 1988. Upon gradualion from the Unilo1!rsity ol AlaOOm3 School of l..lw, GallCM'ay clerked for the HO'lorable James Ii. Hancock of the Northern District of AI"bo!ma. George B. Himis graduated mJsn;1 ((1m laude ;mel Phi Bel<1 Kilppa in 1966 from Ihe University of Alabilm;'l where hC! earned " B.A. dogl'W. He received hl~ J.D. dcgrt.'C from the UniVl!r!.1ty of Villlinlil In 1969. Madeline H. Halko,la earned <I BA degree from Williilm~ Collcge in 1986 and a J.D. degree from Tul,lI1c Llw School in 1989. Amy B. McNeer gradu<lted cum liWck from W<Jkc Forest Uniycrsity In 1986 where she eamed a B.S. degree. She graduated from Volndelbilt UniYCrslty 5<:hool o( law in 1989.

Notice of Election Notice Is glycn herewith pursuilnt to lhe A/.lOOm" 5L1IC Bar Rules Covemins Eleclion o( Prcsldcn/-eII.'C1 lind Commissioner. Prl.osidcnl·cleci The AI .. bama State Bar will elect 11 presidl..'nt-£!Iect In 1990 to assume the presidency of the bar In July 1991. Any candidate musl be 3 member In good standing on Much 1, 1990. Petitions nominating a Cilndidilte mUSt bear the signature of 2S members in good slanding of the Alabama State Bnr and be r~ cei\led by tnc secretary of the stolte bar on or b£!fom March 1, 1990. Any cMldl· date for this office also must submit with the nominating petilion a black and

white phOtograph and biogral)hlcal data 10 be published in the May A/llbamn /.awyer.

B<l1I015 will be mailed between Mil)' 15 and June 1 and must be receiYe(/ <11 stale bar headquarters by 5 p.m. on July 17, 1990. Commissioners

Bill I;QmmisslOl1crs will be elected IJ'y' those lawyers wi th their principal offices on the followl ng drtuits: 81h; IOth·Places ' 4 and 7; Bessemer Cuto()(f; 11th; 13thplace ' 1; 17th; 18th; 19th; 2tst; Hnd, 2Jrti-Pktce ' I; JOth; 31st; 33m; 14th; 35th; and 36th. ,4<IditionaJ commissioners wUl be elooed in these circui ts for each 300 members o( lhe state bat with principal

Thomas lohn Pack {wned (In M.A. degrt.'C In 1985 from SI. Andlt"NS University. fol e grOldu(ltl'(i from Ilarvard LlW School In 1988. Pack rocenlly ((Hl11)lefed J judid,lI cle,kshil) with the HonorJolc lohn R. Brown ol the Court of Appe(lls for the Fifth Circuit. Greg C. Smith recei~ ,1 a.s. dC81t'C wi th honof!> from the University ol C1Ufomla .11 Berkeley In 1985. Smilh (>Jm('CI a 1.0. dcglt'C from UCLA in 1989. Anne R. Vuengert rccei...oo iI B.A. dCgfl'C from the Univcf~ity 01 Virgini<l rn 1964. She gradu(ltoo from 'N.1shington & 1.(.'(' School of 1~1W in 1989.

l\vo new ,l~<.OClnrl·' h,M' Joined the t-tuntsylllc office of Ihe firm ,. Jay Chealwood gradu<ltcd Phi Betil K.11>P" and magna cum I/I~'dc from v.mderbih University where ~ ean1L'(1 iI 8.A. dt'grt'C In 1986. He recei\.t..>d hi~ J.D. from vanderbilt in 1989. W.une S. Healh received a 8A degf('(' from the University of Alill>.lma in 1977. He eOlfncd an M.A. degree from Mississippi St<lte Uni\Crsity in 1983 ilnd ,1 J.D. degree from the Universrty of Alabama School of l,ay,t in 1989. •

offices therein. The new commissioner positions will be determined by a cenSIJs on Marth 1, 1990, and Yi.IC~ncles cerlified by the secretary on Milrcil 15. 1990. The terms of <lilY incumbent commissollers are rClalnl.'d. All subsequent terms will be for three years. Nomlnallorls may be made by petition bearing the slgnntures of five members in good standing with principal offices in the ci rcuit In which the election will be hl:ld or by the Cilndid"te's wril1en declaration of candidacy. Either must be rcceiYCCI by the secretary no latCr than 5 p.m. on the last Friday in April (April 27, 1990). Ballots wl1l be prep.lfed and mailed to membcr'$ betwccn May 15 and JUIlC 1, 1990. Ballots must be 'vOted and relumed by 5 p.m. on lhe second Tuesday in June Oune 12, 1990) to state b;n head(luar1ers.

•

JJnuary 1990

UNA trustees appoint Robert l. Potts interim president The University of North Alabama board of trustees n..'Ctmtly apl)()intcd Robert L. ~us as the Interim president of the Institu-

Bar Briefs

tion.

The announcement came with a m(.1v'e for a nationwide ~i1 rch to fill the permanent post ooing \IiIca ted with Ihe ret i~ menl on December 31, 1969, of longtime president Dr. Robert M . Guillot. Potts assumed the interim posilion January 1,

1990. Potts, a Harvard l.trN School graduate, has served as gener,,1 counsel of the University of Alabama system since 1984. From 1973 to 1983, he seM.'d liS the IIttorney of UNA.

Prior to Joining the University of AlaIxlma system, he was a p.utner In Ihe firm of Potts & Young In Florence. The Huntsville natiY{! has served on the boards of trustees of Alabama State University in M ontgomery and Oakwood Colle8~ in Huntsvill(!. Presently, PoliS Is presiden t of The AlaIxlma Higher Education loan Corporallon and a member of Ihe aoard of Managers of Ihe National Conf('f(!nce of Bar Examiner.;...Ie has ser.芦l as chalrpersor\ of the Alabama Statc Bar Board of Bar Exam路 iners.

Alab..lma attorneys elecled fellows of PotU

Wilh his acceptance of the interim Job, Pons resigned his University of Alabama counsel POSt arld wi thdrew from a bid for an Alabama Supreme Court seat. Potts, 45, graduated from Coffee I-ligh School in Florence, allendl..>d Newbold College in England imd recei ved a B.A. degll..'e, cum laude, from Southern MIssionary College In Collegedale, Ter\rleS-

.,..

He a"ilined 0 law degree from the University of Alab..lma School of Law in 1969. There he graduDtcd thi rd in his class and sel"ted as AI<lbama editor of The Alabama /.aw Review. Following a judicial derk~h ip, he recei ved an l l.M degree (ror'rl l-iaJVard University In 1971. He has taught at 80ston University Law School, the University of Alabam<l and UNA.

The Alabama Lawyer

Ihe Amer ican Bar Foundatio n 'fwo Alabama attorneys recently were el(!(ted f(!lI(M1S of Ihe Ameri can aar Foundation. The new fellovvs Include William Bibb Eyster of Decatur and Clarence Merillon Small, Jr., of Birmingham. The Fellows is an hUlOrary ofBJnizalion of practicing anorner,;, judges <lnd law teacher.; whose professional, public and priVilte ,,!leer.; hiM;.' demonstrilled dedica tion to the welfare d Ihelr communities and to the pri nciples of the leg.'ll pro((!Sslon. EstablishlXl in 1955, Fellovvs encourage and support the research program of the Ar'rlerlcan Bar Foundation, Eyster, a Ilarlner in the nrm of Eyster, Key, Tubb, We<l\ler 8. Roth in Decatur, graduated from the University of the South in 1941, attended the Univer.;i ty of Virginiil fr(lm 1941-42, ~ nd Sr<tdU(lted fr(lm thc University of Alabama with a law degree In 1947. He has been a member of the Alabama StJIC Bar and Ihe Morgan County Bar Associatioo since 1947. Eyster alre was a member of the Alabama State Bar's Board of Bar CommissionerS for 12 years and was a VfC1!- ll~ident of the stote bar for one year. In addition, he Is

a member of the Alabama Bar Foundation, the Decalur General foundmlon and the president of the Calholln Community CoUege Foundation. Small, a member of Ihe firm of Rives & I\.'teI'SQn in Birmingham, received his undergraduilte degree from Auburn University in 1956 and graduatl'(i wi th a law degree (rom the Unlycrslty of Alabama In 1961. He has been member o( the AlaIxlma State Bar and the Birmingham Bar AssociJtion since 1961. During 1978-79, he sel"ted as the president of the Birming. ham Bar Association <lnd the pJ'l>sidenl of the Young t......... ~rS' 5(.>(:tlon hl 1966. He alre Is a member of the Association o( Trial Lawyers of America and the International Associa tion of Defense Counsel, and wa s appointed by Ihe Supreme Coun of AlabamJ to serve on Its advisory com路 mittee for appetiJte rules and Ihe formulation of rules of evidence to be used throughout the Slale court> in Alabama. The Fellows are limited to one-third of one pClU'nt of lawyers licensed to praclice In each Jurisdiction.

Task Force o n Cilb:enship Education sponsors progr;'lm at Boys' Slate The Ta~k Force on Cilizenship Education panicipall'd in Ihis yeilr'$ Boys' Slate Program at Samford University. On June 14, various memben of thl'! Alabama StMe Bar ilppeared on the Samford University leslie S. Wright Fine Arts Cl'!nt(!r Stage and presented il l>rogram on hGr1}3! Anlcric<m Deb{ltes: Federalists \IS. Antl路Federalists:' Committee chalrpeoon Chris S. Christ and dir'e(IOr Cynthia Umstead divided the program inlo four SCl'!narLO$. The first scenilrio highlighted the Federalist and anti-Federalist ilrgumentSdurlnglhc COnStitution{ll ConventiQfl, Chris Christ played John Adam s, ilnd Michi1et C. Shores

pli¥!d Thomas Jefferson. The next scene a debate~".leffCfSOfl O....is.

fe,ltu~1

played bv louis \Vilkinson, and ..... br.tham lincoln, played 1ft ElSkine Mathl$, Doug Davis 1)I...,uI 11 double rOle as a fra>d sl,'M) In one scene and a doughboy In another scene. The third scene took place In the VVorid W,lr I era where John Calvin

pl...,.."CI President \.o\bodrow Wilson deb.lt· ins the issue of women's suffrage with Cvnchla Umstead's pl<rting a 5uffragcue.

The founh SCene featu~ Carol R.lsmussen as lane Roe, and Randy Dempsey as Texas Attorney General Wade debating the abortion issue. The program was narrated and Introduced by Charles W, Allen, and Charles W. Allen, Jr. Technical and artistic assistance was rendcn..>d by Wendy Williams and Virginia Vincent. After the presentation of the program, the noor was opened for (Iucslions by the Boys' State participants. The group has chosen to cailitscif the Amicus Curiae Players, and plans to present other programs in the future. They invite all)OOe who might be interest<.>d in I)<Irticipmlng to contact Chris S. Christ at (205) 252-2222.

Kennedy named funding chairperson of CTF Associate Alab-lma Supreme Cour1 Justice Mark Kcl'll"looy, who has been the first and only chairperson of the Alabama Child Abuse and Neglect PrC\'entlon Board, was honored at a retirement din· ner September 19 in Montgomery,

Justice Ka!noedy was rec;ognized as the founding chairperson by COYCrIlor Cuy Hunt and O\ICr twO hundred of Kennedy's friends. Joining G<M!rnor Hunt in p..1ying tribute to Justice Kennedy v.ocre Chief Justice of the Ala!>.1ma Supreme Court Sonny Hornsby; Anne Cohn, execulivc director of the National Committee for Preven· tlon of Child Abusc; Naomi Grlf(ith, board mt?mber from the 5th Congressional District; Judge john Davis, circuit court judge; and Marian loftin, vicechairperson of the board. Justice Kennedy was presented with gifts of appreciation from the CTF board and the CTF AdviSOry Commillee, letters of congra tulation from Senillor l·tO\YeIl I'teflin and Richilrd Shelby were read at the dinner. COnlributions In honor of Justice Kcnm:.'<!y totaled !NCr $1,500 and were prescrlled to the CTF.

liquor liability liligation Croup The Association 01 Trial lawyers of America recently est~btlshed the liquor liability Litiglltion Group. Membership is open to ATLA attorneys acl ivcly ,epresentinlS victims of alcohol-related torts, Including dram shop statute violilUons, drunken drivcr collisions, social host liilbility cases and other cases In which alcohol Is directly Irwlved. No 10000000r is eligible for membership If he or she represents liquor interests. For additional membership information, call or write: liquor Liability Liligiltion CrouP, P.O. Box 4160, Montgomery, Alab.,mil 36103-4160, (2051 269-2343.

AUBURN I \. p ('l \

\\f lllll"" St' r\I CCS

Blectrlc S~oct • A.to_d.tt/A"t,tioa!Marl ... 8Iectro.le. • "Mleal D.. k4 F.U .....

'_Im_ .

eompII'er STIJt •••• IIIc:ro_1'1 Huard •• 'Io~kal s, ... _ ·H •• _ -MK.I.. G...raI £-.1._1••• H. . . . aM Social SeI..e..

Dr. Michael S. Morse

Dr. Thaddeus A. Roppel (20S) 826-6610

2:17 • .,.. SUMI, A ....,.. AL, 16130 • BlIp",1

a••••••

American Bar AssociatiOn announces 1990 Law Day USA theme "GENERATIONS OF JUSTICE" is lhe theme for L.lw Day USA 1990. The 1990 theme encourages L.nw Day program and ~n t planners to focus their efforli on promoting the legnl fighlS of children and the elderly. "GENERATIONS OF JUSTICE" also allows event$ planners to address the historical changt.'S in the law and help all generations of American$to become beller Informed aboutlhe legal system. Stall:! ilnd local bar associations, libraries, community organizations, schools, churches, law enforcemenl agencies, service clubs, leg.,1 auxiliaries and scouting organizations are among the many groups sponsoring "'1W Day uSA programs and events. The events are numerous and varied, Including no-<:ost legal consultations. mock-trials con· ducted in schools, court ceremonies, poster and ess.-'Y con tests, and telL'll is ion and radio call·ln programs, Recent programs hiMl included eoo«:Ilnation with sponsors of local campaigns against drunk driving. outreach progr.,HllS to senior citizens arId community panicipation in dispute resolution programs. The American 8M AsSOClatlOrl, as the national sponsor of Law Day USA, prepares a detailed planning guide \0 assist Individuals and organizations conducting Law Day programs. In addition, the ABA makes available promotional and educational informational materials, ranging from bUllons and balloons 10 leanets. brochures, booklet>. speech lexts and mock trial scripts. The purpose of l.'lW Doly USA, celebrated annually on May I, Is to rescrve a "special day of cctebration by the American people in l1ppreeiation of their liberties and to provide an occasion for rededi cation to the Ideals d equ,l lity and iustice under laws,H Law Day uSA was established by United SI<lICS Presiden'ial Procl<imalion in 1958 and reaf(lrmed by a joint Resolution of Congress In 1961. for more information, write law Day USA, Am~rican 8ar Association, 8th Floor, ?SO North L..1ke Shore Drive, Chicago, ill inois 60611, or phone (312) 988·6134.

•

Waleo ••

I~nuary

1990

Attorneys Admitted to Bar, Fall 1989 Scott Allen Abney , , , , , , , , , , , , ,Birmingham, Alabama Christine W"rner Acker ..... , ... Birmingh.1nl, Alabama

Adl.odapo Taiwo Agboola .. .. , , , . Birmingham, Alabama Mitchell Gi lbert Allen ......... . Birmlngham, AJilbilmi,l

Sleven Johnson Allen . . . . .

. .. .. Daphne, Alabama

Robert Brian Allison .. " . ...... Birmingham, Alabama

Susan Joan APllel .............. Birmingham,

Alabama

Gordon Gray Armstrong, III , ... , ..... Mobile. Alabama

Jilme5 Paul Atkinson ...• , . , .. , , , , . FlorcrJce, Alabama

William Todd Atkinson ............ Winfield, Alabama Dllvid Michael Atwell , , , .. , , .. , . , . Slocomb, Alabama bra Kenneth Aycock, Jr... , ...... TU5CillooSiI, Alilbilmil Zack Michael AZM . . . . . . . . Montgomery, Alilbama

Cheryl Lyl'lr'l BllggOII . . . . . ..... MOntgomery, AlaQamiJ Belinda Alme Barnen ........... Birmingham, Alabama Lou Stevens Bartlett ... , ........ Birmingham, Alabama Nancy Hope Benjamin ......... Birmingham, Alabama Bonnie Rowe Bennelt .. , , .... , ... HUllIsv/lle, AI.1bama James Radford Berry, . ......... , . Albertville, Alabama Donald Edward Blankenship . ... ,Birmingham, AI.lbllmll Ch(Hles Hikel Boohilker , . , . , , , , , Birmingham, A/ab,mla Donna Kay Bowling . ....... . .. Birmingham, Alilbilmil John SandC!rson Bowman, If. .. Montgomery, Alabama Clifford Carrlr'l8tor\ Brady "" ....... ,Mobile, Alabama Miles Logan flrandon , , . , , , , , , , .. , , , , , Miami, Florida Rodger Keith Br.1nnum .,.,"'" Birmingham, Alabama ThomilS Hilmilton Brinkley , , , , , , , , , , Mobile, A/a/)ama Kathleen Anne Brown . , , . , . , . , . Montgomery, A/ab.lma Terrance Michael Brown .. , , , , , , 8irminghilm. A/,lbarllll Ronald Ray Brunson .... .. . . . . Birmingham, Alabama Raymond Charles Bryiln .... " ,Anniston, Alabama lo~eph Edward Bulgl'lre!ll'l ..... ,. 8irmingham, Alabilma Tony Derwin Calhoun ..... , Mountain Brook, Alabama Darrell Lloyd Cartwright .. , , , ... MOr'ltgomNy, A/ilbilma William Robert Chandler ....... Montgomery, Alabama Shirley Trivet! Chapin , , , , , ...... Tuscaloosa, Alabama JonMhan Jay Cheiltwood .......... Huntsville, Alabama Patricia Wayne Cobb " ......... . Scousboro, Alabama Scon Ooug la ~ CQhen ... . ....... Birmingham, Alabami.l Pam!!la Felkins Colbert . Birmingh'lm, Alabam,l Sherri GrtlC(! Coleman . , ...... Birmin8ham, Alabama Patrick Brian Colli ns ......... Mobile, A/abamil Sherry y , Collum·Buller ........... Florence, Alabama Jerome Paul Compton, Ir. , ... ," Birmingham, A/"bama Denise Arlene Copeland ........ Montgomery, Alabama Rebecca Lyn Copeland , . , .... , , , Tuscaloosa, Alabama William Ronald Corben ........ . 8irmingham, Alabam/l Del'lne Kenworthy Corliss .. . . 8irmingham, Alabama l ee Pepper CoSSl'Ir . , ... , ....... Birmingham, Alabama Carolyn Reasor Cox ................ Selma, Alabama Alexander Bruce Crenshaw, Jr.. ,' Birmingham, Alabama

The Alabama LawYlY

Shawn I-till Crook .. , , , ........ Birmingham, Alabama Silas Gwe!ldell Cross. Jr, ... , , , , . Birmingham. AlllbMna Gregory Stockton Curran ........ Birmingham, Alabama John PiJ\rick DiJrby .. ,.,., .. , .. ,. , Florence, Alaham., J03n Yvt:ue Davis .......... Norchport. Alilooma Richard Eldon Davis ..... ..... . 8irmin8h,lm, Alabama Helen Crook Deas . . . ... .. . Birmingham, Alabama Michael Sandlin Denniston , ..... Birmingham, A/ab'lma Michele Munsey DentM ........ Birminahilm, Alilbama Silas Russell Deroma . Washington Crossing, P(!Ilnsylv:lllia Donald leonlde Dionne ........ Birmingham, Alabama Lour" Susan Doss .. , .... , . , , , , , ... ,Morris, Alabama Jeanne Olive Dowdle ........... Tuscaloosa, Alabllm.l George Whit Drake .. . ....... , , , .. Cullman, AI"bllm.1 Thomas Edwin Drakl!, II ..... Cul/m,ln, Alabama lohn Steven Dugan . . . . . . . , . , Dauphin Islano~ Alabama Alice Wilkerson Durkee ........ Birmingham, Alabama Matthew SCOII Ellenbcrscr ....... Birmingham, Alabama Robert Graham Esdale, Ir. , , ..... Birmingham, Alabama Victoria Ann Farr ............... Tuscaloosa, Alabama James Earl Finley .............. Birmingham, Alabama Murray Dixon Fleming , .. ,',.,' BirminSham, Alabama Keith Bliline Franklin .......... . 8irmingh.lm, Alabam., Michael Benton French . . . . . Birmingham, Alahama Robert Spencer Frost ............... MObile. Alilb,ima Cynthia Thelen Cimison. . ...... Anniston, Alabama Sylvia EleMor CArvin., ....... NllnUvllle. IIlab'lma Christopher James Gerety ....... Blflningllam, IIlabi"na lohn Duroc Gibbons , .. , , ... , , . , Point Cle.1r. Alabama William Joseph Gibbons, Jr . ....... Huntsville. Alabama Mich..el Dilvid Giles ........... Birmingham. Alabama Milrk Sterling Gober , ' , .. , ... , , .... Mobile, Alabama Sherryl Snod ~rass Goffer .......... Huntsville. Alabama Tyler Williams Goodwyn ......... . /Jessemer. Alabama linda Baker Gore ............. Birmingham. A/ai>ama Connie Shaw Grilr'lata .... . . Chelsea, Alabam'l Jim Bruce Grant, Ir, "., ... ,"', .. Gainesville, Florida Jeffrey Monroe Grantham ....... Birmingham, Alabamll Christopher Hugh Griffith , . , . , , , . , , Gadsden, IIlabllmll Normiln J~ ckron Grubbs ......... , . , . , Troy, Alabama Hal Sanders Gwin, Jr . .......... Birmingham, Alabllma Hard jQhiJnnes Hai kala ..... , , , . Birmingham, Alabama Modell",: Hughes Haikala ....... Birmingham, Alilbama Don l<.ot! 1'10111 . • • . . .. Tuscaloosa, Alabama Todd Neal Hamilton ..... Birmingham, Alabama WIlliam Kennedy I-Iancock . . . . Birmingham, Alabama Debra Lynn Hnrdegrec "",., .. , .. ,. Leeds, A/abllma Brenda Weigllia Hardi son ............ Washington, DC Benj .. min Harte Harri s, III , .. , . , . , , , , Mobile, A/abami.l George Bryan Harris . . . . . .. .. , 8lrmingham, Alabama . .... . . Tuscaloosa, Alabama Glen Farris Harvey . .

William Morris Hawkins, Jr........... Centre, Alabama Jennlfer Lynn Hearle ., ...... , ... , .Slocomb, Alabama Wnrne Stohler Heath ...... , , .... Tuscaloosa, Alabama Raben Jon Hedge .... .. ......... ,. Mobile, Alabama Candace lee Hemphill ... ..... . Birmlngh.lm, Alabama Kathleen Ga I Henderson . , , .. . ..... D<xhlln, Alaooma Kevin James Henderson ........ Taylors, South Carolina MelisSA Shaw Heron ........... , . Hunuville, Alabama Robert Bond Higgins , ........ , . Birmingham, Alabama Randall Ion Hillman ............. , . Daphne, Alabama Kennelh Allen Hilson, Jf. ....... Montgomery, Alabama William Earl Hogs , . , ....... . ...... M.1riellll, Georgia Elhel Ann Holladay , ... , , , ... . ... ,Pell City, Alabama Ralph Eugene Holt ." ... ,", ..... Florence, Alabama Vlrginlll Keel Hopper ........... Blrmlnghllm, Alabama Stephen Clark Jackson , ......... Birmingham, Alabama Dennis Wayne Jacobs . , ........ Har~rsville, Alabama Charles Randal Johnson ... ,"" . Birmlngham, Alabama Margarel ESlher Johnson ........ Monlgomery, Alabama Raymond lymon Johnson, Jr. .. .. Birmingham, Alabama Tamara Harris Johnson ........ ' Birmingham, Alabama Gerald Br.})(lOn Jones, Jr.......... Llvin8s/on, Alaooma Olney Steven Jones ............ Montgomery, Alabama Raben Kane Jordan ......... , ... FOri Payne, Alabama Lawren( e Cannon Kasten .......... . Ja ckson, Mim>uri Kelly King Kelley .... , .... , , . , . Birmingham, .... "lbama Derel Kevan Kelly .............. Tuscaloosa, Alilbilma BeUnda lee Kimble .. , , . , . , ........ Phocnlx, AriZona William Henry King. III , ........ Birmingham, Alabama Charles TimOChy Koch ...... .. ...... Mobile, Alabama Kevin Duncan Lammons .......... Huntsville, Alabama James Wayne lampkin, II .......... Daphne, Alabama Carolyn Landon ..... , ... , , .... Birm ingham, Alaruma Joe Lawayne Leak ............. , ' , ... Arab, Alilbama Krlstl DuBose Lee ............ New Orleans, Louisiana Gena Ruth Lent}! ... , .. ,', .. ,."., Dccmur, Alab.lma James Gregor Linderholm ....... Birmingham, Alabama Edward Burt locke . , ... , ...... Montgomery, Alabama Benjamin Lee Locklar .......... Montgomery, Alabama Denise Jones lord ............. Birmingham, Alabama Andrew Gregg Lowrey .............. Linden, Alabama Linda LoU Lund ... , , . , ......... Tuscaloosa, AI,lbama JCl1 nif(!r lee Lu", ......... , ..... Tuscaloosa, A/.lbilma Cecil Howard Macey, Jr........ , BlrmlnsJwm, Alabama Leonard Anthony M,lnclnl ........ HunlSvll/e. Alabama Douglas Claude Martinson, II ... , Boston, Massachusetts Virginia Lanalr Martin .......... Birmingham, Alabama Leonard Norman Math ......... Montgomery, Alabama Melissa Gasser Math .. , ....... ,Monlgomery, .... ,abama William Glenn Mathews ........... . Athcns, Alabama Fredcrick Billl Matthews , ....... Montgomery, Alabama Annette Louise McDermott • ••....... Mobile, Al'lbllma Knren Riley M(Donilld ......... ,., ,Mobile, AI,lbamil Frank Hampton McFadden, Jr..... Birmingham, Alabama Carolyn Jo McFatrldgc ......... MonfSomcry, Alabam.1 Jumes Allan McGhee ..... , .... , .... Mobile, Alabama

Louise Shearer Brock McGowin ..... , Mobile, Alabama William Travis McGowin, IV , ••• . Birm;nghilm, Alabama lames Calvin Mcinturff ......... Birmingham, Alabama Paula Ann McLendon . , ... , , , . , ,Tusca/OD$'" Alabama Hermlln Knox McMillan , ....... Birmlngh.lm, Alabama Amy Burian M(Nf,ler ........... Birmingham, Alabama Lisa Cathey Monlman ...... , ... , ,Northport, Alabama John Swnley Margan .. , ..... , ..... Gadsden, Alabama Mark Davidson Morrow .. , ....... Northport., Alabama Lisa Frost Morton .............. Birmingham, Alabama James AI;)n Nodler ............. Birmingham, Alabllma Michel Nlerosi ......... , ... , . Montgomery, Alllbllllla Michael Brildy O'Connor .... , .. Birmingham, Alab.l/1liJ Jano Jawan Olive ............ , .... Florencf , Alabama Thomas Lee Oliver, II .......... Birmingham, Alabama Arthur WOOtetl Orr ..... , ......... Danville, Alabama lee William Parker .................. Houston, Texas Pamela Const;)nce Pelekls ....... Birmingham, Alabama Peter Milrk Petro ...... , ....... Birmingham, Ailioama Keith J;mle5 Pflaum , , . , , ....... Birmingham, AI.1b.1m/l Brenda Joyce Pierce .. , ... , ......... Mobile, A/.lb.lma William Eugene Pipkin, Jr .. , ......... Mobile, Alabama Rhonda Kay Pills .............. Birmingham, Alabama lames Marion Pool ............ Birmingham, Alabama Dorothy Amelia Powcll ............. Mobile, Alabama Walter Jasper Price, III ......... , Birmingham Alabama leslie Marie Prall ............. Birmingham, Alabama Mia louise Puckett .............. Huntsville, AI{lbamn Charles Hillman Pullen ..... , , .. Mcmlgomery, AI{lbama Edward Quincy Ragland ........ Birmingham, AI/lruma lane Gfe~me Ragland ..... , ..... Birmingham, Aliloomil ~"ark Ale)(ander Rasco . , ... , ..... , .Jemlson, Alabama Borden Marlin Ray, Jr............ Tuscaloosa, .... /abama SUS,1Il Elaine Reaves ....... ,'" Birmingham, Alabama lc((rey Carl Rickard ............ Birmin8ham, Alabama J<lrnes Archlb.... ld Rives , ..... , .. Montgomery. Alabama Jef(rey Hoyt Roberts .............. Har/selle, Alabama Laura lee Robinson .. ,.,., ......... Mobile, A/llooma Robert Vandiver Rodgers ." ..... , Hunuvl/le, Alabama ScOIl Alfrcd Rogers ................ Harvesl, .... la!J.1ma Stewart Francis Romilck ...... , . ,Birm ingham, Alabama Kennelh Bruce Rotenstreich . Greensboro, North Carolina Kay Webb Savage , , ........... Blrmin811am, Alabama Eldon Sharpe ................... Dadeville, Alabama Gregory Lynn Shelton ............. Decatur, Alaboma Judy Bateman Shepura ......... . 8irminghom, Alabama Edward Eugene Sherlock ....... Montgomery, Alabama Brett Farrell Shur .. , ................. Tampa, Florida Bradley Gerson Siegal , .. , . , . , .. Birm ingham. AI,1bama Michael Reid Silberman ........ Mont8omery, Alabama Kerl Donald SimmS ............ Blrmillgllam, Alabama Claude McLaurin Sitton ............. Blakely, Georgia Daniel Boyd Smith ...... , ..... Birmingham, Alabama Edward Lee Dingler Smith ....... Birmingham, Alabama Eleanor Lesley Smith , .... , ..... BirminlJham, Alabam.l Katharine Jeannine Smllh . , . , . , , . Birmingham, Alabam.l

Russell Hayden Smith , ........... HunrsvWe, Alabama ElizabC1h Couey Smithar! , ........ Fitzpalrlck, Alabama leon Bernard SmithiHt ........... Fifzpau;ck, Alabama Walter Elmore Stewllrt .... South Hac/Icy, M/l ss achusetfs Clefls Theodore Strickland, Jr...... TuScaloosa, Alabama loon.Marie Sulliv.m ............ .. "' unl5vlllc, Arilbilmil Frances Parke, Tankersley , , ...... Tuscaloosa, Alabamil COU "1leY Wayne Tarver ........ Monrgomery, Alabama Marx Frilnklin Tcatom, II ..•••.•••... ~han, Alabama Kla ra Bauer Tedrow .. , ......... Birm ingham, Alabama David Ashby ThomilS ............ "' unrsvllle, Alabama Charles Amos Thompson ........ Birmingham, Alabama Robert Waylon Thompson .. Panama City Beach, Florida Dana latham Thrasher .......... Birmingham, Alilbama Richard Norman Tishler ........ Blrmln8ham, Alabama Desmond Vaughn Tobias ........ Point Clear, Alcabcama Ayn Traylor-Sadberry .......... , Blrmlnsham, Alabama Christopher Paul Turner ........... lou isville, Alabama Mary Angclll Turner ............ Tuscaloosa, Alabama Tracy Pallerson Turner .............. Mobile, Alabama

David Owen Upshaw ......... . Birmingham, Alilbama Edwi n Marshall Van Oall, Jr....... TU$ca/OO$a, Alilbllma Esther Faye Viln Dall ............ Tuscaloosa, Alcabama Ann Sybil Vogtle ............ , , Birmingham, A/abilnlll George Walton Walker, III , ..... Monr8omery, Alabama He rbert Carey Walker, III ...... . Monrgomery. Alabama James Edward Walker, III ....... Montgomery, Alabama Donna l ynne Ward , . , ............. Mobile, Alabama Ka tharine Anne weber ... , ..... , , , , Mobile, Alabama Jeffrey Harmond Wertheim , .. , . . Blrmingham, Alabama Joseph Wiley, Jr ............ , , , , , ,Columbus, Goofgia Cynthia Forman Wilkinson .... .. Birmingham, A/.lbama Cindy Flora Willard ..... .......... Daphne, Alabama Mary Pugh Williamson ......... Birmin8ham, Alabama linda Elizabeth Winkler ........ Birminghilm, Alaooma Ronald Eugelll! Wood ......... ... . /rondil/e. Alab.1ma Usa Alldredge Wright ... ,. , . , , . Birmingham, Alabilma Winton Emmell Yerby, III " .......... Selma, Alabama Beverly Ann young ........ """, ,Mobile, Alabama Anne Rcgln;! Yuengert ...... , , , . Birmingham, AI.lbama

Fall 1989 Bar Exam Statistics of Interest Number silting for exam ..... ..... ... .. ...... , . , . , ........ .......... , , . , , , . . . 351 Number certified to supreme court ............................. , , . , , , ... , .. , ... 245 Certification rale ........... , , , , , ...•....• •.. .................. , , , , , , . , , , ... 70% Certification percentages: Un iversity o( Alabama ............ ........ ... .......• ••• • ••. .. .. •••. , .... 85 % Cumberla nd ............ , ................................ , ... , ... , . , , .. 81% Alabama non-accred ited law schools , ......• . ..........• • .•••••..•. , .. , , , , .. 19%

December 1989 Admittees Jeffrey Drew Bramer , , , ..................... \<\bodbridse, Virginia Arlene Beverly Co;lllendo;lr "",.,",., .......... Do/han, Alab.1ma Aurelius Evan. Crowe , ............•.. ,"" Monrgomery. Alabama Dllnnis Gene Nichols ... ", .. ,",., ... , .... . Scomboro, A/llooma Thomas Richard Olsen ..... ..... .... , , , .. , , , , , ,Orlando. Florida Marcus l'lerbert Smith, Jr....... . . . . . ....... MOn/gomery, Alabama Blaine Cclone StC\'Cns ......... •.••. ... , ... Montgomery. Alabama

SeaeiQnery for ehe L e gaL Professional

FREE PROOFS For

fll:C ~ ~llIloll of

IICl ulll

umptCli

1-800-633-6050 DEWBERRY E n g l'U v in g

o m puny

Wo rl d 's LllrgcHI E n grovcr PO 80. 211 1. 8'""........... AL "201

(InALcII1I1 ·99 1.2123)

The A/ab.lma Lawyer

Siler'; Coleman (1989); Ralph E. Coleman (1958); JudBe Ralph E. Coleman, Jr. (982) (adm/flee, father, brother)

路

Bybee (1982) (ad-

millce, SiSfl..'r; blother.ln.law)

(1~9~50~),~'~:~

Fred B. Mal/hew:; (1989); lohn R. Mattl1e'N$, If. 8. Matthews (1950) (,ldmil!ee, father; mother)

(1989);

Cllristopher S.

(1988)

w (!ldOlitlee, falhel. brolher)

Jllnuary 1990

•

Douglas Cli.lude MartinSOn, /I (1989); Douglas Claude! Mar· tinson (1964) (adml!tee, r.1Iher)

J. Ben Holl (1971)

Romlld E. \.M.lQd (1989); R.'Jndal L. Wood (1980) (admiCIee, brmher)

Ralph E. Holt (1989); Donald E. Holt (1962); (ildmillee, fa/her. uncle)

(hllsoond, admiltec, siS ler)

",,,,,,", McDermott C."wie (1989); John Cre80ry Ca lwie (1989); William Henry McDermott (1958) (admitlee, hUSrulld, father)

Tra cey P.:Jrrerson Turner (989); Karen Pili/elle Turner (1988) (admillce, wife)

Todd HilmI/1M (1989); L. Oan Turberville (1978) (admillf'C, uncle)

('," "''" R. Cox (1989); Stew<1f! McKinnon Cox (1987} (admitlee, son)

Melissa G. Math (1989); Leonard N. Marh (1989) (wlfu, husband adm;ltet!$)

Gregory Lynn Shf!llon (1989); Kennerh Shelton (1961) (~dmllÂ tee, father)

Burt Smfthart (1989); EIi7.ilbÂŤh Smltharr (1989) (husband, wife admluee.s)

Edw/n \{In Oall (1989); ESlher \4n Dall (l989J (husband, wife admiff~s)

Fr,mk Hampton McFaddell, Jr. (989); Fr,lnk ""amploll McFad-

George Will/on Walket; 11/ (/989); James (admillce, slepfathcr)

c. St/vendcr (/951)

M,lfk D. MorrrYw (l9B9}; John Q Morrow, Jr. 09'/9) (a<lmi/路 brc禄.her)

den (1959) (admiflee, f.lIher)

II.-'C,

BOlden Marlin Ra ... Jr. (1989); Martin Ray (1956) (adm/lIce,

/dne Greene Ras/and (1989J; Edward Quincy RaS/.lnd (/989) (wife. husband admillecs)

falher,

Tile Alabama Lawver

Building Alabama's Courthouses by Saml.lel A. RumQre, Ir.

The following continues a history of Alabama's county courthouses-their origins lind some of the people who contr ibuted to their growth. The A.1.bama L1 w~r

plans to run one counl y's slory

In each Issue 01 the magazine. If you have any pholO!raphs of early or present courthouses, please forw.ud them to: Samuel A. Rumore, Jr. Miglianico & Rumore 1230 Brown M;HlC Tower Birmingham, Alabama 35203

Cullman County The story of Cullman County begins with the SIOry of Colonel John C. Cull· mann, who founded a German colony In nonn Alabama In 1873. Cullmann was

born In Frankenweiler, Bavaria, in 1623 and, accorolng to one of his descendants. Stanley Johnson, If Cul lmann had been successful In his ven tures In the "Old (ounuy:' Ih€! course or modern world history might h~\IC been different, Cuilmann was II rC\lOlutlonary In his native Bavaria. He w,mted to see Ger· marlY become a democratic stale. " s ea,.. Iyas 1848 he partlclpatoo In an unsuc· cessful attempt to establish a democrJCY In Bavaria. In the Oghtlng that took place, he became a colOIll!l ln the rovolutloniuy army. For the rest of his life he WilS knCM'n "5 " the Colonel. In InC 18605, Prussia, which had long been a dominant j)O'NCr among the Ger· man princip.llilies, began the movement to crea te a modern Gernlan stale under the leadership of Ouo von Bismarck, the Prussian prime mlnlslCf. Cullmann again filYOted a democracy ()I.Ier the Pru sslan militaristic monarchy and, acco rding 10 family legend, wa s Implicated In a failed attempt to assassinate Bismarck . Stanley Johnson reported that the Colonel was H

probabl one of thlll>(! w ho blew up ,I train th ught to be cllrrying the prime m l nl slr.~ . The tralrl w~s a decoy, hov.'CVCr, and BI marck was unharmed. One n only guess at the effect on his.tory Ifl Cullmann'S clfon had been ~uc· cessfu and Germ,,"y had developed a\ a democracy without the pn:>Sencl' of the militaristic B i~marck. Possibly V.'orld Wilf$ 1 .md 1\ Yo'Quld n(M'r h,M:' takt'n

p'oe In 1865, ~ ,lfter the a~!kIssi nation .11, tempt failed, Cullmann C.1me to tht' United States with the hope of founding a democratic Germ~n colony here, He (irs selliN! in Cincinnati and began to ~ mom.'Y to buy and (or hh colony. He ~,CM:!d :,oulh in 1872 wher' he W,lS api intt,'CI.I Idnd olgent (or Ihe South and No h Al ab.1m,1 Rail~.d . whi<.h bee.1ml.' the L&N ltIi1road. ullmann was able to purchase thou· sands of ,1cr~s of land along the r,l ilroad lrac s in rhe afCa then knCM'n a~ Brindk'Y Mo ntain, thereby ilcquiri nl:llh{' land to fou Ad hl~ demO!;r.)l ic cgkmy. Ih.M'1Y 1, 1(7), Cullmann had ! recruilL'CI five famIH<-'S from Ohio to his col OIlY. 8y early 1871 more th.m 100 fam1l1 had mewed south, ,lnd, t n of Cullman, with the sec d "n" (I~pped, was established. The tCJoY 8J'CW 'f.\pidly a~ , in 1875, it boasted a Cermill) language newspaper. Through his forts Cullmann attrnctcd m;my immigrantS From Germany to America. These Immigrants settled

throughout the UnitN! Sliltcs, Many {,lme 10 Cullrn,lIln\ clllony in AI barna. Cullmann advcrti~>d {'xtcn~ rvcJy In the norlh to gUMilntl'e iI Sleddy flow ~f st!· tlt'ri to hi ~ town . The Colonel contlr ued to <,ee hl ~ dreilm gtCTW until his dc~th In 1895. III.' I ~ buried In the public cemetcry of the city named for him. C ullm"nn'~ thrifty Germans had r('.ldll'd \ uch a level of pro~perity ~ 1877, th,lt on January 24 of th\l\ year, the ~t.lIC lcJIrslatul'(' c(('ated Cullman CounlY

Samuel A. Rumore, Ir., /s a graduate of the University of NOlm Dame and the Un/versllY of .... /abama School 01 /.a<.v. He served as founding chaifpefson of the .... ,ab.'lma State Bar's FamIly Law Seclion and is in pf\lClice in Birm ingham with the firm 01 Mi8lionico & Rumore.

lanuary 1990

Cullman Coum y Courl/lOuse OlS the 66th county of Alabama. Cullman County was C,lrvOO from Winston, Blount and MOrtpn counties. On Mllrch 6, 1877, an election was held 10 dctMnine the site ollOO Cullman county seat. The voters chose the town of Cullman over Hanceville, the only olher site considered, by an overwhelming majority. Prior to the creation of the county, the Immigrants held courl at Armbruster's Hall, a building in Cullman. latcr, a building adjoining Cullman's European l'1 otcl Wit S rC!ntC(j fOr court omces for S8 a rnon th. The SOUYenir booklel from the dedlcalion of the current Cullman County Courthouse states that a small stone structure was first used as the county courthouse, but was gUlled by fire. It also reported that a tv.o-story Vv'OOden struc. ture was used temporarily. In ;my event, In Milrch 1878, the construction of a coorthouse bu ildi ng was oogun on land OOn1l\1,.>d by Christopher D. Scheulng. l'le was one of the five origInal German pioneers who settled In Cullman. This building was located on the corner of Se<:ond Avenue \l\lest and Fourth Street. It was completed In February 1879, cost SS,600, and was boll! by a contractor named NeISOfl. This structure was constructed of locilily manufactured bricks, wa~ two stories in height and was tOm>Cd by a fOur-sidl;!d 10000r. This courthouse served Cullman Coullty until It was badly damaged by a nrc In January 1912.

The Alabama Lawyer

GOIoernOr Emmett O'Neill laid the cornerstone for the next Cullman County Courthouse in NCM!mber 1912. W.A. Schlosser was architect (or the building constructed on the sanle site as its predecessor. Dobson and Free were the contractors.

The 1912 courthouse was constructed of red brick. It had whlle columns with Ionic capitals. Its style was Neocla~sic;;al and the building was graced with a fourfaced clock tower. The site of the present Cullman Coun· ty Courthouse was purchased by the county (rom Ihe City of CuUm;m ilt a cost of S40,000. Allhough purch<'lsed in 1943, the county waited morc [han 20 ~a~ [0 build Ihe new courthouse. In 1964, U.S. Representative CMI Elliott o( Jasper assisted Cullman County in obtaining a federa l grant oltwo-thirds o( iI million dollars to be used for the construction of the courthouse. The total cost of the new building was al)J>roxinlately SIS million. The architect (or this white marble structure was Marti n J. Llde of Birmingham. The contrilctor was Algernon-Blair of Monlgomery. The county oWces mO'.'C<lto thc new courthouse February 22, 1965. HCM'CYer, the fonnal dedication did not take place urltil luly 3, 1965. IV:.cording to the souvenir booklet for this !'!\'ent, thc Invocation was given by the new pro!>.lte judge of Cullnlan County, the R!'!\'erend Guy Hunt. •

The Alahama Wills 11\. \1I(lllIl"'; .

Lihrar~

«(lIlljltllcl i\;cl\\!llt..

The pro&ralrll I lk mullipleotl\oice and OIhel ancLLlary doi:uJllC'nl.t. fil1 -ln-lhe-blank q~l ioo •. Ind then rom· l.ibrariu for tnter Vi ns Tr IlSU (4931 ). lI C1ufe Sa In (493'), Cundo pose 1.IIOf~ oocunloentS in minutu. T he SM its ( 491j). Cnm't Mu t t;IU le Wills Library (e • . 4930) prfpllreJ .imConlr .cts (49n ). ON'kf Leise Mlde ... pic IIId comptu WIll, pruyidin, fOf (4938). Store t.u~ Mldtf'1 (4939). rale dispoillionl of penon.1 effect. N~ I t.CUU (4940). Limi ted Ind ,uhy. cuh IxqL>e"~. Innll_ ONLY I' ar tn eu hlp. (4946), Se pAiliel, the ,1r.mln, alld e~ercbe rltlon A'rtt m ~ nU (4933). of powerl of Ippoin l menl .

1Ie.,.-

cledll equivalency with Q'1'I1' provl~kn$.

Ifll'" !1l~ri ·

1"1 deducllon l ru~l!. Ch~rilD_ ble I(,nllnder 1rUI ~. IIHI Oilier dl~poJhlon~. '1lIe luiduIII)' filale III.y be divkled inlo

,$200 30-day monoy back gulltantee 01

1I 1I ~ l n cJ5

Silts

(~941 ).

and

Shllrllhotden Aaretm~ n l J (4948 ). ~rc .v.ll ubl e for Alablma ~ I S200 each. Update. Ire f,ce the flul yur. S10 pcl di.k thelufler. IBM or compal,ble ~ompuillra.

satisfaction wilh uch Sp«iry j 1/-1 " or 3 1/2" disk. CILI , hale belns liven 10 one or more Bernice Wiltiaml. (800) 22 t·2972 IxntOclaries Oulri'~I. or in I uricly for inform.. lon on thue and OIher or lrum. Trull. mly be lerminated programs for AI.Nml. or pl nlall y d;llfibuled .1 lpecific equaL or unequaL ilhru

agu. or may lUI for the life of lhe Ixnefidary. Ahemtle .nd SUC«J_ belloe flclBrlu nlly be _poc:cified. The program aliO Ilrep.ret lIyinll wiLl dec llratlon~,

power. of

all ornc~.

family lre e afflda_iu. USCI lurn morlu. execution check 11111. and

~celslor-Legal.

Inc.

62 WhileS ..

New York. NY 10013 (1100) 22 1-2972

FAX (212)43 1·j l l1

An Introduction to Federal Administrative law Part II: The Availability of Judicial Review by William l. Andreen This is the la \1 aolele in a two-parI series which is intended to presem a bro:ld (M!rvit'!W of f~Nal administrative

low. Part 1 in this series discussed !he rulemaking and adjudicatory powers thaI are

commonly posse;scd by (edefJ! agencies and the standards used by the fedcroill judiciary 10 <lctermine rhe validily of rulemJking and adjudicatory acti on. This finll! 'Hllde wil l cx1Imine the various

threshold questions that confront parties seeking judicial review of agency action such as Jurisdiction, preclUSions of re-

view, sovereign immunity, standing. and liming.

I. Availability of judicial review A. Jurisdiction I. Specific grants Most fcder,ll fCgul atory sl<ltutes spcclOcally provide for judicial review of cerlain kinds of administrative action. tn doing 50, Congress h<ls chosen it wide v(lriety of route s for judicia! review. For example, orders denying or terminating SQ(ial see:urlty benefits are revie<Nable in federal district courts} while cease and desist orders Issued by the Feder.ll Trade Commission may be challenged only in an approwiate United States court of appeals.! Congress has in some ca ses made things ~n more CQmp1i(ilI,->d. Under the Clean Air Act, for insI<mce, a national ambient air quality St;1fldard rule profflulga l(od by the United St,lIes Envlrori· mental Protection Agency (EPA) must be challenged in the United States Court of Appeal s (or the Dis!rict of Columbia.! However, a challenge to an EPA action which is locally Of regionally appllc<Jble, such as EPA's apPfO'oIill of a state implementil!lon plM, mlly be t..ken only to the court of appeals In the appropriate circuit.· tn either case, the lX!tltlon for review must be (iled wi thin 60 days after notice of the final rule or apprO'olJI ap~i1rs in the Feder.. 1Register.' In i1ddition, the Clean Air Act authoriles a suit to be

brought in a United Stiltes distric t cour t in a case where the complainant alleges a failure by EPA to p!!rf(lrm any nondiscretionary duty under the Act.· Therefore, due to the cOrllplexlly and variety of jurIsdictional grants, one should pay close tltlention to the jurisdictional prO'ollsions contained in the particular regula tory statute in question. 2. Generill grants Despite Ihe plcth of<l of sJ)Ccifi c jurisdictional grants, th ere arc many kind s of administrative 1'IetiOn fOr which COnl:li1!55 did not explicitly provide an avenue to obtain judicialrcview. In thm situation, an aggrieved person must prrolcate jurisdiction ul>on a more general grant of juri Sdiction such tlS 28 U.S.C. § 1331- g(!ncral "federal question" Jurisdic. tion. SC(tion 1331 PfQJid!.'S that "[t[he district courtSshall h,~ ori ginal jl,lriS(!iClion of all dill I acti ons arising under the Constitution, IflWS, or treaties of the Unit!.>d States." Most challenges to froer.. 1 administrative acti on for w hich there Is no specific jurisdicti onal prollislon will dC<lrly meet Ihis test. Prior to 1976, how~r, 5ec;tion 1331 3151;) required that the amount In controversy had to exceed $10.000.7 Con$C(luently, many challenges In'olOlvlng relatively Sr'lllill [)ecuniiHY amounts wert! based upon other general grants of Jurisdiction such as 28 U.S.c. § 1361 which provides (or mandamus. In a number of instances, plaintiffs asserted thtlt $eCtions 701-704 of the APA created an independent source of jurisdiction for district courts, and Sl."Y'en clrt;;uit courts agreed with that interpretation.Th is dilemma was resolved in 1976 when Congress eHminlltro the $10,000 jurisdictional amount III cases brought "8<linst iI fcdcri.ll ilgef'lCY under section 1331.' A year 1,1tCr, the Supreme Court, relying in large measurc upon the amendment 10 section 1331, held Ih"t section s 701-704 of the APA do not confer subject.mmtcr Jurisdiction upon dls!rict COUr!S.'O

B. Preclusion of review Desl,ite the assertion of an appropriate grant of Jurisdiction, judidal revi('W, nevertheless, may not be availifble. Section 701 of the APA states that the APA's prOVisions concerning judicial review do not IIpply where (1) a sta tute precludes judici<ll review or (2) "agency action is commilled to ilgency discretion by liIYC " These two hurdles to judicial rINi!.'W run counter to the basic pre$umption favoring jud icial re\d,-'W which Is em· bodied In !he AM." After all, the APA prO'olides th at any l:terson "adversely af· fected or ilggrie...ed by agency action ... is entitled to judicial review thert"Of."IJ Consequerltly, the SUI>reme Court has declared that access to the courts $hou ld be restri cted "only upon if shO'Wing of clear and conllincing evident;;e" of congresslonill Intent to thM effect.'· Express Sl<lt(IIOry prt.'clusion of ludlclal review is not common, and. even when such prt.>c;:lusiOrl exists, the courts are likely to gi~ it iI narrO'W Interpretation.1I For inst.1ncc, the admirlistrJtil;)n of veteran ben(!ntS has 10llg been Insu!ated to some extent from judicial scrutiny. In Tmcv '01. Gleason,'. the court held that the prohibi. tiOrl 011 review of "any question of law or fact concerning a claim for [veteran] benefits" (38' U.s.c. §211[a] [1958]) did not apply to the termination of benefits.'7The court clearly tMught that the termination of benefits did nOt in'olOI'oIC! a "claim:' In response, Congress amended the section to bar judicial review of "the decisions of the Administrator of any question of IfIW or fact urlder any law administered by the ,*terans AdmlnlSViltion [VAl prolIidlng benefits for veterans ...."11 The Supreme Court, hQ\o'o'CVi!f, held tha t this prohibition did not pre<:lude an attack on one such decision becilUse the challenge ~ntto the C(mSlitulionality of the Ve terans' t"(ijustment Act of 1966 ra ther than the VA's administration of the statute." Judidal review under the APA is also unClViliiable wherl,l iln "aCtion Is comrl1itled to agency discretion by IfIW,"}O This cxcept ion to rlNiewablll ty applies only "in those rar<! Instances where 'statutes are drawn In such broad terms thar in a given case there is no liIW to apply.''''' The Supreme Court recen tl y iden\ined sut;;h II mre instant;;c when it held thai a,l agency's dccision not to undertake ad· ministrative or civil enforcement ilgalnst a vlola tiori of the law is a decision gen-

lanuary 1990

er.ll1 y commi"ed to th e unfettered discretion of the agency. Therefore, sw::h a deciSion is prcsumpt ively unrwI(!v.r,Ibl e.lI The presum pt ion may be rc buued, how<M!r, where Congress has Ind icatl!d an Inter\t to Umlt the ager'lCY's er\forcemcnt discretion and has provided guidelines for the agency to fo llow. In such an in· st.lnce, then:: wou ld be rome "law to apply."U

C. Sovereign immunity On ly Congresi htls the povvcr to deter· m ine whether the United States may be sued, an d, If so, in which courts the sui t rllOy be brought.'- Where Congress has not waived the sovereign immunity of th e United States, no officer of the fede ril! government has the autho rity to consen t to a suit agtlin st the government.u Although the defer'lsc of sovereign Immurl l· ty blocked many challenges to agency actioll In the pa st, it poses much less of a p roblem tod"",. Congress amended the A PA in 1972 to elimi nate th e defense of sovereigll immunity in cases brought in federal court where the comp lilinillll ~k s " relief other than money d amage$:·t. Therefore. action seeking declar.ltory tl nd InJunc. tiYe relief no longer will be hilmpercd by sovereigll immun ity. This wai'v'f1r, of course. does not apply to a case brought aQllinst th e United Stlltes In a state court. In such a si tuation, the government still will be cloa ked w ith sovereign Immunity. unlCiS an explicit statutory waiver applies. MOfCOYCr, sovereign immunity still may provide the 1!."(Il!rilI g~rnmer\l with absolute defense to an action seeking monetary relief.11

'1Il

Standi ng Related to the Issue of whether a parlicul", cI"i m is appropriate for Judicia l review is the queslio n of whether that claim m:ty be advanced by a parti cular pl(li nliff or pet itioner. This lauer question Il1\IOlves the req uirement of standin g. The constitutional source of standing law is Article III, § 2 which restrict s fL.cJeral Judicial pow'Cr to "C<15es" and "COr\1fCM:r· sics:' Prior to 1940, the SUI)rern e Court alla· ly;:ed stand ing as If It were an integral part of the merits of a case. A pmty thus could ob ta in Judicial review of "gency action only if that aClion invaded a legal right of the party which was crell ted by stalule o r common law." This analysis,

The Alabama Lawyer

of course, con fu sed th e thre shold Issue of standing with theuitimllle merits of a claim . Moreover, it served to reduce the abili ty of the federill j\ldidl1ry to monitor the eJ(1)anded actlvil ies of the federal burellucracy. This ~~crable formulllliOr\ of the standing doctrine began to crum· bl e. as a result, d uring the 19405. The Supreme Court, during that decade, recogni;:ed that Congress could ex· plici tl y gr"nt " right (If judici(ll f(,."View to any person aggrieved or adversely af· fected by a part icular agency action. regil rd le~s of wheth er thl!! persar\ could show a violation of a " legally pro tected Ir\lcrest." Thu s, a 1).'1rty cou ld obl,l ln reo view merely by demonstrating a personil l Injury In a situation where a statutory provi sion granted stan d ing to aggrieved persons or, in oth er word s, to pri ville attorney general s." In 194(•• the APA was enaCIL..cJ and provid("'C1 that a person "adversely affected Or aggrieved by agency action within the meaning of a relevant statu te" could obtain judiciill revicw.l~ Th e fcder.)1 courts, however. generally refused to view sec· lion 702 as a broad Sfilnt of standing. In· stead , the courts held th at ~t ion 702 only p rovi ded standing where the In· tcres t in question wM recogni :ced by some other sta tute." C:on$e<luently. th c legal Interest test still had some resi d ual vi tality. In 1970, hOY.'CYCr, the Supreme Cou rt re-examined the issue of standing under the A PA and, in the process, <!rastl cJlly revised exi sting law. In AssodJlion of OiJ\i.I Process ing Service Or8<lniza(ir.JnS v. Camp,J' the court rejl!Cted, o nce and for all, the teSt of If legall y rccogr\i:ced Intcrest. In its place, the Court substituted a new two-parttes\. The first tcst is based

on the constitutional requirement of a case or controversy. Thus. a plaintiff must nUege thatlhe agency's adon caused the plilinliff some "injury in fact. economic or otherwi se:')) M oreover, the dispute must be "presented in an i1dlli!rsary CQntext and in II form histori ca lly vlt!Wcd as capable of Judicial resolu1 on :'l4 The sec· olld test requ ires thot "the Interest sought 10 be protected by the complai nant Imust bel arguably within the zone of interests to be protoc ted or regulated by the sta· tute or constitutronal guarantee in question :'JS This is based Ul>on soction 702 of the APA as well as more gcneral prudentia l con siderations.lt DOl/a PrOCe~sin8ls still good law. Since 1970, however, the Supreme Court has handed down a r\umber of dccisloflS which refine the two-part test first enun· clated in Datil Process in8. In Sic,,;] Club v. Mor/on,P the CO(lrt held thil t the party seeking fCYiew must allege fact s showing th(lt he or ~he is (lmOng those (ld'v'f1rsely affected by the agency's action. A litigant thu s must assert a d irect stake In the COli tr'O\lC rsy.11 But such a stake need not be economic. Environmental or aesthetic injury. for e~ilmple. is enough to satisfy the requi rement of an injury In fact. J9 Furthermore, the alleged injury need not be signific,m t. Even an "i d~nti flable tri fle" Is enough to give a l>arty st(lilding to vindk(lte ~n important princl ple.· o It Is clear, never1heless. that the Court will not extend standing to a party who has not alleged facts demonstrating some causal link between the agency's Jction and the party'S alleged injury." !f this c.lusallink is too speculative or seriously allt'muated. standing will also be denied.u Such denials have been predl.

Willian) L. Andreen currently serves as professor of law OIl the University of Alii· bllllla 50:/1001 or Law where he spedil/Izes in cnviroltmcmallaw and admlnlstftllive l,lW. Ne received his under8/'i1duMC degI'CC In 1975 (rom thc College o( \M)()stcr and his law degree III 1977 frOm (he Columbia UnivefsilY School of Law. Prior 10 joining rhe Iilw ',l Cul1Y ilt the UnlverS/fy of Alabama in 1983, Professor AndrCM Wil Sa$$i$tant regional counsel (or the U.S. Environmemal Protecrion Agency in At/Jn\a.

caled upon rhe Ankle til requirement

Ihat, In order to be justiciable, 11 case

LAZER PRINT U.S.A. Deca1Uf, III 1-(800) 628-0016

""""",,,,'! , _

c.,... It",.....,..,.

»0<-1011111' v

OFFERS YOU: • Remanufactured Camldse Oivl\ion • Longer, Dalker Priming • • • • •

Imerniltlonal Cu~rar1!~ Free Local Plck·up & OeUvt'ry F.t'tl Rerum Sh pplnll New TOIler Cll ltrldijC Olvhion GCflCIJI C ll!a(\lng·Servlcc~ Division

FO R LESS COSTII

LAZER PRINT U.S.A. 141 0 71h live., S.E, I)e(;",h)', ilL 35601

1205) 15 1-1961 l ·aQO-828.{)() 16

LAW OFFICE COLLECTIONS SOFTWARE Designed specifically for law fi nns • For IBM · I>C Compatibles • Dozens of Systems ;n Use • Print5 Legal F'(lrm:sl~brm Letters • Complete Tickler System • Single Data Entry • F\Jlly Supporttd • All'ordable • Demonstration Program Available for information call (804) 288·7850

~ 30

JS 'R!chnologies. Inc. SOOl West Broad St. Richmond,VA.2323O

mus! be capable of judicial resolution.'J These rules are easily IUtlculaled but ralher difficult 10 apply. In close cases, therefore, it may be hard to pr(ldiCl whelher a court will find Ihat a party seeking judicial relief has satisfied the re(Iulrements of sltlOding.··

E. nming The doctrines of primary jurisdiction, fin<1l1 ty, e~hauSlion of fldmini stril tive remedies, and rlperless Me all dcsignt>(1 10 avoid unne<:essary or untimely judicial Involvement in the administrative process. They do not forbid Judicial review. bul merely postpone the time at which a court may entertain a particular malter. 1. Primary juri sdiction Th!! doctrine of Ilrimary juri$diction is a Judicially creatlXi principle designed to deal with a situation where both a court and an agency h3\le the legal authority to address the same dispute. for example, the feder.J1 courts hil\e the poYIer to hear 3 compl3int alleging an Illegal festr'lint of Irade such J S it conspiracy to fl~ prices, while the fcdcrill TrJde Commission has Ihe power 10 determine whether such price fi~ing constitutes an unfair trilde practice. When both arms of 8(M!fnment hoNe the poo.YCr to act. which should be regarded as having primary jurisdiction! In such 11 case. the federal courts have re( ognl :(I..'d the primMY Jurisdiction of the agency, thereby posllx)I1ing judicial consideration of the case, if thil t cou~ 01 action will lead to more uniformity in dedslonmaklng." The courts also haw deferred to an agency whore it pos,sesses specialized knowledge and expertise Ihat would be or usc in resolving the COllltovcrsy.'·

2. f lnillity Section 704 of APA ptOYides thai "[aigeocy action made reviewable I1t'statute and final agency aCiion for which Ihere Is no other ...dequatc remedy In a court are subject 10 judicial review."'1 Consequently. in the nbscnce of express stiltutOry authority 10 Iha contrary, a weIImlnary or Intermediate agency ruling is oot review.lble until the agency has taken final aClion.·· A stalute, hCM'eVCf, may specifically speed up th¢ process. For eK.lmple. the

Freedom 01 Information Act authorizes Judicial review where an 1I1!ency falls to respond to an Information request within II certain lime period.· ' On the other hand. {I statule may state thai an action is final for purposes of judicial review only after a number of steps (hearings, appeals, etc.) arc taken within the agency. Finally. a number of agencies have also used regulations to define the point at which a particular 3cllon becomes fina l. In the absence of a statute or regul,,tlon which defines finali ty for purposes of Judicial review, it mily (tot IIlwJyS be cleM when agency (lclian is final. In such a situation, reference to tho Judiciallycrea ted doctrines of exhau~tlon and ripeness may help dcllnc the time al which a dispute may be taken to court. 3. Exhau5tion of administrilti ve remediM No p;!rt y 15 entitled 10 Judicial review untlt that parly has exhausted tho prt.... scribed admlnistratl~ rerrroles.\O Thus, if an admlnistfiltive proceeding 15 at an earl y stage aoo lhe party who seeks Judicial review has a right to an agency hearIng or a l)l~a l , a court generally will refuse to entl.'rlain the case because Ihat patty has failed to awilit lhe completion of the administra ti ve PfOCl'SS. A number of {<lctors favor the application of the exhaustion doctrine: (1 ) II respects the choke made by Congress to delcgMo illllial dl.'CiSionmaking authority to all agellCY; (2) it allows an agl..'ncy 10 bring Its oxpertlse to bear on !I p.lrticular issue; (3) it prevents Judicial review from proceeding on the basis 01 an inadequale administrative re<:ord; and (4) It avoids the necessity for judicial involvement In caR'S where the <lgency i5 able to resolve Ihe problem." However, a coYrt might intervene In " pending al!t!ncy proceeding - iln "extraordinary I"f!m(!{ly'~here it is "necess..1ry 10 ... Indlcate an uft.1mbisuous statutory or constitutional rlght:'Sl

... Ripeness The doctrine 0( ripeness concerns the ability of 11 court to resolve a parllcular disl)Ule without further refinement of Ihe Issues by iln ildminlstratlve agency. [IJt5 basic ra tionale Is to prevent Ihe courts. through avoidance of premature adjudication, from enlarlgling themselves in ahstfilCi disagreements <J\ICr adminiStrative policies, and aiso

January

1990

to protect the ag~ncies from judicial interference un!ll an adminlSlfIltilo1:! decision has been fOrmalized and lIS effectS felt in a concrete WilY by the challenging p~ rt ie5.n

Abba!! Laboratories Y. Gardner" involved an attempt to obtain judicial reYicw of a Food and Dru g Administration (FDA) rulcmilkin g before II wa s enforced agalrlSt any pmty The nnal rule required pharmaceutica l companies to include a drug's generic name on all ti\bels and in all ad\lerllsing whenever the drug'S proprietary name was used.55 Abbott claimed that the FOA had exceeded its 5taIlitOry authority in promulgating the rule. The FOA, on the other h:llld, argued that the case wa s not approprlatc (or Judicial rev /CON since the rute had not yet been applied In the context of an actual enforcemen t action. On the question of ripeness, the Supreme Court established a two-parI test. First, a COUrl must examine whether the Issues presented are Ot for judicial I'(.'view. Second, a court must consider whether the parties SCCklr'18 (~ iew will suffer substantial hardship If review Is wlthheld.S. in (lpplying th€ 0r'S1 P(lrt of the t€st, the Court held that the sole issue presented was <lPJ)ropriate for judidtll r(.'\liew. This C;il$C posecllhe purely leg.11 question of whetherlhe FDA had the authority to re<tuire a generiC name to appear every time a proprietary name wa s eml>loycd. Moreover, si nce the rulcmaking was Onal, no (urther administrative action wa s necessary in order to refine the c;ase (or juvic;iat reviewP The Court (lIsa heid thilt Abbott would suffer $ubslanlial hard ship if judicial rL'View were f(.>i'u scd. Abbott cilher would have 10 comply wi th the regulation at some considerable cost, or refu se to comply and thereby ri sk prosecution.sa Therefore, absent some statu· tory b.1r, Abbou wa s entitled to judicia l review because the case was indeed ripe. Alloowlng for pre-enforcemen! challengcs to agency rulemaklngs makes a gre,Hdeal of sense. If the govcmment prevails, industry must comply. On the other hand, should the government lose, the ilgenc;y c;an quickly change c;ourre (lnd revise the rule as nl'CLOSS<lry. R<!Cognil:ing Ihe pragn)atiC nature of this (earorllng, Congress now often (l.'stricis Jud icial review of ru lemaklngs to the pre-enforcement period ." The Alabama Lawyer

Conclusion The administrative state Is Ileither a monster nor a misfortune. It is rather a structure built over the course of two cen· turies which is designed to further the collecti\le goals of Ihe Americ;an people. The rise of the administrati\le slale, nevertheless, has posed a challenge to Ihe ability of the Ameri can legal systcm to establish a proper equilibrium amOrlg our thrcc branches d government. The chiltlengc invol\leS the question of how

federal power will be allocated and requires our legal system to comc to grips with the real tension which exists between the n<!Cessary role of adminiStratilo1:! discrctlOrl and the need (or some degr~ of accountability. The struggle to balance the c;onf1icting. but complementary, roles of specialized e~pe rt ise and ex· ternal control is the dynamiC that has shilped ilnd continues to shape the con· tours of federal administrative law. •

rOOTNOTES I. 42 U.S£.

40SlIP

(19&21.

n . )91 U.s. 1~ 119 701. JJ. Id ~I 1~2 14. hl. • , IS1.S11"""l ln. IMnI

2. 15 u .s.c . f 4S!t l !l982J.

). ~ 2 u.$.C 4 1607(bXl) 4. Id.

6. '" 46

u.s.c. §

c l l l!~n

7(j()4

(1~I'I.

(19821. l1\" >t'(1H)n II ~ _~ _I It.o

wll pt(Wlli(>n.

1. k<' I'uh. l,. 94· S'~. 90 SUI. m, (1971>1. a. s.... C ."'.no . . S.!NJM. 4JO U.s. 99. 104 ~... !I'77)

r~t>.

l. ~(.5N. 70 SlOt 1711 (1'7&1 (.I~ln, 2~

u.s.c. § Il)ll.

10. C. III'.IIWlo ~JO us. 99. 10:1 11'77) II . 5 u s.(. § 7011.) (I'1a21. 12. s.... ~( l.Wc;,.I<lt/t. ~ (;,I,(I~~ ;till u.s. Ufo, 14(l.41

U~'1).

Il. J U.Se.

§ 702 lI'1all. 14. <'IbboIl u.boI.wrie~ 381 u.s. .' 1' 1. 15. 1'" ~.I <ou"'lI""",~tlr mu"" to Imply. pn:elu. .10<1 0/ ludk~1 "",lew on Ihe bol,l. 0/ lI.>tu!OlY .....""".... St.. Ounlop .... lI.o<ha.v>kl•• 21 Us. S6O; S6/I (I~lJI(nfldln, INillne So.!roI. 'y 01 !.;lOOt "h,I1 1.1le<J 10 Mol.... ,!\(>wIns III '<:r.:., .1Id <"""'''''ln8 ""'~ ... ,11':11 COll.ll"'" """'0110 proj,lbll.1t ludfd. I_lfwol de<i,ion"I; but _ Block. Commun/!y NW~lon I... , ' I(ulf. 'W U.S. J'(I. HS4 (19ft'l(tmf)lvln, p<"du. ,!on lrom lhe 1'''M"''Jt<! <J ,hf: ""IUI~. lhe "'IKIU '~ <J 1J\a IIAMory !oI:1wt~. IIwt (~II"" of' lhe legl.t.tlo<l .M II... Irsl,t.w... hlllOtyl. '6. )19 F.2d '69 Col.

(o.c.

17. Id. • , " J. 16. 84 St.il. 790 !l9701 19. /IIIInJOft .... Rot>Iwn. liS

ZO. , u.$.C. S 101(.~21.

''*'1). U.s.

J61. l7J.701

21 CJ(itfm ro Pre~~ Qw'(>lI P.,k •. \tIIP". 4 (11 Us. 41U. 410 (19nHlloodng s. ~ No. 152. 7'.Ith C"" ... I" s:n.. 26 (1!H J)I. 22 . "'e( l.I~ •. Ch.""'I\ 410 1Js. Ill. 811 (19UI. U 5H /(j.•1 81&. 24. Mln ... ror . .... UnlWII SLlIl'J, JOS U.s. 3112, 1" (l91!l1. 25. Id. • , JII9. 2(" , U.s.c. I 10~ . n ~''Y «IlIrfl,om It.o ItdI!r.t lI'M',n"""'l "'"'" be

..... ,1>1 In ' 1~1IOI>f1.r • ...:rlo'" br008hlln «(pnIpll.nc. w illi I"'I~"'" of ,''' ~.I 'Ii)rI Cial"" A<;I, 211

28.

e.•.. <'I1.born.

~, Co

U.se.

(19821. (19&21. v. 'em. )()2 U.s. ~6-I

(19181.

29. S«. f CC .... $.o"*,, IW.oQ SIoI,Son. 109 Us. 410 11~.0I (opptylnl t.ng""ll'! Iaund .. 1IlI! CommunkOiIono Act al 1934): S<tiPVl·IIQw~td 1I..>(It() v. fCC. J16 u.s. • (... ",.,t. lO. S U.S£. i 1Ol. JI. ~ K' "l1I CUy Ibw<!I & tI~h! Co. v. M<~ U, (1~ ~ 2)

s... .•.,

F2d 924 (o.c. (Jr. 19HI. .otrt.dt<'l«I. J'so V.s.

Us.

~$4.

fr." . . Cohen J'l U.s. 8l.

~~.II~

1Il/i<)w •. Cr:>llln ~ )91

I S~

119101. J1. 405 U.s. 12111 97.11. J8. 1(/ ~( 740.

19. /JrI1It<J Stir.. v. SI~. Clullett,.,. ~1.1I)ty """'" ~ V 1'rIx«Iu~ (SCRAPI. 41l U.5. 669, l1li6 (197)) 40. SNJd. 116119 n.1 4 (quellnl OowI .. Stlndinf' Joi.".......,. .<><101,.."" J6 U. CH l . !leo. tOl. (p(IJ !19MV.

~1. \'>Itllh ~ $foldln, 4ll Us. 490 !197S). 4 2. S,mon ~ l ,u",n Ko!nludy \'01011.... ~ilhlJ Cilpn/t.· I/On, 416 U.5. l6, .4 (1916). 41. 'd .1 J8. 44 f61 _ I~fI\l 1<&1t>lrr\1J 04 ;I.oolnl II~ i1I' ttlt ~ ClJun, 1ft (/;I,.. ~ SIaII,iff Indu,ll)' <'I,"n, 419 U.5. J88 (1981); /I",," WIIoli,. N,'n v IImttk,n '~,f( n ~~ty, 4~ u.s. W 11~661: 1It1'"", fOttlo C/II/"/.n Col..... 1I",."k.n. I.hlted lor oIChurc:h.1Id SWlf. 1M.. 454 U.s. 4~ n~l): D<J ~f ,.".,.." Co. v. C.,O/"'. ( .... I"""" ... /,I( Study CrouA 10(., ~)8 U.s. J~ (19'81: I'm'l/<! d <'Itlinjjl()l't tlflllh!l .... MfllOP'JIiUn _ , Inr ~ Cotp.. 429 Us. 252 OWn. 45. k ... P.CI/j( II. ~I_ C(IIt()lt O!I CoJ., In. u.s. 426, U 8 n9OT). 46. Sft, United Swre. ~ \'010,,1', " p"rlle ~ . C;o.. )51 Us. n. ~.6S n,561.

...

4' . 5 U.s.c. § 10. 48. kf 1(/.

(1~14 ).

! IH(ojbl • • nd ",!.oIl!<!. bul oe. llfred .ecllon. .00 lhe Tuckfl Acl. 28 U.s.c, U 1346. t491

101 (19I111JI . n. rd ., 151. 36. ~ 1(/ "I I$H4:

Stop,o,,'Ion

'0. "

(1~2)

4~. S U.s.c. t 552(111('110. JO. M)'M .... lklh/eIlcm SMpOOlld;". COtU. 303 U.s. 41. SQ.$1 !19;t111 . 51 . s.... M <~" •. United SUII'I, )95 U.s. 185 (19691. 51 . Coc• .c;oIo Co. •. Unllf<l~ ' 75 F.2d 1"'. J04 (~Ih

191]) l"",ptw,I, oddodl. cerl. ""nle« ~1 4 U.s. 871; _.1>(> ~ ~ Ky.... )5-& U. ~ I ~. U9511) (1l1'l(I1 .. Ins In N~R" 'IN;I,1on tiI;It ...., ",ode In IXCO'<' cI tt>

.ulha,IIV .nd <onlr.'Y "' • lpecln( , lOI ulory prO/Ill.li'lor>l. U. /JIboI, LlbQr.!Oi!o1 v. c,,"""'t ]8' U.1. tl6, 148·49 It%n

S4. 3ft1 U.s. lJb 119&11

n. Id. 01

$6.

1),.)6.

II WI.

57. Id. SS. Id 01 15HJ.

U.s.c.A. ! 1)&~bl M'<!-<I I~~ '" Sol'll t'1a') IClNn W~l.r ""IIIIIoIIIln,. ~N l tt<lse '0 (fl· Llln r9!1ulliiorI< In" .... '~Ienbaomml octlo<l II """. . (""Id h, .... bfto, i./bY,nt(I ...11111" 120 d'Y!o ,he IUH! WI< pH>m"I8',edl.

$9.~. ~-I., ))

.1""

ele opportunities 19

friday

AI)VISING SMAll 8 US INESS

CLI ENTS R,lm,ldil Civic CentCf, Birmingham Cumbed,md Irhl ilulC (or elE

6-9 DIVORCE LAW UPDATE Resort, Villi, COIOl.ldo Ww Education InS\ltule, Inc.

~shn

Cr(·di!\; 16.0 (41 4) 961-032)

(051: $425

CIVIL LITIGATION CONFERENCE \oV(>~tin Resort, V,liI, Color.ldo

Cn.>di l ~: 6.0 (205) 870-2665

COSt: $110

TAX CONSI DERATI ONS IN REAL ESTATE TRANSACTIONS Birmingham Lorman B u~im's~ Center, Inc. Credils: 6.0 Cost: $95

wednesday

BASIC REAL ESTATE LAW I N ALABAMA Montgomery N,rl lonal Business Insiliull', Inc. CO~ I :

Crcdih: 6.0

S98

(715) 835·8525 NURSING H OME LAW Radi sson 110lel, Birmingham Cumberland I n~l itull' (Of CLE

If.'d its: 6.0 (205) 1l70-2865

(715) 833·3940

LIW Education In\l iILIIC, In(. Credit~:

16.0

Co~t:

$425

(414) 961·0323

11-13 EM PLOYEE BENEfITS LITIGATI ON Wil~hin810rl, DC Anl('riCiln l..1w InStitule..f\l1lcriCilll Bd! A"SOCiillion

20-27 ANNUA L WI N TER SEMI NAR Th{' Sojourner nn, Jackson Hole Cumberl'lIld In ~lilut{' for CLE Credil~: 11.0 (205) 870-2865

(l IS) 24 3·1600

17-19 W I NTER CONFERENCE E lll bii~~Y SUhll~,

Birllli ngh,lI11 AI"b,ll1l,') DIStrll \ AttornL'Y~ Associa tion

21-25 M I OWI NTER CONVEN TION M,miot! Orlando 'vVorid Center, Orlando M~ocl.lt l on of Trial L..IWYCf'> ('jf America Crt'(li l ~:

26.3

thursday

EN VI RONM ENTAL LAW R.ldlsson Hotel, 61rmlnglml11 Climberl.lnd lnstllule (or ClE Credits: 6.0 CO\I: SilO (20S) 870·2665

tuesday

EXEMPT O RGAN IZATIONS AN D CH ARITA BLE ACTIVITI ES Mobile

Nillional Buslncs~ I n~t illl'C, Inc. Cr(odih: 6.0

Co~ t: $98

(715) 835·8525

{8001 424-2725

(205) 261·4191

18-20

tuesday

Crt'dits: 9.5

BASIC REA L ESTATE LAW I N ALABAMA Mobile Niltional BU ~ ln{'S~ Institute, Inc. Cr{'CIit~: 6.0 CO~ I : $98

(205) 262·4974

(715) 835-8525

MiDwiNTER CONFERENCE WyrlirC!y IIOleJ, 8irllllngh,ml

Alab.lmJ Trilll Llwye~ A,socla/ion

wednesday

EXEMPT O RG AN IZATI ONS AN D CH ARITA BLE ACTI VITI ES Montgomery National Busim?)s Institute. Inc. Cost. $98 C!l'dits: 6.0 inS) 835-8525

/nnu.lry 1990

HOW TO EVALUATE AND SETTLE PERSONA L INJURY CLAIMS Montgomery

Profession.ll Education Systems, lile. Cn,:.dIIS: 6.0 (715) 836-9700

frid ay

COSt $ 115

17-22

CONSUMER ISSUES IN COMMERCIAL TRANSACTIONS

BASIC COURSE IN TRIAL

Blrmingniln1 Aillbama Bar In~lilule for e lf. Credits! 6.0 (205) 348·6230

Ritz-Carlton Buckhead, Atlanta Association o( Trial lawyers of

thu rsday

OU I

AmeriCil COSt: $600 (800) 424·2725

21-23

Cumoorl;md InsliMe (or elf

C!lxlits; 6,0

(21 4) 690-2317

Cost: SIlO

(205) 87Q.2865

HOW TO EVALUATE AND Sml E PfRSONAl lNIURY CLAIMS Birmin~h.lm

FOCUS ON FAMilY LAW

W,lll Disn(,'Y World Swan. l.Jke Buena Vlstil LilW Education InstitlltC, Inc. Cmc:!it\: 16.0 CO~t: $425 (41 4) 961·032J

ADVOCACY

O il & CAS LAW & TAXATION westin Hotel, Dallas Southwt.-";Iern Lcg.11 FOllndation

Birmi ngham

24-27

friday

SPECIAL ISSUES IN FAMilY LAW Birmingham Alilball1.1 Bar hlstltutc for e LE Credit ~: 6.0 (205) J48-6230 TRi Al TACTICS Bi rllli nghill11 Cumberland InstltUlC for (LE

( rcclits: 6.0

(ost: illO

(205) 87()..2865

Professional Educ'lIlon SYSlcm ~, Inc.

Credits: (,.0 (715) 836·9700

Cos!: $115

WO RK ERS' COMPENSATION

friday

Birmingham Cumberlllnd Institute for CLE Cr('.odits: 6.0 Cost: $110 (20S) 870·2665

EM PLOYMENT LAW

Birmingham

AI;'tbama Bar Ins/hull.! for elE

Crcdit~:

6.0

(20S) 348-6230

PER50NAliNJURYfWRONGFU L DEATH Birmingham Cumberland Imlitu'c ror

Crt.>dits: 6.0

FAMILY LAW Judicial Center, PenSilcola Alab..1ma B,u Institute for CLE Credits: 6.0 COSt: $ 110 (205) ]48·6230

elE

COSt: S110

(205) 870-2865

The A/iJb.1miJ Lawyer

3-7 BANK RUPTCY LITIGATION IN STITUTE I OIY"'I>iC Hotel, (>,uk City. Ut.lh NOrton Institutcs on Bank~tcy Law

Credits: 15.0

Cost: $550

(404) 535·7722

23-24 BRI DGE·THE·GAP Birmingham Alabamil Bar Institute ior elE

Credits: 12.0 (205) 348·6230

Rule 32, Alabama Rules of Judicial AdministrationChild Support Guidelines -::::::::j_

- - - - - - - _ by ludge Richard H. Dorrough _ _

I. Introductio n In 1974 Con gre~s l>"lSsed Tiliu IV-O (If

the Social Scc::wl!y Act 42 U.S.C.A. §§6SQ-662. The IYJrposc 0( thi s title was to shift a pari 0( " e burden of support-

ing needy children (rom thc goycrnmcnl, through AFDC, to the p.lrcnts. by InlproYIns existing methods of eSlabUshing

paternity ilnd support obligations and by srrlClCr enforcement. A dC!Cade Imer the

system was re-txaillincd and found 10 be lacking. Unpaid child support obligations exceeded $4 billion annually and

only a lIule over 50 percell! of custodial PJrenls even had a support order In

effect 34

In rCSl>onse to this s lualion, Congress further Cl'ltlctC<J the Child Support Enforcement Amendments of 1984, Public law 98·378. These amendments provided slricler admlnistr.ltiYe processes to expedite the establishment of suppor1 obligations ilnd stronger methods of enforcement through wage withholding and tax refund inter(e!plion. The! amrodmC!nts also dcmlmded affirmative action at the local 1l'VC1 by cond illoning certa in federal (unding on ~tatc compliance, . One of the requi red actions was that the states establish child ¥JPI)()rt guide1ines by legislation Of by judicial Of administrative process and have ~uch guidelines In Illacc by October 1, 1987.

In order to meel the requirements for child support guidelines, the Alabama Supreme Cour1 allllOintl.'(l a commillC(! of Judges and other officials co dMftl>roposed guidelines. After ex..1mlnlng many diffe rent formula s arld models (or determination of child support, the committee recommended the it(loption of the tncome Shares Model, developed by the National Center for Slate COO II S, As noted In the Comment to Rule 32, this model is premised on the Idea that a child Is entitled to the same proportion of parental Income which would have been available for his support In an Intact family. 1\ Schedule 0 ' Basic Child Suppou Oblig.ltions was d~loped by too Notional Cenler and W.lS approl>rlateIy adjusted to reflect Aillbama's Income distribution, as well as federal and state tax ICgulatlo!'ls. By application of the 8uldclln~. the basic obllg..1tlon Is pror.lled between the parenl~ based upon the ra tio of their adJusted gross incomes 10 the support obligation. The pr()pc.lSed guidelines Sl.Jbmiued by lhe committe(! wcre adopll.'(l by the Court ilnd promulgated as Rule 32, ARIA, to become clfceti'ltl October I, 1987. I\lthout\h the 1984 Anlendments required tnc establishment of child support guidelines. they provided thatlhe appUc;a1i0fl of those guidelines could be made dlscretiOflary, AI;Jooma's guidelint!S 'NCf"e made non-binding ilnd the courts wcre given the discretion to dC'Jiatc from the guidelines If their <lPI)lication wo uld be Inequitable. AfTer The adoption of Rule 32, iI concerted effort was mode to eduelite judges and allorneys as to the use and application of the guidelines ,md, itS of the end of 1968, the Administrati'ltl Office of Courts estimated tha t they v.'\!re beln!! utilized in approxim,lIc1y 60 l>ercent of the stille'S jurlscilctlollS. I tOYJt."o'Cr, based upon slCM' nillionwide response to the rcquiremenlS of the Amendmellls and the increasing (cder~1 burden of child support, the goYemmcnl again Strengthened the regulations and required more and swifter Milte action. The I

Support Act of 1986, Public

law l00-48S, was enilcled by CongrC$$

requi ring additional reviSions

state

I;MIS ilnd procedUft.'5 pcrlalnlnglO establishment of paternity, child sUPPOr1 and wage whhholdin& Including more strin. gent ti metables (or eXI>editlng the pro/MlUary 1990

C€!SS. Among these r"Cqulremems Is Ih€! mOrldllle Ihal each stale's child support guld€!lines be amended, effective on or before October 11, 1989, 10 Pf(1y'ide a rebuttable prt."Sumplion tha tthl' amount of support determined by their appllcalion is correc!. And, Ihat n.>bUU,ll of such presumption requlrl'S a written find ing 00 the rt.'Cord stating the reason therefor. based on criteria established by the stale. Again, In response to Ihe federal man· dille, the supreme court requl'stcd that the committee dr<lft proposed amend· ments to Rule 32. The commi ttee was reStruoured to Include a greater crossseclion of o((cctoo persons, including practici ng ,lUorneys, and after SC\!Cral meelings made recommcndarions to the court, not only a5 10 changcs necessary to meet fed(!ral requirements but also those needed to clarify and/or rectify problems which had ariscn In the practical application of the original guld,-.. lines. The court adopted the recommended changes and I(ule 32 was amended 10 COrlform therewith, The AmeildlYlen ts 'Nele made effC(:tive October 9, 1989, to be applicable to ill! i1C· lions filed on or after that date. II, Presumptive application The Child Support Guidelines eslabIIshed by amended Rule 32 apply 10 all aCl ions to establish Of modify child support filed on or after October 9, 1989. In accordan ce with the f(!(lcrdl mandate, amend(!(l Section (Al 01 Rule 32 pR)Yides that in all such ilCIions, tempornry or permanent, thNe shall be a rebu ttable presumption Ihm lhe (;hild support award resulting from application of the guld(" lines is (;orrect and should be iJ'AIarded to the custodial parent. I\pplkation of the presumption In favor of the amount of support determined by utllil:atjon of the guidelines i$ mandatory and no longer discretionary. In order to rebut the presumption and Milke an award incon· sistent with the guidelines, the court must make a written finding on the rec· ord that application of the guidelines would be unjust or lnapproprliue oosed upon one of the two criterIa set out In Section (A){II or (iiI: either Ihat there Is a fair written agreement of the partics stating the reasons for deviation; or, based upon lhe ev,dcnce presented, that applkation oIlhe gUidelines would be mnnifestl y unJusl or Inequitable,

The Alabama Lawyt'r

1\, Forms required-The most 51g1110. cantinitllli effect of the mandatory appll. cation oflhe presumptIon In favor of the guidelines is that the provisions of Sec· tlon tE) of Rule 32 become mandatory. Section (E) requires Ihat a standardilLod Child SUIll)()(t Guideline Form ((5-42) and Child Support Obligation Income Slafementll\ffldavit (C5-41) be filed In all actions to establish or modify (;hlld support. The prior prO\lhlons of Section (A) Ihat Ihe Rule be non.blndlng hnvlnl! been deleted, the provisions of Secllon IE) are binding as to all actions filed on or after October 9, 1989, If nOl, It would be practically ImllOSslblc for ,1 court 10 make a wriUen finding on the record that application of the guidelines would be unjust or inappropriate unless it had knowl(!(lge of what 3W"Jrd Ihe guidelines would J)roduce. Therefore, thero would appear 10 be no exception to the requirement that Ihcsc two forms be filed In all aoions Oied after the effecli~ date In· volving a mInor child eligible for support. Although the requiJ'M'lent to file the Income I\ffidavit and Child Support Guideline forms is nO'W mandatory, il would not al>l>car to be a jurisdictional requirement, such that failure to file the forms would affect the validity of the judgment or decree. HONCVer, it must be noted tllat failure 10 comply wi th a Rule of Judicial Admini stration may subject the violator, be he a filing attorney, accepting d elk or confirming judge, to sanctions for contempt pursuant to Rule 34, ARJI\. Addi· t1 onolly, an attorney might become subject to a dalm of malpractice, particularly from a custodial parent aw.1rded less than

the presump,j~ amount. And, consklerins the requirement of Sc<:\ion (N{2) that the guidelines be used a; the basis for future updates of child support, failure to file the initialguidellncs form s may af· (ect subsequent aCl ions 10 modify SUI>port. Rule 32 is silent as to when the nC'Nly required form s must be filed, Obviously, they must be filed befOfe a judgment can be entered and, therefore, they will need \0 be filed together wllh the other pleadings in all non< orl1esled actions filed on or after October 9. 1989. Other· wise, the actual time of filing primarily will be a matter determined by the pol. i(;ies and preferences of the judges and derks 01 each local jurisdialon and/or by the clr(;umstances of the case, It would be anticipated that local rules will be developed as to when the forms will 00 rC(lulred in divorce or modifica tion proceedings involving discovery and litiga. tion wIth attorneys on both sld,-~. But, il also would be expected th~tln most pa. lernity cases, and modWc~ t lons of previously establlsh('Cl support orders, the information required may not be fully available until the day of trial, and time will need to be all()'.VC(l fOr fh e form s to be completed l)rlor 10 appear.JIlce before the court. In contested cases, whcle there is an issue regarding one or more of the ;tmounts to be used in completing Ihe Guideline Form (usually the corree;;t amount 01 Income) each P.1rty should file his or her own In(;ome Stalementll\ffi· davit based on hislher allegations, tog,,,h!!r wi th a Guideline Form based on that In(ormariQfltogether with the figures

The HOflOri1b/e Richard H. DorfOU8h has been a circuil IudS!:: in Ihe domes tic rela· t/ons division of M On/gomery CounlY since 1984. Prior 10 Ihal, he was In pri. vate practice. He Is a sraduale 01 Wa sh· ington University lind the Universify of

Alabama School of Law.

<llIegl-!'<i by that party (or the o th er party_ It then will be the COl)rt'$ Job to recon· cile wh ich, If any, of the forms are cor· rect. III some sl)ch cases, the court milY decide to p(j~ p:lre Its own Guideline Form bilsed on iti findings <lnd h;lV(! that form filed as part of the o((jcial record for use in futu re actions.

B. Guidelines applied-The Intent of mandated child support guideline5 is to promote uniform ity iJnd fairn ess in support awards and the guideline5 are designed to produ t e thiJ t result. HOlleful. Iy, therefore, th e amount of support deter· mined by alJplication of Ihese guidelines will be awarded hl lhe majority of cases. Althou gh no specific finding Is requ ired of the court when the presumptive aw~rd

Is nlade purs uant 10 the guidelines, it would seem to be a good practice to note such f<lct in the reco'(l 50 th,lIln the future it will not be n& eSSil ry to compilre forms to ordCr1 to milke such determination, pMticul:lrl y j( venue has changed and the entire record is not readi ly a\lJIIable. A possible notation ill the written order or on the Case Action Summilry might read as folloos: The (lWilrd of child 5upl)ort miJdc herein was determined by applica· tion of the Child SUI>IXlrt Guidl..... IIlles established by Rul e 32, ARJA. Such notation In the record also might reference the fil et that copies of the guideline form s Me contiJined in the fi Ie and officia lly adopt the same as a part

TAKING YOUR PROPERTY WILL TAKE AN ARMY You've worked hard to purchase your property - and no one is going to take it away (rom you. Mississippi Valley Title Insurance guarantees protection against any challenge to your ownership of property. ~ When it COmes to property disputes, we're yOur best defense! MississippI Valley 1ItI,

$Iale Olfi«/324 Nrmh 21$1 SI./lJimJi"l1ham, AL

3520..~

7M "'rce-1I8QQ1843·/688I TlJle!(/J( -1/32(j.()919/A Milmcwla Tills Omr/1m'Y

of the record, by adding thc (ollowing: Copies of the guideline form s have been (iled herein and are made a P.lrt of the record in this cause. Of cour~, in cons~n! (lr se ttled c.)Scs, when a stipulal ion is (ilecI pu rsuarll to Section (A)( I), mlng of a Guidelines Notice of Compliance form «(5-4 3) would Seem to obviatc the need for such notations, In tha t the form \\Quid Indica te thaI th~ guidelines were followed "nd applied .

C. Guidelincs rebuUed-lf the avvard of chi ld support i5 not bast!d upon 011)pliCMion of the guidelines, the presumption in favor of such "n <M'ard must be rebu ned by a wrillen finding on the record thai application of the guldclines wou ld be unjust or inappropriate based on one of the criteri., se t out in $fJctions (AW) or (ii)_ When a di\Orce is being granted, a written deCff.!e Is necessary ilnd th e finding would appropriately be inciud(!(1 in the decree. Bell v. Bell, 509 So.2d 9t2 (Ala, (1\1. Apt>. 1987). HOWC\ICr, Initilll or modified finding. of child support in paternity and cnforcement cases ollen 1Ir'e made In open courtlYy minute entry and not further reduced to writing. In these cases, a written find ing milde on the Case Action Summary app.lren tly would suffice to meet the requirement s of the rule. tletti;lr praclice, hO\o\l(.l'\l(!r, would suggest thaI the court or pro~ 1."<:ulin8 tmonley prepMt' a subsequent written order whi ch assu res notice to aU parties of the findings, Thc Admini str.1ti\IC Ornce o( Courts has prep,Hed and C,IIl furni sh form order1 for use in such cases. 1. Findings b.lsed on evidence-Unless there is a written agreement of the pafti es, in order to rebu t the preSUrll l)tiorl, the court nOt on ly must make a wrincn finding on the records, bu t. also, such findi ng must be made based upon evi· dence presen ted 10 the court (rom whi ch It can determi ne thlll IlPl)liclltion of the guidelines would be manifestly unjust or inequitable, Rebu ttal by means of Section (A)(ii) requires il spet:ifil; eviden tiary finding in each case and Ihat such findi ng be made in writin g. Therefore, It would notllPPCllr that application of the guidelines could be rebutted by adoption of a blanket order or finding that the gUidelines are Inappropriate or unjust, On the other h,md, th ere does not appeilr to be J~nUilfY

1990

any requirement, comparable to Ihat lm· posed on settling p.utics In Sl'cUon (A)(I), that the court recite the specific rea sons for its evidentiary findings or lhe facts upon which it lxlses its de(ision. White a specific finding reciting the fil cts or reasons sUPl>ortlng rebuual may be appropriate, and certainly would be uscl'ul ln future actions for modificallon, a written finding of the ultimate Issue would seem 10 be sufficient, e.g.: That b."IM.'CI upon Ihe evidence presented herein, the court finds that application of Ihe Child Support Guidelines (Rule 32, ARJAI would be manifestly unjust or Inequitable in this C.1use. A common scenario, Ihlrticulally In non-di\'Orce cases, wilt be one In which the parties andror a representative of OI-lR are before the court and reach lin. oral settlement boise<! on an aYlilrd dlf· ferent from Ih.11del ermined by applica· lion of Ihe guidelines. In such caSt.'S when It Is not pr.lcticalto oblain a written agreement, Ihe best advisable solu· lion \o\IOuld be for Ihe court 10 take testl. many .'IS to the agreement and the rea· sons therefor and make a wriuen finding on Ihe record similar to th", set OUI hereInabove. It shou'd be noted thaI the CKISlence of an agreemenl does 001 a(Jevlale the necessrty thaI guideline forms be completed and flied as r(.'quired by Section (E). 2. Written agreements!stlpulaUont-

The presumption In favor of application of the guldetlnei also may be rebuned by a wrllten finding on the rccord Ihat such application \\/Quid be unjust or In· appropriilte based upon there being a "'air, wrilwn asreemem" by Ihe parties estilblishing a di((erent nmount ilnd sUl. tins the rea sons rhen:for. In other word s, in order 10 mbut the prt!sumption pursuilnt to Section (,N(i), the court musl makc a written finding that the p.1rtics h~ en· lered into a written agreement, setting forth their reasons for nOI following the guidelines. and further, that such agreement is " f"if." The court slill has the diSCretion to accept or reject the agrccment o( Ihe Pilf' tics based upon Its determlnlltion of "(i1lrness" and also has the ImpliCit duty to proteclthe rlghtso( minor children to receive adequate and reasonilble support (rom oolh pmen!). Section (Al(1) requires

The Alabama

L~wyer

that stil)utation5 (agreements) be preSl!nlud 10 and fI.!Vill'''''l.-'(1by the court befOf(! approval. No evidentiary heating is required, but the court Is mandated to use the Income Statemenl/Affldavll and Guideline Form to review the adequacy of the child support ilWJrd negotiated by the partilo'S. In perfonnlng this review, the COurt should cOmlMte the amounl of support determined by al>Plication of the guidelines to the amount agrt.'t!d by the p.1rtles JUKlaposed agJlnsllhe reasons for deviation SCI out In the agreement. Should Ihe court haYe questions aboul the (ilirness of Ihe ~greemenl, or adequacy of the award, a hearing or status conference could be set or questions might be resolved bv a conference call or other communiC,Jlion with Counsel. requesUng clarification or additional ell. planation o( Ihe reasons (or deviation. Irl rare cases, It might be appropriate to 011>point a gu.udian ad litem to fCI>resefItlhe interests of Ihe child. In order to somewhat lemper the court's burden of reviewing C\lCry settlemel'll agreement, Section {AI(IJ further provides that the court may accept iI Child SUI>port Guldelhles NOtice of Compllance (Form C5-43), Indicating compllance with Rule 32 or In the L"VCnt of non<ompliance the reasons for devia. tion therefrom. Upon receipt oIlhls 00Ike, in addition to the Income S"' ~(... mcnt/Affldavit and Guideline Form, the court mjly ;1ccept Ihe S\;1tcments thcfeln thaI the 8uid~llnes have bet-!n followed and need not further rt'Vlcw thc forms or agreement as 10 the determination of child support. Notification that the guidelines have not been followed provides ,1 convenient way of adviSing the court Ihal review will be necess..1ry and previdt.'S a pmliculilr plilce for ~Iilting the fCasons (or deviation from the guidelines, saving the COurt's time In searching for such In the agrecm(!nl. Although not required, the Notice of Compliance should be flied in all un· contes ted cases and/or cases settled on the basis of a written agreement. Not on· Iy does il fosler judi d~1 economy Iyt' pr0viding a quick reference for the court reg."Irding its duty of review, but it illsa provides an clement of protection fOr al. torneys. Although thl! compliance form can be executed IJt eilher I party or an allorney, II would appear advantagoous for ;1ItOf!1(.'Y5 to have Ihelr clients CKccute

AlITHORS! l aw Book Pu blisher SCtu one and rwo volume worU. Submit outline and table of contcnts 10: Knowl es L. w Book Pub.. Inc., Ann: M ark Summers P.O. Box 729 Eu less. Texas 76039

thc form, the dl.'Si8n of which would IpIXlar 10 require onc form from each sid~ in any event. By si8l'ling Iho form, Ihe cllelllimpliedly ackoo.vlcdgcs awareness of Ihe use or non·use of the guidelines Md cannotla tcr claim 10 have been un· informed. Also, although the form WitS specifically designed nolt(l require an altorney "to certify" f"ets to the court, and complianCe is noted baS«/ On Information as supplied by the panics, execution by the client will close any (IUestion of irnl)lied certification by counsel.

BlJSINESS VALUATIONS e.mployee. 1t000k OWT\etihip plw .eqIlUritioN/dlyestiruru IlOCkhokln dispna diyorceJ • (hl:l'itabl~ &irl$ utlleJ • inllfllible Ulell

Comaet:

Mllchell Kaye, CFA, ASA 100 888,KA YE (.5'293)

Member Ameriean Society or Appnisecs Past President-Allama Chapter The Insutute of Chattered Financial Analysts

•

Court Testimony and

I.R.S. Experience 37

Upon a dmermintltlon of f(lirntlSs, Jfter review or acceptJnce of a notice indicat· Ing compliance, the court SlilI must make a wrillen finding on the record to weh effe<;t. The mosl convenien t place for such finding would appeJr 10 be In the di<,(lrce d(''CR!e or order incorporJllngthe agreement of the Imrtles. The court (1 150 may wi sh to Incorporate the rca$On SUited for deviation In" thc agrt..'Cmcnt or nol ice form and attorneys shou ld coor· dinate with Individual Judges 10 determine whilt loe.ll requirements may have bct!n l'Stilblished in this regard. A pallern clause for Inclusion Into a dec(ec or order might read (1$ follows: The parties have entered into a filir written ilgreelT\ent f!'Stolblishinglhe award of child support herein [the (lde<luacy of which has I.>cen reviewed by Ihe court) or land have filed a Nolice of Compliance in JCcordance with Rule 32 (A)(l), ARIAJ. The reasons stolled in the agreement/Notice of (ompliilnce In rebuttal of the pre:sumption In f;wor of the guideline determina· tioo are adopted herein as nndings of the court.

3. Reasons for deviat ion-Rule J2 does not aUempt to lisI any specific rea· sons or justifications fo r devlalioo from a guidelines award. In determining the criteria required of SCale law by the fed· crOll act, the supreme court adopted Ihe commitloo's r<!Commendlition that this be an area left to the discretion of the trial cowts, Accordingly, the specificity and Villidi ty of fCa$Ons justifying deviation from the guidelines may vary between, Jnd town within, different jurisdictlonHepending on the philosophy, policy and custom cJ Individual judges and/or rck:n:-es.. As a general rule, ,he reasons for deviation should be clear, concise and convincing. If the reason Is obvious, for eK<lmple, if the non< ustodlal p.1rent is incarcerated, a simple onesentence eXplilnation mil)' be sufficient, O n the other hand, If the aWMd is the product of an in tl!gr~ ted 1}'1rgain, baSl>d on con siderations of property settlement and tall consequencts, a more com prehensl \\! explanation may be n~si t.'lted. Whateverthe reason, however, It should be presented in II manner mindful oflhe court's express dUlY 10 determine fairness, both to the panies and to the child,

ILM

LL.M

in REAL PROPERlY Program Includes Icaslng, cons trucllon, taxation , fUlan · c lng, zoning ,uld planning. In a OIlC'yc,l! progr;ulI, full or part time,

in TAXATION Corporate, fvrdgn and Estate conccnlr:J.(io ns avallable in a o ne·y~

program, fuU or part·

tunc .

Write o r Call: Graduate Program In Re al Prop e rty. Land

Write o r C:L1I : Graduate Program in Taxation

Oevt!lop ment and

Uni ....erslty of MI~ t l.l & h ool of l.:lw P.O. IJox 248U87 Corn! GabJcs, FL 33 124 Tclcpllo nc (305) 284,3587

Fina n ce law Unl ....erslty o f Mi:unJ & h ool of unv P.O. Uox 248087 ComJ Gables, FL 33 124

Some possible pitfalls to certainly avoid would Include allY agreemel1l waiving or substantially rloducing suppon based on non-cxerclse of rights of vi sita' tion, See, e.g., Erw;n v, Luna, 443 So. 2d 1242 (Ala. Clv. App. 1983); Willis v. Levesque, 402 5o.2d t003 (Ala, (iv, App. 198 1), Also, reference to deb,s, unemployment or underemployment should be avoided, In that the guldelirlC!s are based upon a policy 01 Insuring con· sistent treatmen t based on Income and the fact that unemploymen t or underemployment can be factored into the gUidelines formula, Recitation of a spouse's duty to pay alimony to the other spouse ilI50 would not Jppear to be a suf· ficient reason for deviation in light of Ihe notation In the comment Ihat child support should be determined before a determination Is mnde as to alimony.

D. Modifications-Section W(21 of the rule PJ"OIIides Ih,1I thc child support guidelines shall be used as the basis for periodic updates of child ~pport oblig<llions. The ]989 amendments to the rule provide for mandatory application of the

LL.M. in

EST ATE I'LANNI NG S tudy w il h m a ny o f the natio n 's autho rit ies in this nat im llllly. rccogni7.cf.I ()f1c-ycur progrUlII , Wri te:

GrndtHite IJr o~nllll in Kc;lutc 1)lnllll lng Uni . . e rsi ty of Mia mi School UlW p ,0 , Oox 248081

C um l Gables, Flo ridn 33 124

Telephone (3U5) 284·3587

/anuary 1990

guidelines to nlodil1catlon proceedings, as well as initial proceedings to establish SUllPort, and the word "may" In the in· IIlal rule was changed 10 "shall:' Thereforc, the presumption In favor o( the guidelines is e1tu<llIy al>pllcable to actions for modification of chi ld support obligations 35 it is to an Initial determl· nation, Section W(2)61 clearly statcs thai modifications, milde on or after the effectiw date of Ihe amended rule, shall be prospective and only tlPply to support accru· Ing after the filing of the I>ctiticrl for modll'lcation. Also, and most significantly, It further pttWidcs thil1 modincation of a child support obllg.ltion must be b.lsed upon a showing of a material change in clrcumst.lnces, which Is both substantial and continuing, The court of civil al)... peals has held that Ihe enactment of the initial child support guidelines does not In and of Itself consWute a material change In circumstances. D,wis v, Davis. 535 So,2d 183 tAla. eiv, App. 1988). II would .lppear that this decision also would apply 10 enactment of the amendment, however, the mandatory applica· tlon of Ihe rule may make a di stinction

in the reasoning of too court. While the committee did 1101 Intend for enactment of the guidelines to be considered as a material change in circumstances nor to alteml)t to modify existing case law by a Rule of Judicial Admini stration, it would be anticipated that this question ag.lln will be too swl~t of an oplnitln by too appellate courts In the ncar future. In thc meantime, II would be good practice to allege and to prove factual allega. tions of a ch'lnge in clrcumst.lnces ra ther than relying solely on the promulg<llion of Ihe amended rulc. In addltiOr\ to the contlnut.'(1burden of pr'OVlng a material change In circumstances, Section ('\)(2)(11) S(!(!ks to avoid unnecessary and/or continuing requests (or modification by crea ting a rebu ttable presumption that changes which result In less than il 10 percent difference in the support obUgiltion an: not material in nature. Therefore, ont! petitioning for a modification based on tess than a 10 percen t difference In resull under the guidelines must meet a double burden of prfN. Ing a material change and that the same is so substantial as to rebut the presumption aSilinst mod ific~ t ion , The opposite,

IS YOUR SECRETARY CERfIFIED? Y ou've mooea large Investfllentrosmff yourofficcs with good, qll(ll if'i ed people. Butdld you know thot the~ is a certification examination (or legal secrerarlesl

The Alabama A5s0ciatlon of~1 ~remriesO«er$ the ~ rt if'ied Pro(essional Legal ~retary Examination (~PL.S" for legal secrero ric:s which pJ'O\lidCJ a stnndaro

measurement o( prol'cssionalism, knowledge and skill. T he knowlc:dgc gained In preparing for the CXflmination ImplOVf::Son.the-job skillsso thatdu(ies can be petfonncd more efficiently with Ie" effort.

Let AALS give your employees astrong foundation (or the success of your f'i"" . For info""3tiorl, contact: Margie StaCk, Cenif'ied PLS, Rives&. Peterson, 1700 Financial Center, Blnnlngham, Alabama 35203, telephone (20S) 328-8141 ,

however, is nOl tne case and there is no presumption that a difference In excess of 10 perCent is entitled to any sl>eclal consideration with Il.'gilrd to meeting the burden or pr'OVing a material change of ci rcumstances. The federal acts milke certai n pfQ\Ii· sions, prim.lfily affecling Title IV-D cases, which t.'Ventually will require mandated periodic updates 01 child support, These proviSions are not withi n thc scope o( this prCS<!ntiltion, but shoYld be rcvlev.oed by attorneys concerned wit h Title IV-O enforcement, General praCl ltloners also should be {lWi!re tha t such rt.'<lulrements may come In the future and may wan t to consider whether fl('8Otiated ilgrt"!emCtlIS should contain provisions for periodic, .1utomatic rt.'\Iision based UI)Qn appllca. tion of Ihe guidelines to fu ture circumstances,

III , Determination of child support 1\ , Income-One of the primary policy decisions the commluee had to make in the initial drafting of the guidelines was whether they should be oosed on H8 ross~ or "net" Income. After considerable discussion and numerous questions and

REAL ESTATE ATTORNEYS LASER SOFIWARE A complete line or Real Eslate Closing Programs Including • HUD's, Buyer & Seller StatemenlS. Olsbursement Register, ChccbTltlng • Deeds, Mortgages, Notes, & AffIdavit s • Title Policies, Commltmen lS and Endorsement s II!!Il FNMA find More One time data entry, all calculations I)errormcd, high quality prinling or complete document, with data, generated 0 11 plain pnper. CALL FREE 800·673·7621

~ ALABAMA ASSOCIATION OF ~

LEGAL SECRETARIES

Affithnrd whh: Natlon.t ;'",n, of ~~I Sc.cn:llrieo

The Alabama Lawyer

t)l5l11l), SyiICIIII,

111(\,

180 !'l,W, ) 10 IWe. OkcCcl'IOOCC, I'L 34m

problems being r~lsed a$ to a l)ropost.'(1 definition of Nnet" Income, (e.g., what empl~ dcxlucttons would ~ al· IOWIXI-dues, insurance, retirement, SIlYIngs. etc.) and th e problem of claiming different numbers of eMempUons before and after the oroef, It wasdetermined that bits;c sUPlxm b.15ed on "gross" income was preferable.·Cross Income is defined in Section (8)(2) and Includes Income from any and all sources, including un· C!lll)iovment compensation, social secur· ity and disability benefits. The only ex· clusions are set ou t In Section (8)(2)(il): child SUPI)()rt for other children or benefits from means-tested public assisted programs, such <lS ADC, SSl and food StamlJS. The defil1llions of income estab· IIshed by the rule and ex.,mplcs thereof also arc contained on the back of the In· come Statemen t/Affi dallit form for e:lsy reference with regard to completion of that form. Section (F) of the rule requ ires that the Income Stiltement be YCrif'ied by docu· mentation of both curren! and past eMn· ings and that documents of current cam·

ing5 be supplemented with copies of the most recenl lax relurn. It also prOllides thaI the court may direct the provision of such other documentatlon as It may require. The income StatementlAfl'id;wlt must be signed under oath and the af. fiant is subjcctto penallies of contempt for intentional falsifica tion of informa· tion. In ml,)$t ca~ involving wage earners with one prinary source of in· come. completion of the form will not be difficult and documentation will probably consist solely of a current payroll stub and the copy or last year's income tal( filings. Situations invoilling commis· sioned 5.1 lespcrsons or hourly workers with sporadic hours may net.'<l more documentation to produce a reliable I!stimaK>(I awrOlge IncomC!. Obviously, there will be times when th e requiremcill for support documen ts cannot be met, particularl y In pmernlty cases and when alitig.mt appears pro se. Such cases should be de;lit with on a practical b..lsis and, to a great exlent, will be dependent on the attitudes and requirements of ind ividual judges and ref·

Don't Risk A Valuation Penalty. Introduce Your Clients to Business Valuation Services. John H. Davis Ill, PhD, MA l, SRPA , ASA, president of Business Valumion Services Inc. , is the only designated ASA Business Val. uation oppnliser In Alubama. Business Volu[lCion Services prollides consultation by lhe hour, appraiSlli reportS and expert testimony in cnsesof :

o Esrote planning o Estate settlement o Maritl.ll dISSOlutions o Recnpimllzmloru

o Employee stock ownership

o Bankruptcy proceedit)gs o Mergers or acquisitions o Buy-sell agreements o Dissident stockholder suim

plans

c"nrnct John H. Dav;s III , PhD, MAl , SRPA, ASA 4 Office Park Circle · Suite 304 • Sinningham, Alabama 35223 P.O. Box 7633A • Binnlngham, Alabama 35253

(205) 870·1026

erees. H~r, documentation probably wU1 be e;.:peCled In most non..c;ontested actions {lnd it normally would be ilSsumed that attorneys also would Will'l t such basic informati on in the file to prOtect their ellen t and themselves. Should documentation not be available, that fact should be noted on the Income Statement/Affidavit form, together with some elt:planIllion for non..1VJilability. In order to promote the efflc;ient production oi required documentation, it would St.'em advisable to include in orders sclling hearings a requ irement that the parties bring with them a current pay stub and copies of recent t.1X return s. Such a requirement should be entered not only In pa ternity aclions <Ind/or modifications, but <1150 as to pendente lite hearings In actions for divorce ,md ftnal hearings if the form s h a~ not preIIlously been flied. I. Self·employment income-Sc<:tion (B)(3)(1) defines "sel f·employment in·

come" as gross receipts, minuS ordinary and necessary expenses required to produce income as allOWlXl by the tnternal RCYCnue Service. The Inter" of the definl· tlon is to Include any and ~ II income or Imputed Income which normally would be available for or used fOf the benefit of an intact family unit. Section (8}())W) furlher defines busin~s expen~ by dis-allowing accelerated depreciation ex· I>cnses, Investment tax credits Or other ClCpcnscs which the court deems InapI)ropriate. The obvious purpose of this section is to elimin:lte paper deductions which do not, In fact, reduce Income and the issue of which t.'lCI)Cnses will be "I1()W('<l shOuld hinge on whether they truly reduce the amoun t of income available to mcct ,I SUpr)Ort obligllti!)n.

2. Other iocoml..'-Consistent with the foregoing, Section (B){4) PfOJides Ihal reImbursement of bushless expcn sC!s andlor In·klnd PJymcnts rt'Celvcd from an enlj)loyer or through self.en'iI>loyment shall be considered as Income if they significantly reduce personal lilling expenses. For extlmple, iI COmp{lny car should be factort.'<l in as additional in· come-certainly to the extent it is considered as Imputed income for tnternal RcYCnuc purposes .md is shown on the employee's W.2 form . Again, the Issue will be what aWrmatlYe e(fcct, If any, the benefi ts have on the ability to provide

January 1990

support, either through direct roimbursement or bv dl.'c reasing normal family expenses. While at first glance it may <lppear that the§c requirements for determination of Income present a ne-w burdco on pmties Md nl1orncys, In fact, the Infonnation required Is rIo more Ih,m has previously been gathered by diligent attorneys for presentation 10 the court or for the purpose of negollatlJl~ aJlr;l determining the equity of a settlement. Matters of deter· mination of income from self-cmplOf' ment, emplO')o'lle benefits and reimbursements, p<1)'menl o( expenses, etc. t". closely-held busirlCS5eS always haw been ilt issue and the only real change brauMhl about by Rule]2 is tha t the information may need to be /ormali.ted ilt an earlier time andlor pre«.'ntL"CI to the court.

3. UnempIOYmMtlunderen11)loymen'Se<.:lion (B ~l) defines "income" as actual income if the pmellI ls "em l)l~ 10 full cap.lc1ty, or ability 10 earn income If unemploo;ed or underemployed." This definition is consiSIent with current case law, which !«Iulres Ihat a parent's obligation to p.1y child support should be based on the ability of the parent to earn income r,llher than his acluallncome. Sec, e.g" Thompson \I Thompson, 42B So.2d 76 (Ala. Civ. App. 1983). Soclion (8)(5) elaborilles on Ihlsdefinillon by providing thaI if either parent Is YOluntarily unempl()y'ed or underemployed, lhe cour1 shilll Impute an income to thall>arent (or con· celvJbly both Pollents) and calculate child supporl on Ihe bilSls of 5uch imPUled Income. While use of the word ushall " ;lPl)Cars to rmmdalC thallhe COurt impute Income, It must be taken In cont(\'Xt with the provision that such iml>utation should be milde only when the couri find s th at either parent is vo/unulr/ly unemployed or underemployed. A finding of voluntary unemployment or undereml)loymenl is discreti onary with Ihe court and the duty to impute Income does not ilrise unlil such a finding has been milde, Tht' amendments to Rule 32 expanded this subseoion by further proYiding that should the court deternline that impuI(''(! income Is appropriate, such Incollle should be determined based upon the "employment potential and probable earning level of th~1 parent based on the parent's recent work history, education,

occup.ltlonal qualifications, and prevailIng job opportunities and eiltningll.'VCls In the commUlll ty." These (Iddltlons give clear indication of what facts lind circumstances should be considered with reg.lrd to Imputed Income. In Ihe absence of any recen t work history or other occup<ltion(l1 qualincatlons, it 'NQUld appear thill an imputJtion of income al a minimum aMe I(.~I would rIot be lI1approprl:lIe. Rule 32, as originally promulgated, proYidL"CI that income should not be imputed to a pMent who was physically or merltally InCall<lcitaled or who WJS responsible (Or the care of a child under five years of age, to whi ch the parent CM'ed a loint legal responsibility. The amendments deleted reference 10 a parent's being physically or mentally in-

cap.lcitaled on the basis Ihat such would be a part of the court'Sdetermina1ion as 10 whether unemployment or underem· ployment is \o1)luntary and further deleted the specificity as 10 the age of a child in the home. The amended rule provides that th e court Shall have discretion 10 determine that a parent shall /lOt be suI>lOCI to imputation of income, 1;l.1sed upcr\ thl! fa CI th at th ere is a young or disabled child whi ch necessitates the parent's remaining in the home, Thecommi"ee felt that It'!aving such matters to the discretion o( the trial court WJ S more !.'(I ultllbl~ Ihan using an arbitrary age of a child. Also, the amendments deleted the provision s thal lhc child nt.·t:cllng home cam be a child lor which the p.wnls<M'e loInt legal responsibility, opening the I>ossl-

Offering Legal Assistants and Finns ... • The Cmi6ed LegaJAMbtant Examlnatbl . theonly I\Iltionally recognlztd ~I c:mlfication prog:r.un for legal M6blanla. • Ongoing l't.'!H!arch and txtensive studi('l! of the ulUitotion, com~80tion and profeuionallitandaKis 0I1ega1dIIistant•. Ow n'SCan:h on billing WiIB recently cited by the United Statet Supreme Court lit identification of ~ailing pract\ctlln footnote 11 01 the «)Urt's opinion in MiMluri ~ /tnldn&

• Repl't.'tentation of the inltrests of the kgal asslstllnt profession through stich actions otlr recen t lUlns 01 /mIm brie& In the United StatH Supreme Cowt.

• The bettln contlnlling educa tion progranu for legal aMilIl antslncludln! the fall etA Short Coune, the NALA Mid Year Meetmg nnd Works-hop, ond the Annua Conv(''fltlon and Workshop In July.

• lndlvldu.! membership bnlclils include the legal uslstant'. bi·monthly ma~ FACTS &: FfNOINCS; the bI.monthly member8hip nt'!WlIleller; . pecialreporta; and the CAREER CHRONICLf. an lnn~ report of developlTu.'nts within the Carftr IIdd.

The National ~tion of ~I AailllMlta.lnc. • 1601 South Malr\, Suite XKJ

• Tuba. OK 74119. (918) 581-6828 . Fax (918) 582-6772

•

blllty of such chi d being a child with a different fa ther 01 from a prior marriage, The crvcial issue rlOO is whether Il ls reasonable to decide tha t the parent Is actually required 10 remain In the home and not able to work for that re,l son, Because attributing Imputed income to a p;!rent will incre.n e the combined adjusted gross Income, and consequently the basic child 5(1PI)()rt obligation, It is wise 10 c.llculiltc child support wi th and wilhout im puted income to determine the true effect of such Imputation, Under certain drcum~ta oces, p;!rticularly when dealing with low Income families. 5uch Imputation can produce une)(p(.'Cted 1(.'suits, For ex.lmple: AmUll ing a non-<:uStodial parent with an ildju5U.>(\ gross In· come of$1,2oo per month and tin unem· plC1)'ed custoolill l)arent, the basic obUg.1. tion for TWO children would be $334, to be p;lid 100 percent by the non-cust<xlial parent. Impuling minimum wage Income of $580 per month to the custodial parent produces a C<lmbined nci just(.>(\ gross income of $1,780 and il basic obligation of $456, of which the non-<:ustodial parent is liable for 67 percent or $305.

8. Pre-existing child sUPl>ort obligation-Section (B)(61 provides that a deduction may be from a parent's gross in· come for child support actually paid by such parent for other children tha t he or she Is legally obllgaced to support. As originally promulgated, the rule limited this adjustment to amounts being p.lid pursuant 10 an order lor suppor!. Ut)()n rceKaminiltion, the commince deter· mined tha t there were a considerable number of cases whe-e an obligor p<ll'Cnt actually was sut)poni ng other children but was not under a specific order of support. For eJ(;lmple, the (alher 0( an Illegitimate child also may be supporting chll· dren or an existing family unit. Not allowing an adjustment for children being support ed pursuant to a leg.ll obllg,'Iion merely because There W.lS no court order r(J(lui rinij the same, thercforCJ, was percei\lCd to be IMClultable lind modification of the rule was recommended to and apl)r<:MXl by the C<lurt. Amended Rule 32 allovvs (or an adjustment to gross Income not only for child support actually paid pursUilnl 10 an order for support, but also for supportactu,llly p-oYided to children

Affordable Term Life Insurance from Cook & Associates COMpare lhese low non'lmoker annual rilles for non· decrea5ing, YCArly renewllblt term Insurllnce: ' 1,000.000 MALE AGES ! 25MOO """.000

",.

.." ..

"60 "

248.00 248.00 255.00 298.00 3 ~8.oo

430.00 600.00 875.00 1,525.00

4$~. 00

455.00 460.00 545.00 645.00 810.00 t, 150.00 1.700.00 3.000.00

84$.00 845.00 875.00 t.045.00 1.24.5.00 U75 .00 2.255.00 U55 .00 5,955.00

Reoowllbte to 119t 100. Femate rllin ''''Me III m",Ho' six yellr, VO\.lngcr. All cOIIeraga provided by I;ompaniel rllied "A+" by A.M. BUI Co. For ill wrilttn ql.lototlOn lind policy duc rlptron .eoo your dOli of birth lind IIrnounl of coverllge delired 10;

COOK & ASSOCIATES P.O . Box 850517 Mobile, Aklbamoll36685·0517 (205) 34 1-5 168

........,.. _..42

_.Mt~_

No_1M

for whom the parent Is legally responsi ble. Several methods of determining the amount o( this "imputed preexisting child support obligation" were considered by the committee, all of which might be considered arbitrary. HOW'e'VCr, recognizin8 the practical situation that in very fc.>w 0( these cases would actual income and expense figures be available, the commlUee opted for simplicity. The method recommended and adopted by the COUll I)rovides Ihat the impute(! obllg..ltion be the ..moont specified In the Schedule of lIasic Child Support Obligations for the number of chlldten (or whom such l>arcnt is legally responsible. baSl'tl upon such parent's unadjusted gross Income. In other words, to determine the Iml)(lted obligation, one should merely take the unadjust<.'({ Bross income shO'Nn on the Guideline Form i'\lld then determine the b.lsk child ~ut>port oblig.llion from the ~hcdulc col umn (or the appropriate number of other children, In order to comply with Alabama's exIsting case law, providlnB thaI firs t-born

VERITAS, INC. Serving the Southeast

INVESTIG....T1ONS TRt .... L PREPARATION PRE-SENTE NCE INVESTIG.... TION POLYGRAPH EXAMIN ....TIONS OUR SPECIALITY IS EXPERT WITNESS SERVICE IN THE AREAS OF: • POLICE PROCEDURES • SECURITY PROCEDURES • JAIL" PRISON OPERA nONS • ECONOMIC LOSS - JUVENILE JUSTICE OUR EXPERT WITNESSES HAVE EXCELLENT ACADEMIC CREDENTIALS AND EXPERIENCE IN THEIR FIELDS. CALL FOR FREE CONSULTATION AND RESUMES.

PRINCIPALS: WlLlIAM A. FORMBY. PhD

IVoYMONO O. IUMFW.l. PlIO

CHIEF JERRY O. FULlER (RET., VERGtL L WUIAMS , PhD

(205) 333-9204 2726 LURLEEN WALLACE BLVD. NORTHPORT, AL35476

Januilry 1990

children have a flrSl-righ t to 5uppon, Ihe ame!ldments further provide thaI If the proceedings are to modify an existing awtlrd of suppa". no dcduclion should be made for an imputed duty to support children born Or a{lopted after the initial IIward of support sought to b<! mooifioo, unless support Is paid pursuam to a specific ordt!r of suppon. The deduction for Imputed child support obligation, how(lYCr, al)plics only to children in existence tit the time of an initial determination o( child support for!he child (Of' which su~ pott Or modlflcat on is being sought, regardless or the ~ct ual age or ortler of birth, C. He,llth

i nsu ranc~The

actual COSt

of health Insurance for a dept.'fldent child or children may be deducted from the gross income of a parent to dcu;!rmine adjusted gross Income for the purpose 01 calculaling child Support. Due to the sometimes Impouible problem of dell'r路 mining the ilClual COSt of a child's por路 tion of insufimce COSts. il was deternlll'lt.'Ci that an aliOWilnce of deduction (Of the

enlire COSI of health Insurilnce would be the mosl equitable solution tlnd the rule so provides. Therefore, a parenl who Is aClually paying for heahh lr'lsuranCe Ihal prot.'ides benefits fO( tlje child or childrer'l 51.lpportcd Is entitled to deduct the fult cost of said inSurllnce, regardles s o( whether the parent Is also CO'o'ered under such inSUrilnCe policy. The rule does r'IOt limit Ihe applicallon of this deduction and when both parents arc pr(lViding Insurance which l,r(Nides subslantial benefits to a child or children, It would not be inappropriate 10 allow Ihe doouClion to bOth parents. Or, In appropriate drCumSlimces, It may he advis.l blc 10 t.'X' amine the rda tlve berlLofits of each policy and determine which policy should be maintained. When the deduction (or insurance Is illlowcd, there should be II correspond. Ing provision in the order or dt!CfI.'il requiring the pany or Pilrties allOW!'!d the benefit 01 the deduction to millntaln said insurance, or Ilkc insurance benefits, (Or the minority of the chlld{ren). Further, prOVision should be made for non<OIIered medical and dental expen~s. For

WE SAVE YOUR

TIME . . .

arne II L EG

A L

R es ear c h

Now Icglll rescarch uslstllnce is available when you need it. withou t the necessity of lidding II full路tinlC a~5OCI:l1e or clerk.

Our rates pre $35.00 per hOur. wi th Ilhrte hour minimum.

For Research Assistance contact: Sa rah Kathryn Farnell 112 Moore Building Montgome ry, AL 36104

D. Child care (osts-Seaion (Bl{8) pr0vides thatlhe 3Ctual net cOlt of child care incurred because of the employment of Job SCMch o( a parent shad be addoo to Ihe u.1sic child support obl ig<llion. Actual net costs are defined as actual costS less the value 01 the fooeral income tal( credit for child care, as allowed by The Internal Revenue Service. The adjustment Is limitl.>d, however, to the Icvcl of payment required to pfOllide care frorn a licensed source baS芦! on Department of Human Resources guidelines. Rule 321s supplementl'd with II chari to use in determining ft:deml lal( credits .lind also by a schedule 01 day care COSt slandards published by DHR. The calcu lation of the child care adjustment Is probtlbly the most difficult aSp(..'Ct of preparing the Guideline Form, and possibly the commi ttee will address

GIVE YOUR OFFICE THE PROFESSIONAL IMAGE IT NEEDS ... Use AUTOLINE PLUS "The Only Truly Transparent Line Sharing Device For Fax or Modem "

With IIccess to the Stbte Law Li brary lind WC$llaw, we provide fbSt lind efficient service. For deadline work. we cun dclivcr Informutlo!1 to yO~1 via commo!! carrier. Federul El(press. or FAX. Famell Legal ReSearch ellllmines the issues Ihoroughly through quality ~lIrch , brief writing and anillysis.

in5t;mce, the parties might be required to P.1y, or reimburse, non-CCMlrcd el(pcnst!i In the S<lme percentllge determined as their pcrcenlJge sh.ue of income on linc thr1.'e of the Child Support Guldellne Form.

Saves You Money and Saves You TIme! Distributed By:

Telephone Communications, Inc. 1317 Wilmer Avenue, Anniston, Al36201 ORDER NUM BER : (20S) 237-1 401

BECAUSE YOUR PROFESSIONAL IMAGE IS IMPORTANT

Colli Free 1-800-448-5971 l In M ontgomery 2"-7937

The Alabama Lawyer

simplification of thi s adju5tment in making fu ture amendments to Rule 32. In the meilnllme, th e I\dmlnislralive Ofllc!! of COurlS has pre pored a Itlble for use In determining net child care costs, copies of which ctl n be obtJined by writing The Alabama Lawyer, P.O. Box 41 56, MOnlgomery, A labama 3610 l. In order to calcl,Jlate ch ild care COStS, it is fil"$l nece~sary to determine the awraKc monthly expense of such care. for example, child care costs may vary during the summer momhs and addi路 Iional care be required when ch ildren are not in school. A lso, it mny be necessary to determine wh at portion of child care expenses are directly attributable to employment as 0lJI)()sed to Oth~r reasons. After determlnlltiOr\ of Ihe aVt!rage monthly child care expense, It will be necessary to determ ine th e ad lustoo gross Income of the cus todial parent, w ho will be entitled to claim the tax credit. In thi s respec t, it should be no\(."'(1 Ihat th e adiusted gross income used in th e table appcndl."'(I to the rules ,lOd the ACe chart is the adjusted gr055 Income

rcportoo 10 the Internal R~nue $ervh::e, not the adiusted gross income shown on the Guideline Form. To determine net mOI"Uhly work-related child care expense usi ng the ACe table, first loca te the n'1C on the table containing the appropri ate adjusted groS5 income for feder.ll income tax pu rpo~5 alld then proceed across the chan to the proper column under the amount dosest to the actu(ll child eMe expense. For example, a custodial paren t w ith one child who has an adjusted gross Income of $2 1,000 :l1lnually and an ac tual child care cost of $200 per month would h<.JVe a net ch ild care co st of $ 152 per month. Feder.11 ta x credlt s are limi ted to a percent:lge of maximum annual expenses of $2AOO for onc child o r $4,800 fo r two or more chi!dren , and tablt."S att! providoo for child Cilr~ expenses for one child and for tWO or more or more children . It will be nOted tha t each of the tables has a darkly-printed column which corresponds to the maximum allow.mce. To determine nct mon thly child care costs not included on the chari, it will

ALABAMA LAW BIBLIOGRAPHY GEORGE D. SCHRADER BIBLI OG RAPHER

A Comprehensive Bibliography of Alabama Law Books AuthorlTitle Index Over 325 Entries Subject Index Over 425 Entries Includes 1989 Addendum Prior to Nov. 30, 1989 (delivery In Dec. 1989) AflerOec. 1,1 989

$18.50

(Tax & PostsQslncluded) $25.00

(Tax & PostaQe Included) Make Check Payable to 8a"'sler Press. Mall Otderto :

JPSlBP Auburn University at Montgomery 7300 unlversily Orlve

Montgomery, Alabama 36117-3596

be necessary to determine the tax credi t percentage atlowed and $ub trilct Ihe s,lme from 100 percent and then multiply Ihe remilinder percentagE limes thl;! ~r颅 i"lse monthly expense up to the federa! tllx Crl.'dit maximum of $200 per mOnlh for one ch ild or $400 per month for two or more children . For example, If a cuslocH;:!1 parent wi th an adjusted gross income of $13,000 annually has an average work-related child care expen:te of $137 per month, thc ff,.'(leral ta x credi t ;J楼;1ilable accordin g to the chan would be 26 percent. Deducting 28 peI"Ci'!nt ffOm 100 l>ereen t would leave 72 l>ercent times $137 or $98.64. If the a~r:1ge monthly child carc costs exceed the fcderal maximum level. the excess monthly expen:te should be added to rhe amount determined hereinabove. For example, if the custodial Pilrcnt in the above ill ustration had average child c<lre expenses of $214 l:ler monlh for one child, the net CXI>ense \o\IOuld be $ 158 ($144 per month takcn from the AOC chart under the column for $200 per month expenses plu s th e $1 4 excess over the maximum).

Formation Of Health Law Section On July 20, 1989, Alva C. Ca ine, president of the A labama Sta te Bar, charged a task force of bar members with the responsibility of determining w hether there is sufficient interest for the forma tion of a Hea lth Law Sect ion of the Alabama State Bar. Pu r路 suant to th is charge, the task force now is so liciting responses from inleresled members o f the bar. Those persons who have an interest in participating in such a section should contact one o f the following perso ns below: C regg B. Everett (task force chai rperson) 1235 Forrest Avenue Montgomery, A labama 36 106 Keith B. Norman (bar staff liai son) P. O. Box 67 1 Montgomery, A labama 36 101

January 1990

The Umils establiShed by Dt-IR guidelines are basro upon a per Child COSI and the amount shO''''n on Ihe IIddendum 10 the rule should be muhil)licd by the number of child!cn for whom child Cilfe cOStSare being e~pcndcd. For ex.1mple, the ma~imum chlld care COSt allowed for full·time c<lre d a f\.oIO.-year--old child 1$155 per momh) and a four.year-old child ($140 per monthl would compule to a 10lal nlaximum aUowJble charge of $295 per month. In caws where the ac· tual nel Child Cilre costs CXCCL'Cl the O HR limits, the amount provided by the limits should be in5()rted in the Guideline Form as opposed to the actual costs, or, in appropriate instances, the court may det!"!r· mine tha t the dlflerenl;e between actual and allowable child care COSls is SO substantial as to i)c(onlC evidence for rebut· tal of <In ilwilrd of child sUPl)!)rt b<1Scd upon usc of the guidelines and may make an awi'lrd of a higher amount with an appropriate finding of rebul1al as pr0vided by the rule.

E. Dt.'lermination of reconlmended chilil support 1. Haslc child sUPllOrl obligation-The basic child support obligation to be en· tered on line four of the Child Support Guideline Form Is (ound In the Appen· dl~ to Rule 32, S(hedule of Basic Child Support Obligations, from the 1)(Qper column relating to the number o( chll· dren being SUPpOrt"'>cl based 011 the com· blned gross income of the parties, as delermlned on line two of the Guideline Form, Undcr the original rule, basic support for incorlle arllounts betW£.ICn Ihose lisled on the chOlrt .....ere to be Nextrapolaled.N In order to eliminale Ihe rn<lIhematlcal cal culations for extral)olatlon , the amend(.'(i rule prCNides th;:11 when In· come amounl$ fall between amounts shown In the schedule, the la.ver value is used If Ihe combined gross income (ails less Ihan hOilfway betWCt!fl the amounts shown, and the higher value is used If The amount f{liis halfwJY or more between the two amounts. The "number o( children due support" Is defined 10 mean the children (or whom the parents share lolnt legal responsibi lity and fa- whom support is being sought. II does not include children of a prior marriage of either of the par·

The Alabama Lawyer

lies, except with reltll ion to amended Section (8 )(6 1 concerning preexlsllng child SUI)J)ort oblig..11ions. The amendments TO Rule 32 modified the Schedule of Basic Child Support ObUg.1llons 10 cover Joint gross incomes as low ns SSSO per mOrlln to more easily accommodate minimum wi'lgc earner). Below a joint income of S55O, The charI flattL>r'IS QUi reg..lrtlless of how many children are due support and also reaches the $50 amoum which is al· I~ to be receiVL'(1 by Ihe custodial I)arent of children receiving ADC benefits. When the combined gross income fall s below $5SO per month, the amount of the support to be awarded Is left to the discretion of the court. H~t, It is recommended thai some child support oblig{ltlon be dcwrmined in every case, regardless of Income, In order to foster a sense of respon siblilly In the non· custodiAl parent.

2. Computation of ( hlld SUPI)()ft-The total child support obllg<lt;on is deter·

mined by adding tne basic 5UI)port obli· gation to work·relaled net child care costs to arriyc at Ihe amount to be en· !(!red on line six of the Guideline Form. Thereafter, cach l:t<Ircnt's rcspectlyc obll· gatlon Is determined by muhiplylng his/her percentage shiite of Income, determined on line three, times the lotlll SUI)port oblig.11ion, to determine each parcot's share of Ihe 10t... 1 obligation. The custodial parent is I)resumed to expend his or her share of the obll8-)tlon In direct support o( the children {lnd the non-cus.. loolal pmcnl should be required to Po-1y his or slwe o( the obllgalion to the custodial parent.

F. Additiorlal awards fOf child support-As origInal ly wril1en, Rule 32 providL'(/ furlher ilddi\!ons to Ihe bASic child SUPl>ort obligation (or extrJofdlna,y mL>d· leal expenses, Se<:lion (BlI91. and extra· ordinary educational expenses, Section (B)(lO). At various edUC.1t on sessions. joogC\ attorneys .. nd (lther persons con· cerned with utilizing the guidelines in·

At Union Bank, 'frust Is Our Middle Name. Offering Solid 1hJst Service Since 1901.

.UNION BANK&TRUSTCOMPANY 6OCOMMERtESTREET I MONTGOMERY. ALABAMA I :ns.l!6W2OI / MEMBERFDIC

SMALL FIRM SOFIWARE

l1MI. '!Ul"'O T ~U'T

'H '

o ,teo

ACCOUNTtjQ

'''' "0''AH DTIMf IMI NO. T~utT

0 ' 1111'

MOf.'.'........'.....

0 FrH

_., .. _"""' . . . . . . . __ on_

• MIl 110 H.ndll"l ~~_ ......... I0_••• _1!ool

Anomer Soft~. Inc.

w-."" _ _ Iof-,. 1801 AUJIraIIan Ave. So.

Suite 101 W, Palm Bnc:h, FL33409

' -800-749·9060

dic.llcd numerous problems in defining and prorating extraordinary medical and

education expenses under these provision ~ The commiuee rt'COgnlzcd Ihal IIle purpose of "guidelines" W.lS 10 provide a dClcrmlrlatlon of reasonllble expenses In II normal inlacl family and nOI \0 ad· dress extraordinary situations which are

more suitable 10 l) case·by-case analysis and exercise of judicial discretion. IV;.

cordlngly, Ihc commiuec recommended Ih,\1 these sections be dclett'd from the rule and Ihal a'N Mds for extraordinary medical and educational expenses be considered on an Individual case basis, separate and apart from the mathemati-

cal calcula tions of total child support obligations pursuant 10 the Guideline Form. Sections (8)(9) and (8)(10) were deleted and Section {C)(JI was ilddeel to provide that in addition to ordering recommended chi ld support as determlnL'<i by the guidelines. the court could make an additional aw.ud for extraordinary medical, dental and educational

Richard Wilson & Associates Reg istered Profession al Co urt Repo rters 17 Mlidred Street Montgomery, Alabama 36104

264-6433 46

expenses as provided in a written agreement of the parties or as determined by the court to be in the best interests of the child (or children!. When making s",ch an additional aw.lrd of child support or I)(ovldlng for payment of spt.:!Cific addItional (!,.;pel'lses. the order oItne court or agreement 01 tile p.1rtles should specifically designate the additional amount awarded, the purposes of the aWilrd and any time limitations atlilchL'(! thl;!ll;lto. This will allow the additlorllli award to be dearly Identified for puqlOSL'S of fu ture nlodlficalion andlor Icrn)ination.

G. Payment of support-Section (H) of Rule 32 provld~ t h~t payment of child support may be oldcrcd through the clerk of the court for remillance to the obllgcc on the court's own motion or upon motion of eitfler p.lrly. It further l)foYicles th(l.t payments shall be due on a cerlain date or dates 01 each month. If payment is nQI being made through the Department of Human Resources or its contracting agency, p;tynlentthrough the oroce of the clerk provides for a COr\tlnuous record trading child support payments and avoids future questions with regard to actions for el'lforcement and/or entry of an Income Wi thholding Order. The policies and procedures d 10cal clerks' offices witfl regard to payment should be in~tigatcd and if an administr.ltlvc charge Is madll for collectiol'l, the order should specify whether the same Is to be paid by the obUgor or deducted from the support paid to the obligee. Regarding the timing 01 paymcnt5. consideration should be givcl'I to the pay periods of the obl igor <and the chi ld sup. port Obligation ordered payAble in accordance thertwlth. This Is l)artlcularly ill'lllOrtallt with I'CSpectto certain govcrnment employees, and the St.lIe of Alabilmll has requested that when a withholding order is to be served on It, the obllg.ltion be boIsed on a biweekly schedule. In order 10 determine weekly paym(.'Ots, the monthly oblig.ltion shown on the Cuideline Form should be multiplied by 12 and then divid(.'(! by 52. To determine biweekly payments, the monthly SUI)llOrt obligation should be multiplied by 12 ,!nd divided bv 26. H, RC\' icw-Scctl01 C dthe rule provides thatlhe admlnlstriltivc director of

courts shall review the child support guidelines and schedule of obligations at least once every four j1!ars, to insure that their applica tion ft..'SUhs In a determination of al>l>ropriate ~wards of child support. Th is requirement is In conformance with federal mandates and also is necessary to verify the continued validity of the data used by the National Center for State Coul1s in establishing the schedule. Also, the commincc will continue to fUI'IClion and revit)w problem /Heas In appHca tiol'l of the guidelines.

IV. Conclusio n Child support guidelines now arc <lI'I established fact in the practice of family law. Among judges (l.nd practitioners who hIM! been utlli1.ing the diSCI'Ctlonilry guldellncs, the verdict has been overwholmlngly favomble. Child support orders have become more consistent, particularly In paternIty CilSCS, and settlementS hiWC been facilitated . Altorl'lCYS not only nre able to prOlllde clien ts with an amount of child SUPl)()rt anticipated to reneet the opinion of the court, but also to demonstfl\te how the figu re is determined and thaI it reflects the oblig.ltlon of both p..1rents to mcct the needs of their children. Use of the guidelines, hOWl"YCr, ccrtdlnly does not climil'l'lIe the need (or the services of an attorney in establlshil'lg child support. As should be dear from a reading hereof, there stili are many filctual i~sues which must be addrQssed conc:crnlng ill)plicil tlon of the guidelines. and judicial discretion still plays a subSl<mtlal element in the application of the rule. 11'1 conduslorl, It alway5 should be remembered thilt guidelines are lust that; they are based lI pan reasonable assumptions as to the normal facts and circumstilnces found in a basic family unit. They are designed to pr()(luce v,llid and equitable results in the majority of cases, but, as with all rules, there will be exceptions. Judges, attorneys and other persons utillzil'lg the guidelines always should be conscious of this fact and not attempt 10 make the guidelines fit an otherwise inapprol)riate situa tion. In ~u c h sitU(l.\ions, when the guidelines do not produce an equitable result or cannot be practicall y appliLod, the Pfcsumption In fJ'lOl' of their application should be rebutted and child support determIned upon the facls and circumst,lnces of the Individual case .• MnuDry 1990

Recent Decisions by 101'11'1 M. Milling, Jr., ilnd David 8. Byrne, Ir.

Recent Decisions of the Alabama Court of Criminal Appeals

Search and seizure-forced entry without notice of authority McReynolds v. SflIle, 2 Dlv. 710 ($eptemlx!r 29, 1989)- Based UI)()n informant In'ormation, Selma police obtained a search warrant fOr McReynolds' room at the Craig Motel. Mrs. Patel. the wi fe of the motel owner, went with the officers to the defen· dant's room. Patel knocked on the dOOr but no one answered. When she attemll ted to open the door with her masler key, the door was still fastent.'<I by the night chain. The Selma police annO\lllCed themscl ~s and kicked the door. The door failed to open so Lt. Smith announced himself ag.lln and kicked the door a second time. Inside the room the defendant and a young woman were 10Cilted along with a Quantity of mario juana and II !;Jag of cocaine. On appeal, McReynolds argues that Lt. Smith Improperly entered his f1lO(el room without t'lrst announcing his tluthority as required by §1S-S-9, Code of AJa/)am.l (1975). The court of crlm· Inal appeals agreed and rC\'('rsOO and remanded the case to the circuit court for a new trial.

The Alabama Lawyer

Seelion 15-5-9, Code 01 Alabama (1975) provides as 1011O'NS:

To execute a l e;'l(ch war· rant, an officer may break Open any door or window of a house, allY part of a house or ilnything therein If after notice of his authority and purpose he is refused admlnance. Lt. Smith's testimony, which was COl'> roborilted by other jXllke officers, W;lS to the (!ff()ct thilt the lieutenant had iln· flounced his authOrity. HOWi!VC!r, the announcemenl was ilmost simultaneous wllh the officers' forced entry. The officers were not "refllSed ildmlnance" with in the meani ng of §15·5-91x!(ore Ihev broke into the defendant's motel

John M. MU/lng. Jr., Is a member of the firm 01 Hili, Hili, Carter; fran·

co. Cole &. Black In Mont8omery. He a grJduate of SprlnS Hill Col/esc and lhe University of Alabama School of Law. Milling COVM the civil portion of the decisions.

room. From the evidenCe, it i1ppcars thlll the occupants of the motel mom said nothing and did nothing In the very short l ime before [he polictl broke Into the room. While It is true that a verbal or af· firma tive refuSoll from the occupal1tS of a dwelling is nOI always required before officers may make II forced en· try 10 execute a warrant, La(fitle v. St.1te, 370 So.2d 1108 (Ala.Crim.App.), cert. denied, 370 So.2d 1111 (Ala. 1979), cases hiM<! held that there must be either (a) "some positive conduCl on the IXIrt of the occup,mts indlc.lI· ing they are I'IOt going to open the door;" from which the officers may "assume that they have been denied admillance; or (b) "a failure 10 reo

David 8. Byrne, /r., Is a graduilte of Ihe University of Ala· bama, where he received brnh his undergraduate and l(Jw degtcCs. /-Ie Is a member of the Mont8omery firm of Robison &. Belser and covers Ihe c,imin;J1 portion of the decisions.

spond within a reasonable time, (rom which refusal can be presumed." See olso Irw;n v. Sl.1le, 415 50.2(1 1161, 1183 (Ala.Crim .App.), ,crt. denied, 459 u.s. 971, 103 S.CI. )02. 74l.Ed.2d 283 (1982). In the case sub lud;cc, there was no "positive condutt" by the occupants of the motel room from which the officers coul(l hl\\1: concluded that the defendant either W.1Snot go ng to open the door or was dl!5troylng l.>vIdence. In short, the 0(' ficers In this casesimply did not wait for a "(.lflurc to respond before bfeakingthe door. Hence, their ex&ution of the search Wart.lIll was a violation of the fundamental law of the land.

In sha....lng that he had made fal se rep. resentations in it, was attempting to Pf'O'o'e ~ unrel'lIed and immaterial bad aclS that the defendanfs chafilCtCf, as a whole and fOr truth and ver(lcity, was bad. However, it Is well settled In Alaooma "Ihat parti cular Independent facts, though bearing on the question of veracity, CilnllO! be put In evidence forthc purpose of discrediting the wllnl!5s," Crooms v. SIMc, 226 Ala. 133, 152 So. 455 (19341.

Recent Decisions of the Supre me Court of Alabama-

Civil

Constitutional taw ...

Olher acls of misconduci-cannot include fal se information on resume Carrollv. Slme. 6 Dlv. 890 (November 17, 1989)- Carroll was convicted on two cases of theft In the fi rs t dcgree and one case of theft In the second degree. The Alabama Coort of Criminal Appeals, spe<lklng through Judge Patterson, reversed and remanded Carroll's case for a new trial. During cros~minalion of the defen· dant, the prosecution was allO'Ned to question him about certain detail s of a lener and personal resume which he had previously submitted to the di strict attor· ney of Jefferson County, seeking eml)loy. ment. During the cross-examination, the prosecution Implied thai the informal ion referred to in the resume was fal se. The defendant timely objected to the qu~ tlons on the ground that they constitUled an a"emptto impeach the defendant on a collateral and Immaterial mailer. The leuer and resume, along wllh a leuer from the Unlled St.l les Department of Justice, stated thm there was no record of the defendant's ever working (or the Del)"rtment of Justice. In r(."VC rsing, the court of criminal ilP. peals obserYC!d: Ult is nOt permissible in thiS stale to j)f()'Je good or bad chariltter, either of a party on trial or of a witness, to fort ify or Impeach his testimony, by proy lng parti cular acts." /b.tvcry v. Sf.:ue, 96 Ala. 45, 13 So, 496 (1M3), The prosecutor, In crms-eKamlning the defendant about his job application ilnd

posed. "I~r, no court order is required in order to bring Rule 37(d) into play. It Is enough that a request for production has been properly served on the party. Once a P.1rty has been seNed with a request for production or Inspection, absen! any objection thereto, that party must cooperate in good f~lth to reason· ably PrOtect the tCquested evidence from being destroyt.'tl or discarded. The trial courl Is the more suitable arbiter for determining with accur.ley the culp.lbility of thc failure to produce, and the supreme coort will shoN great deference toward a trial court's decision with respect to culpability.

Civil procedure ... tria l courl has broad discretion

under Rule 37, A.R.Civ.P. Iyerson v. Xper' Tune, Inc., 23 ABR 4065 ($cptember 6, 1969). Iverson look his car 10 Xpert Tune, and they deter. mined that It had a defective fuel pump and rel>laced it I~ obtained possession of the "dcfectiw" pump and sued Xpert Tune, alleging lIlat the pump wilS not defective. Xpert Tune seNCd a I\."'quest for production to inspect the PUml). Iverson and Xpert Tune agreed 10 have the I>ump In$ ~CtOO . SuiJscql.lently, Iverson Informed Xpert Tune that the pump was unavailable, and Xpcn Tune filed a motion to dismiss pursuant to Rule 37, A.ROv.P. The trial murt conducted a hearing and found that tverson's aClioos amounted to gross ncgllgence, ilnd the trial court concluded that all the (acts In· dic.lte thall~n willfully discarded the pump to iMJid production. The trial court dismissed the suit. ;tnd t ~n oppealed, contending that the trial ( ourt abuSl.-d its discretion by dismissing the suit absent 11 motion to compel. lhe supmmc court affirmed. The supreme court notl-d that the trial ( ourt Is YCStl.>d with btoad discretion in controillngtne disa:Mry process, :and the choice or di sc~ry S<ll'lctlons will not be disturbed on appeal 2bsent gross abuse of discretion, and then only upon a sha....ing that such abuse resulted In substantial harm to appellant. 'Willfulness" on the pilrt of the non-<:omplying I)'lrty Is II kl'Y factor supporting dismisS;11. Gem· erally, a motion to compel under Rule 37(a), A.R.Clv.P:, must Oe obtained before sanctions under Rule 37tb) may be 1m·

Balson II: Kentucky apl)lies 10 civil cases Thomas, ClC. y. D /yt:J(SlfIcd Contractors, Inc., 23 ABR 4141 (Septt:Jmber 15. 1989). Plaintiff is black ilnd the owner of dcfC!n· dant is white. In selecting the lury, each side was alla.vcd eighl peremptory strikes. The jury \o1!nire conslsloo or four black members and 24 white members. All fou r black members of the veni re ........ere struck by the dl"endant. After Ihe Jury was struck, but before they were sworn, the plaintiff obJC!Ctcd to the filct that all of the black members had ~n struck by the defendant. The trial court did not rull;! on the objection and proceeded 10 seat the jury. In a motion (or a nl""" triill, plaintif( ooce again raised his objection to the Jury. The trial court denied plaintiffs motion and specifically found that BatsOn y. Kent ucky, 476 U.S. 7'9 (1966), did not al>Pl y In a civil ( ase. Plaintiff appealed, and the supreme court reversed and remanded . In a case of initial1ml)resslon In Ala· b.lma, the supreme court recognized that Ihe United States Supreme Court hos not definitively decided whether standards established In BMson apply to civil actions. After rev /Lowing conOicting (ederal d&isions, the court decided to folia.... Fludd y. Dykes, 863 F.2d 822 (11th Cir. 1989). In that case, the court Slated: ". , . when the oblectlng party sha....s that 'he is a member of a cognh::able racial group' and Ihat Ihc 'rei. Mnt circumstallces raise an I!lfcrence' that his opponent 'has exercised l>eremptory challenges to remCMl from

Ja nuary 1990

the venire members of [the obJccting party's] race; the objecting p.;rty has moilde out a prima fade case of purposeful discrimination. 8Mson, 476 U.S. at 97, 106 S.Ce. at 1723. The '(')(planallon need not rise to the ItM!1 justifying e~crcl se of a chal· lenge for cause; id; r<lther, It need only be 'a neutral explanation related to the partlcu· rar case to be tried.'" Id. at 98, 106 S.O . at 1723. In the present casc, the trial court did not ask the defendant why he struck the four blacks. nor w~ s there anything In the record to suggest why they 'Here struck. It Is for the trial COUrt to decide whether the striking of Ihe four bltlcks made out a prim" facie case of discrimination. If the trial court finds that there was discrimination, the burden shifts to the defend:lI1t to provide a race-ncutr.,1 eKplan. atlon for these strikes. If no oocquate rea· son Is provided, the ptalnliff must be given a rlC.'W Irial.

ERISA , , , fraud in inducement and §27-12-6 preempted by ERI SA HealthAmcric,ll1l1d Merle v. Men· lon, 23 AUR 3436 Uuly 21, 1989). As part of his employmenl, Menton was provided wi th medical InS(lr;lI1ce, an employee benefit plan governed by ERISA, 29 U.5.c. §100l, el seq. Menton's empla,oer offered alternati~ plans. Merle, an employee of one of the "lterniltive 1)lnns, represen ted to Menton that her HealthAmetica plan was as good as or better than the plan he had . Based on this representation, MeillOn dropped hi s plan and en· rolled In HcalthAmerlca. Menton w~ scquently learned tha t HealthAmerica's plan did rlot cover e>;pcnses that had been covcJ'(-d by his pllm. He filed suit for fraud and alleged he was fraudulently induced to drop his plan to enroll In HcalthAmerlca. Defen· dants m~ (or" directed verdict at the close of all 100 evidence based on the ERISA preemption ilS SCI forth in 29 U.S,c. §1I4<1(a), which prl'Cmpts ""II state laws insofar as they mllY nQ\.Y or hereilfter reb/e 10 any employee benefit plan .... " The trial court

The AlaIMma Lawyer

denied defendantS' motions, and the jury found In favor of the plaintiff. The trial coun also aUONed the plaintiff to "mend the complaint to conform to the (lvldence to allege a violation of §27·12-6, Ala. Code (1975). Defendants appealed, and the supreme court affirmed . The SUI>remC! court held thilt a state law claim for fraud in the inducement does not "relate to" an eml>loyce benefit "plan:' and, therC!fore, is not prl'emploo by ERISA. The court noted that Menton did not claim Improper processing of a claim, nor any benefits under the terms of the plan. The court stated tha t nelthel Alabama's fraud stalute nor tM! common I(IW iKllon for fraud purports to "relate to" or affect the administration of the "plan .... Defendants also ~ rguoo that the trl(ll court erred In allowing plaintiff to ai1l!gC a ylolation of §27·12-6 which prQyides that no person shall make misleading comparisons of policies for the purpose of inducing a policyholder to change or CClflWrt to another policy. The supreme court recognized that the 11th Circui t Court of Appeal s In FJrlow v. Un ion Om. life 1m. Co. recently held that j 27-16-6 does not create a priV(lte cause of action and, Ihat If It did, a clillm under It would be preempled under ERISA. The supreme COurt declined to follow the 11th Circuit and adop1ed the position tJken by the SIKth Circuit which holds that ~prcempt lon by ERlSo\ appl i~ 00' ty once the benefit plan is in existence" Jnd does not aPl)ly to alleged common law actions of fraud "10 get the plaintiffs to Join the ptan .~

Forum non conveniens . . , unless balance is slrongly in favor of defendant, plaintiff's c hoice of forum rarely should be disturb«J Elf pMtC Aulo-Owners InsurilnCC Co. n:: While v. Auto-Ownm Imurancc Co.}, 23 ABR J380 Ouly 21, 1989). White WJS Injured In Crenshaw County, Ala· bama, when she was run off the road by iln unidentified driver. She Is a Florida resident. The acddent was investigated bV Alab;mm law enforcement personnel, and she was treated '" Ihe scene by an Alabama rescue squad. Theonly witness to the accident lives in Alabama. White filed an uninsured motorist claim ag.1in51 Auto-Owners In the MOrltgomery Circuit Court. Auto.Owners moved to dismiss the suit under §6-S·430, .Ala. Code (1975), based on the doctrine of (arum non conven/C!n$. Auto-Owners main· talned Ihat the suit is a contr3ct aClion, th"t the con tract was made in f lorida with a florida resident lind illlcgedly brCli ched In f lorida. Thl! trial court denied Auto-Owners' mOlion, and AutoOwners petitioned for writ of Illar\damus to order the trial court to dl.mlss the ac· tion on Ihe 8rounds that f lorida Is the morc appropriatl! forum. The supreme coun denied the pelition. The supreme court noted that §6-S430, as amended, became effect j~ June 11, 1987, and provid(.'S that whenever a claim, either upon contri,lCI or upon ton, has ari sen outside Alabama, the courts of Alabama shall apply the doctrine of forum non conveniens In determining whether to accept or decline to take JurIsdiction. Therefore, essentially the doctrine allows a court, which has juri sdiction and Is locilted where venue is prop. (In

TRUCK ACCIDENTS - TIRE CONSULTING • Tire Consullng

• Rlmfrire Explosions • Traflic Accident ReconSlruClion Truck· Cllr · Motorcycle - Pedos/r!8n

SMITH-ALSOBROOK & ASSOCIATES aOBBY D. SMtTH, B.S., J .D., President

P.O. BOll 3064

Opelika, AL 36803

(205) "9·1544

er, to rt.ofuse to c)(crclse Its jurir.dlctlon when, In the Interest of the parties and witnesses, and In the interest of justice and judlci.. 1 ec(Jnomy, the case could be morc approprlillcly tried In another forum. The supreme Court quoted from a United StOlte5 Supreme Court case which stated that a plaintiff mil)' not, by choke of D Inconvenient forum, harilSS the dciendan t, but unless th e balance is strongly in f<M)r of the defendant, Ihe plaintiff's choice of forum rilrely should be disturbed. The supreme court fOund that tnc relil t i~ Incor~nlerldes were not so unbalanced Ihat it should order the trial COurt to decline to ~rclse its juri sdiction. Insurance .. • action for negligent procurement of inSuri'lOCt:! accrues when loss

occurs Hickox, elc., el al. II; SIOWr, et ai" ~ 23 ABR 3645 Ouly 28, 1989). CltfOOClie Unit O I>Cf(ltors' Committee ("Uni t") .md I-licko)( filed this action October 31, 1984, after thell Insurer, INA, refused to pay replacement cos ts for cerliJ!n equipment destroyed by fill! in June 1984. Unll alleged Ihat de(endants negligently failed to procure full and adequate cO'vel'dge, A policy wa s issued effective April 1, 1983, and the policy wa s delivered 10 plaintiffs July 20, 1983, Defendllnts {iled mol ions for summary judgment maintaining that Iheclalms are barred by the statute of limitations, The trial court granted defendants' motions on authOfity of wnSley v, Mutual FIre, Mar;ne & Inland Ins, Co" 512 So,2d 752 (I\fa, 1987), and Armstrons v, LI(e Insur,mee Comp;my o( Vir8ifljil, 454 So.2d 1377 (Ala. 1984), and found thaI their ncgligence cause of action accrues when the prem ium Is paid and the 1>oIIey is issut.'Cl, The plaintiffs appealed, and the supreme courl averruled LDnSley and Arms/rong to the c)(tenl that they held that claims against an insuranCe agent for fail ure 10 procure adequate Insurance accrue as of the date the insurance comjXlny issues a pQlicy that falls to meet the plaintiff's t.»tpecl,'l\lons. The supreme court noted that

~n;ne

sar v, $.S. Steele &. Co., 477 So,2d 949 (Ala, 1985), Involved II negligence claim for allOWing Insurance to lapse and that il hoo held trut the negllgcoce action did not accrue unlil the house was flooded

and the Irlsurer refused 10 cover the loss, The supreme court was unable to distinguish a negligence lapse case from a negligent procurement case and held that the action accrues when th e loss occurs,

Worker 's compensation •• . what is " direct aclion" under §2742-1, el seq.? Alabama InSUr.lllCe GlI,lr,lfl1Y Assocla l lon II; Pierce, et III" 23 AI3R 4203

(September tS, 1989), Pierce was injured on the job and filt.'Cl a worker's compensation claim against his employer. His empl(1y'Cr's insurance carrier went Into receiverShip. Howc\U, his employer's carrier had an agreement with two other car. tiers, American hcess Insurance and Early American Insurance, wherein by endorsement Early American agreed to be liable in the INCnt Pierce's carrier fails to pay the loss (PIerce's claim). Both AmQrican Excess and Early AmC!rican subsequently went into receivership. Pierce amended to add the Alabama Insuran ce Guaramy Association (AlGA) and sought OJ declat.1110n that AlGA had a duty to dcferld ar'ld inclcr'rIr)ify his em· ployer In the worker's compensation action, AlGA maintained that Early American's endorsement Is not ~an insurance policy to which (the act) applies~ so as 10 make Pierce's d"im a c()\f\lred claim and, thu s, an obligation of AlGA. The trial COurt dl!cI"red that Ihe aCI applit.od to thi s en· dorsement, and AlGA al)pealed. The supreme Courl amrrrwd. The Alab.lma Insur.lnce Guaranty Act, §27.42.1, el seq" Ala. Code (1975), was enat:tC!d to pay "c~rC(1 clalms,~ Section 27-42-3 States that thc aclllpplics to "all kinds 0( direct Ill5ur;lI'Ice:' The term "direct Insurance" Is not defint.'Cl as it is used In thi s con te~t. FIQrida was faced wi th a similar case and held Ihat "direct insurance" refers to "an insurance Corltracl belwt'en (In ill5ured arId an Insurer tha t has accl!pte(/ the designated risk of a design1lted loss to the insured;' In Ihis case, Early American agreed that if Pierce's carrier fai led to pay any loss payable under the policy, then Earl y American would be liable. Therc(ore, American's endorsement cons tllutes ''direct insurance" within the meaning of

the act, and AlGA Is bound to provide coverage,

Recent Decisions of the Supreme Court of AlabamaCrimina l Guilty plea inquirv-need 10 explain elements

Smith v. Stale, 23 ABR 3903 (August 25, 1989)-5mllh 1)leadcd guilty to a violation of the Alabama Uniform Controlled Substances Act. The Supreme Court of Alabama issued il wri t Of certiorari to review whether the defcndant's gUilty pica was knowingly and Intelligentlyenlcred, On Februa ry 22, 1988, Smith appeared before the trial judge arid entered a plea of guilty. During the al)pearance in circulI court, the defendant and his attorney executed a "StiltemCnt of Rights" form as required by Ireland v. State, 250 So.2d 602 (1971). On appeal, Smith asscrts twO claims 01 error. First, Smith Mgues that the trial judge, in accepting his glJlUy plea, erred by failing to C)lplaln to him thQ key elem£!nts 01 the offense as required by the supreme court's decision in Henderson v. Morgan, 426 U,S, 637 (1976). Second, SmUh also claimed errQr in the lrial judge's failure 10 explain that one of the sentence options llvailable to the CQurt wa s a fine of not more than $15,000. A unanimous supreme court affirmed Smith's conviction. The importance of the Smith case lies In thl! COurt'S refu~1 to Interprel l-lenderson as a per se rule, Jusllce Adami reasoned as follows: "It 15 our inte'l)retation of th e Henderson opinion, supra, that the United States Supreme Court did not crea te a per se rule thlll all dC!ments of an offense must be explained to the defendant. ~ are of the opinion tha t it Is Important for a defendant to understand the nalure of the offense. It is necess.ary for the defendant to be given 'ren l notice' of the O((t'! ns~ wi th which he has been charsed. Clearly, Smith had been IfJIluary J 990

given real notice of thc charge b«ause he stated: 'I got caugh l with some cocaine: ''We must hold that Smith's Slatement i~ <In indication thai he had been given ade(tUllte notice of the natu re of the charge. Furthermore, the Supreme Court, In MafSha/i v. Lonberger. 459 U.S. 422, 437 (1983), held that, excluding tlny evidence to the con· !Jary, the courts llresume that the defense attorney ;advised defendant rj the chmge," In the case suh iudice, the supreme court found no ~idence Ih<lt defense cO\lnsel had failed to advise the defen, dant of the nalure of the charge. The sup~me court also rejected the dcfendanl'S second ilrgument nnding that the "'Statement of Rights' form executed by the defendant rcYeals that he wa s apprised of the possibility of a 515,000 nne.~ Parent's refusal o n behalf of chi ld does nOll riggeradmissibililY under A labama's Implied Consent Law Hanks v. Stale, 23 ABR 4300 (September 15, 1989)-Hanks was in. diclC!d for manslaughter as a result of a Irtlffic !lccident, After the accldenl, Hanks waS taken to a hospital for trealment of a head injury. During Hanks' treatment, iI Mobile police officer asked Hanks' father for permission to obltlln legal specimens of blood tlnd urine. The father refused to allow any spt.'(imens to be taken . The emeqJency room nurse who was prl!Senl at Ihe time Ihu requei t wa s mode testified that she did not know whether Hanks was asleep (If awake, In any (''YCnt, Hanks never had an OPI)QrWlllty to refu se the blood or urine test, The officer left Ihc- room after talking with the defcndtlnt's bthC!f, and never asked Hanks directly /or I>crmlsslon to take the blood and urlrle spt.'Cimens. Hanks wa s corwlctcd by a jury of vehicular homicide, The SUIJreme Court of Alllbama granted CCrtlOra,; to consider whether the trial court erred In ruling that evidence of the refusal by Hanks' father Th~

Alabama lawyer

to i1I1QY.1 a drug screen Md blood alcohol test to be performed on the defendant was relevant and admissible against Hanks, In other words, Ihe supreme COurt sought to rC\llew whether the evidence that Ihe father refused 10 allow Hanks to be tested supported the same unfavorable inference tha t could be drawn ff Hanks hImself had refused to allaw the test. In Hill v. Stau.', 366 So.2d 318 (Ala. 1979), a divided court held thaI the facl thm a defendanl refuSt.od a blood alcohol test could be Introduced at trial. The supreme court held thilt it was "relevant" on the issue of whether or nOt he W.1S IntOKicmcd, and thlll he could expltlln to the jury why he refused, if his refusal was for a reason other than fear thaI he would fall, which Is whm made his n:fusallO un· dergo the test rclC\"ilnl. In HankJ, the supreme court n."usOO to e~ t end the doctrine of Hili v, Stale, supr,l, to a Ihlrent's refu sal. The COurt reasoned as follow.: "This Court n(.'\ICr envisioned thaI a parent's refuS(l1 for a child to take a chemicallesl would support the same Inference as that to be dr.Jwn from the refusal of the child himself. "Under our rules of evidence, Hanks wa s preclud ...>d from testifying as to the reasons his father, who was deceased at the date of trial, may have had to refusing to permit the (esllng. Thus, the jury was unable to weigh Ihe factors surrow\ding the refu s..l l." Supreme court abolishes " Tacit Admission Rule" Milrek V. Stale 23 ABR 405 1 (S<!ll temoor 8, 1989)-fhe Tacil Admi ssion Rule allows an exception 10 tne hearsay rule when an accused hears an accusatory statement {lnd remains silent. The silence of Ihe accused is used as substantive evldel'lce thaI the accused nas ImlJliedly conser.ted to the truth of the accusiuion and accordingly has admi«ed guilt. Clark 'I. Sill Ie, 240 Ala. 65, ]97 So. 23 (1940). Clark, supra, allOrWd bolh the accusatOlY Statement and the fac1 tna t the

accused remained silent Into evIdence. In Caldwell II. Slate, 213 So.2d 919 (1968), the supr'erne cou rt set forth the predicate for admilling a tacit admission as fol1QY.1s: 1) ThM defendant must hJ\.'C heard and understood tne accu~tory statemCnt. 2) That dcleoOilnt had an opportunity 10 deny the accusatory statement. under clrcumSlances calling (or 11 reply. 3) That defendant remained silent,

In the present case the Supreme court squarely re(ecled the Tacit Admission Rule. Justice Adams explained the IOItlonale for Ihis Important opinion as fol1(1.11S; .. [the] underlying premise, thaI an innocent person a/way$ objf!(1s when con· fronted with a baseless accu· 5<.l tion, Is lnapproprialely sim· pIe, because It does not account for the manifold moti· \lations th.1t an accuS('(i may have when, confronted with an accusation, ne chooses to remain silent .. " Furthermore, wilhout that premIse that si lence in the face of on 3Ccusatlon means tnal the ac· cused Ihlnks he Is guilty, the tacit admission rule cannot withstand scrutiny, because the obseMlion thtl! the ilCcuS<.od rt.'fTlained silent could oolll«'cS$i1rily lead to Ihe inference that the accused knew tnal he was guilty; without Ihc premise that silence In the face of accusa· tion nc<:essorily results from guilt, Ihe tacit admission rule merely describes two concur· rent events, accusation and slle,\ce, without giving the reason fOf the concurrence of the tWO events. Accord ngly, neither logic nor common experlel\Cc any lonser SUIlport the taci t tldmlssion rule, if, indeed, either CYCr supported It." The SUI)(('me Court abolisllcd the Tacit Mmission Rule with these words:

"The tacit admission rul~, 10 the extent Ihill Ihe rule allCMIS Ihe Introduction of evidence of an accused's sihmce when confronted with an aCCUs.ltlon, Is he-roy abolished. Although Ihe constitutional impediments of the Fifth Amendment mil)' not Ill)ply to illaclt admission occurring before an acCU5(.'(! is arresled, Miranda, "I 444, the fun damentill logical problems with Ihe Nle remain. Accordingly. !hl. decision expressly applies 10 pre-arres/ si/ua1i000S, as well as pt)51-arreSl situations This abolition of the rule applies prosl)('(llveIy." (emphilsis oursl

Failure to investigate-ineffective assistance of counsel Locke/! v. State, 23 ABR 3S97 Uuly 28, 1989)- lrlt..ff!.-'CIive asslstilnce of counsel claims ilre cognizable In Rule 20 peUlion s pursuant to Rule 20.1(a) , Temp.A.R.Crlm.P. The standard adopted to test the effectiveness is set forth in Strickland v. ~shinglon, 466 U.S. 668

Chemical Abuse Knows No

Barriers ... (including the bar)

Confidential help from fellow professionals is a phone call away

1-800-237-5828 52

(1984). That standa-d requires the petl. tion to shaw "that counsel's representiltion fell below an i:lbjectlYe standard of reasonablencss,HId~ 466 U.S. at 687-88, all(! ~Ihal thcr"e Is a lCasonable prOO..,bili. ty that, but for counsel's unprofessional errors, the result of the proceedings would haYe been different:' 'd., Ilt 694.

In Lockc(l, the supreml? CO\.lrl held Ihat a defense counsel's f,lilure to investigate a defendant's prior convictions in a case brought by the state under the Habitual Offender Act, and If Ihat failure were proven, would amount to a failure 10 meet the! objective standard of reasonableness under Strickland v. WlshmglOrJ, SlIPI'il .•

1990 Approved Continuing legal Education Sponsors Accredited law schools (ABA, MLS) Admini strative Office of CourtsAlabama Judicial College Alnbilm1l Bar Institute for Continuing legal Education Alabama ConsortilJll of Legal Services Progro'lmS Alabama Criminal Defense IJr,vyers Association Alabama Defense lawyers Association Alabama District .'\Itorneys Association Alabama lawyers Association Alllbanlil Slille Bilr and bar sections Alabama Trial lawyers Association Amerkan Bar Association and bM sections American College of Trial Lawyers American law InSlltutMmerican 8ar Association, Commllle!e on Conti· nulng Profcssional Education Association of Trial Lawyers of America Allimta Biu Association Baldwin County Bar Assocl;,t ion Uar assod"Iions of the sister states, the District of Columbia, Puerto Rico and the trUSt territories Birmingham Bar Nsociation Commerci,.l law ll'ague Fund for Public Education Continuing leg<ll Education Salellite Network Cumberland Instilute for Continuing Legal Education Defense Research Institute Federal Energy 8ar ASSOciation

Huntsville-Madison County 8ar Association Institutes on Bankruptcy law Intematlolltll Association of Defense Counsel Legal sections, agency programs-U.S. and state goYCrnmenlS Mobile Bar Association Montgomery County Bar Association MOntgomery County Trkll ~yers Association Nashville Bar Assoclnllon National Association of Attorneys Generill National Association of Bond L'lWyers National Association of R.lllroad Trial Counsel Nntionill 8ar Assoclallon National College of Discrict Attorneys National Health lawyers Associ .. tion National Institute of MUIllcipal law Omcers Natlonal Institute! (Or Trial Advoc;,n;y National Judicial College Niltional legal Aid ilrld Defenders Association Nillional Organization of Social Set:urity Claimants' RcI)re5enttltives National Rural Eloctric Cooperative AssocIatiOn, legal Division Pillent Resources Group. Inc. Practising Law Institute Southwestern Legal Foundation Tennessee Association d Criminal Defense law~rs TrOlnsllOrt ... tion LlWyers Association Thscaloosa County Bar Assoclillion •

,.muary 1~90

Legislative Wrap-up by Roberl L. McCurley, Jr.

Projecls under study InsUIUIC committees often work two or thrcc years On a revision before it is submi"ed to the Alabama legislature. Currently foU! committees ,Ill:! at work revising areas of r;1W, None of these revisions will be ready for Ihe 1990 I.cgisla1Ure bUI should be completl>d In lime for the 1991 or 1992 sessions. Should you have 11 suggestion in one of these areas please write us so Ihal we may p<lSS along your comments 10 Ihe drafting commi ttee. The (ollowlngareas arc under revK.'W: Probate procedure-After Ihe passage ollne Probate Code (§43·8-1 CI seq.) and Ihe Alabama Uniform Guardianship and Prole<:li....e Proceedings Att (§26-2A-l el seq.), the Probate Commlttl'C began their review of Chapter 2 of TItle 43 of Ihe Code of Alabama. Chief draftsl:lerson is Professor Tom Jones, with E.T. BJ'()Nn serving as comminee chairperson. The comminee is looking at giving thc pcr'Sonal repr!.... scnlOlIlve enumerated j)(lWer similar to those proscribed (or conservators. Title to reahy will be revlev.'Cd to determine I(tltle should vest in the heirs or In the personal re~ resent;)!!ve. Consideration will be given to change the bond requirements to rL'duce the bond (rom double the value of the est'lIe to a lesser amount. Finally, the com· mi"!.'e will review tnc fees which now are based 00 iI percen tage to an alternate determination bond on a "reasonable" fee. Revised Business Corporation Act- In 1980 the current Busi ness Corportlii on Al;t was passed which became ef· fect/ve January 1, 1981. Subsequently the Model Act upon which our law was based has been rt,'\Iised and reorg.lni7.ed. Chief draftsperson for this study 15 Professor H()YIard Walth..l11 with cO<!raftspcrson Prof/..'Ssor Richard Thigpen, while George Maynard serves as committee chairperson. The model act upon which Alabama's present 8uslness Corporation Act was based was subsequently revised in 1984. This revi ~ion creates a new org.lnizaUon of the BusIness CorporJtlol'l Act into su( h chapters as General Provisions, IncorporJtion; Purposes and l'oY.tcrs: Office Jnd Agent; Shares and Distributions; Shareholders; Directors and Of!1cers: Amendments; Mergers and Siwe EKchnnge;

The Alabama laW)er

Sale of Assets; Descendent's Rights; Dissolutionments; Foreign Corporations: and Records and RcpollS. Already, 22 states have adopted this latest revi sion. Uniform Commercial Cocic, Anic1e 2i\-Alabam~ passed the Uniform Commerciaf Code in 19&5. Except for MIc1e 9 which was revised ill 1981 t h~rc hilS ix.'fln very littlc change to the UCC In almost 25 years. The American L.."lW Institute and National Conference of Commissioners on Uniform SUIte t;lY.lS appN:Wed a new Article 2A concernIng the leasing of personal property. Currently, Je~lng of personal prollCrty has been cO'v'Cred by a combin~tion of statutes usln8 common law principles relating to real estate transactions and secured transactions. The need for uniformity In the COn'lmerdal field ,111(1 the C)lp..l!ldi~ numbers of leases of personal property led tnc Institute to this revi sion. The chief draftspet'SOO Is Professor Peter AIres, and Bob Ft(.'Cnor serves as chairperson of the coml'l1iMce. Evidence-In conjunction with the Alabilma Supreme Court the Institute is drafting Rules of Evidence. PtO(cssor Charles Gamble is chief dmft5person, while Polt Graves serves as chairperson of the committee. The committee Is using as a model the Federal Rules of Evidence. These rules are comp..ued with present Alabama IJW. After determining the difference IlCt\W!eIl the twO laYlSthe committee will decide which posllion is better. See The A/,lbam.lI..UY. ycr. HLegislative Wrap-up," January 1989.

tnc

(continued on Ph8c 55'

Rob&tl L McCurley. Jr. if the d,,6ClOf rJ the Alabama Law /ns/llute a/ tha Un/Yet$J/y 01 Alabama. He r9C8/II9d h<:s

undargfadulJte and law degrOO$ 'rom the UnlYelSl/y.

Disciplinary Report Disbarments • Based upon his consent to disbarment ilffidavit under Rule 15, Rules of Disciplinary Enforcement, leb Lewi5 Hughes of Birmingham was disoorred I:rt' order of the sUlJI'eme court, effecti\lf;) M~ rcl1 25, 1986, [ASS NO. 87-635J • Oneont.l lawyer judy Dianne Thomas hJ$ been ordered disbarred by an order of the AI<lb<lma Supreme COllrt, effective

May 19, 1989. The disbarment order was bilsed upon findings by the Disciplinary Hoard Ihal Thomas had vlotaled variouS Pr'(). visions of the Cock' of Professiollal Responsiblllly. by cng'lging In conduct thill :Jd\.1'!rScly reflects Ori ht'!r fitness to practice law, <lnd by falling 10 obsclVl! and comply with the oath of omce of an altorney. [ASB No, 88-477J

Suspensions • Mobile lawyer Samuel F. !roy, Jr., was suspended from the practice of law In the state of Alab.1ma (or a period of three years, effective April IS, 1988, based upon his guilty plea to vilrious violiltilJns of the Code of Professional Responsibility. [ASH Nos. 87-8&, 87-284, 87-285, 87·549, 87·655(1\) & 86-224[ The atlorncy in this cllse is nol to be ConfU$(.·d wllh . . /lOrm.')' S"muel W Irby of Fairhope, Alabama. • Mobile lawyer s.lmuel F. Irby, Ir., has been ordered suspended from the prilClicc of 1(lW for a ~riod of th~ ~i1rS. /!ffective April 25, 1988. Irby's suspension was based upon his failure 10 comply with a wri t of gamlshmenllssucd by the DIstriCt Court of Mobile COur\ty and a subsc(IUer\l judgn\cnt rell· dercd by that court against Irby, which Judgment remains un· satisfied. (ASa No. 88·2641 The al/orney in this case is nol to be confused wllh Mtorncy 5.1muei W IrlJy of Fairhope, A/,lbam.l. • Birmingham lawyer Louis W. Scholl was suspended from the practlee of law for a period of 91 days. effccti\IC October 31, 1989, by order of the Supreme Court of Alabama. By fal ling to file any ans~r to fOlmal discipl inary charges that were pend· ing il8<linst him, Scholl ildmiued that he eng<lged in conduct inyolving dishonesty, fraud, deceit, mlsreprt.>sentation, or wa s guilty of will ful misconduct, and engas<..'(/ in other conductthi1l ild'AlIWly refl<..'C1S (In his fitnes~ 10 practici!I:rw. (ASB No. 88-1201 • Birmingham law~r Louis W. Scholl was suspended from the practice of law for a period of 91 days, cff<..o(tiw October 31, 1989, by ord~r of thi! Supreme Court of Alabama. The suspenSion order was based UI)()n findings by the Disciplinary Board th1ll Scholl had violated various provisions of the Cock Pro!css /olhll Rfolpons/bility by engaging In conduct that adversely reflects on his fitness to practice 11I'N, and by failing to deposit funds of a client re<:eiYed by him in one or more identifiilble bank trust accounts. [A56 No. 87'()9)

Public Censures • On November J, 1989, Mobile lawyer John A. Courtnl'Y was I)ublicly Censured for violating DIscipliMry Ruli! 6-101(A)

of the Code of Profe55 iona/ Responsibility. Courtney WitS found gui lly of willfully neglecting .. legill miltter entrU Sted to him. Courtney WilS retained by the f,lmily of a criminal dclendant for ropffiS(!l1Ialion. following the defendant's con'~ iction, Court· Iley gave oral notice of appeal. Courtney never had any further contact with Ihe client, did not infoml the client's family thaI they should seck other representation and failed to inform the family Ihat the client might be eligible for court-ilPpointed cou nsel. Even though Courtney never withdrew as counsel, he f,liled to notify the family that the appeal of the client had ix'Cn dismissed by thi! AI"nama COurt of Criminal AplX'als. (AS8 No. 87.1161 The attorney In this case Is not to be coluuscd with at· torm.')' 10lil1 P. Courtney. III, also of Mobile. • On November 3, 1989, 8essemer lawyer Robert w, Graham WilScensured for unprofessional conduct in violation of the Code of Professional Responsibility. Despite numerous wrincn requests th(lt he provide Ihe OiKiplimll'), Commission with a written response to a complain t th aI a client had fi led against him, Grnham (ailed to I)rovide the rt.'CIuelted response. lASS No. 89-1011 • Dothan lawyer G~gory P. Thomas was publicly cen· sured on November 3, 1989, for having violated DR l-102(A)(6), DR 6-101W, and DR 7·101(A) of the Code of ProfeSSiOfkll Responsibility. Thomas agreed to represent two resider\ls of T.lmpa, floridll, in connection with certain real property tMt they O'Wned in Doth;m, Alabama. Thomas aCCQpted a $500 I'CtaiMr from the Florida residen ts in late r'Cbruary 1988, bUlthereafler took no action on behalf of the clien ts, who wcre unable to contact him about the maller, despite repeated telephone calls to his law office. Thomas returned the fcc to the clients In August 1988, after they traveled to Dothnn \0 dlschnrge him and file a com. plaint against him with the 1>..1r. (ASB No. 88·589) • On November 3, 1989, M(lntgomery 11IWyer Doutlla§ ChilrlC$ Freeman wa s censured for having been guilty of willful misconduct, having engilged in conduct prejudicial to the ad· mlnbtratloo of Justice, at\d having Cf1gaged In conduCl ad\ICrsely reflccting on his ntness 10 practice law. Frcem[ln made an ilppolntmer\t M a stale prison to confer with an inmate, and alier he was Inside the prison, but before he hild been illl()Yl(!d to I'IlCCt with the inmate, a :m1311 qU(lntity of it (()ntrolled sui)o;liInce, known as milri juana, was found In his clothing by pri!lOn personnel, in the form of a hand-rolled cigare tte. IASB No, 87-7531

Private Reprimands • On NOIICmber 3, 1989, a lawyer was privately reprimanded for using nnd COillpensnUI18 a non.lawyer emp:O)'Ce: 10 solici t a client or professional business for Ihe 11I'N~r in violillion of OR 2·103(A)(2), DR 2·10<1(6) and OR 2-104(C) (j the RuleS of

j;lnuary 1990

PrOfes~iona l Responsibility of the Alabama StOlte Bar In e(((!Ct prior to October 25, 1985 (subsequently superseded by TemporOlry DR 2·103) [ASB No. 85-541(B))

• A 13'oYyCr was privately reprimanded on NCM!moor 3, 1989, for having violated DR '·102(A)(6) and DR 7·I06(B)(21by h;t\llng appeared n open court In his prof('Sslonal cal>acity in a stille of alcoholic Intoxication. [AS8 No. 89·531 • On Ncvcmber 3, 1989, j) l!lWycr WJS privately repri. nlanded (or h;wlng violllted DR 2-1 11(A)(2) Jnd DR 1-102{A)(61. The lawyer rCI)rcscntcd an Individual In appealing a criminal conviction, which WdS a(flrmed, and thcn Ignored repeated requ('Sts from the client to dcllver to lhe client his copy of the record on appeal When the cllcn t filed a complaint against the lawyer, the lilWyer Ignored repeated rC(luests from the bar to PfOo'ide a response to the client's complaint. (ASB No. 89-58] • On NO'v'Cmber 3, 1989, a lawyer %1 S privately repri manded for enga~ing in conduc! adver;ely reOCCling on his

fitness to practice law, willfully neglecting a leH<ll maner entrUSted to him and Intentionally failing to seek the lawful objectives of a client. The lawyer agreed to J'eprt!SE!nt it couple in filing for bankruptcy, but failed todo so until they had met:! a complilint ilsainst him with the bar. I!\sB No. 88-31] • On September IS, 1989, a lawyer ....-as prlvately reprimanded for falling to seek the liJWful objectives of a client, for f;lIl1ng to carry out a contr:lct of employment for profession. ill services, and for I)rejudlclng or damaging a dient during the course of the prof('Sslonal rela tionship. The client had been involved In nn altercation wherein he suffered cl'l'tain property dilmage. Civil actions against the aSSilUants were pursued. The lawyer made (I IJnllaterill decision to dlsbeUC\~ the client's statement as to the amount of property dam,lge he suffered In the ass.lull, settled the matter for a sum less lhan the amount claImed by the client as damages, and dismissed the lawsuit In progress, with prejudice, all without the consent of the client. (ASB No. 89-55) •

Legislative Wrap-up (cominueQ from p.1se 53)

1990 Legislati ve Session

Committees Office Management Scminar in Mobile a success 1..1W

The Profession'll Economics Commit· tee of the Alabama State 8ar, In conjunc· tlon with the Mobile and Birmingham chapters of the Association of legal Ad· mlnlStrators, sponsored a seminar on la-.v office management on FridilY and Sawr· day, September 22·23, 1989, at tne Gl'i\nd Hotel In Point Clear, AlaOOma. More: than 50 lawyers ilnd legal admi nistfil tors reI:!' istercd for the seminar where th\!y he.ml c)(ceilcnt preparations on a number of topics. Donald Akins of Hl1debrandt, Inc. g;M! a major prcsel'ltatlon on the economic trends In the praCl ce of law for the neKt decade. Tom \r\bods of New Orleans p~ vided a comprehensiYe introduction 10 the utilization of computef"5 for people who Me not information professionals. He strcsS(.>d the importance of manage-

The! Alabama Lawyer

ment InvolYement and organizational commi tment to any computer project. Lawyers 6111 ndwell and Kirk Shaw of Mobjle combined for a comprehensive I)resentalion of personnel issues for law~rs Including wage and hour problems, term s of employmCl'lt and civil righ ts i ssu~.

On 5mumay, Paul Bornstein, the state bar's endorsed liJW office consultant, outll m.>d the many areas of law office ad· minlstr<1l ion which outside (!)(pcrts can provide. Finally, Edwartl Burke of Hilde-brOlndt, Inc. outlined the milny chal· lengesto law firms to be cncounlcr(.>d in legal marketing. Because of the quality of the presen· tations aoo the positive reaction (rom the participants, the Professiooal Economics Committee will be pl~nning a similar seminar for next year and hopes to make Ihi$ seminar an annulll one. •

The next regular session of the Alaooma Legislature convenes Tuesday, January 9, 1990. law Institute rovlsions which will be presented to Ihe legislature during this term Include a revision of condominium liIW, securities law and the adoption law. Alabama Pilllem lury InSlruCtlon5Criminal-A committee of circuit judges has just complcwd a revision of the AI,,·

bama PaIWrn Jury InSfrI/CfIOfis-Crimi/lilf. Principle editor for this revl s'on has bcer'l Judge Joe Colquitt, Tuscaloosa, with the following members of the drafting COrnmill(.'(!: Judge Jeri Bli\nkenshlp, HUntsville; Judge Henry W. Blin.lm, Alhcn Si Judge Billy Burney, Moulton; Judge Randall Cole, FOrt Payne; Judge Jim Garrett, BirmIngham; Judgc l-lardie Kimbrough, Grove HIli; and Judge Randall Thomas, Montgomery. This Is a completc revision of Ihc Pallern lury Instrucllons- Crlmlna/, and Is available to circulI judges from the Ad· ministr:ltiYe Office 01 Courts and is avail· able for purchase from Alab.lma In~titute for Continuing legal Education. Af'lyO(IC wishing additional information on the subjects discussed In this article may write: Bob McCurley, Director Alabama ll1w Institute P.O. Ilox 1425 Tuscaloosa, Alabama 35466 •

pete, Solos must carry" relatively heavy overhead burden, compared to their firm riVills, and it will become more onerous as urban rCrllS arId salarif!S escalate. Most will have to relocatt' to suburban areas, arId {l/I will have to specia lize.

generalist solo pract i t ion~r. "TWo or three may Join together 10 share resources, but they must offer a broad array of general legal services. The chains uoel H iatt, etc.) will offer stiff c;;oml)Ctitior1 in the urb,lrl i1reas, but not in the rur~1 ones. It may not be as "exci ting" as urban I" w w actic;e Is IlCrcel\l\.>d to be, but it can be ~ry rewarding, spiri tually as well as finandally,

sarily those of the Slate bar.

MinOr urb.-.n .-.reas

Forms of governance

This is the thirleeneth article in our "Consultant'$ C!)fm:r" $erie$. We w(lutd like 10 hea r from you, both in c ritique

The situation here almost reve rses itself. What is a small firm in a major urbar'! af't'!'a 15 probably large In a minor one. In many minor urban areas a ten· person practice Is the dominant one, That being the C,lSC, these dominant firm s, what ever their size, must genera/i7.e (like their bi g ma jor vrban brothers and sistersl _They mny well hilve to add services 10 ho'd their prindmii clients. The small firms In these areas (five and under) ough t to speciali ze If there

M OSI firms will remair1 partnerships, Qut it will be more for purposes of income dlstr1bu tiOr) th an for 8ovcfr\arlce. Decisions will have to be n)ade more deci sively than previously <tnd jXlrtncrshlps will gradually delegate decision-making to a trusted partner on an elected term basis. Externally thl.'Y will remair1 pmtnershil)s. Internally th ey will closely resemble corporat ions, with a CEO (Mr. O utside-Business Development) and a COO (M s. Inside-Practice Managerllelll). An Increaslr18 pcrccrl tage of practftloners witt be women. Those of you with "quaint" ideas about the proper plilce for women in society had better begin some sensi ti vity training now.

Consultant's Corner The following is a revit.'W of and Commentary on an office 3ulom311011 issue that h;'ls current Importance 10 Ihe legal comnlunit y, prtpared by Ihe oHice auto-

mation consultant 10 Ihe stolle bar. Paul BprnSlein, whose views are not neces-

of Ihe art ide written and suggestions of topics for future arlldes.

The 90s-what's ahead? As we begin the decade of the

90s it

might be ~lIlo P<luse for iI moment and make sure we are heading in the fight direction. The practice of law Is going 10 ch:lllSc In Ihl s decade and th ose hoping

10 succeed will have 10 adapt. There will

be changes In the delivery of Icgal ser· vices and changes In the structure of the

firm s delivering them, Polishing up the okl CryStal ball, heft) is (I fQret(lSI of Ihe legal profession in the 90s, particularly as it will affect ~maller firm s.

Technological implications

Major urban areas The small (under 20) major urban low firm will have \0 specialize to remain viable. The I"rge firm s will continue to dominate what is called "general practi ce" and, wi th their increasingly powerful busi ness dC\lf!lopmcllt and marketing clout, will squeeze the smaller general practiti oners. So, w h3l ls the smaller firm to dol You will have to fi nd a niche and practi ce more capably and more emcien!ly than a specialty depMtment of a larger firm. You C<tn use thi s to your (ldv(ln ta ge, with a lillie thought. ("They have " department ... we have a whole flrml") Some practi ce areas that lend th em~lves 10 specializ3Iion In a major urban seiling Incl\lde to)(, labor, patent, construction and pensions and benefits law. Solo practitioners in major urrn.n areas will find it increasingly difficult to com-

Bornstein is enough work av,lilable, Absent that, they might miljor in one prilctice area and minor in ano ther. Solo practitioners will probilbly do alright, ;)lthough thl;!y would be well advi54Xl to specialize as well.

Rural areas Rur{ll areas are tai lor-made for the

Computers w ill rIot be practicing law, bu t the speed made available by computers will have a very signifIcant Impact on how lawyers practi ce law. A few eKamples: - You will be able to file d(l(;umentS electronically with mO$1 COU f\S, either direccly via modems and common COnlmunlcatlons protoco l ~ or vi a fa)( machines. - Everyone will require at-harld or !lear at-hand access to legal research data bases, Case law will change 50 dynamically In some areas that not even periodi c updates wi ll be timely enough , O Ptic;;a l disks gradually w ill replace many specialty hardcover sees of books. - tt will become common to ~ce a lawyer In the courtroom with a laptop computer, He will be accessing his Iitig1ltion support data base, either directly or through 11 modem back to his office. •

/anuiJry 1990

Opinions of the General Counsel by Alex W. Jackson, assistant general counsel

QUESTI ON, OUf liJYI firm is retained focal counsel 10 a local grocel)' store. This Store i~ a Delaware Corporation and has an AlabOlma division. ~ are also gencr.lt counsel Ie Ihe City or 'X: Attached hereto ~u will find a Complaint by Mr. ;A'v. M5. H,

;A'

••

ct 011. Named as a Defendant in Ihe case Is OUf client, the

local grocery stOft'. Mr. W. is an employee of the City of 'X'

and is emproved, apparently, in their pl;mnlng department. A5 \o"Uu I'I.....II(.'W the Complaint you will notice that it appears 10 be a '"licnMicn of affoolon' type of Compl"int In Ihilt II nlicgcs aduilery, ctc. The Complaint Is flied pro 5C by the Plaintiff, "I was called upon to defend the CMe 17)' the local grocery store, on or about February 1, 1989. I filed a Motion 10 Dismiss on behalf of my client, an(l i;llso corresponded with Ihe PI;lin..

tiff, Mr. w.. Copies d!hose documents are attached OOi:1o. After I was retained In Ihe case, I was casually discussing lhe mill. ler wilh ooe of my partners. He is the altorney who halldles thc tocal work (or the Ci ty of 'X'. He advised mc that a fL'W Wl'(!k$ ago. Mr. W. rctephoncd him ;md asked If he could use Our t........ library to do some ~arch. ~ typic.dly allow clients and Iheir eml)loyees (particularly clients such as the City of 'X1 10 utilite our law library. Wher\ Mr. W. called, he asked my f).1rtner cerwin general questions about whelher or nOt one could pursue a cI"im "gainst persons who had allegedly had an affair with one'~ wife. Mr. 1\ did I"IOt ask my partnli!i1 10 represent him In Iht'! miltter. My partner WolS aw.lrC thaI Mr. "Ii was re<:enliy dl\Orced and Ihey diK\Jssed, briefly, (Crtain aspects of the di~e. My partner indic.1tl'S that he recalls st,11ing to Mr. 1\ something to Ihe L>ffect thaI there (OI"merly was C,l USC of actiOn kfl()Yln as alienation of affL"Ction but that he thought It had been done ilWil'( with by stalute. He never agreed to represent Mr. 1\ in thi s matter, he nL"Ier accemed a fcc or qUOIed one, etc. He has ncvcr rcprcscnwd Mr. '/Ii in any other mOiler. "Please oovlse me at your earliest cOllVCflience as to whether or not I would have a con fli ct of interest In Ihls matter. If SQ, I will proml)tly i\d"ise my client and suggest that they retain aoo!her iltlorney to represent them in thi s defense."

ANSWER: Disciplinary Rule 5-101(0 provid~ as follows! "(0 A lawyer shall nOi repr'CSenl a party to il cause or his successor after having previously represented an ad. verse party or interest in connooion thcrcwith.H While M r. 'Ii Is the cmplO'y1..'(! of a client, we are of thu opin. Ion that his contaer with a member of your firm, as detlJlIL'd

The Alabama

La~er

In your r(!(juCSt, W,l S nOI of such a charac!er as to form an at. lomeykllcnt relationship. Nonetheless, if durinlJ the course of his ~rs.lt10n with )OUr partner, Mr. 'Ii m.'Ide any di1Closoll!S which mIght be cons;derOO 10 be confidences or secrets as defined by Canon 4 and the di$CIQsure of which would be embarrassing or detrlmer'tal to Mr. ~ then, ar\d C'oCn In the absence of an atlorncykllcnI relationsh;l>, we are of tnc opln. Ion that it would be advisable 10 wilhdraw (rom your represenlatlon of the loc.11 grocery store. The mum faCllhat one of your pJtlIlers g.Mll!uneral udvice to a Ilorl-clicnt and illJ!JY.'ed that non-clicnt 10 usc yt)ur firm's l;r,y library does nOI in and of ilsctr operate 10 dls(IUalify you from your rcprcscnlmion of Ihe local grocel)' store In a law. suit brought by Mr. :...: The diStinction to be drawn I~ fine and SOmewhat subjective but geflC!fillizcd discussion of Ihe type detailed in your request would not, in our opin ion, abseflt some other element that would indicate prejudice to Mr. I\: drctate your withdraw.1I (rom Ihls maner.

DISCUSSIO N: A brief', norl-Sl)e(ific interchange betWl'(!n an attorney and individual who Is not al that time a clien t should not 1)Cw (;ome;m absolute b.lr to an adYerse relatlonshlj) In futuro litl· gatlon. However, Ihe attorn(.>y in question must c.uefully scrulinlze any discussions held with a l)Otcntially ocI~ party In OrdL" to determine whether any confidential or secret in. formation was oblained or whether any ol the informalion con~ by the attorney to the potentially advurse I).lrty might hiM! been relll.'d upon by thilt party In subse<!ucnt I!YCnts. If, C\"Cn in the abseoce of an atlOl"neyklient relationship, the nonrepresenled party octi.'(1 in reliance upon Information given to him by the altOl"ncy, juS! cause might thereby exist to ethical. Iy disqual ify the lawyer from subsequent reprcsent<ltlon of any Int<!rQSl ild\ICfSC to the llon.represenl(.'Cl Pliny. Any time thai 1.l1l a1l0rn(.")1 offers specific advice Or counsel to a nonrepresented p<lrty, he should do so with the undufStamling thai he might thereby Inadvertentl y crea te a relationship ~uffidcn t to bring into operation Ihe provisions of DR 5-IOI{Q. At the S<Wlle lime the Commission recognizes the potential br abose whereby casual COfM!rSation could be used as a device to mlnipulale counsel OU t of a potential represerltation. As applied to this In~ tdnce (;ase the Commission Is of the opinion that the con tact detailed hereinaboYe is nOl sufficient as to mandate witildraw;ll bUI docs caution alld admonish that as a general proposition a "... lawyer shOuld neither solicit legal representation nor volunteer legal advice to laymen ...." Dn

(Ee 2·3) [R()'89·16]

•

Peyton Dandridge Bibb-Birmingham Admlned: 1929 Died: October 30, 1989 FrOlok OWCIl House-Birmingham Admlned: 1985 DIed: November 26, 1989 Cyrus Roy lewis-Dothan Admined : 1939 Died: November G, 1989 Ottic OU.'SICS McGinly-TuKalOOSll

Admitted: 1925 Died : Sepwrnbcr 14, 1989

Memorials These notIces are published Immediately after reports elf death are received . Blographlc.ll information not appearing in this issue will be published at a Jater date If Information Is acusslble. \\Ie ask you to promptly report the death at an Alabama attorney to the Alabama State Bar, and we....ould appreciate your assistance In providing biographical information for The .Mabama Lawyer.

Erls Frccman Paul- Elba Admitced: 1937 011,.'<1: October 25, 1989 Robert Vance Smith- Birmingham AdmIUt.'<I: 1952 Died: December 16, 1989 Hugh Reed, Jr.-Centre Admitted: 1934 Died: August 24, 1989 Edgar Poe Russell, Jr.-Selma Aclmllh.'(/: 1948 Died: October 22, 1989 William Cassell Stewart- 8irmingham Admllled: 1976 Died: O<:tober 28, 1989 Marlon It. VickerS, Jr.-Mubile Admined : 1962 Dil'(/: Novcnlber 30, 1989 HelHlcld Tr.lvl. Wells-Mobile Admit ted: 1952

Dll'(/: Novcmber 14, 1989 Norman Har1well Winst(mHomewood AdmlfWd: 1943 Died: September 9, 1989 IllOella Jackson Wood- Mobite Admlned: 1935 DIed: July 28, 1989

Austill WilS 11 member of m;lny loc;'!1 professional organlz,ltions, Including Ihe American Bar Assoelatlon, the Ala. bama Stale Bar, the Mobile 8ar AssociA' lion, the Mobile County Boord of Real. tors, the Homebulldt.'fS Association, Mortg<lse B<'Inkcrs, a m~1tic socieTY and the Athelstan Club. He is survived by his wife, Leigh Lichty Austill; his mother, K.llherlne Isabelle Austill; his father, lere Austill, Ir,; two brothel'S, afle! a sister. Austill came (rom a family of attomcys. His (ilther, Jere Austill, Jr" and his uncle, EVim Austill, are at路 torneys practicing In Mobile, and one of his brothers, William Austill, I~ iln ilttorney pr.'lCticiflg in Birmingham. All of his family, tOgc!lher with the members of our associaTion, moum his passing. and

IM~1I1

(.r\VI""J

AI J ~1111

WHEREAS, Daniel Gavin Austill was born in Mobile, Alabama, on March 11, 1958, grew up in our community, and supported Mobile by his Involvement in the community i'l I\d the legal profession; WHEREAS, the /o;\Qblle Bar Assoclmion dt.'slres to remember his ntlme arld 10 "-'Cognize his contributions to our Ilrolesslon and to this community: NOW, THEREFORE, BE IT KNOWN, that Daniel Gavin Austill dCllllrtcd this life on Augusl I, 1989. During his high 5<:hool yea~ Auslll attended and graduated from UMS In 1976, after whic;;h he miltriculaled to the University of Ala路 bama and received a bachelor 01 science degree in 1980. He received his masters of business administration degree from the University of South Alabama In 1983, after which he attended Cumberland School of law and received his law degree in 1966. Austill was enlployed as an associate with the firm 01 Brown, Hudgens, Rich路 ardson, P.c., in Mobile on October 1, 1986. During his tenure with that fi rm, he focused his practice primarily In the areas of real estate, probate, corporilte 'lOd b.lnkruptcy 13\\1. He W.lS alWJY5 eilger to assi st fellow attorneys and cnthusiilstlcally accepted new challenges.

-William H. McOernlOlI, presidenl Mobile Sar Association

\\AlflR

( . II,,\I)I~ ,

IR .

Walter C. Haydefl, Jr., 61, of Clanton, died January 16, 1989, at his home in Clanton. He was the presiding judgc of the 19th ludidal Circuit .It the time or his death. Judge Haydcfl was a native of Blrmlng路 ham, whefe he gradUAted (rom Ramsay

January 1990

High School. He received his bachelor's degree from SI. Bernard Collegt:! in Cullman ill\(! his law degree from chc Universicy 0( Alabama School of Law In 1955. He was an Army veteran of the Korean W,lr. Judge Hayden prilcciced law bricfly in Birmingham wlch his fil ther, the laIc Walter C. Hayden, prior to his relocacion in Clanlon in 1956. His was a general prJctlcc In which he (Iulckly mi)de his mark as an accomplished civil and crimInal trial lawyer. During his praclice, he served as presl. dent of Ihe Chilton County Bar Assocla· cion, president of Ihe 19ch Circuit Bar AssoclJlion and as a member of Ihe 6o.1rd of Bar Commissioners of che Alabama Scale Bar. He also served for len ~ars .l$ judge of che Clanton Municipal Courl and (or (O~l r years as the I;ounly SOlicitor for Chilton County, wh ich was then an elected position. In 1976 he was elected circuit judge for the 19th Judiciill Circuit, composed of Autaugo, Chihon and Elmore counties. 1he term for which he was elected 10 seMI was to commence in January 1977, but upon the retirement of Judge Joseph I. Mullins, Governor Gcorgc C. Wallace i11>1)Qintcd Judge Hayden to the circuit judgeship on IUne I, 1976. ..Ie WilS re-elccted In 1982 but chose not to seek re-election in 1988, because of illness. He died on the last day of his term in 1989. Judge Hayden is survived by his wife, Margarel Davis Hayden; three sons, Walter C. Hayden, III , ClanlOn; DiM! Haydell, Clanton; ~nd Jon Haydell, Tus· caloosa; and a daug/1tl!r, Mrs. Rebecca H. FutQI, Mobile. (One son, WiJiter, present· Iy Is serving as deputy district auorney for Chilton County and another son, Jon, presenlly is iI senior law student Jt the University of Alabama.) Judge H¥len also WilSsurvived bv two brothers. Lt. Col. Bi I Hayden, Anniston, and Thomas J. Hayden, Birmingham, and a siSler, Miss Celcste B. l'layden, Birmlng. ham. Judge Hayden was a long-time ac· tiYe member and leader of Resur~ion Catholil; Church in Clanl0n, He loyally SUI>PO rled his church and his communi ty for the entlr(! time Inilt he lived In Clan· tOn. He was especially interested in pr0grams for the benefit of young people

The AJabama Lawyer

and he scf'\led for malYi years 3S 3 memo ber of the Clanlon Quarterback Club. Walter "'a-,den Wo)S a large man, both physically and Intclie<tually. His love of the law was secolld only to his love 0( his family and church. As a practicing at· torn ey, he was an aggI'Cssive adVOCilte who tlrelcssly represented the interests ol his clients to the maximum ol hii ablli· ty. As a JuriSt, his prilctlcal nature com· bined wi th his legal eXl)Crience to make him wise alld fair and readily able to quickly digesl legal arguments. He ffiCt the challenge of his h,st illness wilh courage and diSIlUy and inspired us all with his determinac ion to overcome it. The tm tire membership of the Chilton County Bar Associiltioll (eels his loss as a friend and colleague, and mourns his passing. -Chilton County 6ar Association Clanton, Alabama

NI( HOI ,'", 1\1 AI~~I Y

On Septenlber 28, t9B9, the state 01 AI':liMma and Mobile County lost DistriCI Judge Nicholas Keamcy, who sue· cumbed to a brief illnes! at Ih(o agc of 44. Judge Kearney was not your normal man . ..Ie was born with spina blflda and was able to walk only with the aid of crutches, Despite these physical limltJ' tions, he grJduated with honors from Spring Hill College In Mobile in 1967 and the University of Alabam.. law

St:hool ln 1970. In 1976, he became one of the youngest judg(,'S ever elected In Alabilmil. Re-elected in 1982, he died white serving in this judicial capaci ty. My in iIi iii encounter with Judge Kearney tells much about Ihis fine indl· vidual. I had pmctJced law In Allanta for 16 ycilrs and returned 10 my childhood home, Mobile, In 1980 10 assist my brother in running our family home aM commercial furni shings relil i! business. Having speciJlized In commerclallitJgation, I was not the least bit timid about going to court with just gtlevances inYOIYillg my COmp<1ny. One wch Incident inYOIYed me with Judge Keamcy. tn November 1981, our comp.1ny sold an (''Xpensive order of residential carpeting to Mobile customers. In the usual fashion, we got a significant deposit prior to ordering. When Ihe Carpet IlrrlYC<1at the store, we called the customers ilnd advised them thill we were relKly to set UI) the Installation, They Ins sted on first coming to the St()IC 10 look at thc carpet, "fler which they pronounced that It did not match the S''Imple from which th<!Y made the purchase. 1M! disagreed, bring. Ing about 11 classic Alabilma Uniform Commerci",1 Code Article II casc. The customers sued us for the refund of their deposit; ~ coun terclaimed for the com· plete retail price of the sale, since the ex· pensiYe, spe<:ial-order carPEl lng was of no use to us other Ihan in the customers' home. The case was tricd before Judge Kearney in a crowded, active coortroom. ~ presented Ihe sample from which the customer purchased the carpel, along with a small sample which we cut from the large roll of carpet wh ich we had ordered for the customers. Our salesman and I testified that the sample did indeed malch the cafl)Ct ordered, while the CU$tamers vehemently asserted thaI It did not. Judge Kearn(,"'y' took the case under advisement. SeYer.ll days lilter, while I .....as In my of· fice at the store, I r ei..ed word from our receptionist that Jodge Kearney WilShere to see me. When I greeted the judge, he advised me in a no-nonsense manner that he W.1S allhe store to Inspect the entire roll of Carpet which we had ordered for Ihe customer and to compare it direct· 1'1' wilh the sample which the customer

had ordered from. Without further oldo, Judge Kearney and I trekked to our carpet warehouse adjKent 10 the store, where our warehouseman pulled down the car· pet, rolled it out for the judge lind placed the 5.1mple from which the customers ordered atop the carpet. Judge Ke<trney studk'tl the carpet for a few moments, thonked me :lnd left. A few days later, ~ received <tn order ruli ng in our filvor and gf'lIlting us judgement against the customers. Short l~ thereafter, we installed the caq>et In the cu ~ tOrr'lerS' home. (Par· enthetica lly. they ended up compliment. ing us on how It Improved the beauty 01 their homel) I have rclIected many times about hem Judge Kearney resolved that dispute. I had thought th~t at trial, the Issue would be primarily decided based upon the credlbitity of the witnesses al1d the coull'S analysi5 of the smilll 5<lmples which had been brought to courl. Too many times in Allanla and Mobile, I have seen Justice (or the lack of same) meled out with insufficiefllthooght and analysis by judges who al)l:learl.'d either ImMerent or uncaring. I had not known Judge KellmCy until that day in court, and judgIng (rom his busy caseload on thaI day, it never occurred to me that he, ilfflictt,:d with S I)ln~ bifid", would get In his car, drive to our storc, wl.lggle with the 10llg willk 10 the w.lr£!house, and return to his office In order to be sure that he saw all of the evidence In Ihe case, not just the sample and small piece o( carpel which we were able to bring into the court· room. This man cared Ihat he render a lust result, without regard 10 his own l:lersonal discomfort. Judge Kearney recognl7.OO litig"'ion as serious business requiring of himself the beSt of resources he could mustllr. I laler became friend ly wi th Judge Kearney and was pleased to serve with him on the bo~rd of the Mobile Theatre Guild, where he not only Wi'S distin· gulshed In his service, but also portrayed the ludgc in one of the Thealre Guild's

most successful productions, "Inherit lhe Wind." I am Ihe beller (ot having known Nick Kearney; socielY Is Ihe beller (or having had the benefit o( his seNicc as Mobile County District Judge. - Gerald A. Friedlander, Mobile, Alabanla

( YRU", ROY", II WI' Cyru s RO'y'$ Lewi ~, a prominent attorney In Dothan, Alabama, died November 6, 1989, at the age of 74. BOrn In Tuskegee, Alabama, February 8, 1915, his filmily mO'.'!,!d to Dothan, Alabama, In apprQltimalely 191 7 where his f,11her, Oscar 5. lewis, established ~ 1ll'N practice. l ewis graduated Phi Beta KaPP;I (rom the Uni~rsity of Alab.lma in 1937. He received his law degfCC from the UniwrSity of AI"!:lilma in 1939, He W;15 a member of Omicron Delta Kappa and served as thl! president of the Student G~rn ment Association 1938·39. !-te was admlne<J 10 practice taw on June 15, 1939, and had been honored prior to his death with a S().year certificate by the Alilbama State Bar. He was admitted 10 practice before the United

Slates Supreme Court, Ihe Tax Court 0( the United States and the 11th Clrcuil Court of Appeals, as well as all state COUrtS, He w.lSa charter member of the Farrah Law Society, Uni\o1!f$ity of AI ..bama. In addltiol\, he was a long-standIng member o( the American Trial lawyers Associa tion, Alilbama Trilll L:lwyers Associalion, Alilbama Stilte Bar and the Houston County Hilr Association, the latter 01 which he servt.'tl as presldellt lwice. Lewis served as a pilOt In Ihe 505th Bombardment Groupdurlng 'M>rld War II (Pacific Theatre) (rom July 22, 1941, to March 17, 1946. By the lime 01 his di$charge he had risen to lhe rank eX lieulenant colonel. lewis' bomIMrdmentgtOup was stationed on the Island of Tlnlan, the same Islilnd from whid1 the Enola Gay flew its missions OV(!r Hiroshima and Nilgasaki. He was Involved In bombing raids O\ICr Hiroshima and Nag.lsaki just pdor to the droPl)lng of the H-80mb, tt was on the Island ofl1nian Ihal le'.vis met his wife, Madeleine Sry,lnt u.>wis, while she was serving with the Am4!:rican Red Cross. Mr. and Mrs. lewis were married April 26, 1947. Lewis is survived by his wift;! and a dilughtet Sarah Stevens Lewis, Lewis waS Ihe epitome of what we in the legal profession I)rofess lhat a lilW)'Cr should be: dedicated to God, fami ly, cornml.lnl ty al1d the rel)re5Cntation of Ihe legal profession with the highest of ethical and Inleliectu,,1 st,lndards. He was a liIWYCr's l;lWyCr. The death of Cyrus Roys lewis leaves .. ~id, both petSOnally and professional. lv, which will not be eaSily filled, However, we arc rea ssured In the filCI tha t his country, state, (amlly, friend s lind fellow brothers and sisters at Ihe bilt were enriched by his life, We mourn his Ihlsslng but at the s<tmtl time rejoice In having e>lperiencOO his leal for li fe and his I)rofession. - Steven K, Brilclcin Dolhan, Alabama

Please Help Us ... We have no WilY of knowing when one of Our membership Is deceased unless we arc notified. Do not wait for ~meon e else lodo It; I( you know of the death of one o( our members. please let us know. Mtl!l1odal information must be In wri ting with name, return address and telephone number,

January 1990

IIH.AR POI RLJ.., ... III , IR WHEREAS Honorable EdKiH Poe Russell, Jr., departed this life on Sunday, O:tober 22, 1989, alter, a lengthy Illness: and, WHEREAS the ~Id Edgar P. Russell, Jr., was born December 9, 1920, In Dallas County, Alaooma, 10 the laiC Senalor Edgar P. Russell ~nd Ihe late Ruth McDonald Russell: and, WHEREAS the s,lid Edgar P. Russell, Jr" was a descend"nt oi one of Ihe pioneer famlllcs of Dallas County, his family havIng seuled In Dallas County in 1816 prior to creation of the county and the statc; and, WHEREAS the family of our dear brother was active in civic and govern路 ml,!ntal service tQ this county, his father having sefV(.>d as a member of thc Senate of AI;lbama reprt!Sertting Dallas County and later having scM!<! in the eJ(e(uti~ branch o( the government of Ihe State of Alabama; and, WHEREAS the said Edg.lr P. Russell, Jr" was educated in the public schools of Selma;md subsequently Kradua ted (rom the University of AI"b.lma School of Law: and, W""tEREA$ the said Edgar P. Russell, Jr., served his country as a naval aviator throughout ~rld W.u II: and, WHEREAS the said Edg.lr p, Russell, Jr., upon Kratlua tion (rem the University of Alobtlma School of law, was tldmilled to the bar of this state in 1946 and returned to Selma to pr.tctice law with the hUe loseph Edgar Wilkinson and the late

The Ahlbama Lawyer

Joseph Edgar Wilkinsoo, Jr., distinKuished members of the bar of this county and of this state; and, WHEREAS the Stlid Edgar P. Russell, Ir., was a very highly qualified aUorney arId representLod (In extensive clientele within 00llla5 County and the "''eStern P.lr'1 of the Alabama blackbeit: and, WHEREAS the said Edgar P. Ruuell, Jr., was appointed to the beoch of the Fourth Judicial Circuit of Alabama In the year 1969 by the Honorable Albert P. Brewer, Kovcrnor of Alabama, and was subsequ~ntly ele<;ted (Inti SCMd for three full terms prior to hIs rt:!tirement in the year 1984; and, WHEREAS the saId Edgar P. Russell, Ir., was a skilled and falrmlnded jurlSt who was held with high esteem by the lawyerS of hIs circuit and of this state; and, WHEREAS the 5<lld Edl\.:H P. Russell, Jr., W<lS <I IIftJIonK member of the FIrSt Presbyterian Chur<;h of Se ma and was a dedicated Christian g(!rtleman, serving his church faithfully throughout his life; and, WHEREAS the SOlid Edoa! P. Russell, Ir., milrried the former Dorol Wilkinson of Selma in the year 1942 ar1d leaves survi .... InK him hIs widow anti two dauKh ters, Mary Russell McKi~5<lck and Elizabeth Russell Williams, and four 8r.tnclchildreo, Mary Cameron Williams. Rickman E(lgar Williams, III, Mary Elizabeth McKissack and laurl Amanda McKIssack; and, WHEREAS the said Edsnr p, Russell, Ir., was 1.1 devoted husband, father arId grandfmher lind throughout hIs life held and fostered the belief th~lthe family WOlS the found,lIion of our society: and, WHEREAS the said Edsar P. Russell, Jr., was the kind of man who enj~ numerous hobbles and the com~n ion颅 shl l) of his friends, of which he had many; and, WHEREAS his ch.vactcr was typlfled by the molnncr in which he bore his last illness with fortitude, courage and a (lrm f.lith In the goodness of Go(I; and, WI IEREAS the passing of oor beloved friend has left a great '-1)ld In our bcn<;h lind bar and In our community. - Robert E, Morrow, president Oallas County Bar Association - Richard H, Poellnilz, president Hale Coun ty Bar Association

1,\Nfll" 1M 1\..,0", WOO() There are those of us who kr1CW and admired lanella VVood when she was studying law at the Univcl1ity of AIIIwma as lanella Jackson; who got to know her beller and 10 respect her 35 a Cilp.lble attorney beginning In the ~ar 19]5, when she, Doris Van Aller and Rosa Gerhardt were Mobile's only women auornL0y5; who missed her as a worthy Olll)()nf!nt when she married and gave up the practice of law; and who were happy when, after" number of years. she decided to return to the practice of law. We know that she was proud that, by Ihe lime she died on July 28, 1989, the number of women In law In Mobile had in<;reased from th ree to almost 100. Janelill was the gentle and gcntecllady you would expect to come flOm livingston, Alab-1ma, but as an attorney she b.1cked llWay fron1 Mthlng, and she de'oOtL'tI untold hours in preparing lind SuCcessfully handlinK tedious cases many of us would have thrown up our hands CM!r and run away from, In despair. WI'IEREFORE, be it resolYed by the Mobile Bar Association In regular meeting as~mbled on this the 15th day of Sel)tcmbcr 1989, that we honor the memory o( our friend and fe low member, Janella Jackson 'M:lod, and that we (,'xpress our Kratltude to God th nt He let her practice for 50 many years as a member of this association. -William H. McDermott, president Mobile Bar Association

SERVICES EXPERTS IN STATISTICS:

Di ~ rimina·

tion, EPA or other mil tte~, Our experts

have I;onsulted ilnd testified on st.1\islks and economics O\Itlr Ihl! piiSt 15

yt1ilf$.

Plaintiffs or defense. Qualified in many federal districts, Full scrvlce consulting fi rm, not a rd'erra l service. Dr. R.R. Hill, Analytic Services, Inc., P.O. Box 571265, Houston, Texas 7nS7. Phone (713) '}74-00o.

EXAMINATION OF QUESTIONED Documents: H;.m dwriling. typew ri ting <lnd rela ted Clotaminalions, Intern (ltional· Iy court-q ualified ex pert witness. Diplomate, Am(!riCan UOil rd of Forensic Document Eltamincrs. Member: AmerIcan Society of Qucstio" cd Document EXJminers, the International Association for Idemificmlon, the Srillsh forensic Science Society and Ihc National Associalion of Crimi nal Defense Lawyer.;. Rellred Chief Documem Examiner, USA CI Laboratories. Hans Mayer Gidlon, 218 Merrymonl Orive, Augu sta, Georgia 30907. Phone (404) 660-4267.

TRAFfi C ENG INEER: ConsultanllExpen Witness. Graduate, registered, professional engineer. 40 years' experi. ence. Highway & city design, tr" ffi c control dC'lices, ci ty zoni ng. Write or call for resume, fees. lack W. Chambliss, 421 8(>H(>hursl Drive, Montgomery, Alabama 361M. Phone (205) 272-2353. LEGAL RESEARCH HELP: Ekpcrienced ilnorney, member of Alabama State Bar since 1977. Access to sliUe law libr(lry. Wc$llaw available. Promt)1 deadline sca r(he~ . We do UCC-l seilrches. $35J11our. Sar<lh Kalhryn Farn ell, 112 Moore Building, Montgomery, Alabam.l ]6104. C<l1I (r(l(>: 1-800-448-5971. (In Montgomery: 277-7937). No replY}sen/;llion Is made about Ihe qu,11il y of the le8al services 10 be performed or Ihe expertise of the lawyer performl1l8 such serviCeS. COMPUTER PROG RAMMING SERVICES: by aU(Jrnl;.'Y w ith graduate study in compuler science. CUSlomized programming fo r specific needs, with softW(lre maintenance and rt'lvI SIOr\ services. C.l. Jones, p.o. Box 031568, Tu§o

caloosa, Alabama 3S403. No represenCa lion is made about the quality of the 1~'8al $~rv;(cs 10 be performed Of the cxpMise of {he lawyer performin8 such services, ROOFINC lITiCATION: Expert wi!ness and investlg.1tlon; accident reeonstructlorl; safcty analysis; industry Slandards. Roo( condition reports Includh\8 testing and analysis. Specification for new (lnd retrofit roofing systems. Insta llation inspections (l nd Quality con· Irol. Robert Koning, 6301 Joliet Street, Hud!tOn, Florida 34667. Phone (813) 863-3427. EX"ERTS IN VAll.iATIONS: Los! earn· Ings; PI; btJ s i n es~$; professional practices; conlraL1 damaijcs; patents, com. puter programs or oth er IntCliectual properties. Our eXI>crt s have testified and consulted on comp h~k \laluations over the past 16 ~ar'S, Qua lifi('(! in many federa l and state courts. Full ser\lice consulting fi rm, not ~ rcfetr(ll service. Or. R.R. Hill, Analytic Ser\lices, Inc., P.O. Box 571265, Houston, Texas 77257. Phllne (713) 974-(1043. •

Reminder On January 1, 1988, a new ce rtifi cate of di vo rce was in stituted by th e Slate of A labama. Also effecti ve thi s dale, all attorneys were required to fi le thi s completed certifi ca te with the petiti on for divorce. The Burea u of Vital Stati sti cs wil l no t accept the new ce rtificates of di vo rce un less all items are compl ete, including the confidential section. (Th is no ti ce ori gin all y ran in Ihe September 1987

Alabama Lawyer.) ForeSI E. Luden, Ed.D., M .P.H . State Registrar and Director Burea u of Vi tal Stati sti cs

lanuary 1']90

New Edition of a Classic Reference A completely revised edition of the leading reference on Alabama rca l property low is now available. Rea l Estate Handbook: L.md Laws of Alabama, Fifth Edition, ha s bee n updated to include all laws pa ssed during lhc 1989 session of the Alobama legisInlure plus recent cou rt decisions affecting real estate practice. Thi s Firth Edition, written by Robert L. McCurley and Pcnny A. Dovis, encompasses changes in :

• guard ianship and conser· vi'l torship laws

• power of Sil le In mortgages

• redemption of real estate

• memoro:andum of leases • em inent domain proceeding

• laws oHccting properly of nonprofit corpora tions • paternity proceedi ngs

INCLUDES OVER 200 SAMPLE FORMS

To order, (ontadthe sa les reprellentalive (or your .rea: JAMBS R. SHROYER 1'051 Office lJox 346 WilSOnville, AL 35186-0346 (205)326-9899

$65.00'

Appro •. 800 pagtl, hudbound

C 19119, Th~ Mit:hll CMI'Ipoo ny

Or call The Michie Company toll·(ree at 1·800·446-3410 We Accept Visa and MMterCard 'I'lu...Iu .ax whl'I'C ' ppllubll.