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ALABAMA STATE BAR

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Official Code, Alabama Cases, And The Only Alabama Administrative Code OnCD;ROM. A Com/Jrehensive, Integrated System. Everything You Need Far Your AWxnna Research. \Vhen it comcs 10 btllldmg Y<l'lf pmcti,e, AWxuM wwDtsSt is thl' (O\mdatlon (or JUCCes$. With Alab;lm3 Cases. Official Srl.llutory Code, and Admini5trnuve Code on CD-ROM, l..ol,l'DesSc bnnJ::! Stntc,o(,thc-art technoiCIItY to AllIbmna primary law, creaung Ihe most comprehensIve, authorltativc lC!rdlrt'fOlll't'c QVllilablc in Alabama. And wllh II $itnple keYSlroke or moose click, this JlO"'Cnul system 1mb 10 AiabmM Allt()-(;iil, ALR ~ USCS:- Am )lIr 2d and more. Sec it for yourself. For more inform.lllon, Of to arran.,oe d no-obligatlOll demon.stratlon. clill l·soo.762·5272.

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LEXIS'· NEXIS' i3,.A_ .. '.. - - - .... _

ALABAMA STATE BAR

'All '"~ ... '"'_.""""""' ...... ,,"' ....... I't..... I, .. ,ol.olOo .. lo .. 1M"" .. "k 10 ..... ..".."' ..... "' .......... ~ 10.. _ ........, ... _ _ I .... '... ~ '" _~ ....... , 10 1M h, .. _ ~ .... 0\1 ...1..... _ ...1_ _ ...... _ orrIr· ................" ...... I 'X'loAoI r<1-X1~.,..'_ ...... ,,_~.oI ".... 1:1000", ... , _ _ 1._ 01 .... 1' ~"-N':X".",.",,, u... ...... AI ....... --..I

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NOl.'cmocr 1996

1'(1/ 57, No. 7

0 11 III, Cover Vnll colors nt Wind Creek Stille Park, 'nlililpoosa County, Alnbama - 1'11010 by "'wI Crawford. )0, CJ.U

IN THIS ISSUE TH f: ALABAMA CLA"' S By Eric C. Bruggink , •.• ,.,.,....................... . ..339

TilEAllCs Of' ERI SA: AN AtAlWtA

PE RSI'~:CTIVE

By \Vllyne Mone .......................... ,.,' ' . " " "

.356

1996-97 CO~'~I IITf:f:S AND TASK FOllc, S ....................................37 1

339

RECEPTION FOil JUDGt; GODBOLD ..•••.•......••...... .375

WRESl1.1NC WITII THI-.: INTENTIONAL lNJUHY EXCI.USION By Bibb Allen ......... " .. ,.,.,""',.,., .....•. ,., ... 376

ALAIlAMA CODE Of' ETHICS FOil MEOIATOIlS .............385

with the U.S. DISTlliCT CoURT, NORTHERN DISTRICT OF ALAWIA STANDING ORDER ....................................389 BAn LEADERSHIP CONFEHI-.:NCI-.:

INTENTIONAL INJURY EXCLUSION 376

AND PARTNERSHIP PROCIWI HIGIII.IGIiTS .......•...... .39 1

Nov~"pn

'QUII,

I'> VbllShfd . troIen ll mei II. Y(llir (th4il June Issue I, 8 blU dlr~lory edition) by tha Alabama Sto l& Bar,

P.O. Box 4156, Montgomery, Alabama 36101 ·"1 56. Phone (334 ) 26G·151 5.

DEPARTMENTS

ROIl;I'1 A. 1tu!1&-.r ..., .....•.,.,.,....... &Jilin SI'IiIOOII OfIPaol8 " .. "

De_lei B. e~mplln

.,., ... ,.,., ..... ,.,,,...................................... ..,' ...........Cnalr & Edilor ., VIct,CI'IIoI &. ANodiI" ElI'IOI ............................Vre.,C""~. 1'Irl.n.;.

Su",n H. AndI... ..... ..........................................................8Inll LiIIlton" Com"IIUrknliotll Dil'1IIC1~ Ma'lIlull L Murphy ............................... .......... Sial! uat101" MIIIlQIlQ Ed~or

PJtsident '~

P"l!:e

326

BMrd o!l!dllora John Q Some<vIne. 61'nllr.gm.m ' Miklr Orul\lLrl. MotIIIe • Rober! S. Smllh. Hunl,vlllI • Cha'ift 0. CI9YtI~r.rj. Birmlr>g~~m • Glenda G. COc:t>'ln, 91,mlr.g~.m • LII. HuggIr\I. BlrMjr.g1lltn • MOn. OtIlta H. GokIsttitl. Blrmlr.gllam • Pame!' L. MBbi •• Anam, · 511ertl T. Fr.. man, 8Itnllr.gh.m· W,lIlam 01Il111 . elrmlngllllm. MIeha\II A. K~IIar.rj. Mon!l/Of'lery , Jo .... 'han 8. CrON, Tu.c:aIooP • P. Lolgh O·OtII. Mon!l/Of'lery • LInda G. ~1Ippo. elrmlrlghmm • La.Mma S. Davil. MonI,omer, • VIoIOrOll J. F,aMlln·SlslOn. 6i!mlnOhl", • M. DOr\lId Da ..... Jr. MObIle • lyM AoOerlton J(I(:I<ton. Ctart"" • HOII, William R. Gor(lOr1. Montoomtry' Rfj;hllld F MonIllQo'lWl'Y' Wil~.m T. C. ,IIOn • .If.. Monli1O"'try · EugoMII. 11. Mulll",. el,nIlr.ghl"'· Samuel A. Rumorl. Jr .. Blrmlrohlm

-'I"".

Executive Director's Heparl

328 About t-l embers, Among Firms

330

lIo.rd 01 11 • • CommlnIGrM" LI.,IO" ... .... .. ........................................................ Jam&1 W. 04twItI. Bir mlr.gll4lm

Ottlca •• WtI,,,n B. L!ghtlool. 9lrm r.gh~m ............................. .... ...•.......................•....... ....... J·'QklGnl 51.1111y DlIOn., R()we, H,nllVlllt ......... ...... P"~I·'1tCI OOMa 5 , Pale. Hunl,vlne .... V~·pr. AAnl KIlrh B. Norman. MontOD1\ftIy .......................................... ............................... Sacr.rB'y a COlrd col CommlnlCHltl'"

Bar Briefs

334 Disdplinal')l Notice

336 CU ; Opportunities

346 l..egisl:llive Wrap·Up

348

III C~ClJlr, E. Mark Ez". BUl ltif. 2nd Circuli. John A. N Ic~. LWllfM. 3,d C~cull. Lynn FIoWrIIOn J~. CllIYIon . 4'" CIrCl'~. R~ N. HQIlbI. 6.lm• . 8'" Circuit. John Party 0IIv0r. II. 0adnvII1I. 81h CIrcu~. ~_ No. I. Wall&! P. CrOwI'lOvt,.lUt(j\lOOlI.l. 8m CirCUli. Pta« No. 2. J. DouQIaI MeEtv-,. TVtcIIOOlI 71~ Circuli. AfrIM F. File, Ill. Annllton 81h C~wll, Wili!llll E, SNM. Dtcfil\ll", 11111 CkCl'«, WN. W~I",". Fl. P~y"". 10111 CIf<:UH. PlIJCO No. I, Samual H. F.anklin. Bi,mlr.gham . 100h Circuli. Placo No.2, Jamel W. Gewln. 100h CIfcuII. Pta« No. 3. J. M 8r~ Whllf, B~mlr.gllBm . 100h C~CUII. p ~ NO. 4, SlIIIl!lei~. RUr"nOIt. Jr 10th C~CIIII, PIICI NO. 5. Frt<lerlel< T Kuyl<tnOl •. III . Blrmlngll8m. 100h C"eu~, PI~C4I No. $. M..: B. Gr,_" Blrmlrlgh.m. 100h CI"C\l~, ~ No. 1. SI<1!1I"18~ A. Rowe, Blrf11lnOl"l4lm. lOIn CirculI, P~ No. e, Mill! C. Pope, Jr., Bkmlngllllm. 1C1!n CkCl'k, PI_ No. II, Cal~ S. Wrlghl. 81,mIf",ham Be_met Cul·ol" RIIip/1~. Armal'OfIII. 6eua,.,.r Ill h Ckwll. Roberll. ~Io<v~. 121h Clt!;u ~. M. Dnlfl Ma.. h. E~I" jII"l ... 131h Circuit. Placa No. I . We.1fIy pjp&I. ~Ie. 13111 Oculi, PI_ NO. 2. Billy C. SOdIlO4t. Mollo ... 131n C~CUI1. Place No. 3. Caine O·Rear. 111, MoOiIt 13m CIfcu~. PI_ No. 4, Senillmen 'l'.l'Iowe. MoQI-Io. l'lh CItwh, 10 I;IIldltd. J~,,*. 1 ~lh C~cuh. PI_ No. I. l'lobDrt D. Sagalt. t.le>n1~y. 15th Citeuli. Pllta No. 2. Wand. O. o-eau •. MorIlgornery. 15111 CkCl'II. Place No.3. Jamu E. WiUlBml. Mort!QOmDfY. 151h Clfcun. PIKe NO. 4. Rlcllllrd B. GII'tll, 151h Ckcull. 1'1_ No. 5. DavkI R. ~. Mortlgomtfy, 161h Cltarn. Rot O. McCord. G""'~n . l 71h CIrwiI. T.~1ar T. Pt"Y, Jr.. Otmfll)Olll. lalh C/r"",h, COIIfICl M. FOw"'- J •. , Coiuml)lafll. 19111 CkCl'~, JOlin Hot~. JackIOn, Jr., Clanlort 20111 ClrCll1t, Wadi H. Ba~Ity, 001h8n. 21'1 C~cwlt, Ch8"-1 R. Ge>dwln, AI"""' . 22nd Circuit. ellfl v JohnlOn . A~1rn4. 23rd CIrw~. f'IDct No. I. Donna S. hili . Hunlsvllie 23,d ClmOt. PI_ No. 2. PIIkidl M. Gr/Mil. J•.. HunlliolJlt. 2' 1h Ck"",11. JO/\II A. RuStlll, III . AliCtl\lII, 251h CI,cuII. OI/Ytr F't<ItIf~ wOO(!. Hamillon, ~In Clfellll. Bowen H 91a... U, Ptlenl. CJW. 21th CkCl'll, .k>M C. Oun.hQrn, A.lbo"vI~o. 2Ai/l Circuit, E£ BIn, Boy MIMltt. 29tI1 Cln:uit, Tom R. Ogk>IrH, SytacaU91. 30ttt CkCl'II. J. Roberl Ililnllfy. 0nt0<11a. 3111 CIrcurl. Wiliam K. HIIWIe1I . Thscumbil. 32nd CIrc\III. Bltl'/ W. JIdIIOn. Cullman. 33rd Circuit . RobiIrI H 6rOdgtn. O~,,~. 341h CkCll1I. F'lOJObtrtl . ROUfI"I. J' .. Run,IMII• . 35th CkCl'll. Je>hn Blrnoll. III, Me>nroovltlfl. 3&IMCircuit. Chrle M~tcom . Moutron. 37111 Ckcul1. J. Tun Ba,rell. QpeIIiI.a. 33lh CirculI. Sr.phen M, KetlfIIIIIt/, ~ 3\IIh Ckcult, Jltmtl M Corder. Athtnf.-4OIh Clfcull. JoI1n K JoI1naon, RC>dIIord TM AlrttNtma l • ..,.... 11 pubNIl>ed AWn timel a )1IlIr lor $20 pit, ,~a, In 11"18 Unli/ld 51&II1II and $25 PfI yOIf OUISIOe IIIe unheG 5181$1 Dy IIIe Alawrne Stal. ear, . 1$ D9xltr AI'tfI\I9, MonloomttY, Al~(),Om~ :Jl; 104 SlnoIe I,,~ ...... $5.00. br Ihct Plarn" and $2!l1$&O br Ina dlrllCl ... y. Parilxllcllil "".1&11'1 ~ II M"uODmery, Alabama, Ind lddilional ,"II.r.g DINe...

aon.:..

Building Alab.1ma's Courthouses

349

ALA nA,' ''' STATI-: IIAII 1I 1'.A IlQ UAIITI-:II S STAFF 41 5 1)~X h:r Al1!l1u~. ~lonI80mfl')'. AI. J61!)A (JJl) 269·1515 '

Opinions of the Gener,,1 Counsel

36 1

f. ..cuti .... OI.«t'" ............................ _. K~lth II. Nnrman f;~tc~1 11't

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Heccnl Decisions

364 /l1cmorials

368

.'AX (334) 26H310

ALAIIA.'IA STAn : IIAII CEN'fER .'011 l' II On:SS10NAI. RES1'ONSlUl I.1TY STAff 415 Dexter AI"I!nut, Monl~om~l')', AI. 3610. (334) 269.1515 • fAX \3:141261.631 1

ClllSsified Notices

383

Gon.rIIl Coo'utl ..... . ..J, ""'UIO!!), MclAin Aul.!onl C."" .. I eou ....1 .1.. Gilbfrl Klndrkk Aulwnl C.""BI Coun ..1 ................ /oIi11"" I. M"", Alllolonl r..""r. 1Cou ....1........... _ ...•. lIobfn f. . •.u.k. J•• S<mtory tor..""BI COU!\flL. ................ _\ 'MIn ~' ... nu.n Cvm~II'nll Inl:.k~ ill r\Wc'1 Iinil C(lMlI .... w ..... Klm F.II ..

CII,"l 5«~;lty fu"~' C5P (, CI.I': Coor~'''''11>r ..................................1I0nn\t ~1.ll\Itf rlrll ....,llllnvrotl..,IOB .•.. Ptlllll' Glrllil Chrryll!on~in

Robin Kf)' R..,.."innllt ... _ ..... _ .... _ ...... _ ..... _ ._Mt llw UUIlI<" 1Itno · • ..-.... __ ............ _ " __ ......... _ ._ ..... _ _ ... _01

""_1_.('"" _ _ " ... _ .1Iwo1llr-.,_ .....,...0...._ _ ""'_ ..... , . . . . . "'. . '"-..... . . . . _.ot ...'_ .. _____ .,"" .... . ____ ... ""_ .........."._.,= _... . _. ._" _~_.MiI'

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Mfl M [.!ij,j Hi i "i..M

n..,(JrI/Iii"'!lI.;;"~

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c:.or'9M

Alabama Bar Institute for Continuing Legal Education ALABAMA LAWYERS SERVING ALABAMA LAWYERS

!feLE has something to offer eve ryone, fr om the recent grad uate 10

th e seasoned

practitioner. I lea rn someth ing every time that I auend a CLE seminar, whether as a listener or speaker. CLE is invaluable to

OUf

' " profCSSlOn.

D<tvid H. Marsh L:IWOffices of David H. Marsh, POC. Birmingham, Alabama

Can ABICLE at 1路800.627.65 14 or 205.348路6230 for program infornmlion.

PRESIDENT'S PACE By Warren B.

L.~Qhtrool

am ama7.cd by the number or volunteer who are willing to give Ienormous amounu of their time to I~\\')'cr$

Accentuate the Positive

W.'Nn B. Lightfoot

EnE !.IUi"!:!"!!'-

rMlJuMna~r

SCM lhe public and make our professional lives easier, Of all the tawyer~ I asked to head commilleu and task (orces, only ont ueclined. These WQrk· ing groups He alr~ady meeting and 13 or them have submiued detailed action plans for the comin" ycar, night away, we rlan 10 address lhe problems in ou r indigent

dcrcn~

sys-

tem. The most urgent n~ed is to increase Ihe com~nsation pa}'able 10 lawycu In IIppolnltd criminal cases. Presently they receive $20 an hour (or oul-o'·court time lnd 540 an hour (or in-courl time--.'1 rate thllt puIs us solidly in last place in the nation. By the time you read this article. we will have been to see the Covernor as well as key legislative personnel to dbcu» this emergency $ilualion. On September 1G, 1996. we conducted II bllr lellde r~hjp conference in Montgomery. at which $Cvcrlll dozen Judges. local bar presidenu. state bar commissioners, .section heads. committee and task (orce chairs, and stille bar sta(f convened. Part o( the day W35 devoted to informi~g the partlcipants "boul our bar and the balance showcased the available slaff, facilities and resources 10 hl:lp Iho$e bar leaders do Iheir job and De effective in serving you and the public. One of our onSoins themes is to accentuate the positive aspects of our proftuion lind there are no better spokespersons (or us than you, the members. In the coming months we will be emphasizing all the ltood that lawyers do, professionally and personally, and I urge eaCh of you to Join us in this effort. Frankly. [ have heard and read enough negativt com· mentary aboullawytrs to la$1 me II life·

time: we have colleal!:UCll who arc working cvcry day 10 make Ihis Slate and nation II beltH place. lind it is high timc we talked about it. If we do not. be lWured no one else will. A long term priority rroject involves the selection of judges. All of uslawyers, judges and the public- regard the presenl syslem of Judicial selection 1111 unacceptable and ina!)!)ropriate. Judges do nol like 10 ha..e to solicit contributions. and lawytu. likewise, do not like: tht prOCeSS. TIlt public vitw~ the system with profound dlstasle. Here is U,e concept: a constitutional IImendment ""ould Ilrovide thnll'ln), appellate judicil'll vacanc)' would be filled by gubernatorial appointment (rom among three candidates submitted by a judicial commission (we will seek input from "II ,wailab!e sources as to how thai commission would be consti· tuted but it would obviously be very dIverse and politically acceptable). The appointed judge then would serve for a limited ""rlad (5IIY. Iwo years) and then stand for election on his or her record- Msoould Judge Doe be ret3ined?~ This election would preserve Ihe public's right to vott, which I believe to be pivotal in ,clling any chanl!:e adopted. If elected, the judge would then serve a fullte rm. If not elected. the pr()Ce$$ begins anew. with Ihe defeattd judge eligible for reappointmtnt by the govtroor if the commission sees fit to resubmit that judge as a candidate. In retention elections under this system, campaign expenditures by judges or opposition groups would either be non-existent or severel}' limited 50 as to be minimal. I believe Ihal California has a similar procedure. and we are looking into th:!1 method. Another ide:! is that judicilll election$ be scheduled

for off·yean so that at the time jUdQ:es are beinQ: V(lted on, no other campaign will occur. I believe that idea has $(Ime merit. If such a system were adopted and seemed to work well. it could con· ceivably. ,1 \ SOme later date, be eXllanded to UPI)ly not only to ilPpellate judges but also to circuit judges in circuits thai wanted to ure it. The present pro· pO$ll1will, ho\\'ever. only apply to appeltate judges. We mil)' not be able to effectuate this change. but it is worth ou r efforts to try. Both pro-business and plaintiffs' lawyers have told me they have re servations about this idea. but I sti lt have hope that a COr'Isen$U$ can be devel· oped. I have discusstd the concept with the state bM Executive Council: they believe it has merit and that the bar commissioners should nt least consider it. !fwe 110 slowl), and carefully. I

believt that we can gellhe board of bar commiuionets to tndOT$e it, or some variation of it Once tile board of b;lr commissioners approves the basic framework of ideas. they could 81lpoint, 511)" ciSl:ht cou rtroom lawyers representi ng all fa ctions to fine lune Ihe idea and sign o(f on the language of a constitutiona.l amendment. It is my firm belief tllat if the organized bar does noltake the lead to correct the present situation no one else wil l. I hope nch of you, our members, wililel your r espective bar commissioners hear ),()ur views ilS we move forwa rd on this front. We will obviously go vel')' cau tiously lind delib· erately with the idea. but I believe our profession OW C$ II duty to the public 10 tl')' and re store dignit} and onler to our j udicial rac ts. By the time you re,lt! this article. the

concept of appointmentlrttenlion will ha\lt been submitted to the board of bar commissioners. (maybe mOl'e than once) on an informational basis. Only after a con sc n~us is developed, will it be presented (or II vote with a yiew toward having the board '~ recommendation5 placed in the (orm of II constitut ional amendment by a bi.partisan ad hoc committee 115 outlined IIbov~ .lInd wi th tilat committee's work bting submitted for ICl(islntive action. I hope thai our mcmbcn will help and suprort us in thm er(ort ~. We did not lIello this poinl overnight, lind we cannot solve all our problems in the short term. but piece by piece Wt' elm \.I'Ork toward solv· ing them. and little by little, \.I'e can defuse the climate of polllrizMion that presently exists in this Slnll!. As the ulti· mate guardians of our people'$ m() re~. our profession is obligated to try. •

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EXECUTIVE DIRECTOR'S REPORT By '((lith B. Norman

htlp://www.alabar.org

Wh:.t does The ASB Home Page: Alabama Lawyers Go On-Line for a Wealth of Information

it mean? For those of you

ciOk as y(.Iur COr'l'lpull:t.

The

b<lr'~

website Includes

the Lawyer Hefcrral Service. publlclllions informnlion lind

member services. You can check on upcoming CLE courses, sign up for the Volunteer Lawyers Program or review General COllsel opinions. 0>, hypertcKllinks. you

c~n

insl~nt l y

con-

nectr:d to ~ numher of help-

...-

ful legal sites and sources outside the bar's wtbsitc. including the Alilb~ma Supreme Court's website, AIIlLillk, other state bars, ~nd oll r bar's own International Law Section's homepage. We <He working to include other wcbsltes that will be of particular interest to Al;lbama lawyen. If you do not have an Internet aCC-Ourlt through an Internet service provider, yuu liTe mi~~ing the chance to be connected to a source thM many people describe as a "tool of knowledge", not merely lin information sou Tee,

K ol th 8 . Norm.. "

First class mail, or snai l mail, cannot compete with e-mail because the meso sage or the message wilh attached document is delivercd instantly. ~-mail can also be leu expcnsive than other communication rllediul1lS bC:Clluse no paper is used and because of the speed with which the message is delivered to the IIddressce.

. , not yet fami liar Ivith the Internet. it is neither a typo nor:l misprint. Instead, it is the Alabama Stale &lr'5 homcPJge address on the World Wide Web ("""ww"), The stille b(lr is on line to provide helpful informillion in II medium thai is immediately acccs$ible and i1~

E-Mail Beats Snail Mall One of the most widely used Int ernet services is electron c mail ("e-mail"). The bar has e-mail addr~5ses and boxe~ that will allow you to send mes$ages di rectly to specific departments. You eM ~e nd e-rllail simp ly by clicking on one of the listed departments or staff names and typing you r messlIges, In most situations, e-mail is superior to either voice mail or paper facsimiles,

_ .........= . .__......

-_. ~_",_I ... ...._ _ M , ___ __ . . ._ _ _••_ ....

Our Pre.ence on the World Wide Web Will Be en Evolving One

I ,1m hcited about the bar's website on U\I:: W\\'W. The bar staff will continue to improve and increase the informlltion that i~ included 011 the bar's homepage. You clln help us make the bar's home· page more useful by telling us what sort of bar information and hyperlinks to other law-related sites th~t you would find helpful. As we learn more about the needs of AtaiJ.lm'l tawyers in thi~ regard. I hope that the bar's homcpage will become the jumping off ~i te for Atabama lawyers "surfing the net." If yOu would like to have more infor· mation about the bar's homep.:lge includ· ing a Net-speak Clossary ~nd Dictionary, yOu may contact us bye-mail or call J800·354-6154. Of course,)IOUcan wrile, but it will take longer! •

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ABOUT MEMBERS, AMONG FIRMS About Member.

O. MichnelllaTTett announces the relocation of hil office to Bro\\ln·MliTX

36701. Phone (334) 874·4400. Cindy M. Cal houn :I1lI1QuJlces the

IJirmingham, Alabama 35213, Phone (205) 879·3836.

relociltion of her office to 516 Quinlard

l't lichacl Lee Kldd ann(]unces a change of address to 304 Bonner Drive, noanoke, Alabamil36274, Laura Bowneu Illce announces the onenin" of her offke lit 2163 Highwu}' 31, South, Suite 211, Pelham, Alabama

Avenue, Anniston, Alabama 36201, Phone (205) 237·2751, Ihndal1 W. Nicholl announces the

Tower, 2000 1st Avenue, North, Suite 222, Birmingham, Aillbama 35203. Phone (205) 326·8881.

29 Clay Street. Alexander City, Alabama 35010. 11hone (205) 234·0724.

opening of his office at the l,awyer's Title Building, Third Floor, 2105 Third Avenue, North, Birminllham, Alabama 35203, Phone (205) 326·3222, Jack F. Norto n announce~ his retirement 01 $ chief counsel, State of Alab'II'1'1a I)tpattr'l'lcnt of Tran~ · portation. and the opening of his office at 235 S, Mc[)onough Street. Montgomery, Alabama 36104. Phone

David B. Norton announces the relo· cation of his orfet to 1000 Waler Avenue, Suite 2()1. Selma. Alabama

Ten E. LiweHe annOtll1CeS II chilllge of address to 3625 Mountain L.lne,

Thomas R. \\'olsoncroft announces the relocation cI his oftice to 2068 Valleydale l~o..ld , Cahaba BuildinJt L Suite C. Hoover, i\labamil35244. Phone (205) 987-2303. Braxton 8Ialre Lowe. formerly with Mitchell E. Gllvir\ lind A~sociIlICS,

;announces the opening of his office lit

(334) 269·0032.

BLUMB ERG

EXCELS I OR'S

'fl/uvae!d S44.vu;~ 5j:ecuu!

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relocation of her office to 501 N. Montgomery Avenue. Suite 402, P,O. Box 492, She(f'ield, A!~bama 35660, Phone (205) 381 ·6790, William W. Featherlnglll announces a change or address to 100 Brookwood Place, Suite 410. Birminghllm. Alabama 35209. Phone (205) 879-2722. flonald ~:. 60ackle announces a chilllge of ~ddrC5S to 1820 Thi rd Avenue, North, Suite 103, Be~semer, Alabama 35020. The mailing address is P,O. Drawer 72, 5hal'I,011, Alab'lma 35142. Phone (205) 426-3600. Among Firms

Thomu Jdfrt)' "useman and Tracy Lane Roberts announce Ihe reloclllion

or their o((ices to 214 16th Street.

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35 124. Phone (205) 982· 1719.

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North, Bessemer, Alabama 35020, Phone (205) 426·3402, Glenn L.. I):wldson, Patrick n, Coilln s, Llndll Collins Jensen and Fred G. Collins. Q(cQUllscl, announce the fo rmation o( Collin s, Davidson & Jense n, Offices are located ,It 1203 Dauphin St rect, Mobile, Alabama 36604. Phone (334) 432·0400, G. Henry Atchley, Jr.. RW. Neumann , III. S t ~ ph e n \\I, Street and Cynthlll Um8 t~lId announce the relocalion or their offices to 1027 23rd Street, South, Birmingham.

Alabama 35205, JDnecky, Newell, I'oll s & Welb announces Ihat David j\t. \\IlIson has become II member and the name hilS changed to Janecky, Newell. Poth, (Cullthwo:d UIIIHlfll13:J2)

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NOVfMD~n 'o~o

About Member., Among Firm.

(Co,.,rimlt.'t/ (rom /Xl{Ilt 330)

Wells, & Wilson and I'lIchllel O. Slnnvlch and Nicholas W. Woodfleld have become a55ociales. Office5 are located at 190 16th Avenue. North, Suite 3120, IJlrmlnghllm. Alllbamll 35203·26 18. Phone (205) 252·4441 . Lellmlln, S I~gA I & Payne announcu that Victor C. Glrlock hils become an associble. Offices are located at 600 N. 20th Street. Suite 400, Birmingham, Alabama 3520J. Phone (205) 25 1·5900. i\%ar & Aur announces that Elizabeth C. Wible. former law clerk for Chief Justice Sonny Uotnsby, Alabama Supreme Court, and for Judge Ed Carnes. Ele\lt!nlh Circuil COurt of Appeals. is ofcounsel. Offices are IOCIll· cd at 260 Washington Avenue. Montgomery, Alabama 36102·2028. Phone (334) 265·8551. Robert P. 8)11on. Jr. & AuoclatC8 announces that Stephen D. Keith and Gary R. Seale have joined the firm. Office5are 1~l ed at 2205 and 22 13 Forestdale Boulevard. Ilirmingham, Alabama 352 14. Phone (205) 791·0028. Holland & Knlghl anrtounccs Ihal William R. Lane. Jr. has become a part· neroThe fi rm ha~ offices in ALianta, fit. I",'uderdnle. Jnck~orwille, LoJkeland.

ii~ ii.

"liami. Orlando, SI. Petersbu rg, Tallahassee. Tampa. Washington. D.C.. and Westl'alm BelICh. lIernng. Dick, Wisner & Walker announces that D. Ashley Jonet has become an associate. O{fices are located at 100 Washington Street. Suite 200, Huntsville. Alabam~ 35801, !'hone (205) 533· 1445. Thorington & Gregory ~nnounce$ Ih.. t Stephanie N. M.ceee, former Inw clerk to Presiding Judge Willillm It Cordon of the Fifiecrllh Judicl .. 1 Circuit, hOls becomt an associate. Oflku are located at 504 S. Perry Street. P. O. Drawer 1748. t>1ontgomery, Alabama 36 102. Phone (334) 834·6222, nosen. Cook. Sledge, Da"I •. Cmoll & Jones announcei that John I'. Weber and Leon V. SlIdler, IV have become aS5oci"lu. Omces ~re loc.. ted .. 12117 Iliver Ho.ld. Wesl, i'usca loosa, Alabama 35404. The mailing addrcu is 1',0. fiox 2727. 35403. I'hom (205) 344·5000. Jamu R. Engellhaler and nand), K. Thigpen IIMOurlc.e the relocation of their o(fices to the Shoals Office Building. 412 S. Courl Sireet. Suile 109. Florence. Alabama 35630. The new firm name is Thigpen &; Engelthaler. Phone (205) 764·9997, Corle),. I'loncus ir: Ward iIOnounces the relocation of their offices to 400

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CURATORS. INJUNCTION. APPEAL. ATTACHMENT. DETINU E ADMINISTRATORS. GARNISHMENT. LANDLORD·TENANT CONSERVATORS • ALL OTHER FEDERAL & STATE COURT BONDS

1-800-274-2663

ShOlde5 Creek I'llrkway, Suite 100, Birmingham, Alabama 35209. Tht' mailing addrus is P.O. 1I0x 59807, 35209·0807. Phone (205) 879·5959. Fine & ~l c Do ....'ell annoullCes a change in the fi rm name to /llcOo.....ell. 8eason &; !'!lall. Offices are lOt.:ated al 507 N. Jackson Avenue, Russellville. Alabama 35653. The mailing address is P.O. llux 818. Phone (205) 3:12·1660. Akridge & Ilalch all1l0U ncesihai Emily Briscoe has become nil assocj· ate. Offict$ are located al 1702 Catherine Court. Auburn, Alabama 36830, Phone (334) 887·0884. Shl\'ers. John.on & Wil.on announces that the name of the firm h.1S changed to Glelnne\'". Stallingl & Hogers. Offices are located at 3000 Riverchase Galleria. Suite 785. Birmingham. Alabama 3S244. !'hone (205) 98S·3580. Willillni M, Hammond. Danitl B. Feldmlln arid Daniell'. Lehane announce the formation of lIammond. Ftldrtlln & Lehane. Offices are located in Suite 615 o( the t'ran~ Nelson Building. 205 N, 20th Street, Birmingham, Alabama 35203. I>hone (205)322·2260. Cherry. Glvenl, !'elen. l..ockett & Diaz announceslhnl A. Gllry Jonn has become an associate. Offices are located at 163 \Ve~ t ~l alrl Street, Dothan. Alabama 36302. The mailing ~ddrm is P.O. Box 927, 36303. Phone (334) 793· 1955. Jill T. Knle and Jamn V. Gmn, Jr. announce the opening d thei r office at 115 First St reet, North. Alab.15IeT. Alabama 35007. The mailing addres$ is 1'.0. Hox 878. Phone (205) 62 1·0301. Maddox. Austill & l'armH imnQunces that Conley W. KnOll, for· mer I<lw dcrk and staff nttorncy to Ihe J lonOrllblc John l)allcr50n. Alabama Court of Crimlnlll Appeals, has Decomc an associate. O{ficn are located at 3821 Ulrna I~Olld , Suite 101. Birmingham. Alabama 35244 , !'hone (205) TJ3·9455. Pierce. Led)'ard. Latta & Wasden anllQunces tho'l "lark I'. Eiland has joined the firm. Offices are localed at 1110 ~l ont1imar Drive. Suite 900, Mobile. Alabama 36609. Phone (334) 344 ·5 151. IIDrrl ~ , Caddtll &; S h~ n k. announces that J. Noel King and Arthur W. Orr h:lVc become partners. Offices are locat·

ed at 214 Johnston Street. SE, Decatur, Alabama 35601. Phone (205) 340-8000, Almon, McAlister & Baccus announces a IlIUllt change to Almon , McAlil ler. lJaccul & lIali. and that lUck Unll has become II purtner. Offices are located at 106 W, lrd Street. 1\acumbia, Alabama 35674 , The mailing address is I~O. Box 148, Phone (205) 383-4448. Albrillonl . Givhan. Clinon & AI\'el'lOn announces that John It Givhan has reU red and that the firm ha~ i ncorpor~t cd under the name or A1brltlons. Clifton & AI\'eraon. Omccsarc located at 109 Ow Avenue, Andalusia, Aillbarl'l.!l 36420. Phone (334) 222-31n, The firm al50 announces that Thomll IJ. Albritton has become a shareholder, Woodroor & Woodroor announces that !'ahick J. Andel'lOn has joined the firm. o mcu are 1()('llt/:d lIt 11 7 W. Washington Street, 1'.0, Box 1149, Athens. Alabam.1 35612. Phone (205)232-0 120. l.ange. Shnpl on. Robinson & Somerville announces thai llanld E. Ualle), has become associated with the Huntsville office. JeUN)' E. UoimCII and M. Allllon 'I'II)'lor have become auociated with the Birminghnm office. David P. Ov~on has joi ned U,e firm as of oo/llirel with tilt Birmingham offict. The fi rm has offices In ~lontgomery, Iluntsville and BirminAham. C. Deanne Simpson. rormerl), with Ihe Thscllloos:r Count)' District Altofll c),'s Office, announces her recent IIppoint mcnt M Special Agent, 11ederal Burea" of In\'esllgatlon. 20 1 E. Indianola. Suite 400. Phoenbt. Arizona 85012, Phone (602) 279-5511. JerI)' L)'nn Carpenter announcC$ II change of addreu to Division of Risk folanagement, Departm ent or Finan ce, 777 S. [~wre n ce Street, fol on tgomery, Alabama 36130. Phone (334) 223-6 120. Amllnda S. Uunter. formerl)' a starr attorne), ror Judgt Roger Monroe of lhe Alabama Court of Civil Appeals, is now an associate with the firm of Richard F. "ale & Auocl~t u . 56-58 S. Conception Street. Mobile, Alabama 36602, Phone (334) 433-0300. Edward 8. l'olcDonough. Jr, announces thai Keith S. ~IUIer has become an assGciate. Offices are located at 1400 First NationOli Bank Build ng. Mobile. Alabankr 36602. Phone (334) '32-3296.

The John son Law Firm IInnouncC5 thai David W. Adami hu joined the firm, OfriCe5 lire located at 140 Kalhi Avenue, Suite G. ~'aye tt evill e, Ceorgia 30214 , The mlli ling IIddress i~ P.O. Box 187,302 14 -0187. Phont (4 04) 719-277\. RobErt K, tang announces a change of IIdd ress 10 the Office of OJl lrk l Allorney. Thi rty·Sixth Jud icial Circuil. P.O. Box 625, ~l o ullo n , Alabllma 35650. Phone (205) 974·2446, Cheryl I). Eubllllks and nichard P. "ellll announce the opening of their offices at 22787 U.S, Highwa)' 98, Suite 0-1, Fairhope, Alabama 36532. PhOrle

13341990·2560.

Energen Corpor.ltion IInnounces that ~Idntyre jointd the legal department omces are loc.'Ited at 2101 Sixth Avenue, North, Bi rmi n~ham, Alabama 35203. Phone (205) 325-2747. J. Brooke Johnston, Jr. announces a change of address to l'oIedParlneralr.lullikln. Inc.. 3000 Galleria. Tower, Suite 1000, Birm ingham, Alabama 35244, Phone (205) 733-8996. Rl hlh Llilwre n c~ 0111, IVhilS Joined the l'o ll11dilon Count)! Dl. trtd Attorne),', Ofnce. His new IIddrcu is 100 North Side Square. Hun tsville. Alabama 35801. Phone (205) 532-3460. • Amy .'ortenbelT)'

MISSISSIppi "ollle:y Titlr: has the strmgth and stJlblhly ci o\'l'r 50 years til the 1111t OOsmess. ~1I\'t A+ rnllltgS from SUllltiulI16- Poor. and the estetmed p::$tion oflxing the numb!::r ~ litlclnsurer In both MiSSissIPPI and Alabama With our st~nh nnd txpcncnce. \\'C combme the I1exIbUrll' to soIvc your tough title ms Wlth:l wHImgncss to work wlth)oo 100000-ards rr:U50kulons. Because ~ isstssIppi V,tJIe:y TIlle. FkxS4abillly isn\ just a cooctp!.; u\: tilt: \\71 wc do buslt~.

• • •• • • • MISSISSIPPI VALLEY TITLE • • • • • • INSURANCE COMPANY The Flcxiblllly 11)11 Need, TIle SIllbifjly 1'01' ·(ruSI . )ln~§rlftl · "'~~""'»J05 '

(:ID1-969-0m

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BAR BRIEFS

• The Amcric,m B"[lk r\JP~ CY Board of Certification announced that Lawn!nce B. Volt of the />Iobile firm of Silver & Voit

h ~s ~ucct~Mu ll y

C(Hnll]W:d Ihe

requirements fl)r national cerlificlltion in the fi eld of bu si llCSS bankruptcy Illw. The ABBe is a non·profit organization

dedicated to serving the public and improving the Qu&1ily of the blmkruptcy

bar. The rigorous ABBe certification standards are desiJlned to cncourall:e b~nkrtLPtcy Dr~ctition ers

10 strive

toward excellence and recoII:nizc those attorneys who Me experts in the blmkTupley fie ld.

• Bill Ah'euon of Albrittons, Clifton &. Alver son of Andlllu~ill WIIS recent ly

selected for membership in the Association of Defense Trial Attorneys. The association is 11 nationally recog· nized organi2..1tion of civi l defense

lawyers. PT ~s(! nLly. lh\.!re are nilte other members in the ~laLe of Alabama and 460 members nationally :lI1d in Canada and Puerto nico. • Don na S. rate became president of the HUlluville-f.l l1dison County Bar Association at the August 7 meeli ng. As vice.president <of t he 115sociation. she automatically usumed the offi ce of presidenl upon lhe expi riltion of the one-year term of William K, Uell. Instil ilation of Pate as presiden t se ts il precedent for the associa tion as its (irst fcmllie pre~i d e nt. Pat.e h an illlorney with Lanier, Ford , Shaver & Payne in Huntsvi lle. Th e auociati on ~Iso elec ted DlI.nld n, Ih nks, Jr. , recen tl y re tired ci rcuit judge. as vice -presiden t: Gregol)' li opklns. empl oyed i n the Huntsville City Attorney's office, as secreta ry:

:md G, lJartl ey I.M lln , II I , lUI allorney wi th th e firm of Sirote & Permutt, as treasur er, • Earl e F, Lllu eter , a partner in the firm of Pope, McClamry, Kilpatri ck & H orrison, recently became a member of the Board of Covernors of the American Bar Auocialion. Lasseter, who is from Columbus, Ceorgia, will serve a three· year lerm on the 37· membe r board, which meet$ five times yearly to oversee adnlini~tra t ion and managemen t of the association, Wi t h mernbership lhat peaked in \995-96 at more than 370,000, the ABA is the largest voluntary pro fes· sionll lllssocilliioll in the world, Lasse ter is a section member.at. large, nominated from the ABA Sect ion of • General Practi ce,

r ~ ·---------------------------------------------, " Firm Name _ _ _ _ _ _ _ _ _ _ _ __ ADDRESS CHANGE REQUEST FORM The ALABAMA STATE BAR is requ ired 10 use members' office addresses, unless none is available or a member Is prohibited from receiving state bar mail at the office, tn addition, the Alabama Bar Directory is compiled from our mailing lisl and It Is Importanl to use business addresses for that reason, W hen changing an address, please Include Ihe fOllowing :

• C Uiee Mailing Address_ _ _ _ _ _ _ _ __ • City

• Stale'_ _ __

- Coun ty • Zip+4 _ _ _ __ " Fax Number'_ _ _ _ _ _ _ _ __ • a·mall Addrass _ _ _ _ _ _ _ _ __ " AOC

to, Number_ _ _ _ _ _ __

- Office Street Address (if diNerenl from mailing address)

• Clty'_ _ _ _ _ _ _ _,· Stal" _ __ • State Bar Identification Number (Social Securl ly Number): _ _ _ _ _ _ _ _ _ _ _ _ __

" Zlp+ 4_ _ _ _ __

• Choose (circle) one: Mr., Mrs., Hon., Miss, Ms., or Olher_ " Full Name' _ _ _ _ _ _ _ _ _ _ _ _ __

COMPLETE & RETURN TO,

" Race _ _ _ " Se)(_ _ _ ' Birthdate_ _ __

The ALABAMA STATE BAR 4 15 Dexter Ave. Montgomery, AL 36104

• Date o f Admission _ _ _ _ _ _ _ __ • Business Telephone Number _ _ _ _ _ _ _ __

~-----------------------------------------------~

Delinquent Notice Licensing/Special Membership Dues

1996-97 All Alabama Attorneys: The dual invoice for licenses or special memberships was mailed In mid-September and was to be paid between October 1 and October 31 . If you have nol purchased an occupational license or paid special membership dues, you are now delinquent I

In Active Private Practice: Any attorney who engages in the active private practice of law in Alabama is required to purchase an occupational license. The praclice of law is defined in Section 34路3路6,

Gode of Alabama. 1975, as amended, (Act #92-600 was passed by the Alabama Legislature and amended Section 40-12-49, Code of Alabama. 1975, effective October

1, 1992.) Occupational license: $287.50 (Includes automatic 15 percent late penalty)

Not In Active Private Practice: An attorney not engaged in the active private practice of law In Alabama may pay the special membership fee to be a member in good standing, Judges, attorneys general, United States attorneys, district attorneys, etc" who are exempt from licensing by virtue of a poshion held , qualify for special membership. (Sections 34-3路17 & 18. Code of Alabama, 1975, as amended)

Special Membership Dues: $125 (penalty not applicable)

Direct any questions to: Diane Weldon, membership services director, at 1-800-354-6154 (in-stBta WATS) ,

(334) 269-1515, or email: ms@alabar.org immediatelyl

IIOVU'R"" . . . . J 331

DISCIPLINARY NOTICE

Rein.tatement • Effective August 8, 1996, Birmingham f1ttorney DavId EHolt l'Iodgu was reinstated to the practice of law, "Iodges had been suspended from the practice of law for noncompliance with the l>1anda!ory Continuing l.egal Edut.llion I~ules of the Alabama Stale HilT, [CLE 96·241 Disbarment

• On Augu.~t 22, 1996, the Alab'l!l1l\ Supreme Court trltcred an order di~barrlng Birmingham attorney JamclI ~e

lIoovtr, effective June 21. 1996. Hoovcr'$ disbarment

was based upon a default judgment entered <lgains\ him in ASB Nos. 95· JI 7, 95· 129, 95·136, 95· 149, lIl1d 95·154. Hoover failed to answer the formal charges against him in the fo regoing c~ses lind, therefore . in accord with Rule 12(e)( I ). A/aiwma/?ulfJs of /)isciJ)/ill(lry PrQC(J(lur(l, the charges were deemed admitled. Hoover was (ound guilty in each case o( multiple violations of lhe Alabama Rules of Professioll(J/ VJrl(luc/, In each ca~e, Hoover was retained to handle an uncontested divorce. He was p;lid a fcc of S185 fo r his selVices. l'l()()ver f~iled to prepare and fi1~ the unconlesttd dl\orce. Hoover abandoned his practice and his client~ and failed to refund any monies paid by hl5 (]ien t~. lloover was ordered to make restitution in the amount o{S925 plus interesl.lASB Nos. 95· 117, 95·129, 95· 136.95· 149, and 95· 1541 Suspensions

• On August I, 1996. the Alilbama Supreme Court suspended Hobile "Uorney LeJ'o1arculi Allin ~In lone for a period of 12 monlh~. This S(Lspl:n5ion W,L$ ordered to be rdro.'ctivc 10 April 12. 1996, when the Disciplin,LI)' Commission of Lhe Alab"ma Stale B"r il1tcrimly $u~[lC ndcd Hliione. The 12r'tlonth suspl:Luion ....'a~ the result of an agreement bet....'een Malone and the Alabama State 8.1r. Malone had. on several OCcasiOrlS. accepted money from clients and then failed to perform the leglll seT\licu they had contracted with him. [ASa Nos, 95·324, 95·354, 96·033, and 96·035) • Pelham attorney Irvin lI arry Lyon was ~uspended from the practice of law for a period of 45 d<lYs by order daterJ October 25, 1994, The Di ~dplin~ r y 1300lTd also ordered L)'on to obtain psychiatric counseling. The bOllrd b:!sed its ruling on 11 finding that Lyon had engaged in hllmssing communica tion directed to judges, other members of the bar and public officia15. Lyon served the 45-dllY suspension in 1994 but appealed that portion of the order requirinll psychiatric evaluat ion to t ~ e Alabama Supreme Court which

affi rmed the Order of the D;~cip llnllry Board. Lyon lhen peti tioned for certiorari to the United States Supreme Court, The Uni ted Stales Supreme Court issued its order denying certiorari on January 24, 1996. IASB No, 93.3061 • On J\Jly;) I, ! 996 the Di$ciplin~ry Commi$$ion of the Alabama Slille l3"r interimly $u$pended J'o1obile lawyer Fnnk Duaper Cunningham. Thi~ ~uspcn~iorl WM ordered under Rule 20 of the Ilules of Disciplinary Procedure. and was effective immedi1ltely.[ Hule 20; Pel. No. 96-0041 • Effective July 19, 1996, Pensacola, 1~lorida altorney John UenlLie Hults has been suspended from the pract ice of laW in Ihe Slate of Alabama for noncomplian::e wilh the M;lIldatol)' Continuing Legal EdUCation Rulc5 ()f the Alilbilma Stilte Uar.ICLE 96-101 • Effective July 19, 1996, Birmingham attorney David Elliott Hodges has been suspended from the practice of law for noncompliance with the Mandatory tontinliing Legal Education Ilulu of the AJabilma State Bar. ICLE 96·241 • Effective July 26,1996, Mobile attorney Charlet T, Koch has been suspended from the practice of L1W in the StlLte of Alllbllma for noncomplillnce with the Mandatory Continuing Legal Education Ilules of the Alabama Stllte Bar, (etE 96·321 • Effective July 29, 199G. Oliver WinlL ton l..OL'W)' wa5 suspended from the practice of law for noncompliance with the f-Illndatol')' Conllnulng Leglll Educlilion Rule~ of Alabama Statl! Bar. Loewy has been Jlracticin!ll~w in New York. ICLE 96-:151 • Effective July 29, 1996. Prattville attorney Karla Ann Shivers has been suspended from the practice Qf law for noncompliance with the J'o1~nda t ory Continuing LeFtal EdUCiltion Rules of the Alabama State Bar. ICU: 96·571 • Effective July 29, 1996, Leeds altorney William It Stephens h3s been suspended from the prllclice of IIIW for noncompliance with the J'o1llndllto!,), Con\inuin~ !..egal Education Rules of the Alabama State Bar. ICLE 96·631 • Effective Augu~t 27, 1996, the Disciplillllry Comnliuion of the Alabam<l State Bar interiml)' suspended Mobile lawyer Paul J'o lartln Foersler. Jr, This suspen· sion was ordered under Rule 20 o{ the Rules o{ Di5ciplinary Procedure, Dnd was effective immediately. I I~ule 20; Pet. No. 96-0091

Public R.prlm.nd. • Oneonta attornty William Alexander E1II8. III received a pub· lie reprimand without general pub· lication on Jllly 24, 1996. Ellis filed II motion fo r change of venue In the Circuit Court o( mount County. Alllbllma, AUllched to his motion was an amd.:wit (rom his dient which accused the circuit judge to whom the case was as,Signed of being biased and having " fi xed~ cllses in his court. Ellis' motion was based entirely on hearsay and he (ailed or refused to invcstlgllte the allegations cl)rltained in the am· davit prior to filing his mot ion. At a subsequent heilring it was determined thallhere lI'il5 in fact no evi· dence to support the alieJ{ations contained in Ellis' motion lind in the affidavit of his ciient. Ellis' actions violated Hule 8,2 of the Rules of I'rofeSoiionll1 Cl)rlduct which provides that a IIIWYf r shall not make II statement the lawyer knows to be false or wit h reckless dlsreg.1rd as to its truth or (abity concerning the Qualificiltion or integrity of a judge or other public legal officer. lASS No. 95.3351 • Cullman attorney ~l lchae l Allen Stew.,t. Sr. received a public reprimand with general publication on July 24, 1996. Since February of 1993, Stewart had been arrested or had ch"rges filed against him on 20 scparlltc occasions. The charges against Stewart included criminal trespass. criminal mischief. amul!. harassment, theft Q( property, intHference with custody, burglary, menacing, and harr;u~ing commu· nications. All the charlles against Stewart were brou!!h! by his ex-wife or memhers of her family In result of altercations involving domestic relations in child custody disputes between Stewart and his ex-wife, Stewart's conduct \iolated Rule 8.o1(g) of the Rules of I'ro(mion,1I Conduct which prohibits an attorney from engagin!!: in conduct that adversely reflects on his fitn ess to practice lilw.1ASB No. 95- 169J • Oothan attornty Blake Alan Green received a public reprimand

without general publ ication on July 24. 1996, Grecn \\'a5 employed by 11 cl ient to represent her in conneelion with losses allegedly sustained In the purchase of II fl ower shop, Crecn entered Into an employment contrllct with the cl ient dated July 12. 1994 under the terms of which he was paid a $3.000 retainer in addition to a contingency fee, On or about October 24.1994, GTten withdrew (rom representation of the client and refunded approximlllely $2.000 of her retainer. The stlltute of Ilmitalions had run by the time Green withdrew from representation. After formal charges I<.'ere fil ed agllinst Green he refunded the balance o( the client's retainer, Green's conduct violated I~ule 1.3 of the Hul es of Profusional Conduct which provides that a lawyer shall not willfully neglect a lellal matter entrusted to him. [ASI) No. 95·2411

• Ilirmingham allorney Earl Josetlh Reuther received a public reprin'llllld without general publica. tion on July 24. 1996. During 1992, while practicing out of the f.lontgomery satellite office of Oavis &. Coldberg. Reuther rcpreSfnted stven individulli blInkruptcy clients. Reuther did 001 InlelView Ihese clients prior to filing their ~nk ruptcy petition and specifically fllil ed to inform these clients they had the option to proceed under either Chapler 7 or Chapter 130( the Bankruptcy Code. A5 part or the b.lnkrujltcy petition filed on behalf of these clients. Reuther signed a declaration by lIt!ornty for petitioner declaring that he had met with the clients and eKplalned to them the relief iwailllble wlder Chapter 7 or Chapter 13 and had informed them they could proceed under either chapter, Reuther signed these declarations with rull knowledge that the representations made

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therein were fa 'se. Reuther also all()\\'ed his mretary to give legal advice to these clients. Reuther also failed or refused to return telephone calb from these clients or otherwise communicOlte with them concerning the status o( their bankruptcy pct1tion~. Heuther's actions violated the (ollowinll nule$ of Professiol'lllI Conduct of the Alllb;una State Bar: Hule 1.1. Itule 1.4, nule 8,4(3), Hulc 5,3(bl and I~u le 5,5{b), lASH Nos, 92·405 (C), 92·451 (e)l • "lobile attorney John William Parker received II public reprimand, without general publication, on July 24, 1996. Parker was reprimanded (or having (ailed to keep his client reasonably informed about tht: status o( the client's case and promrtly comply with reasonable requests (or information, Parker was further reprimanded (or failing to eXplllin the client's mllller to the extent reasonably necusaT)' to permit the client to mIlke informed decisions regarding the r~pruelltation and fo r willfully neglecting il legal mailer entrusted to him, In or around 1988, Parker was hired to handle Ihe eslale of a dece~ent. The decendenl', sister hired Parker to pursue probate of lhe est(lte on her behalf. as well as the other heirs to t~e estate. The client experienced substantial and lenll:th} delaY$ in the matter due to Parker'S fail -

ure to adequately communicate with her about the status of the case. and Parke"s (ailure to lirnely respond 10 her requests (or information. both individually and through her Ceor({ia aHorney. I)arker tendered a conditional guilty plea which required, in addition to his receiving the public reprimand, that he receive an abated 9).day suspension (rom the practice of law and be placed on probation for II period of two years. During this two-year period, Parker Is to part (ipate in a mentoring program. is required to place $25,000 In e~crow to 5el'\le as secu rity (or reimb\Jrsement to any clients who may have sustained it 105$ as the result of any misconduct which Parker mi({hl have en({aged in while servirlg as attorney for that Individual. and 5ubmlt to the Omce of Ceneral Counsel a quarterly audit of his trust account (or a period o(two yem. btginning June 30,1996, IASB No, 95-161) • lhscumbia Mtoml!)' Sieve Arnold Baccus received a public reprimand with general publication on July 24, 1996, On July 16, 199() !JaCC\Js entered a plea of I/Q/o COII({!IIdre in the United Stales Oistrkt Court of the NQrlhcrn [)istrict of Alab.lma to the misdemeanOr dlilrgc of (ailin({ to timely file (111 income I/IX return for the calendar yeM 1984 11\ violation of 26 U.S.C. 1203. Bac<:us's conduct constitutes II violIltion of Rule 8A(b) which provides that it is profeSSional misconduct for a liIW)'<!r to commit a criminal act that it renec\j adverse. lyon his ntness 11$ a lawyer. IASB No, 92.2771 •

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ne of the most interesting historiclil subplots coming out of the Civil War COncerns the "exploits" (i f you are Southerner) or ~depredlltions " (if you are a Northerner) of the C.S.S, Alalxlma. Ouring her brief life. that Confederate cruiser. sank or captured at least 64 United States-nagged merchantmen. Along with a handful of other Southern raiders. she caused a precipitous loss of U,S. nagged merchant shipping and a r"u~bly crippled fo rever the Amcriclln m;lritime industry. She also very nearly brought the United States Ilnd Englllnd to the point of war. The exploits of the ship and its captain have at least two connections to the Ii\w Perhaps the mO$t interesting to lawyers in Alahomu is that the captain of the Alabama. Raphael Semmes. practiced law in Mobile. both before and after his seagoing adventures. The second connection has to do with the fallout from the losses caused by the ship. In ~ddition to 5 ullk~n ships and destroyed cargo, the tlfllmmltJ left in Its wake two decadu of inlerniltional nnd domestic litigation. More recently. there has been lit-

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igation and inlu national negotiation over si\IVillte ril{hl s lo the wreck. My interest in the Civil War i~ that of the amateur hi"tl)rian. motivated by regional pride M well as admirallon for some of the military leaders tile COllfederacy produced. That interest was shared and encouraged by one of my (ormer collfagues althe Court of Federal Claims. Judge Mastin C. White. Mastin was a native of 1'exas and an acquaintance of I.yndon Johnson ilnd Sam Haybu rn. He maintained a graciou5n es~ . humility and civility that are rare in Wll~ h inQtOll. Sh(lrlly befate his death in 1987. ~ t age 86. f>1astin gave me F'r.mcis Hiller's ten-wlume Pholo.qraphic fils/ory ollhll Cil/if War,

published in 1911 . The wlume on "The Navies" particuL1rly piqued my interest in the Alabama.' The Baekground

AI the oulbreak of the war. the Confederacy was faced with having to improvise any $Ort of iI Navy to respond to lhe North and to de .. l with the blockade of Southern pOrl$. President Jdfeuon Davis entrusted that task to Secretary of tlu NaV)' Stephen Hallory. Bec,lUse the South had virlually no

ship-building capacity. ~1allory commi~$ i OllCd Jamcs Dunwoody Bulloch. a commercial captain, former offlccr In the Union NaV}'. lind scion of a wealthy Georgia (amily, to go to England and allempt to purchase ships there, particularly cruisers. Th e~ would be used outside the blockade to attack Union commerce. Bulloch's job was nothin" less than the creatiQn in foreign shipyards of a Navy {or the Confeder'lcy. Bulloch was (Inc of a host of Chli~$1I rie~. propagandists. spies. ([gellis ",Qvoca· leurs. alld diplomatic commissioners sent to England lllld France by the Confederacy. His arrival in Liverpool touched off II flurry of diplomatic and commercial espionage Dnd intrigue. Bulloch's adversary in these affairs was Chllrles Francis Adams. America's ambassador to EnJilmd. Bulloch had to be cagy about his work, Alt ho\ll(h during the early periQd of the war there was much pro-Southern senti ment in En~land. I Ihe Qucen hMJ i~sucd a Prodam::.tion of Neutrality. I England'~ F'oreign Enlistment Act forbade British subjects to enlist with in Ihe rell im on vessels of either belligerent. The act also made it a misdemeanor to fit out armed ships (or either side. This made

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it virtually impo~s i ble to build ironclads. because thcre \\'015 no way to con· ceal their purpose. ' The IICt was silen t. however, on merchantmen built in England lind fitted out on the high seas. Afler consulting with English lawyers, priVate citizen Bulloch proposed to exploit this loophole. The Ship

It WM;m open secret IIlat Bulloch. in the gui§c of II private citiicn, had commissioned the construct ion of mer· chantmen on behalf of the Confederacy. His first interest was in commissioning the Orolo. which later became the Confede rate cruiser Florida. Meanwhile, he engaged the shipbuilding firm of l...li rds & Sons to construct what later became theAltlbama. In Ihe shipyard. she had the designation No. 290,lIld W'I.~ to be called the Enrica. Iler displacement wa~ 1,040 tons; she WitS 220 feet long and 32 feet in the beam. She wa~ a barque-rigged. three-masted steamer with a Hfling propeller, designed to rely chieny upon sail. with steam Bvailf1 ble only in <tn emergency. She was therefore given an ambitious sail plan for s(lch II small ship, with very long lower milsts, giving an immense "drop" to the 5.1ils. She wa~ not parlicuI~rl y fM!. but she was "JoJile. The 5hip w~s to have two horizontal cnf,!ines, each of 300 J IP. Under sail , she WlIS CllJ}able of ten knots; with st('am. UII to 15. She was also equipped with an advlUlced appllTatus for cond('nSing fresh water from salt water. On the large double wheel was inscribed the provocative and perhaps not entirely biblical sentiment, -,,!ide 1bi e/ Dlcli T'tl ic/era~ ("Help you rself and Cod will help YO(I'" ).

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Adams heard o( No. 290 and complained of its obviou.~ ly I1llirtiaJ purposes to the British Customs llUthorities. His complainl5 gcn('ratcd something 1('55 than vigorous attention. hov.~r. He later obtained lin affidllvit from l seaman who had been engaged to sail on the ship. The sailor had been told No. 2ft) was to go into seIVice for the Confederacy. Adams' continuous protests eventually eml).lrrilsscd the english into action. Plans were made to sei?./! the ship. but they were

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delll)'t.'d by accidert, design or lethargy. By the time the English ilCted, the ship hIld eSCllI>ed. flying the English colors lind sailing under the name EnriCrl, She left Liverpool 011 July 28, 1862, with Bulloch, nn English captain ;md II Pouty o( E"lllish ladies and their hllsbands, friends of Ihe builder. The trip was ostensibly II sea trial. After a jaunt on the River tolerst)', Ihe passengers, including Bulloch, were disembarked on it lug and the ship proceeded on iu \o\':ly Out to .sea. The (ollowing day, July 29, the Enrica pulled into Port Lynlls on the c035t of Angclsea and lay there (or 48 hours to compl ~te her prep.1rations. From there, the ship sailed for Port Pra},11 in the Azores, whi(h she reachl'd on Auj(ust 10th. On AJgust 18th, by prearrangemenL lheAQrjppillo arrived from I.ondon, bringing guns, ammunition, and a mostly English crew. In addition to smaller munitions. the ship Wa5 outfitted with six 32-pounder, muzzle-lo:KIing cannon, two guns on pivots on the upper dock, and a Blakely rifled gun on the forecastle CIl(lable of nrin,ll a seven-inch lOO'llound shell. On the quart~rdt(k there was al$O II small nine.pounder. On AUj(ust 201h, the Bahama arrived from Nassau, via Uverpool, carrying Rllphnel Semmes, who had been designat. ed by Mnllory to caPtain the shi p, A week later. Semme5 took her into internlltiollal wattr5 111ld commis, sioned her into the Confederate ser· vice as the C.S.S. Alabama. The Brit ish made no serious dfort to pur· sue at any point. The Government of the Un ited States immediately gave notice to the Ilritish Government thnt it would demand satisfa ction, The ManRaph ••• Semmes The crew of the Alobam(l was almost

entirely Irish or £ngl ish. All of the om· cers were from the South, however. The most notable, of course, was the cap· tain. HlIphnel Semmes w~s born in 1809 in Charles County, toillryiand. His par· enl$ died when he was young and he was adopted by an uncle, lie WolS appointed II midshipman in 1826 and served for six )'tars. He studied at

Norfolk Officers' Training School and was comm i ~ion ed a Lieutenant in 1837, Ouring this time he had lIIken a series of lellvt:~ 1)( .. bsence during which he studied law in r.hryliLnd, where his brother practiced. and In Ohio. In the 18405 he estnblished his permanent home in Mobile, where he had served earlier I\S an o(ficer in the Gulf Squadron. I-Ie bought a home near Perdido and began the practice of law,

Confederate paTl. Instead she prowled the I\tiantic and Indian oceans, the Gulf of Mexico and the Cllribbean Sen like a shark . The Alabama captured at least 6<1 vessels. de5troyin~ 58, Othen were kept or bonded. All tolled, Confederllte cru iser! such as the Alabama, the f'I()rida and the Shullolldooli captured or destroyed "bout 300 ships. The value of the ships and cargo seized or destroyed by the ,l/obm"a was estimated ilt over $:1 million. In addition, abou t 1.000 Amcri cnn ships transferred to Briti5h nllg, out of fear of the cru isers, The Union Navy was in hot pursuit of the Alabama all over the globe and narrowly missed her on sevtral OCCllJ ion~. Only once however, before her fnteful enltagement with the U,S.S. IIcam/ruc did she have an encounter with a federal \I·arship. lhal was orr Calveston, on JOliluary 11 , 1863, when she sank the gunship Nall4!ra/l n Ius th"n 15 minutes. The Sinking of the AI.bama

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$pecia!i7.ing in mnritime mliller!. In 1856, he wns recalled to duty in the NilV)', Just prior to the outbreak of the wnr he \I'a$ a Commllnde r, serving in Washington as Secretary of the Lighthouse Board, I-ie resigned at the outbreak of the war and joined the Confedernte Navy. The Run of the Al4lbema

Semmes was instructed by Secretary of the Navy Mallory to "do Northern commerce the greatest Injury In the shortest time,") He fulfilled his mission. In her two·year life, the Alabama never docked in a Union or

The Alabama's last and mO$t speCI./ICullir I.'nlt<1gement took plaee in June 1864, off Cherbourg, France. Semmes had docked 11\ Cherbourg hoping to have repai rs made to the ~ hip. The U.S.s, K(JlIrs(lrg(J arrived, however, and wnlted offshore, trapping the Alabama, Semmes canceled his request to go Into drydock ;md informed Ihe U,S. and Confedcr<lte consuls, as .....ell as John Winslow, the captain d the llcursotl/(J, thM he wou ld weillh anchor after the ship \I'as rcprovlsioned. 011 June 19, Semmes took theN(I/xmJ(/ out to meet the Kt'Orsargt1 in whal Semmes musl have realized Wa5 an uneven contest. The Kcorsarge .....as the morC! heavily armed of the two ships, wllh two 11 inch Oahlltrens, fou r 32,powlders lind one light 28-pounder. The Kcorsl/rge Will clad with chain armorlng; the Afltfxmw W;ls not. The federal ship had a crew of 162: the Confederate ship 120, The Alabama was operatinll . . . ith worn out boilers and infetior powder, Nevertheless, the event took on the air of a medieval joust, As one chronicler NOVCMb~n

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wrote, "Never did knightly tournament bo.l~t a more eager multitude of ~pu;taton:" After II fi~rce fighl, the Alabama was mortally wounded,'lll,d the: cre:w abandoned ship, Semmes being among the la~t. Most of the crew, including Semmes, were picked up by the English steam-yaCht. lJeerhowul. Survivors informed the Kearsarge thlll Semmes had drowned, so it did not allempl 10 remove him from lhe /)(Jel'hollllCl, which took Semmes and the crew to Southampton. The Kl!llrsargl1took on board the balance of the survivors, whom Captain John Winslow [ll!Toled, much to the con$terTlatiOTl of some in Washington. Nine mtn from the Alllbmnll were killed in action and 12 men drowned.

Legal ,Jou.tlng In the Intern"tlon,,1 Arena During the run of the Alabama and the other cruisers, Northern newspapers and pamtlhleteers kept up a howl of protests against their actions." They called for the United States to seek reparations from England on the grounds that the I!lahoma and other ships were buill and outfitted in fjriti sh ports, w th British knowledll:e, in violation of internalionill principles of neutr;llily in lI:enerill and the Voreign Enlistment Act in particular. In October 1863. Secretary of State Williarn Seward wrote the Briti ~h Covcrnrner"lt, holding it re~pon$ib l e for the damaJles innicted by the cruisers. and demanding ind(ml1ificOltion. The Brit ish Government showed 1'10 ir"lclil'l<ltiOll lo COr"lcede lillbility, however, alld I'resident Lincoln was reluctant to press the matter during the war, With the end o( the war and Lincoln's death, the issue came to life again. Concurrently, a change in government in London put england in a more accommodating mood. Meanwhile, the claims of Americ.'\n citizens and corporations for direct losses as well as indirecllosses such as increased insurance costs imd l05t business mounted. A feeble effort by the Johnson Adrnini$tration to resolve the cl~hns through the Johnson-Clarendon Convention of 1868 was rejected by the Senate. Senator Charles Sumner, one of the ringlcadcr~ callillg for ~Ub$tar"llilll r€parilliOtU, de:clared thai the: tOlrl! damages to private and Ilublic InteresLs amounted to over $2 billion, He OI5serted that the cruisers doubled the duration of the war, One of his purposes in advancing such exaggerated claims ,,"'as to pressure England to cede Canada by way o( reparation, Cooler heads prevailed, hQl.\'ever, and eventually the two countries negotiated the Treaty of Washington, sill:ned on Hay 8, 1871 and ratified by the Senate. In it. England upologil,ed for the

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"c$Cape" of the Alabama. Although the Alabama claims were iLs pril'M!,), focus. the trellty also embraced certain Canadian tlshery and boundary claims against the United States. The treaty was novel in certain important respects, It established the principle tMt a country cannot interpose its O\~n domestic law as an excuse (or failure to meet international oblig.ltions. Ilather, it must exercise "due diligence" to prevent hostlk exp~dltion§ from its territory.' This principle W,I$ codified in the three famous Alabama rulu. A neutral government is round to usc due diligence; (I) \0 prevent the fitting out. arming, or equipping within its jurisdiction of any vessel, which it has reasonable ground to believe is intended to cruise or to carryon I'o'ar against a pov.'cr with which it is at peace: (2) not to permit either belliger~nt to make use of its ports or waters as the base of naval operations or for the purpose oraugmenting mi!i\ill)' supplies or recruiling men: and. (3) to pr!.""ent violation of the fore"oing duties, These principles of equily and conduct were meant 10 serve as lI:uiding principles between, on the one: hand, justice in the abstr~ct ilnd the rule of decision on the other. ~ They continue to have modern-day aplllicatiQr"l with re~pect 10 the responsibili\ie5 of nOltiom for terrorist acLs launched from their soil and to licensing lIrms s.,les by private merchan\$, The T'r'eaty of Washington ,,",'liS also novel in establishing a multi-national arbitration nward tribunnl to hear America's claims bgainst England arising out of the activities of the Alabama and the other cruisers. There had been earlier international arbitrations, such as the Jay Treaty, but they tended to concern limited claims of one stilte ag.1inst the government of another. 1'he Alabama claims. on the other hand, concerned a significant political issue- the limits of neut r<llity. They led to iI r"Iumber of lrciltie$, p:..rticularly be:tll'cen the United States and Crcilt Britain, providing fo r the arbitration or disputes." ne pre5ent.Uive~ to the arbitration were IIppohllcd from El1glllnd. the Uni ted States, SwilZertand, Brazil. and It3ly. They met In Geneva. America's claims initially included "indirect" clllilllS for extension of the war, increllsed insurance Ilremiums. and loss of American.nagged shipping. The American arbitrator, Charles I\dams, persuaded his countrymen to drop the indirect claims, ho...'ever." The direct claims amounted to nearty $20 million and were asserted in connection with the action5 of 15 crui ~ers. The claims asserted were thost: of individuills, as ....ell as the Covernment's claim fo r the cost~ a~sod · ated with pursuit of tht ~ruisers. All the claims, however, were presented by <lIld on bch,tI( of the United States. The arbitrators announced their decision on September 15, 1872. They found ag.~lnst Greht Britnin ....ith respect to the actions of the Alabama, the Florida nnd the SIICI1{f11doah and awarded $15.5 million in gold as compensation for direcl claims only, The award ....as in gross to the United States: It made no rec· ommendation or prOVision for how the proceeds were to be divid· ed. This sum was paid into the U,S, Treasury," The arbitrators found in (,war or Creal Brit"in with respect to the other shipS.

Legal ,Jousting In the Unlt.d St.t •• : The Court of Comml.slon.r. of AI"bam. Clilim. In 1874. Congress passed legislation creating the Court of CommiuiOllCrs of Alabama CllIims, to h e~r claims agllinst the fund. LI The President, with the advice and conserll of the

Senll!e, WIlS to appoint five judges, The law excluded claims arising Out of losses other than those caused by the three "inculp;lled" crUisers, i,e., th t AlaO<ll1UI, the Florida and the Shenalldoah. II The court had two distinct incarnations. During its first ell-istence, its charter wu ell-tended several times In order to allow tlme for Illte clillm! 10 be nted and for the court to complete its work. The first fillt judgts of the court were from ~lichigan , New J er~y, Pennsylvania, MiJ5iSSippi, and Iowa, The court was ...ested with all the pOwers of otiler federal courts, There was no pro· ... islon fOr appeal of the court's declsion~. h~r. The court was to determine the amount and validity o( clalnls arising lIut Of the actions of the three cruisers. Only direcl, non-reimbursed claims could be n.~~e rted. All indirect claims were reJet.1ed, including lost profits. Insurance companies could col· lect (or their p;ly<lulJ only to the ell-tent they could demonstrllle /I net 1055 (or the war years, 1\5 with respect 10 nil claim ~ agilinsllhe United States during this ~riod, claimants had to taki: :m 0.1th that they had remained loyal to the Union during the war, Attorneys could claim p;lrt o( the amount a....-arded. The first court disposed of about $14 million in direct dai!ll$. It awarded judgments of nearly $10 million. With accumulated intertst and premiums from a bond sale, ho.....e...er, the amount lert was $10,089,004,96." AliowinA IhIll mone)' to revert to the tre,,~ury pro...ed uns,ltisfact ory to some legislators, particularly th05e who had bought up the therelofllre-rejected indirect claims for something less thln full value. Consequently, despite II loud chorus of allegations of scandnl." a new statute was adopted in 1882 recon...ening the Court of Commissioners of Alufxll1Ja Claims (or a period of Iwo years. I ' The new court Iud three instead of five judges and tile grounds on which il could award damages lVere expanded. ~10SI not,lbly.tlaimants were no long~ r limited to persons damaged by theA/aOOmu, the 1-'Iorida or the SIu!tKmdooh. Instead. direct losses caused by any other Confedernte cruiser could be compensated, despite the fact Ihat the Geneva Arbitrators had declined to find England liilble (or other cruisers. In addition. lmy entity that paid

increased war insurance premiums after the 5.1iling of the cruisen could 1l'I<1ke /I claim on the fund. The net effect was to lreatthe c laim~ rejecttd in the Geneva arbitration as claims against the United States. The second tOUr!. received O\'Cr 6.000 new claims totalinA about $28 mil· lion. The oourt awarded $19,658,960. more than all of the nlOnics a\l:lilnble, The direct 10M claims were p.l1d in full; t lainu for inc re~ insurance costs ....-ere paid on a pro mla basis. The judgments of the Court were not appealable,I' bul peripheral litigation e...entuall), sprang Ut) in the Court of Claims over enforcement of judgments, attorney fees lind ownership of recoveries.- The Supreme Court look the posi. tion that the commission was a ~quasi · court," in no material resp~ct different from the various cOlllmission$ thai had been specially created in the 19th Century 10 sell Ie and adjust disputed claims pursuant to various treaty stipulation. or otherwise, 5Uch as the "Southern Claims CO!lmllssion," the "Mexican Clnirn$ Commission," or the "Spanish Claims Commission.""

STILL WAITlNG ON YOUR STATIONERY

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Epilogue 'or Captain Semme. Ml er the sinking of the AlalX1l1/Q. Semmes returned 10 the South by way

of a roundabout route and was promot· ed to Rear Admiral. He took command of a small fleet on the James niver Ihal was scuttled in the final stages of the war. In the dosing weeks of the ....'lIr he was appoi nted a I3riltadier Ceneral. thus becomi ng thi: only off cer in the Confederacy who held nag rank in both services, Ue surrendered along with General Joseph E. Johnson's army, was arrcsted and indicted for piracy, and ~pc nl four months in pri ~o n. He was eventually released al President Andrew Johnson's direction in 1866, although he was never o((icially paroled. Semmes then returned to ft1 0bile, where he resumed the practice of law. Although Semmes was elected a probllte judge, the HeconSlruclion military authorities never allOWfd him to take o((ice. He Ii ...ed out his days In ft10bile practicing law and writing eXlensively about his wC\Ttime experiences. Epilogue for the A'.b8m8

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TIle last piece of litig;tion involving the " OVt "utll 1001 I 343

Alabama arose in COrlneclioll with a bell, allel;lttlly from the Alabama. that had sur·

f;u;:etl in all Erlgli!h arltique shop in the 1950$. AlLhough there 'o'." IS a Question as to the authenticity of the artifact, in United Sla(cs v. Sleinme!t, :IJ the United Stiltes established its ownership rights. 'rhe deci· sion held that the govemmenl of (hr& Confederate st.1les ownetl lhe Alabama. Uk11 it 'o'.'as not a Dim!i"ll vessel. and thlll the United SIllIes ~uccecdcd to owrlcrship of the ves.'iC1and hence the bell. The remai ns of the Alabama were locatetl by French tllvers in 1984, in 200 feet of water. seven miles of( the COllSt of IIr::Ulce in French territorial waters. The wreck was the subject of negotiation belween France and the United States ;Hld i"rance ~l ltimalely agreed that the wreck and its arlif<lcts belonll to the United Stntr&s. The pllTlies ilgreed to creale a jOi nt ~cientific committee to oversee salvage. with the expectation that $OrYlCof the recovered pieces will go on tou r In various countries. GroUI)S in the United States, England," France. and even Sou th Africa are interested in

.11 EDK,uillEN'I'A I. MAI.PRACTICE EXPERTS

thc remains o( the \cssel. The wooden portions o( the shi l) above the water line Me largely destfoyed, but its armaments. engines and propelle r remain. Several Dieces have been recovered. including the copper rim of Ihe wheel. which is now houSed III the Navy Mu~eum in Washington. D.C. Once asain the spi rit of the Alabama i$ on tlispby to the world , "Aldo Tol 01 Diou T"tlidora. ~

•

Sources I. Kenneth I'oolmiln. TII(1Alab(l1l1(l IllcidclIl (William I{imber & Co ..

l..ontlon. 1958). 2. gdna and ~' rank Bradlow. lief(! COIIICS Ih/! Alabama (AA lilr.lkemll. Calli! Town, 1958). 3. Edward C. Boykin. Ghosl Sill;' of llie C()lIfeder(Jcy (Funk & Wasmtll ~ Co.. New York, 1857). 4. I~aphael Semme" The Cruise of Ihe ~t {(/b(/ma alld Ihe SlimIer (Vol. r & II , Sanders. Otley 8: Co., London, 1864). 5. William C. LittlEton, The {J(lllIc iJelll!oon Ihe All/bamu and Ihe Kellrsllrg4! offCherbourg PrUIKe. Slmclay, Jl,me 19. 1864 (1933). 6. Reporl Prom IheSecrelary of Siall! Relalhw tf) the Courl of C()I1I1n1:~iol1er.~ of Alabama Cltlims (Covernment

Printing Office, Wash ngton. D.C., 1877). 7. C.M. I~obi llson. 111 , Tile Shark of Ihe C()/lfederocy (Naval Inslitute Press. Annapolis. 1995). 8. Frederick T. I·till, /kcislu(J IJal//05 of Ihe lAw (Harper & Bros. Publishers. New York. 1907). 9. Charles C. 8e'Hnln. rhe NallOllal ami Primlle "Alabama Cluims ulld Tlwir Pill(Il l/lld ,tmlcable Selll/!ml!lll" {W.ll.

Moore. Washington. D.C .. 1871}. 10. II. COntluest Clbrke. Heporler. Oral OI';l1iOliSof Ihe Courl of Commisslollers ofAlubama Claims (Thomas r-lcGi li &: Co .. Washington.

D.C .. 1884 ). I I . HelJOrl From Ihu Secrelary of Stalu {IIilh McolllpanVing Pllper;; Helalh1g 10 Ihe COllrl of Commissiol1er.~ of IIl1lbama Claims (Covcrnmr&nt

Printing Office. WashlllSlon. I).C.. 1877). 12. r-1oorc. J.B .. II/story alld Digl!sl of InlemuliOllll1 Arbilrallon (Vol. I· IV. Government Printing Office. Washington. D.C" 1898). 13. 711e Alabama Atbi/ra!ion. Geneva ~u

No wn .. Il OR 01100

1872 (Town Hall. Geneva. 1988). 14. Adrian Cook. The AIIIQmnfl Cillim$ (Cornell Univ. Press, Ithaca. 1975). 15.1.0. 1·lollowuy. Luw$ of Ihl! UI/ited Sl(/Ie.~

and Ik>ci;;ions of Ihe Courls i?e(ating 10 U-ur Claims (Covernment

Printing Office, Wnshington, D.C .. 1908). 16.Charles 1'. Kirkland. 1..il lbl'lily of Ihe Governml!l1/ ofGI'eal 8rilaln for /lie IkpredllliolJS of Rebel {>rl/:alt'Crs (Anson

O.F. nandolph. New York. 1863).

Diclionury of Amerlc'ln Biography. v()1. 8. pllrt I. 579-582. Ch~rlc~ Torrey. m u s~u m nsearcher. Museum of lhe City of Mobile. 355 Government 51. 36602 (334) 434 7652. David Toifel 559 Williams Street. r-lobi le, 36606 476-0093 Co-Chair of the GSS Alabuma Committee Phillip 1'01. Nassar 103 1 Usler Street. Mobi le, 36608 342-4194 Oliver Semmes 9026 Marsei lles. Potomac j\1d. 32505 92 1-70 14 John 1'... ylor 1939 Lo rr:lin~ Ave. r-1ci.ean . 22 101 536·987 1 Sitlncy Shell (lawyer In Hoblle. on Submarine Hunley) Peter Bernhardt 647·9616 Kevin Foster National Park Service 343·5969, (ax 343·1244. 800 N. Capitol Street. 1'ro(essor John Norton Moore, Center (or Oceans Law & I)olicy. University of Virginia School of I...."IW (804 ) 924· 7441 . Professor Jack Grunewald Naval War College. Nel',"))ort !thode [ ~ I and. Ashley Hoolch, ass't legal advisor (or Ocellns Affairs M Slbte DCI>artment Professor Lewis Sohn Uni\'. of Georgia. (Arbitration) Ambassatlor Shllbtlli Itosenne from Israel Jerusalem I!NDNOTI!S 1 M)' a~!&IIr r....,en wu Olvtn (UIIH:lion t)y • numbef o! Indlvkluall who h'''' IP\Inl !TII>C:h u..... oonlldcr-tlng IhI! M\IIlI h!el.:w-y (>! rn. Civil Waf. s,-Ial Ih6n11t KI: OtvkllodlWOOd. d&!lYtv lIbra,l· .~ II tile COIl!! 01 FeQerlil Cltlhr... ; JQM Thylot. .ultlDr 01 an IMC8hnl bIoiJrll!>hf on Aaph.o! $em ....... COl'l~'1I1t1 ~It»r: <eYin FOlie!. mal-

nl..,. f\lSlOIlIt1 alln. U.S. Park SttvIc:.; Cn,flft Tatt"l'. ".aarchllr Ir rhl! Museum o! 1M City o!

MobMa: MId Mlllmt ula.... BoMar. prellGanl

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In. C.S.S. ""lbillIIII AaocIaUOII. F"nc:e. SliM II 'hf Ub<Ilt~ or COf'9/1>$I1friIf. ~ ..... y help!u! . In (HdtJ( KI minimlzil fOclOOlI clult&l. I navt uNCI Intm onfy !or fPtCl! \;: ~1IIIt. TII9 \;Itl. '<1O;a 01 IIqr JNI,* CQn boo altrlbu!ed 101M

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2. FOI ,wampje, _ oIlhtI •• hibl,. 1111" oJltlft<! bV tt-.. Unhtd 51J1"1O 0tIu1 ClaIm. tor f_llIont II I 1111 01 EfIIIIIth purCllaMlt 0I1)OnCi11O IUJlPGfI II-.

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a..m..1l... 1ItIIi~., 11/82· 1684 (~Bro. ..

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and",. Sumlll, 11285 (Yell II . sar.ct.r •. 0rIty ~ Co. , London, 1&G-61 .

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In WJI!IinI ~ HHtd, 140 U. S sag (1", ), ~ .... 1ltIcI ,..., rtll ~ 1m _de 0I1hI eourl 01 ConItniuIontI, 01 AlllNima CIairM _ I eondullw a. 10"" amolll1 10 bit pale! 011 ,I(:h ".Ht! Claim. llYi nol II to IhtI pa"Y If'IIIJeO 10 , _.... 11

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Position Available Coordinatorf Law Office Management Assistance Program The Aabama State Bar is seeking an attorney to develop and implement a program to disseminate information to Alabama attorneys relative to the management of their law prac· tice. and provide consultations to lawyers about management and technological issues. with an emphasis upon the solo and small firm market. The successful candidate win be a memba' of a state bar, have private practice experience, knowledge of business and management issues, and experience or training in all phases of technology as applied to the practice of law, Skills in preparing/providing uairing and ability to understand needs of diverse groups essential . Excellent benefits; salary commensurate with experience. Send cover letter and resume to LOMAP Search Committee, Alabama State Bar. P.O, Bo)( 671, Montgomery, Alabama 36101 . The Alabama State Bar is an equal opportunity employer. Deadline: December 15, 1996

71N .II........ /~

CLE

OPPORTUNITIES

7'he (01l01lli1l9 in·slate wagrall/s haoo fXII!Il tlpproued for credit by the Alit/XIII/II Mandatory el.f.' C(JIIIIII/,t~/oll. /-/OIJRIJer, informatioll is (/I1(Ii/uble free of charge 011 Q/J(!r 4,500 approlX!fi programs rllltionwitie identified by localiol/ dale or specially aret/. Contact/he "'CI,E Commission ofTice at (334) 269·1515, or J-8()().3S4·6154, and (I complete eLE W/(milur wiff be moiled 10 you.

NOVEMBER 15 Frld.y ALAUi\l\1A LAW m'DATE

"lobile Admiral Semmes Hotel "lobile Har Association CL ~;

credits: 3.0 433-9790 IJANKRUIYJ'CY LAW Birmingham

Civic: Center Alabama Hllr Institute for CLE CLE credits: 6.0 Cost: $165 348·6230 I'RACTICAI. UEFENSf: OF nUl & VEIIICLE ACCIOI~ NTS Montgomery

The Mlldison SI3I ProfcMional Ot\'tlopment Seminars CJ.E credits: 6.0 Cost: $129 (800) 826·7681 MUNICII'AL COURT PRACT ICE AN D ,' H:OCEOUHE Mobile Cumberl(lfId Illstitute for C L~~ CLE credits: 6.0 (800) 888·7<15~ RI-:CENT DEVELOPftlENTS FOR Til E CIVIl. LITIGATOR Birmingham CumDerland Institute (or CU; Cl.E credits: 6.0 (800) 888· 74~ 17 Sunday SECON!) ANNUAl. DEFENSE 01-' IlIUNKING DlHVERS

Birmingham S h ~ra ton Civic Ctrter Hotel Complex Southeastern EduClllional In~titute. Inc. CU: credits: 6.3 Cost: $165 -157·9082 19 TU ••day

IMI'ACT OF TUE AOA ON WORKERS' COMI'I-: NSATION Huntsville Lorman Business Center, Inc. CLE credits: 3.8 COSl: SI35 (715) 83J..3940 22 Friday JURY SELECTION IJirmingham Civic Center Alabama Bar Institute (or CLi:: CLE credits: 6.0 Cost: $165

12051 348·6230 rolASTER ING EVIDENCE AND OPEN ING STATEMENT AN D FINAL ARGUMENT Birmingham Cuml>etlllnd irlstitlJte for Cl.1:: Cl E credits: 6.0 (800) 888·7-154

DECEMBER 3 TU.sd.y WIN AT EVE RY L.EVEl Orange Bea<:h Emissary CL.E credits: 6.3 Cost: $155 (303) 417·0253 5 Thursday ALAnMtA UPDATE Iluntsville

Civic Center Ailibama Bar Institute (or Cl.E C I . ~~ crediu: 6.0 Cost: $165 (205) 348·6230 RULES 0 11 EVIDE NCE Birmingham The Wyn(rey Hotel Alabama Bar Institute (or Cl.1:': Cl f credit.s: 6.0 Cost.: SI65 (205) 348·6230

PRACTICAl. OEFENSB 0'" OUi & VE IlI CLE ACCIDENTS Huntsville SBI Professional Development Seminars CLE credits: 6.0 Cost: $129 18001826·7681

6 Friday ALADM IA ftII NI·COOE Montgomery Video i'resentallon C~l mbe rland Institute (or CI.I-: CI.E credits: 6,5 (BOO) 888·7454

6·S RENCII & OAR CON FCRENCI~ Point Cle"r Crand Hotel Hobile Rar Association CL.E crcdit5: -1 .6 (205) 433·9790 ESTATE I'LANN ING Birmingham Pickwick Centn Alabama Bar Institute for CU: ClE credits: 6.0 Cost: SI65 (205) 348·6230 RUI.ES OF EVll) l~ NCE HUlltsville Civic Center Alabama Bar Institute (or CLI::

CLE credits: 6.0 Cost: $165 (205) 348-6230 PIMCTICAL DEFENS I~ Of' DUI &. VEIHCLE ACCIU f;NTS Birmingham smProfession.,l l)evelopment Seminars CLE credits: 6.0 Cost: $129 (800) 826-768 1 REJ' ltESENTINC AI.A.IJAJ'IIA 8 US INESSES Birmingham Cumberland Institute for CI.E CLE credits: 6.0 (800) 888-7454 12 Thursday ItuLES Ofo' EVIDE NCE

Mobile nivt'rfront Civic Center Alabama Oar Institute for CI.E CI.E credi ts: 6.0 Cost: $165 (205) 348·6230 PRACTICAL Of; fo'EN5E OF DUI &. Vfo: Hl CU; ACCIDENTS Montgomery SBl Professional Dcvl!lopmenl Seminars CLE c red ;L~: 6.0 Cost: $129 (800) 826-768 1

13 Frid.y

RULES OF EVlDI:NCf: ,.' onlgomery Alabama BIIT Institu te for CLE CLE credits: 6.0 Cost $165 (205) 34B-6230

Days Inn

sm Professional Development Seminars CLE credits: 6.0 Cost: $129 (800) 826-768 1 20 Friday ~I EDIAT I ON

17 TU.sday ALABAMA UPOAn;

Birmingham Civic Center Alabama BaT Institute fo r CLE C U~ credits: 6.0 Cost: $165 (205) 3-18-6230 18 Wedn.sday ALABAMA UPDATe

f>1 ontgomery Embassy Suites Alab:\ma Bar Institute for CLE CLE credits: 6.0 Cost: $165 (205) 348-6230 19 Thursday

ALA IJMtA UI'J)ATE Mobile mverfron t Civic Ccnter Alabama !lar Institute for CI.E CLE credits: 6.0 COil: $165 (205) 348·6230 I'Me TICAL DEf'ENS I~ Of-' DUI & VE IIICLE ACCIDENTS Gl'IdMlen

,.1obile

Admira.l Semmes !-Iotel l'>lobile Bar Association CLE credits: 3.0 (205) 433·9790 PRACTI CAL DEFENSE OF OUi &. VEIIICt.E ACCIDENTS Phenix City SBI J1ro(essl0nllllX.-velopment Seminars Ct.E credits: 6.0 Cost: $129

18001826·768 1 CURRENT ISSUES IN EMPLOVI'tIfo;NT LAW Bi rmi nghtlln Cumberland Inslitute fo r CLE CI.I:: credits: 6.0 (BOO) 888-7454 30·31 CLE BY TilE HOUR

Birminghllm Cumberilltld Inslitute (or CU; CLE credits: 12.0 (800) 888·7454

Notice and Opportunity for Comment on Proposed Amended Rules Pursuant to 28 U5C§332(c)(11), notice is hereby given of proposed amended Rules Governing Complaints of Judicial M isconduct and Disability of th e Eleventh Ci rcuit (Addendum II I). The proposed amended Rules may be obtained withou t charge from and comments may be submitted in writing to: Clerk, U.S. Court of Appea ls for the Eleventh Circuit, 56 Forsyth Street , NW, Atl anta, Georgia 30303. Phon e (404) 3316187. Comments must be received by November 15, 1996.

11111

LEGISLATIVE WRAP-Up

The Alab.m8 L.w Instltut.

The Institute has bellun r,-",isions on the following

m~jor

projects: f.1ultiple

Party Account,. InterstAte Family Support Act. uee Article 5 "Lellers of Credit", Rl'ViselJ Llmlted Pllrtrlenhip Ac t, Principal and Income Act. Custodial

nus! Act. Transltr on Death. lind AmCllllmenls to the I.imited Liability Company nnd Limited Liability Pllrtnership Acu. The J'liullilile l'Ilrty i\(coun l ~ Committee is chaired by aUom!.')' Larry VinS(ll1,

Birmingll.lm. and the reporter is Professor f.1arsh of the Univcrtiity of AlabMlll School

of [.aw, Professor M~rsh states thai our rC\'isi(ln will do the: following: The present Stale of Alabama law governing OWllership of joint accounts is a maze, wilh outcomes based on Ihe type of financial institution. when the

account was created and whether there are two or more than two partin on the account, There lire II variety of account and signature Golrds In play around the state. and a fairly constant stream of post·death litigation among survi\l()r5. Financial institutions and probate judges are onen at the center of disputes when the i lldividulll~ on the joint account fili! to understand the terms and implica· tlons of the account arrangement. The f.1ultiple I'Mly Accounts Committee Is studying the Alnbama Illw lind is considering recommendinlllldop· tion in Alabama of the Uniform Multiple· Person Account! Act. The Act trellis deposits in alilwes of financiill orSilnl . Rob.rt L. McCurl• ." Jr. FIob.rI L McC .... t.y J< .l1'li 11<_01 If'It Alel*ne Lew 1ntt4u!......

... """" ... lJrWIrll!y

01 ~

",",*gr_. .... ~Irom ...

-..,

~ltions

and corrects .he problem of inconsistent treatment of joint accounts among different fil'lllncial institutions In AlabarTl3. The Act contains several sec· tions which resolve (M'nuship questions affecting Il<Irlies and death beneficiaries of accounts. Separate sections are devot · ed to protecting financial institutions if they make payment in accordilnce with the account contrilct term5, The Act includes ~mple stiltUt.Ory fo rms thai provide cI~ar and simple instructions to ooth financial in~tltu · tions .lnd dcpositors n ~cltlng up multi· ple · ~ rSQn accounts. Many of the accQuntllgrctr'l'lents being used In AI .. b.. m.. now do not allow the deposi tor to distinguish among the different func · ti on~ of the multiple·person account, \\'ith the result that the depositor's use of 11 joint account for one purpose may yield unwanted results after death. The UnIform Pammy Support Act is chaired by attomey Cordon ilailey of Anniston and the relXlrler. I)enny 0 ..vI5. associate director. Alabama Law Institute. reportsth<lt this act is intend· ed to do the following: The Uniform Interstllte ramily Support Act (UIFSA) has been promul. gated by the National Conference of Commissioners of Uniform Laws to update the laws relat ng to support. It will replace current Ala, Code §30-4-80 through 98, The Act includes an expanded long. arm jurisdiction sect on for the home 5tate of the ~upPO rl cd family. I··urthermore, the UIf'SA incorporales the principal of corltirlulnll, txclusive jurisdiction for support orders. Under U\t new Act. the only courllhat can modify a support order is the one having continuing, exclusivt jurisdiction over the orders, This is designed to sub· stantially decrease the number of situa· tions in which more than one valid support order may exist from different states because of modification.

Ilowever. if the parties no longer reside in the issuing state. a court with personal Jurisdiction over both p;lrties or with the agreement of both p.ntie$ ha$ the power to modify. A number of procedural improvements have be~ n Included to simplify the Interstate support casu such as tes· timony by telephone collference, The Act explici tly authorizes parties to reta in prlv<lt~ lell,,1 courml. The Act include~ direct enforcement procedures so that a support order may be mniled directly to nn obligor's emplo}'er In another stale ..... hich will trigger wage withholdin" by that employer without the necessity of a hearing unlesslhe employ~e objects. The uce Article 5 Committee will revise Ihis article which hu not been addressed in 30 )'tars In Abbama. The reporter is Professor Hike f'loyd of Cumberland School of Law. The com· mittet is chaired by attorney E.O. Peebles of f.lobile , Itevlscd Umlted I'artner\ihlp Act· These amendments arc needed to con· form the Umited Partnership Law with changes in the Partnership Act and interpretations by the Intem.. 1Revenue Service. This committee is chaired by attorney Bob I)ennlston of f.10bi le ~nd Prorc$Sor Ilowllrd Walthall of the Cumberlllnd School of l.aw is the reporter. !'rlnclilal ~nd Income Act· This revi· sion is needed to bring Alabftma into conformity with changing laws in other states. Alabama's I'rincipal and Income Act was last addressed by the Legisillture in 1939, ~1~t states have since revised their laws in keeping with lhe 1995 changes made by the Nati01Ul1 Conference of Commissioners on Uniform Stale Laws. Repelter for this committee is Professor Tom Jones of the (Colltillued 011 pu~ 376)

..... r

BUILDING ALABAMA'S C OURTHOUSES Montgomory County · PHrt 2

ontgomery was the sile of the Whilll'lIrty political convent ions of 1840 and 1844. Due to the publicity surrounding these conventions. mllny Alabama citi:l:ens viewed r-1ontgomcry as a significant politic.al center, These events also demonstrated the convenience of f.10ntgomcry to travelen. 'fl'ansportation facilities in and around r-10ntgomcry were ra pidly e"p.1nding during the 1840s. River traffic was growing. Stage coach arrivals and departures were increllsing. Road~'aY5 \\!fre improving. And ~ railro.,d system was developing in the region. These transportation advantage! contrasted favo ra bly with those o( the existing stale ",pilal at Tuscaloosa. By 1843 II graS!;root$ movement was

under....ay to rel\K.ate the slate capital to Montgomery. Part of the motivation was that people fclt that state institutions and the cor r e~llOndi n g employment associated with them should be 5pread out around the state. Tuscaloosa was the home of both the capital and the stale university. In 1839. Wetumpka became the site of the $30,000 stale penitentiary. Many cilizcnslOughl the movement of the seat of government to Montgomery so Its economy could have the advantage of a government Pllyroll. The Alabama JQumaf published edi· torials pron\O\ing the campaign to name Montgomery 1M statf capital. One such article 5uPI)()rted the selection of r-tontgomery by asserting that "from its central position. its fncili ties (or direct communication by steamboat. railroad, and stage with every section of the sldte. ilS salubrious lind healthy location, the fertility and productiveneS!;

Montgomery Countv Established : 18 '16

The following continue.f a history ofAlobitmas county courthousestheir origins and some of Ihe IX!Opie who contributed to Iheir growth. If you have any photographs of early Qr present courthouses, please forward them to; Samuel A. Rumore, Jr., Miglionieo & Rumore, 1230 Brown Marx TOlfer, Binllillghotn. Alabama 35203.

...

• . _'!t~

of the adjacent country, i~ prosperity and increasing trade and population. and iI's possession of all those advan路 tages deemed requisite in the location of the seal of government, there is no place in the interior thilt can for a moment hold comparison with it". Dutil'S: the 18d4路 1845Iegisliltive ~e$颅 sian. the stale assembly sent to the people for a vote an amendment LO the constitution authorizing the legislature to consider the relocation of the state capital. The ilrnendment passed by il vote o( 33.798 to 27.320. Strong opposition carne (rom northern and western Alabilma while strong Sllpporl carne

from the southern and ~il~ t ern porLion~ of the slate. On January 28. 1846, the two houses of the legislature convened in Tuscaloosa to decide the future location of slate government. Fourteen towns received voles and consideration in the eilrly billioting. However. it was clear from the beginning that there wcrc only three serious contenders. 1'uscaloosa WM the choice of north lind 1'0'(:5\ Alabama and received 39 votes. WetUrlll>kll WIIS Ihe choice of Cllst Alabama and received 28 votes. Montgomery was the choice of south and southeast Alabilma and received 33

II .,1 Court Square Fountain ----------- 18~ ----------

Placed by the City over an artesian basin and crowned by Hebe, Coddess of Youth and Cupbearer to the Cads. the (ountain was cast by J. L. Mott Iron Works of New York. It was restored by f{obinson Iron of Alexander Cily in 1984 dllring the administration of f.1<1yor Jo;mory ~路olmM.

~BO

Nov~ .. orn

10011

vote$. Since the selection relluired ~ m.tjority. political maneuvering began in earnest. On the fifth ballot Tuscaloosa had 38. Wetumpka 33 and Hontgomery 27 voles. By the seventh ballot the \IQte was 1'uSCillooS.l 43, r.lontgomcry 35. and Wetumpka 25. On the eighth ballot a siltnific;mt shift Ilave Montgomery the lead with 37 votes, 1'uscaloosa 36 and

Wetumpka 31. On the 12U, ballot r.lontgomery polled 46 \IQleS and on the 13th ballot 47 votes. It became apparent that the on ly way that the south and cast Alabama deleg~te5 cOllld seCllre the capit~1 (or their region wa~ to combine their votes. Pinally, on the 16th ballot. it group of Wetumpk,Lsupporters joined the Montgon1ery group. Montgomery received 68 votes, Thscitloo~a 39, Selm!l II , Wetumpk.. nine. and Mobile three. The Speaker of the House declared U,at Montgomery received a majority of the votes cast and was the constitutionally elected scal of government of the State of Alabama. Word reached Montgomery of its selection on the evening of Jilnuary 30. 180\6. Agreat celebration took pl;lce including a salute of 100 guns from atop Andrew Dexter's "Co,at 1m!." The grazing pasture and livestock there would soon be replaced b)' it capitol building and legislators. The legislature. in selecting a new state capital site. had mandllted that the winning city must construct a new building without e~pcnse to the state. Soon a $75.000 bond I~sut was subscribed, Olnd by July 4, 1846, construction on the nC\". C,lpitol hnd begun. The architect was Stephen D. Button and

the contractors were IU: nobin$On and R.N.R. Bardwell.

The new capitol ,",'as constructed in the Creek nevival style with Corinthian columns. It was completed by November 18<17. and WilS ready for the legislatl\le session ()( 1847-1848. Unfortunately. thi$ wa~ the only complete legislative !euion held In that building, On the afternoon or December 14, 1849. exactly 30 ~ars to the day after Alabama Decame a state, and while tht

growing the facilitiu there . On toby 8, 1852, Jamu E. Belser and his wife, Maline, executed a deed to Hugh V. Watson as judge o( pro!).,le of Montgomery County, and his succusors in omce, "for Ihe use and berlCflt of lhe COUf\ty of Montgomery." The deed conveyed title to a lot at the southwest corner of Washington and Lawrence streets. On this site a new courthouse, befilling II state c:tpital city, was erected in 1854. Charles C. Ordeman, II Cermnn nrchiteet ..... ho had emigrated from Germany to New York and then moved to Montgomery, wa.~ chosen to design the build· ing. John r. f'igh, the local contractor who had buill the 1838 courthouse, recei\led lhe con tract for the new structure. Tht new courthouse was built in tht Creek Revi\l;i! style. It resembled ! Greek temple and carried on Ihe theme that courthouses In America were "temples" of democracy. Paired curving exterior ~Iair(ases rose to the main entTlince. The building facade included fOUT nuted Corinthhill columns thlll supporttd II distinguished trillngular pediment. The lower le\lel had iron shutlers on the windows that continued to be used until the structure WilS demolished more than II century later. In a (ew short years, Montgomery hild risen rrom a frontier village, to a county seat, to II 5t.,le capital. The next step. which is rare indeed, is to become II national c:.pita!. In 1861. that Is exactly what happened to Montgomery. The election of 1860 would be a pi\lotallurning point in American history. Slave!,), was the key i.uue. Certain fac· lions in America fa\lOr~d restrict in" SlllvCry, Others favored abolishinllslav. cry altogether. Still others desired to lea\le the states and territories II10ne concerning Ihis highl~ di\lisi\le issue. One of the leaders of this latter statu' rights thtory was l>10ntgomery's William Lowndes Yantty, The -fire-ealing" Yancey led the Alabama Democrats

1849 legislature was in session, a lire broke out in the Cllpitol. The names Quickly spread an:! within II few hours the capitol was destroy(!d. The legislators from n lscaloosa immedllltely called for the return of Ihe capitOlI to their cily which still had a capitol building standing. l lowever, contractors assured the state legislature that a new capitol could be bullt lind ready ror use by NO\IfmDer 1851, in time for the nextlegislati\le session. The legisL,turt appropriated $60.000 for the buildIng which was reo constructed on its original ~ite with its original design. This buildinlt, with its numerous additions, has seMd the state of Alabama as its sellt of govern· ment ever since. The population of to10ntgomuy continued to grow in the 18501 because the city was lhe !tate capi tal. The economy also nOLJrlshed . The court· hou ~e site. which stood at the oppo· site end o( !,>1arket Street. now Dexter A\lenue, from the capitol building, became prime cO'l'lmercial real estate at a time when the county was out·

to the National Democratic Convention which met In Chllrleston. South Carolina, in April 1860. Since Alabama was lirstalphabetically, Yancey was the lirst to speak to lhe d~legntes on /I proposed phltform plank concern in" Ihe slavery Issue and southern rights. He ""limed the con\lention tI~t It must prOtect the institution of slaw-ry or face southern sece$Sion. The convention did not pass the proposed plank, Further. it nomlnllted a moderate. Stephen A. Dougllu. for Pre5idenl. Yancey and the Alnbamn delegates walked out o( the convention. The Democratic Party split three ways in 1860, Stephen A. Douglu of Illinois had broad national support. but did not lead in any region. John C. Breckinridge or Kentucky, the sitting \lice·president. led the southern faction. John Bell or T!!nne~5ee led a coalition of some con· servatl\le Democrats lind others. Abrllhllm Lincoln was the Republican nominee. but his name was not even placed on the ballot In Alabama. Stephen A. Douglas brought his campaign to HOlllgomery on No\lember 2, 1860. just fou r days berore the I)residential election. He spoke on the steps of the slate capitol plcading ror moderation and support. He believed thllt sectional differences could be peaceably re$Olved. Later that evtning Y3nccy responded in a speech that was highly critical or l)Qug!as a'ld his posi. tion. On election day Oougl85 recei\led only eight percent of the \lote In f.1ontgome!,),. Though not on the Alabama ballot. Abraham L ncoln was elected President. In reaction to Lincoln's election, the governor o( Alabama. Andrtw 3. Hoore, called for a con\lention to determine ir Alnbmna would lea\le the Unio". The meeting convened in l'>"l onlgomery on January 7,1861. At the conclusion or the con\lention on January II. the \l()te (or seceuion was 61 to 39. Thus. Alabllma lert the Union and cast its fate with the other seceding states, Subsequent events npidly took place. The leaders in South Carolina, the lirst state to secede on December 20, 1860, called for a meeting to be held in f.1 0ntgomery to form a new govern· ment. The Sollth Carolinians knew or Yancey rrom his appearance at the Democratic Con\lention in Charleston

the previous spTing. They chose Montgomery for the meeting site because it was centrally located in the Deep South, it could be defended ifwilr came, ilnd because the presence of

Conrederate Congress to move its capital to I~ichmond. II debate resulted. President Davis favo red Montgomery as his c"pit"l. However, over the objection of lhe Alabama. Miss ssippi and South

Yancey assured favorable local support for secession in the convention cily. On February 4, 1861, delegates from Alabama. Florida. Ceorgia. Louisinnll. ~1 iss j ssi pp i, and South Carolina mel in the chamber of Ihe House of Hepresentatives in Montgomery. By February 8. 1861, they had crt:ilte.d a Confederate constitution. On February 9. they selected Jtfferson 1)~lVis of M i~sissippi <IS their President. Montgomery became the host city to the In<luguratlor1of the Confeder<lte president on February 18. 1861. It is estimated that more thlm 10.000 people came to witness the ceremony. II procession led to the state capitol where D3vis took the oath of office and gave his inaugural speech. t>1ontJ{omery served as capital of the Confederacy fo r iour month$. Its population almost doubled overnight. It became the focus of natlor,al and even international amntlon. Government offi cials. army officers. Journalists, and contractors flocked to Hontgomel')'. However, the single most important event to take place in f.10ntgomery during its tenure as capital of the Confederacy occurred on April 11, 1861 when Secretary of War Leroy Pope Wal ker sent a telegram t.OCharle$ton authorizinll: Ceneral Beau re~a rd to fi re on Fort Sumter. T hi~ act btgal' the figh tlng in the War Between the States. FollowIng the fi ring on Fort Sumter and Lincoln's call fo r trOOI)S, Virginia seceded from the Union and invited the

Carolina delegations. Richmond was chosen as the permanent Confederate capital. The Confederate government left f-Iontgomery on ~1 ay 29. 186 1. Centrill Alilbama was rar removed (rom the warfront. and Hon!lI:omery was basically bY-P<'lssed in the waT until 1865. On April 12. three d:,y$ afte r Robert E. Lee surrendered, Montgomery felt to UniOrl Ceneral James Wilson.

H'+'" Ph' !,Ii".

n..AJ"""maUs~~r

Wilson's men burned factor ies. powder milg<!zines. and steamboats, bu! Montgomery WilS sPHed the extensive physicil! de~truction that befell many other Southern cities. t>lontgomery suffered through hard economic times fo llowIng the Civil War: however. afte r the Ileconstruction era ended, a renewed sense of optimism blossomed. The population expanded and new businesses thrived. New public works included p<wed streets, iln improved sanitation system. a water system. Md the electrification of the city street cars. In fact, in 1886. t>lontgomcry had the fi rst regularly Otlerhlillg elcctric street cars in the United States. By 1892. more space was needed in the J'.tontgomel')' County Courthouse. Instead of demolishing the old building. county officials chose 10 greatly expand. renovilte and completely remodel the structure. The old building became the eastern portion of a new building. whi le a center section and west wing were lidded. CQntr;,cto r~ removtd the curviug ~teps. portico and pediment. The main ent rance was moved to the center of the expallded building. Asoaring tower.

twice lhe h(!ighl of the building, graced the central 5«lion. This structurc ret,lined its cl(lssical style. Four Corlnlhhll1 columns were located on both the east and west wings. The central section contained an arched doorway also topped by four Corinthian columns. A large hallway extended the lellgth of the bUilding. The t'irsl noor

housed the probate court. circuit clerk. tax assessor and tax collector. and vari· ous other oences. The steond noor included two courttooms. This eXp:lnd· ed structure had 26.000 square feet of space. It would ~erve the needs of the county for over 6~ more >'ears. By the 19505. space requirements and the need (or repairs caused the county to explore plans for the const ruction or a new courthouse. The oldest portion o( lhe existing structure was more than !l century old. Some proponenlS arJlued (or a building that was an euc! replica of the existing one. Mer much debate. county officilil s dtcided to build a new courthouse on the ~ m e site Ihat would renect 20th Century design and use more modern buildinJl materials. The county took over additional properlyon the same block for the new structure, removing the city curb market lhat had oper~ted (or many years at the southeast corner of Washington and Perry streets. Fresh vegetables pur· chased by county employHs had been a common sight in the old courthouse. Now the curb market WIIS gone and in 1956. the grand 0 d Montgomery County Courthouse, which had served

the county (or 102 years, was ral-cd. On May 12, 1958. the new courthouse \'I:U completed at a cost of $1.675.107.48. The building W:lS:I mod· ern mult l·storied omce structure built of reinforced steel and concrete. Optn house took place from July 25 to July 27. 1958. IAXal Montgomery architects Clyde C. PeMson. Parrow L. Tittle :lOd Parker A. Narrows designed the building. Rear Srothers. hlC.. general contractors, built it. This courthouse WilS constructed on three levels con· forming to lhe nat· ural slope of the terrain. There was n first floor entrance on Perry St reet. a mond noor entrance on W!lshingtorl AVellue. and a third noor entrance on Adams Avenue. The fourth noor of the building housed the to10ntgomery County )ail. Also, the fourth noor incl uded ~ sleep;ng area for jurors when sequestered. It should be noted that the building was designed at a time when only men served liSj~lron In Alabama. This new building included most county offices. three circuit courtrooms. a chancery court· room. a court of com· man pleas, juvenile court. and probllle court. The tolalllro::I of tht building was 125.000 square feet. II could b~ e~ pa nded for (urther growth, and the court· house brochure iu ued at the time or completion predicted Ihilt the nee ~ s of the cOllnty would be served for 100 years, just as the previous court· house was used that long. The forecllst of:l cen· tury of use by the COullty may yet prove true for

the 1958 structure. However. the building is no longer the Montgomery County Courthouse. but r~th e r an administration building. A.~ early as 1980. the cou nty faced critical space shortages. The needs or an expandin" court $)'Stem in the 15th Judicial Circuit necessitated pillns for another courthouse ,md II new jail. In Octobl.!r 1980, Walter H. Sobel and Associates. consulting architects: the EhrenkranlZCroup, corrections plan. ners: and Pearson. Humphries, Jones. and Associates. gener:ll architects, made a final report to the county on future needs and (acilitles. BeC:lu$t of the sig· nificant growth in the judicial system, con$titut;onal issues regarding the jail. and the rapid e~pansion or county serviCts, the county adopted lhl.!ir study which called for orderly growth. and included iI complex or buildings rather thlln just one structure. The first build;ng ;n the plan was a new r.tontgomery County jail. The architectural firm of Peal'S()n, Humphries. Jones, :lnd A~.sociates began oVerseeing this con~t rucli()n in April 1983. The new Montgoll1cl)' County Detention Center began Its Qp(!ration in April 1987. The next buitding in the compltx was the IlCW court {acility. Construction bids wcre t:lken in May 1984. The architects ....,orked with the County Commission Building Committee and with a "building user commi ltee~ tQtranslate projected needs into an organh:ed building

NOVUIDIIl '000 " "

plill'l. Thi~ '"cility wa~ dedicated on Sunday. May 10. 1987. The new Montgomery Coullty Courthouse Is a modern fourstory structure fronting on Lawrence Street. Circuit courts are located on the top two floors, district courts are' "~:~\,:,j l on the second floor, and II i Iriet and circuit clerks' offices arc: 1c)Cllted (11'1 the flrn floor. Each floor is des.gned with two corridor systems. II publiC dor allows eas)' occeu to all courtrooms. II rear corridor

provides secure passageways for courl personnel, jurors. jUilges. and prisoners in custody. II secure pedestrian bridge connects Ihe second floor to the detent ion facility fronting un

McDonough Street. The new courthouse contains 100,000 ~qu:m! (eet. The mllSler plan provides fo r expansion of the building as needed, A large wing Clln be Ilddfd to the north end of the building and II smlliler wing can be added to the southern side, Also, Ihe building can accommodate 11 fift h floor if lhe need for furthe r exp~n sion relluires iI. Asignificant pari of Ihe mull i-phased courtho(Jse ~Xr<ln5ion WM lhe ren(W<tlion of Ihe old c(lurthouse between 1988 ilnd 1990. This project cost ~pproximat c ly $7 million. Pearson, Humrhries lind Jones again served as architects. The builder was Stlll1ings ~ n d Sons, Inc. The official nllme of the old courthouse is now the Montgomery County Administration Iluilding and Courthouse Annex. The new entrance to the expanded building is lor.;.11ed at. 100 J..awrence Street. [n 199 1, Montgomery County acquired II building llillt Wll$ formetly part of the Comp.m Blink complex. This building. lOCAted ~t 125 Washington AVCJlue, was ren6valed under the direction of the fi rm Parsons, Wible, Brummel. and Alkire Architects. Inc, The project W<lS completed in 1993 al a cost of approximately $566,000, This Courthouse Annex J1 contains district attorney's offices, sheriffs department offices, and the Alabama Cooperative Extension. lO4

NDvn"D ~ R

"'uo

The present. 1>lontflomery County facilities were built or rcnov~tcd with an eye toward the needs of the future, The~e buildings ~hou ld serve: tile: county well into the 21st century. 'fhe ~utho r (Icknowledgeg thc Msis· tance of Jackie Kennedy Amis, informll' tion specialist of the Montgomery County Commission, Mel and Belle Cleveland, and the Montgomery Area Chamber of Commerce for information or photographs used In Ihi5 article, SQurces: Arlicle on Montgomery by Thomas H. CI:nk in Nor /hem Aillbama INs/oricul (IIlfIIJk)gr(Jpllicul. 1888; The Official Gllide to rllll City of MOIl/gomery Alabama. 1948: "The

Selection of Montgomery as Alabllma's CapitAl", Malcolm Cook McMillan, The Alabama /?auiellJ, Aplil 1948, p, 79·90; A Brief His/Dry of Montgomery, Alabama, 1>lontgomery Chamber of Commerce, 1953: A/chama /-lis/oriC(11 Quar/ertv, Volume 18, 1956: The f:Mly His/ory of MOI1/gomer.1J alld IlIddell/aflg of the SllIte of Alabama,

Clinton Ware Williams, 1979:

MOIl/gomery,

AI1IlfIl.~lrattd

History,

Wayne Flynt. 1980; "Montgomery County COurUlouses 1922-198 1", Deline J, Edmondson. TheAlabl/ma u/lIJgcr, Jllnuary 1981. p,91 -95: Dedication brochures-The Montgomery County Detention Facility and The f.lontgomery County CourtIlO\lse. 1>tontgomery COLmty Commission Office of Public I nform~tion, 1987; MOIl/goml1rg, 7~1/! lJiogrllph.'1 of II Cily,

Wayne

Crecnh~w,

1993.

Sam". 1 A. A\lm"... , J r.

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FfIfntf Law 5oeIIon rid II i'l prllQ~ In ~ ...w.lN firm ol~&~

MII\O b(w ~ lOr I/1t 10fl CtfcuoI, ~ IVTber feu. end II • rTVTtIaI 01 The ~ ~E~~

ONSUMER ~:NCE

~UYING

NTIME

... Ol/dining im/>orUUlt asl>eC/j and consicierations of buying on credit, this infonnatiw brochure eXI)lains the princiJXII kilW of c:onSW11er credit plans as well (IS the disclosure of credit IL'11lIS required fry felieralltlUl. Ocher issues addressed include the cool路 ing off right; re/.ossession and sliir; gamisllJl1cl1t; the Fair Cre(lit Reporting Act; denial of credit; and /tituS thar C(ln /JTotect your credit. ALso included are s/>ecific /)()inlS 10 keep in mind in an)' COHSumer credit transaction .

Alabama State Bar Publications Order Form The Alabama State Bar Is IllcaSl.od to mokc ilvailable 10 individual illlorneys, IIrms Olnd locill bar ossodalions, al COSI ollly, il S{'ri('s of brochures on .1 vilrlely of leg;!1 topics of 1I1Icrc~IIO the Bener,,1 public. Below is " current listing of publk informalion brochures i1vi\lI"ble from the AlohOlnlo State Bar for dis\ribll1ion by local bOlr a~sociiltions, under esl.lblishcd gUidelines.

Publications Law yers and LelJ.11 Fees bask information o n common legal

... a summary of

Last Will & Test.llnent ... cov(>(s ,1Sj)eCIS of eslate planning

$7.00 per 100 qUI.~ t OilS

Ql y. _ _ $ _ _ __

Jl1d procedures for Ihe gcner,,1 publ ic $7.00 1)er 100

Q ly. _ _ $ _ _ __

;md the Importance of h,wing a will

Leg.ll Aspects of Divorce

$7.00 per 100

QIY路 -

$ _ _ __

... t)ffers options and choices Involvt,>d in d ivorce

Consumer Finances or "'Buying on Tim e" $7.00 per 100 Q ty. _ _ $ .",,,,,""__ ... outlines important considerations and prt'lVides advice on financial mailers affcctlng 1he individual of family M c(/iation ... A not/Jcr M ethod fo r Resolving Disputes ... provides

an overview of the mediation process

$10.00 per 100

Q I)'. _ _

$ _ _ _ __

in qut.~t ion 路a nd路a nswcr (arm

Acr yl ic Br ochure Stand $5.00 each Q l y. _ _ $ _ _ _ __ ... Indlvidual siand Imprlntcd with indivicltl"l, firm or bar .moda1ion nilme for USC;]I distribution l>oint5. One stand per brochure Is recommended. Name to imprint on stand: _ _ _ _ _ _ _ _ _ _ _ __ Sublot;11 S _ __ M;'liling Address Shil)I)ln8 & IlandlingS 5.00 TOTAL$ _ _ __

I'lease remit C/ IEO< O f( MONEY ORDER MADE f'A YABLE TO TNE ALABAMA STATE BAR for the llrnount listed on the TOTAllinc a'ld forward il with thi s order form 10:

AN ALABAMA PERSPECTIVE II)' WtI)'ne ,\ lonc

"ERICA," J

the llcronym for Employee Retiremenllncome Security Act of 1974, strikes (e~r in the hearts and minds of many lawyers. Perceived Il$ c.(I1'1'1pl~x

MId hyperlechnica.l, ERISA i~ <lctuillIy based on the common law of IrusU, although mllny of its rules differ from their common law COUlHer路 parts. EIlISA, when broken down La its essentials, is much less difficult to understand than most statutory schemes. ERISA is federal law governing employee benefit plans and persons who manage them. ml SA ;Iffecls many Meas of substantive law. Employment I;lw spe路 cialists face E I~ I SA issues when reviewing severance pay [JlOblems, claims of wrongflll terminillions lind

issues regardin g health and pension benefits.

Securities [..wyers face ERISA i5sues when they work Or'! the Invc~tnlent~ of cr'l'lploycc bCIlcfit pIM!. In an}' sizable business transacllon. corporate lawyers focus on company liabilities for retiree med路 iCIII, pension and other obligations under EIl ISA, In Iitiglltion, EHISA issues should be spotted

3~O

NDV ENoen ',",0

before the initial pleading is filed, Otherwise. time and fees are wasted, and bad things can happen: for example, a lawsuit may be filed in the wrong court: fede rnl CO~l rl remov~1 iS$l,.I~s m~y be mis$ed: a dien! may be deprived of a jury trial: and the wrong claims or defenses may be pleadcd, An "Clnployee benefit pllln" must be Involved for ERISA to be a factor. Employee benefit plans may be pension plans or welfllre plans, Generally, a pen~ion plan provides retirement income to employees or "resu lts in deferral of income" by employees until termination from employment or la\er.1 Thus, pension and retirement funds in many types of different compensation arrangements or profit sh~ring situations may be "pension plans" under [::RISA A wd路 fare benefit pliln provides, among other things, medical. s ur ~icill or hospitnl care berlcfil~ or benefits in lhe evenl of sic knl:~s, acddent. disabiHty. death, or unemployment.' Hellith Insurance and disability plllns, arld other programs designed to supplemtnt an employee's income, in the event of sickness

or injury. all may be "welfllrt plans" under ER ISA. Severance plans. prepaid legal service plans. ilPprenticeship or other training programs may also be welfare benefit plans.' Initially. ~ lawyer should determine whether an ER ISA pi,," is involved. In an employment law d i ~pule, !15k about medical insurance. disability compensation. employer stock optlorl plans and severance payment plans and find out whether the employu was dose to vesling in any plan or benefit. In a security suit, see whether any "plan assets" were involved and who had "authority or control" over them. A person with authority or control over plan assets generally is regarded as a '·fidudary.~ and. therefore. subject to special ERISA duties. In IIny dispute over a oornmerci .. l transaction with <In employee benefit plim, Identify all the parties to the transaction and determine whether they are "parties in interest" under EnI SA. ru a relatively new statute. EIUSA cont.lins many issues that remain unrtsolvtd. The key subsl:lntive Issues include ERISA rights and remedies. preemption, the right to cootribution or indemnification. the rilJht to trilll b)' Jury. lind the ability to obtain attorney's fees. Among the most important procedural issues are jurisdiction. \/tnue. service of process. and the applicable statutes of limitations. ERISA also presents several practical issues inllQlving the role of the l)epartment of Labor. problems with conflicts of intereSI and the attomey/client privilege. rolany ERISA lawyers believe thai Congress. in enacting Ent SA, wanted fed· eral courts to develop a body of federal common Inw governing pension and welfare rights and obligations. Courts are specifically authorized to do so under ERISA. Most federal courts. even the United Stlltes Supreme Court, however. have resisted. Generally. Enl SA rights and oblig.ltions have been limited to those expressly set oul in the stilt\lte.' Due to the g.lP5 in the total statutory scheme and the reluctance o( courts to fill in UlOSe Itlps. litigants compillin th:lt £IUSA does not fully protect certain righu. Plaintiffs may sue under I 1132(a)(I ){B) 01 ERISA to recover benefits and to clarify their rights to future btrlcfil$ umler a plan. Ne\!i:!rthcless, the st.1tute makes no mention of con· sequential or pUI\itive d.1mages for the wronll(ul deninl ofbenefiL~. In fofassochUSl!lfsMutuul Ufl! /IISUrutlCl! COtn/Xmy IJ. Russell. 473 U.S. 134 (1 985), the Unittd St.1tes Supreme C()urt rejected a par· ticipant's claim (01' con~Quentia l and puniti\'I! d:!mages in such an action. Simi larly. there are problem5 in ERISA nctioru b.ued on a fidu · ciary's duty. 29 U.S.C.I 1109(.. ) holds a fiduciary personally liable for IIl1losscs 5uffered by the plan as a result of a bre..ch 01 a fidu · ciary duty, and for an)' profits made by the defendant through the wrongful use of pLln assets. The sL~lute. however. does not provide for relief allllirnt ron·fiducluries, even though a common law principle of trust! provides that a non-fiduciary could be liable for "knowingly participating" in a breach 01 fiduciary duty. A1lhough several circuits !\/lIlt held that ERISA intended to follow the tradi-

tional common lillY rull', 11'101\ holding is doubtful today.' ~:ven ERISA express remedies may not be as USl'ful as some plaintiffs have wumed. In 29 U.S.C.fll09(a). a plaintiff is ~l'1fIilll'd to seek "eq uit,'bl ~ r~lief: In Mer/ellSv. Hw.!ilf Associates. 508 U.S. 248 (1993). however. the term "equitable relief' WJ5 given 11 rel ..lively narrow inlerpretation. TIle Suprcme Court held thai it permitted ooly those (orms of relief typi(blly available in equity caw. such as injunctions and restitutions. not compemitory c.Iama.!Ies.' In response, plainLirr~ ar~ being creative about wh.1t constitules "restitution." And. despite the United States SUI/reme Court's dis· cussion in N(>r((ms. oU\er courts have endorsed ERISA acHorn b.ued on eQuit.lble principles such as estoppel. Preemption

If you represent defendants hI civillitiJtation. the biggcst reason to search fo r ERISA issues is preemption. In ERISA. Congress directed that federllllllw would preempt other applicable law.' Because of ER ISA preemption. some litigation claims fo r relief lIlay be precluded. There are several important exceptions. EntSA does not preempt other federalillw, criminal law or stale laws reijulaling insurance. banking or securit ies. The key to ERISApreemption is the term "relate 10." E I~ISA provides thllt its provisions "shnll supersede any

n "employee benefit plan" must be involved for ERISA to be a factor. Employee benefit plans may be pension plans or welfare plans. :lIld all State laws insofar as they may now or hereafter r!.!l(lte (0 tlrIy I!mploVff Ixmefit plan described in f 1003(01) of this title and are nol exempt under f IOO3(b) of this title.·.. The statute does not define the term ~ relatc to"; it has fallen to the courts to deduce Congress's intent and 10 ~pply this Interpretation to the facts of each case.' Unfortunately.the United States Supreme Court has given little guidance In defining "relates to.~ saying only Ihal it hilS been given a "broad common sense meaning."1t And. II stale law "relates to an employee benefit plan ... If It has II connection with or reference 10 such is plan."" rolany courts and scholar$ had thought that the limitations of ERISA preemp· tion were boundless. Recently. however, in New tork CanfIJrenc/! of BIll/! Cross & /JIlie Shield P/(IIlS /J. TrarJOlers Insururlce Com/HillY, 11 5 S. Ct. 167 1 (1995). lhe Supreme

Court curbed Ihe expan5ion of the preemption doctrine: The governing text of ~: R I SA is clearly expamive... If "relate to~ were L\ken to extend to the furthesl N OVU MII. n I DDO 13"'

stretch of ils indeterminacy. then for all practlclll purposes pre·emption would never run its course, for Hlrleally. univers.1I1y, relations SlOp nowhere," IL James, Roderick Iludson xli (New York ed., World's Classics 1980). But Ihat, of course. would be to read ConMreu'$ words of limitation as 11 mere shalll. and to read the p re~url,pt ion Ilgllinst pre·emption out of the law whenever Congress speaks to the maller with generality, Thill snid, we have to recognize Ihal 01,lr prior attempt to constnre the phrase "relate 10" does not give U$ much help drawing the line here, /d. In making its holding, the Court went on to rely upon the Hconnection with or reference to" language used in prior decisions. A good example of how t~ tide on the exp.1osion of the pre· emption doctrine h.u turned is found in Morsteilt L'. Natiot/al Illsurance $en'ices. /IlC" No. 94-9152 (lith Cir. Aug. 19. 1996) (en Ixmc). In Norsti!il1. the Elc:venth Circuit Mrruled Hlrlow I'. Union Ct.'lltral Ufe IIlSlIf'illlctl Company. 874 ~~2d 791 (II th Cir. 1989). Farlow held that EIUS/\ preempted a desigmrtcd lxneflciary's stllte Illw misrepresentlltion lind negligence claims afolainsl;tll insurance company and its agent. Citing the analysis of the Supreme Court in ,\btl )'Qrk Bllles, the Eleventh Circuit looked to Set v.'hether the state law claims brought by the imured or partici. pant had a "connedion ",ith" the ERISA pl<lO. PolIO\ving thc Fin.h Circuit. the Ele\ltnlh CirC\lit held lI"l t whcn a state claim brought against a non·ERI&\ entity does not affect relations among princi· pal EIUSA entities, t~ claim is not preempted by EmS/\. Insurance agen15 art not ERISA entities. TIlerefore. NOT'stein's claim~ for fraudulent Inducement and negligent processing of an appliclltion for lin ERISA-governed insu r~nce plan \\.'Cre not pre· emptcd. Such cllIim~ do not fall within Em$A's brood preemptive 5COpe. M they do not have a sufficient connection with the plan to "relate to" the plan The f3Ct that EI{ISA preemplJl a state law claim does not mean that EntSA will pl'(l\lide II remedy, EnJSA claims may be preempted. Mn if thatle.lWS the claimant without a remedy." Contribution and Indemnity

Just as a plaintiff might be shocked to find that he has no remedy under state I.. w when his claim is governed by Eltl$A, an EIUSA dcfcndOlnt mlly be surprised to learll that there is no

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clear right to contribution nor indemnity under EnlSA. M with other ~implied" remedies under ERISA, courts hDve struggled with Ihe tension between their authori· ty to create federal common law and conllrusionaJ omission r>f particular remedies from the statute. The circuit courts are split over whether ER ISA cr~a lu a right of contribution.'1 When (,Iced wlth II need to assert or defend against a claim for contribution or indcmnificlItion, venue might be the key. ~epcr\dir\g on which circuit )IOu find yourself. Pun1t1"e or Exlracontractua. Damag ••

Until recently. there had been no question that ERISA remeclies make no provision for recovery of punitive or extmoontractunl damages. Mrn;t (ederal CO\lrts agree that such Ibmages a~ not recoverable under ERISA. !ito(!. e.g.. NcRoo v. .se-Jful'r!7'$~ li clftmf PI/III 920 ~:2d 819 (11th Cir. 1991). Ilov.'e\'Cf. based on /lIgursoll.Rulld CO. II. McCk'l'Uloll. 498 U.S. 133 (1990), many courts, including the AlabMlfl Supreme Court. have delermined th.,1 '\ourl$ nrc authorized [0 award damages, both ext rncon' tractuul and tv<!n punitive. where the fucts supporllhem ... , though they lire not specifiCl\lI)' provided for in ~llISA." N(IYwood II. RIIsse{f Corp., 584 So. 2d 1291 (Ala, 1991). Si'B u/so. East v. Lollg. 785 ~: Supp. 941 (N.D. Ala. 1992) (per Acker, J.). Nonethelw. other courts. including the ~:Ieven lh Circuit. sin« bl.g(!f'SO/l·Halld have ooncluded that EmSA I.Ioes not authorize extracontractual or punitive damages." Right to a Jury Trial ERISA does not addre$~ a pillintirr~ right to a jury trial. Until recently, EnlSA claims generally were viewed as being 'cq\lit.. blc" in nalure. me,ming that EIUSA plaintiffs were not entitled to II jury. , j /\ recent United Stlltes Supreme Court decision has created some uncertainty on this point. In HlT!Sfonc Tiro &- Rubber Ct:Jmp/my 1'.!Jnrch. 489 U.S. 101 (19891, Ihe Supreme Court noted that EIUSA "abounds with the language and terminology of trust law," bot also suggested 1b.1t claims for pilln benefits resembled breach of oontlOlct actions. ;'10re $Ignific.nntly. the Supreme Coon held that courts reviewing the acu or omiMions of EIUSA fiduciaries dQ so (//!. llQVQ. as 0pJl(l\ed to the more deferential arbi· trory and capricious sl.1nclard. Thking their cue from this discussion. some lOwer t'OUrI:I haw viewed benefits claims under § 11 32(a)(1liB) as being 1rkin to breach of contract actions, even en!i tl ill~" plalnti((to a Jury tria1.~TIle Eleventh Circuit, hO\l'ever, ha.~ soundly rejected the argument lho,t the ch.lnge in standard of review converts a claim under f 1132(11)( I[(B) from .. equitable claim to II bre3Ch of contrnct action thereby entilling a plaintitT to ajury trial under the Seventh Amendment. In Blake 11. UniomnutulJ/ Stock Life !lISl/fulJce Compally of America, 906 F'.2d 1525 (lith Cir, 1990). the Elevtnth Circuit held that the nature of a § 1132(a)( I)(I1) action 15 for the enforcement of ,m ER ISA Plan. Although plaintiffs may con· tend that slich a claim i$ f()r m()ney dllmages. "in effect they arc claiming the benefits they are allegedly entitled to under the plan." /JIuke. 906 F.2d at 1526. Considering stich claims to involve traditionally equitable relief, the Eleventh Circuit held

that precluding a jury trial in such cases does not violate the Seventh Amendment guannty o( a jury trial. I( EI~I SA claims are brought in Alabama 5tate court. a practitioner mu~t 5crut inite the claims closely to determine the plaintifrs right 10 it jury trial. I( lhe cl ~ims are purely equitable in nature, no dghllO a jury trial exists. In f:X IXlrll! Gurganus. 603 So. 2d 903 (Ala. 1992). the Alabama Supreme Court held that an action brought under f 1132\a)( 1)(8), to determine the insurer'~ right to cancel nn EllISA-regulated plan was equitable In nature, and consequently. did not carry a right 10 Irial by jury. On the other hand where punitive and extnconlra.ctual damages are soultht, a plainti(f has a right to a jury trial in AI~bama slale cou rts. &'e. I!.g., II'cellU II. JefTersO/l-Pilof Ufe IllS. CO" IIIC., 663 So. 2d 905 (Alli. 1995). Attorn.y's F •••

Em SA providt'$ for an award of attorney's fee:;. Section I 132(g)(1) provides that "liln any IIclion lunder Title I o( ER lSA I ... by allarticipant. beneficiary. or fiduci(lry, the court in its diKretion may IIl10w a reasonable attorney's fee and costs o( the action to either PMty." The award o( f~es is discretionary. and (ee! mlly be awarded to either pMty: there is no prevailing-party requirement lmder thi~ $Cction. EIUSA also contains a mandatory (ee-shiftinlt pro· vision applicable to cases brought under § 1145 of ER ISA by multi-employer plans to collect contributions owed them; that provision is limited to prevailing parties. In deciding whether to !Mllrd attorney's fees, almosl nil appellllte cou rts look to (I) the degree of the opposing prlrty's culpability or bad faith; (2) the ability o( the opposing party to satisfy an award of fcu personally; (3) whether an award 0( attorney's fees against the offending prlrty would deter other persons simi larly situ bled: (4) whether Ihe pnrtil:~ rl:(luesting attorney's fees sought to benefit aU participants lind beneficiaries of the phm or to resolve a significant EIHSA legal ques· tion: and (5) the relative merits of the parties' positions." Jurisdiction .nd V.nu.

In federal izing the law of pensions and other employee benefits. Congress gave to the fednal district courts exclusive jurisdiction ove r al most all action~ brought under EIUSA." There is one exception: Actions commenced by parti cipllnts or beneficiaries to recover benefits or to enforce other righl$ under a plan may be brOUltht in fede ral or 5tate court. There is no amount in controversy require. ment. so ER ISA disputes involving even smllll sums of money orten are brought in federal court. EHiSA hllS special rules (or removing actions to federal court. Ordinarily, an "clion Il"lay be relllO'o'ed to federal court if a plaintiff asseru a federal cliim in her '''w~lI-pleaded complaint.~ The exi$tence of a flodenl tkfi..,ue is not a ground for remOVing the action (rom state court. Those niles do not <lpply to ElllSA claims. A claim for benefits under an employee benefit plan, even though styled as a state I"w breach o( contract claim. is an ERISA claim, and the defendant may remove the suit to federal court," Siml1arly, a state law claim that lin employee was

discharged to keep her from vtstinlt In a benefit plan makes out a claim under EIUSA. 29 U.S.C. § 1140. which prohibiu such conduct. ~;ven i( the plaintiff !levu citn ERISA in the compillint. thM claim also may be removed 10 fede ral court,In 29 U.S.C. § 1132(3)(21, ERISA has its own ven:.le provision. It lIffords plaintiffs great I1Ilitude t.o select a (avorable district. Venue is prQper in: the district where the employee benefit plllll is administered: or the district where the breach of fiduciary duty occurred; or the district where II defendant resides or may be found. TIll!$, the BIUSA plainti« usually enjoys a wi:kr choice of (orum than under the venue provisioo 0(28 U.S.C. § 1391. Wilerl combined with the ability to SCM and to obt~i n personal jurisdiction over a defendant in ;m)' dist rict or state, these venue rules give ElliSA plai ntiffs some ability to "(orum shop" (or the jurisdiction with the most (nvorable interpreta' tions of the relevant ERISA provisions. Time Llmlt.tlons

Congress failed to provide mur;:h guidance on statutes of limitations for ERISA claims. Of all of Ule claims available under ERISA. Congress specified a stlltute of limitations only (or breach of fiduciary duty clnims. which must be brought before the earlier of: (a) six yea~ from Ihe breach or violation. or (b) Ihree ~rs from when the plaintiff had ilCtuaJ knowledge of the breach o(violalion. In cases where the breach allegedly \o\'M Ihe subj~'Ct of "(raud or concealment.~ Ihe :w:tion must be brought wlthhl $ix yelIT5 of the discovery o( the fraud or concelliment." Other state or federal laws provide the applicable limitlltions period (or ctaints ~lIcginil violaliOfl5 other th.'11 breach of fiduciary duty. Whenever a court looks to state law. disputes v.ill arise about which state limitations period to borrow. Some courts have analogized Eni SA benefit~ claims 10 state claims (or wages and have applied the corresponding state statute of limItMlon.'" Others hold that a benefits action is similar to a brellch of contract claim and apply that limitations period.'" Beclluse the limitations period clln be critical, it is imporlant to exami ne stntl: law where jurisdiction and venue /lre proper prior to initiating a lawsuit. Privilege • • nd Conflict.

When a lawyer I~ approached ~bout represerltUion in a m<lller involving EIl ISA 1~5ues. it is imllortantto determine the identity of her cl ient lind her client's interests. Are you representing an employee. pa rticipant or beneficillry? Arc you representing the pll1n, II fiduciary or emplo>er? An e~cc utive llIay have dual loyalties. As a corporBte officer. she owes duties to the corporation. If she is a fiduciuy under ERISA. her loyalties are to Ihe pilln lind its participanls lind beneficiaries. AIliwyer may be unable 10 invoke the attorney-clienl privilege against p~rticip~nb and beneficiaries if the executive with whom she has had detailed discussions is IIcting 01$ a fiduciary. At the incipient stllgu of the litigation, it is Imporlant to know the capacity o( the person under Ell lSA o( the person with whom YQu are dell ling 10 avoid potcntial pil(!lls. NOVEMIIU'

'n.... "n

Conclusion htnorance of ERISA's fundamental principles n'lay be haz· ardous. Knowing when EniSA governs will llvoid wasted efforts and put you In tht proper court. Ultimately, ERISA practice does not differ materially (rom other lIreas of practice. 1Ior most practitioners EHISA work can be rewarding. •

II 1

29 U.80, f 11 441" o\oIo:wMIn v NfriotW _ II . len bItnI:),

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011- 11211 lin Q . Ao.g

10. PIIotUl.m.. Co. 0\ ~ ." U.S, 41• • '111l117)

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I I &-"". 483 U.8 " 1 12.

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EfUSA "n'IId\Il. W.~n.

Mor. . W.yne MOUet • mctmbor 01 thl 8lt~lIIIm II.m 01 Cllt~' SCOI!. Ia • gt.ooat. or Botmingn_Sournt<n Cocttg. "'" ~r_ School 01 LlW HI ... Mtmbtt CIt tnt AAlDIlIIIfI 51". Blf. tnt Ame<lcltl Bit "'"oc l.lIon WId lne Torl ·01·lntMOntn Club

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ENDNOTES

I, 29 U.S.C. f 110212:(,,)

2. 28 U.8 .C. t lootl l).

18, SH, M"lOpOiilln 20. Ct,

"'-- Co. v. RIaHI'13 U,S

AQUIICfI<.IIct~

.w.r_ 0\ Hp/ft~,... SO$ U.s. 24/l(1113)

I ~.

'ile. M2 (11m Clr l MeI

L/""'"

Co~. ~,

( 81 U.S, !II 11087). U.S, 13311HO) (1II)IcIng I

/ft(IctId·RMldCo.~. ~ '~

2 1 ~U.S.C. f1113

cc..,. .1 CIIrII. ttc:. l15li F2d 1237 (lIt!! CIt-

22.

SH. • .8

23.

s.., I .g FIInIgMn 0\ IlIIMdC",," £lie. ~".,."" Pfftt" TIwI. 3 F,3(I

cYrII~,

12.1110lIl CIt 11l1l3)

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• OPINIONS OF THE GENE RAL COUNSEL By J. Ali/hoTly Mcwin, general counsel

QUESTION:

Alabama's Child

Support Program: Ethical

Procedures

J . Anthony Mc La in

"I am writing on behalf of (he Alabama Departnlcnt of 1·luman Resources (hereinafter "OJ-In") to request a formlll Ethics Opinion from Ihe Alabam.'l Slate 1~i\T regarding whethtr I)liR child sup· port (XliiC)'. established to bring the slllie agency into compli:mce with certain fed· erallaws and regulallof'ls gQVerning the operation of the SlIale', /V·D child support program, create! any ethical prob. lem~ for attorneys h/indlinS child support cases for OHR through its IV-O program, In p.lrticular, Ihe agency is requesting lin (lpinion regarding whether this policy (on131n5 any I)()tenlilll con· flicts of interest which WQuld prohibit its attorneys (rom handling certain CM~\ DHR refers (or leg.l;! ;,clion. The I)epartment of I-Iuman Itesourccs Is the 5t.lte agenc)' in Alabama charged with the establishment. modification. and enforcement of support obligations as provided for and required by Title IV· o of the Social Security Act (42 U.S.C. 1651 ef seq.). As such. the agenc)' must provide support services to all eligible applicants as aulhorlzed or mandated by applicable federal andfor state law and regulations. Where n(CeMal')' and ilpproprinle. DHH est~b l i5hes agenc)' policy to ensure that proper state and federal laws and proctduru are foll{)\\1!d at each levtl of agency responsibility in the provision of suppllrt services. By nece~sit)'. Ihis policy fre(juently impacts the provision of legal services in OHR child support cases. The establishment or enforcement of child support usually re(juires legal action in Alabama. In these cases. DUH is represented by district attorneys or private attorneys authorized to repre· sent the Stnle of Alabama. OHR staff

attorneys are utilized in Jefferson and Mobile counties. The parents or guardians are usually separate parties to the action. It has long been the position of the state bar and of OHR that no attorney· client relationship exists ~etween the IV· I) service recipient and the aUorney handling IV·O cases for OHR. provided the service recipient has iS5igned h i ~ or her rights of SUPI)ort to DUR, either by operation of law or written assign. ment. (See. Ethics Opinion 87·57.) Under this rule. where the ~ervice recipient did not assign support rights. the [V· D attorney did replesent the service recipient individullI),. However. In 1994 the Alabama Legislature passed Act 94 ·800 (now Code ofAloboma 1975.138·10·7. 1). which provide! that the attorne)' in II IV· I) case represents DHR exclusively and that there is no attorney.cl ient relationship between the IV·O attornc), and anv applicant or recipient of Dl llr~ support service$. regardless of the style of the case in which legal proceedin"! are initiated. This law ",'ent into effect May 6. 1994. The federal Office of Child Support Enforcement has interpreted federal law and regulation to require that the state IV-O agency accept an applica· tlon for support services (rom any individual, and whtre possible and appropriate. provide all ilviilable ser· victS to any applicant. Under this interpretation. DI-tIl must accept applications from the noncustodial parent and must assist &:lid applicants by providing all services 5\.ch as estab· lishing paternity. establishing II sup· port obligation from an immedillle

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No~.t/IGI'I tn8I '"" qu/lIrjId "" IIOaI ~.I:l be' ,..b"¥1<1 it QIWIlIr &'\In ra ~d 1f9!I- perlorrr«i 1Jror« ~

income withholding order. iJnd modifying an exilting order of support. Additionally, the Code of Federal Regulations, at 45 C.ER, §303.8, provides thllt. dfecti\lt Octobtr 13, 1993, the State must have procedures in place for the review and. where appropriate by application of the child 5upport guidelinu, adjustment of existing child support orders. This review must be performed every three years in all AF[)C cases, Additionally, the three-year review must be pcr(omled at the request of either parent in a non-AFDC case, regardless of which parent originally applied for "nd/or received support Sef\Pice5 from J)/lit The federal regulhlior\ further requires thaI where indicated by application of the guidelines, nUll must pursue modification of the child support oroer, whether the adjustmrnt warranted is an incrl'ase or decre,ue of the existing order. The abO\le-referenced federal requirements pruent a real di lemma for OHR and its child support attorneys. sincr applying the fede ral principles outlined herein requi res the agency to accept, investigate, and refer casu to its attorneys bltsed solely on !)1'Urs interest in pur~uinll proper ~wards of support and the enforcement thereof, wit hout r~lIi1Td to which parent h"5 requested the 5el'\llte and/or without regard to whether the olher parent is or has bee, 1I 1V-O service recipient throullh OIlR. Since the fede ral re\liew and adjustment mandates require that the IV-!) agency pursue Ihe guidelines regard leu of the effect on the support amount, the pouibilily exisu that. in some instances, the agency will be referring a case to its attorney to pursue a downward modification of suplXlrt. In some of these casu, OIIR, through the same attorney, may have pre'liously purSu ~ d legal aclion fo r the establishment or enforcement of the existing order of support on behalf of or at the request of the custodial p:mml. DlIIt takes the position lhat, because CQ(/I.'. ofA/(lbum(l 1975, 138-10·7.1 makes clear Ih~ 1 thert is ne\ltr an attorney.client relationship between th~ IV-!) attorney and tht IV·O 5ef\Pice recipi~nt, there should be no attorney conflict of interest issue in Iv-n cases originating since passage of the Act. l-lowC\fCr, since potential conflicts of interest may exist in some C<ises predating lhe enactment of this law, DliR policy has been established to nddreu these issues in cases which were initiated prior 10 the passage of the law, Under current policy, where there has always been an effec· tive lIulgnment of sU]lporl rights from the original JV-I) support sCf\Pice recipient, a child support case rcquiring lCgIIl action will be forwarded to the "reguIM" IV-!) allorney, regard. less of whether J)HR is pUT5uinll an increllse or decrease in the current support amOllnt. and rtgardltss of which ~rent has requested the 5ef\Pices prmntly belnll provided by DI'IR. Ilo\\'e\'er, if prior to the pauage of Act 94-800, the child $(.Ip_ pori case was handltd by a particular attorney during II period of time when Ihen! was no assignment of support rights to I)t m. rercml ror court action will be made to a different attorney when mm seeks a reduction in support or other action al the request (or application) of the noncustodial parcnt or other party (such as a caretaker relative) who may hllVe interests adverse to the "original" IV· D 5ef\Pice recipient A copy of the

policy setting out lhese procedures is attached for your review and con ~iderilt io n . There is some concern anlonll altorneys rtpruentinll I)HR in chi ld support mailers that the pursuit of action at the request of the noncustodilll pa rent gives III lust the lIppearllnce of l conflict of inte rest for the IV-D at torney, pa rticularly when urvices have previously been pursued on behalf of the custodial parent. and that the pol icy u tablishl:d by DHli does not adequately address the conflict prob lem. Therefore. ! am req uesti ng a forma l opinion addreuins the following Questions: I. Mayan IV-D attorney. who hOld previously represented the SlIIte in an Msillned IV-O case brought on behalf of one parent or guardian. continue representing the Stllle in further or subsequent IIction for child support. modification. or enforcement referred by DIIR at the request (or allpllclltlon) of another parent or ind ividual who may hlll/e In terests adverse to the "original" IV_I) service recipient? 2. Are there other ethical considerations, not identified by DHR in the above-outlined policy, which may affect the ability of the tV·D attorney to handle such cases fo r DII Hon behalf of the State?" ·lJ\'SIt'f.'R Ql L.' ilWX OSP: A TiUe IV·I) attorney. who previously represented the State in an assigned IV-I) case brought on behalf of one parent or lIuMdian, may continue representation of the State in subsequent actions for child support, mod· ification. or enforcement referred by tum at the request of nnolher parent or individual \\'ho may have inleresl$ adverse 10 the "original" IV-O recipient. AJ\·.'·,-\H·:n Qt 'ESTION mo: The IV-I) attorney who repre· sents the State should mak.e full disclosure to a IV·I) service recipient as to the attorney's role in tht proceedings and the (acl that the attorney. pur$tli\nt to Cod/! of A/(lt}(lll1(1 1975. 138-10·7. 1. has no attorney-client relationship with the applicant or recipient Rf:ASn.\'I,r..,,:: Pu rsuant to the provisions of C()lle Qf A/abamll 1975. 138· 10-7. 1, Ihe IV-D attorney represents the State of Alab<lrtt:l I>tparlmenl of 1·luman l~esource5. exclusive· Iy. and has no attorney·client relationship \\'ith any applicant or recipient of tht a~ency'5 SUllport Enforcement Services. The Commission hereby modifies IW-87·57 to reOeet the mandates of th is prOVision of the Cod!! of Alabama, recogni~ ing that the true client of the IV-I) attorney in IV·I) cases is Dliit ''without regard to the style of the case in \\'hich legal proceedings (Ire initiated." The Commission further reasons that the role of the attor· ney in IV·D cases is an adlninistrative act of procedure on behalf of OIIR whereby the rights of service recipients under Title IV·1) are effectuated. The IV·I) attorney. liS cQunsel for I)HR. pursues the matters under IV-D, stMe la\~. or other rules and regulations or the federal Office of Child Support Enforcement. Thf feder.ll agency's rCQuiremenu, Ilursuant to -15 C.r.lt §303.8. 'Nhich mandate OHR 's reviewing all ArDC caus every three years. and the requirement that OHR pursue modification of any child support order, whether upward or downward, in no way abrogate the sta.tutory p ro\'i~ ion which defines the attorney·cllent relationship:u being between I)HR

and the IV-I) lIt1orney. and not tlte applicant or redpient of such services. In an effort to ensure that IV·1) service recipients understand that concept, the IV·O attorney should fu lly explain to any eligible recipIent the attorney', role in the process. The service recipient should be mnde to understnnd that no lIttor· ney-cHent relationship t)lists between the IV-I) attorney and the service recipient The IV-D altorney should explnin to the se rvice recipient the lack of confiden tiality or privileged communication by and between the IV·I) attorney and the service recipient. other than that where it might be established by fede ral or ~ t ate law independent of the ttule5 of Professional Conduct, 1)1 rR is encou raged to deve lop some type o( uniform disclosure requirements (or its IV· I) attorneys to emure full and adequate disclosure to service recipients of the role of the IV-O attorney. and the fact that no privilege or confiden tiality lII tliches to communications between the service recitl1cnt and the attorney other than those mandated by federal or state law. • IRD-96.02J

NEW IOLTA PARTICIPANTS July Groover & Holmes, Anniston Daniel 13. Smith, Birminllham Meli5S<l Bowman. 'fuscaloosa Bradfo rd & Donahue, BirminllhHm James I.. r~ ichey. Birmingham James V. Creen. Jr.. Birmingham Sterling L. DeRamus. Birmingham Hare. lIai r & White. Birmingham Lori S. Coll ier. Dothan David Ii, t>111f$h, Birmingham Deborah N. Nickson, r-Iontgomery nllymon & Haymon, 1\Jskegee Kenneth I'. rtobe r~on , Jr.. Gadsden Iloyt L. Baugh. Rainsville Hill. lI ill. Carter. Franco, Cole & Black., r-1ontgomery Joe 1.. 'l\Jcker. Jr.. Bi rmingham Barbara Neal l~ ogen. 'l\JscalooS/l Thomas Scott McCrath. Hunl$ville Barnell <'It Driskill, Guntersville Edwards & ~;dwiITd5. Wetumpka

Augu, 1 l.llteefilh Muhammad. 'l\Jskegee Hichard R. Pettit, Fairhopt Joel l~ Smith. Jr" Eufaula Brent Gourley, Dothan

RECENT DECISIONS B!/ Ckl/Jid H. Olin1/!, Jr., Charles D. CleVtl!ulld, Rick Femllmbucq (lml Wilbur G. SiI!Mm/url

Recent Family Law Decisions

COlirt of CI\·II Appeal! hold&lMt bell Inll!n!81 of child would O\'(lrride and crate t):ctplion 10 Eledronk COInmunlollon. 1~'aC)' Act In ctrtllin . it~Uon.

Si/o.f v. Silas, 1996 WI. 390954

A1a,Ci\lApp., Uul), 12, 1996). Children haw II \\'ay or changing things. The AJab.lllhl Court or Civil Appeals expanded

prior case low decisions in Silas v. Silas. The case concerned the (:ustody of II minor child in a pOsl-tlivorce rnodinca· lion. The non-cu~lodial (ather had suspected thilt there ...'etC converstl(iOI1S bet....<een the child ~nd the mother which ~re in some way detrimental to the child due to the reactions thai he had persona]. ly obsel"VCd. Mer !aping some ollhe con· versations. the father later used them in his post-divorce custody proceeding. Prior decisions had alw~ disallowed wire taps such !\lI this in Alabama. See f.x /tift/! 01)alliel, 515502J., 1250 (Ala. 1987). The fcdertli legislati(m found in tJle Onl1libus Crime Control and Safe Strefl$ Acl of 1968 also prohibited wire laps and Alab.lm.1 did nol hlve an exception to this federal st.1tute (set 18 UCS § 25111. ()Yer the mothe,'s objection the trial court allowed lhe taped recordings between her and the minor child into evidence. Neither party to the conversa· tion knew that the conversation was being taped, After the hearing was con·

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cluded, the tria! court modified the final judgment of divorce and awarded custody of lhe minor child to the father. On appeal, the mother contended Ihatthe tapes were inadmi~ible because neither she nor Ihe minor child consented to the recording of the conversations. The court of cillil ilPpea!s applied the case law decisions from other Slates in decid· in$l that the circumstances here were in fact an exception to the Electronic Communication Prillacy Act under IIppllcllble federal case Illw. The court also had to determine whether the minor child in question had the capaciIy to consent to the I."\pe recordins, or whether the father could consent on behalf of the minor child, This issue WI\! one of fiut impre.J.$ion for the Alabama appellale courts. The court concluded that parents have a common IlIw duty to protect their minor children and it is for them to decide what is actually neeess.1ry for the protection and preserva· tion of the child as long as they act as a reasonable and ordinarily prudent !hUent would act in the like situation, The court reasoned that there may be vel')' limited instances where a parent may give vkarious consent on bthalf 0( a minor child to the uping of telephone conversations where the parent has II good faith basis that is objectively rea· sonable for believing that the minor child is being abused, threatened or Intimidated by the other ]laTent. This exception hinged on the fact that the purpose in taping by the father was in his pursuit of the modification of child custody and what W()uld be in the child's best interest. This exception can now be added to another important exception which deals with this $Ilme issue in piercing the psycholOSiJllpsy· chiatrist privilege in the SlIme type casco Since the dccision in the case of Mutler or VOIl Goyl, 461 So2d 821 (Akt,CiIIJ\Pp. 1.984), the disclosure of privileged communications has been admissible In

cou rt if custody of a child iJ in issue. As the Ihoo!,), in these two casu is expand. ed. there may be fU lure dedsions which also create exceptions to long standing rules if the In'elfare and best interesls of a minor child are at stake. Recent DecT.lon. lrom the United St.t •• 5upNm. Court-Crlmln ••

Search and "el1.ure-pN.lex lual Il1Imc ~ t l) p Whrell u. Ullited Siules, Case No, 95· 584 1_ U.S. _ (June 10, 1996). Maya police orow stop and detain a vehicle after observing a tramc violatioo even if a rea.sonable omcer would not have slopped the motorist without sorne additional law enforcement motive? The Supreme Court unanimowly answered yes. I'lainclothes policemen patrolling a "high drug area in an unm.'rked vehi· cle observed a truck driven by Brown waiting at a stop sign at nn intersection for an unusually long time; the truck then turned ~udde nl y, without signaling, and sped off at an "unreasonable" speed. The officers stopped lhe vehicle, II1sertedly to \\'arn Ihe drivtr abouttraffic violalions, and upon ilPl'roachinl:llhe lruck observed plastic bags of crack cocaine in Whren's hands. Brown and Whren were arresled, Prior to trial on federal drug charge5, Brown and Wlmn M

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nloved fo r suppression of the evidence arguing that the stop had not been jUitified by either a reasonable suspicion or probable cauS(! to believe that they wert engaged in illegal drug dealing activity, ,,10re specifiC21lly, the defendants asserted that the officers' traffic-violation ground (or appr0.1chinll the truck was pre.textual. The district courl denied the motion to suppress; the D,C. Ci rcuit amrmed, The Court. led by Justice Antonin Scalia, rejected arAuments that pre-textual tramc stops violate the Fourth Amendment's protection aWlimt unreasonable search ;lIld seizures. "Subjective intentions play no role in ordinary, prob.~b l e cau~e Fourth Amendment analysis." The Court reasoned that the temporary detention of a motorist upon probable cause to believe that he has violated the tramc laws Ooe$ nOl violate the Fourth Amendment's prohibition against un reasonable seizures even if a reasonable officer would nut have stopped the motorist ab$enl some addi· tional law enforttment objective. The Court furthtr specifical· Iy noted, "". This Court's cases foreclose the argument thOlt ulterior motives can InvalidllIe police conduct justified on the b;uis of probable cause, Self e.g., ihlittJd Siales v. Robinson, 414 U.S, 2/8. 221. /I, /, 236, Subj~ct ive intentions ptay no role in ordinary, proOOble·cause Fourth Amendment analysis." The Court also rejected the p('titi()Om' argumenllhlllth~ balancing of interest inherent in Fourth Amendment inquiries docs not support enforcement of minor traffic Imvs by plainclothes police in ullmarktd \"ehiclcs, since that practice only minimally advances the govtmment's interest in traffic $<Ifety while suDjecting motorists to inconvenience. confusion and anxiety. Where probable cause exists, the Supreme COurt hM found it necessary to engage in b.'\hmcing only in those c.ue5 involving SC<lrches or seizUles conducted in a manner unusually harmful to the individual. SelccU\·t Pro8ecullon Ullilt!d Slu/j~,f I'. Annslrollg. Case No. 95· 197, _ U.S._ (May 13. 1996), Must criminal defendants who want to pu~ut selective prosecution claims show that people of other races ....'ere not pr05ecu ~ed for the slime crimes? The Court answered yes by an eight-te-one vote, This decision makes It more difficult (or ddendants to force prosecutors to respond to selective prosecution accusations and reinstated criminal charges that have been dropped after fede ral prosecutors refused 10 respond to selec.tive prosecution claim in crack cocaine cases. Chief Justice William l~ehnQlli5t. writing (or the Cour\, critically noted, "". If the cI/ilm n. were ....'ell founded, it should not have been an insuperllble task to prove that persons of a differetll race were not prosecuted," Justices Souler, Ginsburg, and Breyer wrote concurring opinions; Justice Slev£l1S authored a dissent,

"'ourlh Alllendll1fnt- Appellate Standard

or Review

Omclas /J. Ullill'd Slates, Case No, 95·5257, _

U.S. _ (Hay 27, 1996), In reviewing a trial judge's fif)dinH that it police search conducted without a warrant was based on prob· able cauS(!, should an lIppeliate court use a de II(HXI standard? The Supreme Court answered ~s in an eight.to·one decision,

Chief Justice William l~ehnQuist. writing for the Court. held that the less stringent "clear error" standard of review should be confined to those cases in which a search warrant was obtained by the polict before conducting the search. "The Fourth Amendment demon5trIlIes a strong preference for searches conducted pur~ua!1 t to a warr/fnl '" Were we to eliminate this distinction, we would eliminate the incently(: (or obtaininA the WOlrr<lnt. Justice Scalia authored a terst dissent. and sUHAested that "law enforcement officers \\'QuId still have ample incentive to proceed by warrant" even if appellate courts showed greater deference to trial judHes' rulings on Fourth Amendmtnt questions. M

Recent CIvil Decisions I-..'x ptlrlc ,"fa Mutual Glmurtllins. Co" Ala. Sup. Ca5e No,

19504 76 ("1ay 3, 1996).:10 AIm 13, 1892. The court granted a writ of m.lndamus ordering \h(! trial judAe to set aside an order granting a Rule 6O(bl motion for relief from a judgment. Unlike the denial of a Rule GO(b) motion, Uw grantinA of a nule 60(b) motion is almost always interlocutory and not appealable. However. the court hldic1I\w Ihll\ the gr.mting of a I~ule 6O(b) motion could be reviewed by mandolmus "in certain very narrow sltU,ltions. ~ The court did not explain .....hen such narrow sitUo'ltions exist. except it noted that even though Al(a could appeal from any adverse judgment rendered nAcr a lrial. such an appeal would not bt: adequate because of the delay and experue or the trial,

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Of coune.lhiswould be the ca.,e virtu· ally every time the court erroneou$ly granted a Rule 60(b) motion, Ray Sumlill COllstruction Co" Illc. v. lVyser, Ala, Sup, Ct No, 1940742 (MilY 3, 1996).30 ABR 13, 1904. The court reversed an order gr""ting Ihe defendant a new trial that was entered 97 days ~fter the filing of a post judgment motion. Within tht 90·day period provided b), Rule 59. 1. the court had entered an order denying the motion, ordering a remlltitur of the $500,000 Judgnltntto $125,000, and stating that a new trial would be ordered if the plnl ntiff refused to accept the remittitur. The plaintiff refused to accept the remiltitur and the cou rt ordered a new Irinl after the eXpiration of the 90· day period. The COllrl held that the order granting n new trial was void because it WilS not mnde within the 90·dllY period provided by Rule 59.1, the order of a remittitur was void. ar)d tht judgment for $50(),000 should be reinstated, The order made within the 9O·day peri. od did not extend the time, Rule 59.1 coo· templates only orders that grant or deny the post judgmel't motion which must be made within the 90-d.1Y period or an extension made in compliance with the rule, It does not contemplate an order to decide t(ller whether to grant a new tria1. Justice Ingram wrote the opinion for the court, in ....-hich Ju.~tice Butll concurred. Justices Shores, Iiouston, Kennedyar'ld Cook COJ'ICurred in the result Chief Justice I looper and Justice f.1llddox dissented. tn his dluenting opinion, Justice Mllddox s,11d IhM the ruling within the gO.day period complied with Ilule 59(f),

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which prQvlde$ thOil the court may require a remittitur 35 a condition to overruling the motion for new trial. l ie st.lted: "Remittitur practice in Alabama has not been without confu sion," The opinion in this case has not cleared up thai confusion. £.( parte MasQllite wrpQralion, Ala. SuP. Ct. Case No. 1950963, (June 28. 1996),30 ABR 17, 245 1. Tht Irial judge certified II. Ilatlonwide class of plaintiffs in a class action by sign. irlg an order preP'lred by pillintiffs' coun· sel thal the defendanU had not previously seen. The ddendants filed a petition for writ of mandllmus contending a violil\ion of the Alllbm1l(1 Canons of Jut/ieial ethics, Canon 3(A)(4). which prohibits e.\" /Xlrt" communic.ltions with Ihe judge. The commentary to the rule permil5 a judge to reque5t a pM)' \(1 S\lbmil proposed orders "so long as the other thirties are appraised of the rcquc~t and given an OPpVrlunity to respond." In denying the rnand.lrnus, the court said that any harm from failing to give the defendllnts notice prior to signing the order was cUYed by a hearing on Ihe defendJnts' objections after the order was signed, Tit(1IJ

Iml"",,,illl Ct;/11IHIIIV II. Rile/J,

Ala, Sup. Ct. No. 19403 12. (July 3, 1996), 30ABR 17,26 19, In a prior appeal of this case:. the supreme court determined thOll, ur'lder the terms of its liability policy with the City of Montgomery. the insurance com· pllny was required to defend porice offi· cers in an action in lIle federal court for civil rights violations, After remand, tht trial court rendered a judgment declar· ing that the insurance company was al5() required to indemnify lhe police officers in the event the plaintiff in Ihe federnl case recovered a judgment a!lainst them. The supreme CQurtliffirmed, hardirlg thaI the prior judgment wa~ the law 01 the cuse because the same conduct inlpo~ing a duty 10 defend also Iml'1Osed II duty to indemnify. Three justices dissent· cd. In his dissenting c.pinion, Justice Bults SIlid that the fir.!t appeal was not controlling because the duty to defend was broader than the duty to indemnify, Recent e.nkruptc), Decisions

Attomey fee due divorced wife non·dis· charguble undu 1523(.)(5) II bting in nature of child support andlor alimony

11/ ru 1(IfIJlJl!lh Sirickltmd, 90 ~:3d 4<14 (11th Cir, August 1, 1996). The parties were divorced in 1985 with the wife beinlt awarded custody of the chi ld Ilnd $200 monthly child iUpport. Thereafter, debtor .....as unsuccessful in a modifica· tion petition relative to reduction of support payments and custody of the child. The wife, as succe"ful party in the modi· fication proceeding, recei\'Cd an a.....ard of lin IIItomey's fee of $9,430.50, Debtor then filed bankruptcy, and in the bankruptcy case filed II complaint to hold the attorney's fee as dischargeable. The bankruptcy court held for ocbtor in determining that 1523(01)(51 did not cover a post·dissolutlon child·custody proceeding. Section 523{a)(5) withholds from discharge a debt: (5) to a 5pou5t, fornler spouse, or child of the debtor, for alimony to, mllintenllnce for, or support of such spouse or child, in connec· tlon with a separlltion llijreement. divorce decree or other order of a court of record""bul nol to Ihe extcntthat-

(B) such debl includ~ a liability designated as alimony, Iminte· nance, or support, unless such Jill, billt)' is actually in the nature of alimony. maintenance or support",

The district court r~ned and the Eleventh Circuit affirmed the district court, The Eleventh Circuit first stated that federallaw controls the interpreta' tion under 1523(a)(51 a5 to whether the obligation is deemed "i n nature of support", even If state law does not consider the ll .....ard <IS "support ". It further stated thnt slate law docs provide guidance In interpreting the fedcrlll Illw. Florida law provides thHt in II modific<llion action, II spouse mlly be entitled to Mllwllrd of IIltorney's fees based on need and ability to pay, The court noled Ihat lhe state court in awarding fees to the wife determined thal the ex·wife had a greater need and leu ability to pay and for this reason the a....'i1rded rees ~houhJ be entitled as support under the bankruptcy provision quoted above, Additionally, the F.ICVf:nth Circuit refu~ed to remand lo the bankruptcy court for further consid· eration of the issue stating that this would involve the bankruptcy court in

domestic relation mallen, which should be reserved to sute courl$. Coillmen!: I have cited this case believing th.'\ t its holding willa!>ply ifl AlIlbmn.,. See Ala!x,ma Court of Appeal cases Wilson II. lVilSOlI. 537 So.2d 942: ,Jut.-rs II. ;\y<.'1'l, 643 So.2d 1375. which establish the right of the spouse to seek awud 0( attorneys fets in modification ]>etitions. F;!e. ...enth Circuit hold. that I"S den· dency noUce cona!llull'. liquidated claim ror purpose or determinln. juri.· dictional amount]n Chapter 13 U"i/ed States II. 1'(11'(1111111,89 F'.3d 799 (11th Cir. Jllly 31. 1996). The illS in the chapter 13 proceeding tiled an unsecured proof of claim for $297,000 (or income true deficiencies for 1982- 1986. The bankruptcy case was filed at a time when the ju risdictional maximum amount fo r un5Ccured cfliimswa$ $100,000 (later changed to $250.000). The ms objected to the chapter 13 pllin confirmation. and mo ...ed to dismiu because of Ihe unse· cured amount ellceeding $100,000. The debtor disPllted h 5 tall liability ,\5 well as the fraud claim of the ms, and because of debtor's contention that the claim was unliquidated, contended that his petition WaJ within the bounds of lhe law. Prior to the blu\kruptcy, the debtor had fil ed II petition in the tliX court contending thnt the deficiency claims were erroneous. The bankruptcy court granted a motion to lift the automatic stay to allow the tax court litigation to proceed and the tax court sustained the deficiency IISSC5Smenl. J-Iowe\ltr, the I1nnkruptcy cOllrt denied the motion to dismlu and confirmed the chapter 13 plan, whk h action tht district court a(firmed. The Elelltnth Circuit r~rsed stating that even though the d ~b tor vigorously dis· puted the deficiency tax and penalties, the concept of a liquid<lted debt relates to the amount of liability, not the ellistence of liability: only if the amount of the debt is dependent upon a future exercise of discrelion, unrest ricted by specific crit.erin, is the claim considered lIS liquidated. The court stated thnt the amoulil of the tuliabi lity w:u evident from the statutory notice of deficiency which had been computed through application of fixed legal st.lndards /l! contained in the Thx Codc. It then reversed and remllndcd with instructions

thllt the bankruptcy court dismiss the chapur 13 petition. Comment: Section 109(e). in determining the IInl(lun\ of claims. provlde~ that the urHecured debls be "non·contin· gent. liquidated, and unsecured." Therefore. at fi rst blush it would appear that if there be a legitimate dispute, one would think the tall claim 115 unliquidat· cd. The Eleventh Circui t did not state that it was influenced by the folctt hat the tal( court had found aliainst the debtor. but ruled strictly on the basis of the deficiency notice. This appears to be a clOlie Question. Perhaps with [I different set of (acts to show:l genuine dispute, there could be a di'(erCnt 'lOswer. After forec!osun', dtbtor In Chapler 13 can curt default on N.ldentlal mort· gage only by exercise of Alllbama Statutory "l,IIht of Iledemllllon In f'/! Bruce Craig Smith, 85 P.3d 1555, 291lCD 465 (I Ilh Cir, July 3, 1996). Prepetition. debtor had al1O\1.'ed default on a residential mortJ:aAe to go to foreclosure Sille. Debtor had moved from the premi se~ after recel ...ing a len.day notice from the mortgagee as provided under Ailibankl law. Thus, Ihe debtor pT~ seMd his right of redemption. Debtor. some sill ....-eeks later, filed cn.wter 13, and proposed to rein5tate Ihe mortgllge through the plan, The oonkruptcy court ruled thllt Ihe debtor could elltTci5e the statutory riAht of redemption in installments through the plall. The district court. following in In f'/! Raysdale. 155 B,lt 578. N.D. Ala. 1993, affirmed. The Eleventh Circuit reversed, first stating U\lt under Alabama law. foreclosure ~nd$ the equitable right of redemption, leaving only the one·year statutory right which Cilli be exercised only by II lump sum payment of the fore· c1o~ure purchase price nnd all other legal charAes, The Eleventh Circuit was not persuaded by the Ragsdale cast, bul innead fol1O\1.-ed the Southern District of Alabama ta$e 04' In f'/! /IIcXirllley. 174 B.lt 330 (1994 ), the reasoning of "'hich wa$ approved by the SiKth C rcuit in III re Gle"n, 760 E2d 1420. Using these twO cases as a foundation. the coul'l held th:it Ihe d,lte of the foreclosure sale terminated Ihe right to cure a default through II chapter 13 plan, sUlting tholt default can on ly be cured with a lump sum Dilyment in exercise of the statutory right. In so

holding. the court distingui!hed In I'M &ylors, 869 t:2d 1434 (where. no foreclo· sure, but II chapter 7 discharge of lhe debt), and III re Noggle (curt of a post· chapler 13 pelilion default by modifica· tion of the plan). Comment: The t:le...enth Circuit left no doubt thai once foreclosure I'nsues, the only way to cure is to ellercise the statutory right of redempt ion: unless the U,S. Supreme Court decides otherwise. this is fi nal! In

l'as~lng

Interest is Illlowed on allowlince of professiontll fees and expense~, only from Ihe time of the nward, /U\d f)()t from time of submission of appliCll.lion III TlI Gludos, 83 3d. 1360, 29 8CD 178 (11th Cir. May 28, 1993), Fifth Circuit rules that chapter 7 debtot must redeem collateral or renffirm consumer debt in order to keep collateral, No t/lfr of William 1. IIl1d N arilYli A. Johnson. 89 P.3d 249. (51h Cir. July 26, 1996): accord /11 TlI Thy/I)r. 3 ~~3d 1514 (11th Cir. 1993). Thllliens arising under state statute and flOt from consensual agreement :Ire not security int ~ re5ts for purpose of 11322(b)(2) allov.'ing modification of rights of :secured creditors ellcepl for II security interest held only in debtor's prin. cilml residence. In this C<lse, the court lliso held tlklt lhe proper amount of po.tt·peti. tion interest to charge under § 1325(3)(5)(8)(ii), which marU.ltes that the secured creditor rt'C eive under the plan an amount notle!.~ tlt:ln the allowed amount of the claim, Is the statutory amounl of interest for late pa}'menl. Rankin, ct. ul. c. Coon/y 01Alleg/mey. e/. 01., 89 ~~3d 11 23 (3rd Cir, JulyJO, 1996).

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MEMORIALS

Charles F. Zukoski, Jr.

Irminllha1l1 WIlS enriched mightl· Iy t1t th e beginning of the second

hal( of the 19205 when it received II new vice-president (or the First

National /lank

of Birmingham.

now

known as AmSouth Bank. Th is young m~n, a mid·wt5lerner from 51. Louis, Missouri , WilS II lawyer and II bankn, but more so, a visionary. a progres-

sive, II realist, II gentl eman lind II man. As Marvin Wh iting so fillingly stated. "He was, above all else, a real genilemllll, But he was abo ... a mlln with 11 conscience. li e stood up (or causes thM were not popular,H Tl"llined as II lawyer to think logically. Insightful as II banker to be a realist. A pragmatist. Charles F. 7. ukoski, Jr. became the (ir!! mayor of the City of Mountai n Brook upon its incorporation in 1942. Subsequent to that. he

was nam ed "Shades Vilil ey's Bu t Citi7.en" in 1950, Zukoskl challenged wrong, He was not afraid to speak out agai nst evil. U$lng lhe pseudonym Button Cwl nnett, who had been one of the signers of the Declaration of Independence and n Ceorginn, Zukoski wrote letters that were publi shed in such newspapers as the Shades Valley SUI! and The Birmingham Age lIeruld that attacked wrong, [-lis (ou, the Ku Klux Klan and the Wh ite Citizens Council, (lime to givt him grie(, but that only steeled him in his resolve

3"'" NOVU,u.R , ....

to fight eve n harder. lWo others that were his foes were uncontrolled pop· ulation growth and HcCarthyism, ChiHles Zukoski lived to see milny of his causes come to {ruition lind certainly he outlived mM1y of h l~ foe~. Whereas. Charles P. Zukoski. Jr. was a member of the Birm ingham Bar Association and champion of equal rights under the law: and Whereas, Charles F. Zukoski, Jr. was one of the foundi ng members of Planned Parenthood du ring the 1930s and later served as a boa rd member of the national Illanned Parenthood Org,lOitation; and. Whereas. Charles ~'. Zukoski was one of the early organizers of the Birmingham Civic Symphony Association and served as its presi. dent and also a board member of the Birmi ngham r.lusic Cl ub; and, Wh ereas, Charl es F. Zukoski not only eschewed the damaging effe cts of uncontrolled populati on growth . he also was an organ i1.er of the Birminghllm Committee on Forelijn Relations. Therefore, be il resolved. that the members of the Birminllham Bar Association are sorrowed by the pus· ing of th i~ gnat man lind this ruolution is offe red as III memorial to hls sons. Be it further resolved, that the Executive Commi ttee o( the lJ irmingham Bar A»ociation at its regular meeting assembled has adopted this resolution and has directed thai a copy lhereof be spread

lIpon the records of the association as a permanenl memorial to this departed member. And, that copies of this re~o l ulion be furni shed to his sons as the Birrninghrall'l IJar Auociatlon's expression to them of our deepest sympathy. Clay Ail pa uJl h

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James R. Sturdivant 'IThereas. the Hunisville·foilldison CountylJar II" Associalion sorrowfull y notu the unlimely death of Jumeslt Stu rdivilnt. on August!7. 1996: and Whereas, Jimmy was a native son of our community, Rraduating (rom Hu ntsville High School in 195 1, followed by his graduation from Howard College. now SlImford University, in 1955: and Whereas, he rret his clIlito duty by serving in the United Statu NlIvy and being honorably di5Chuged Iherefrom. nellt followed by Ihe earning of his law deRree from Cumberllmd Law School in 1969: and Whereas, he chose Huntsvi lle and Madison County as the place where he would devole himself to the calling of hls profession: lind Whereas, he distinguished himself In the practice of law over the past 27 yellrs. always mindful of. and attentive 10. the affairs of his clients and serving their inte ru15 to the very best of his ability lind in keeping with all canons of ethic$: and Whereas. he further distinguished himself wilh 23 years

of dedicllled public service as Pllrt· time municip;!1 Judlle for the City of Huntsville: IIrld Whereu. Jimmy St urdivant always \lpheld the highest standards of both bench and bar and fairly earned our great respect, love and affection and. on August 17, 1996, hllving completed his tour of duty in Ihl$ life, now therefore, lJe it resolved by this association that we sincerely regret his passing and we lire most thllnkful for his rYIlIny positive contributions not only 10 our bar, but also to ou r commu· nity and slale: and lJe it further resolved that Ihis resolution be made a pari of the permanent minutes of our association and Ihalll copy of the same be provided to his loving wife, Jo Anne Staggs Sturdivant, to whom we extend ou r slncue and heartfelt condolences,

Sydney Leach Lavender

Curtis

e it resolved by the £xecutive Committee of the Birmingham Bar Association. that: Wherells. Sydney Lellch Lavender was born on September 8. !932. in Newbern, Alabama, to Dora and Forrest Hel len Lavender: and, Wherells, in 1956 Sydney receivtd his law degree from Columbia Uniw:rsity. where he was a Slone Scholar, and joined the law firm now known as Johnston. !kIrton. I)roctor and Powell: and, Whereas, Sydney's keen intellect, sound judgment and strength of character inspired the IIbsolute confidence of cli(:nts and collellgues: and Whereu, Sydney embrllccd all that is good in life, from hb devotion to his family, to his membmhip in St, HaTY's on the I liAhlands Episcoplll Church, his love of books, rnov i e~. art, and travel. and his apprecii\tion fo r the suhlime· ly humorOus slor)': lind. WherellS, Sydney's kind spiril and commitment to fairness evoked affection and respect from all who knew him, Now. therefore, it i5 hereby resolved by the Execll\ive Committee of the Birmingham Ollr Association that this resolu· tion be spread upon the rKords of the Birmingham Bar Association as a permllnent memorial 10 Sydney Luch Lavender lind that copies of this resolution be furni~h~d to his widow, Caroline 1\1cNcai L.:!vtnder: his daughter, Caroline t, Nead: his mother, Dora Lavtnder: and his sister. I\\ary I~e Cibwn,

le Fayette County !Wociation lost one of il5 most rtsptct· arld cherished members with Ihe CLrlis folcLarty To Iioider January 2. 199611t of 87. folr, Holder .... klll)Y.11

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County Uar Anocla llon

Holder 13M

p,l$Sing 0( on the age '''8 to everyone lIS "ned", a nickl1llme that atla(;hed during his youth as a result of his nnming red hair, Though the p.'I5S<1ge 0( years had tumed the shade cihis hair to sil\'er ....'hile. thl! nickNme remained an xcurate one to describe Ihis wonderful man's uniquely colorful life nnd personality, Hed was born in Joppa. C~Jllmiin County. Alah:trYlll on October 15. 1908. lhe son of Thomas B. Holder and 1\1innie Haude Hd.arly Holder. His family later mO\'Cd to Albertvill~, AllIb,1ma. where he attended and graduated from public school. lie then entered the University o( Alabama and Ilraduated with a busi· ness degree in 1930. Upon graduation, Red traveled lhe OOor'1 tl')' for two years through his employmen1 with Ule W,T. Crant chain of mercantile stores. I Ie then returned to '1\1SC<\loos.1. enlered law school at the Universil.)' of Alabama. and Ilraduated in 1935. Red w~ licensed as an aUorney-IIt·law and solicitor in Ch.lncery by the Supreme Court d Alaoomu on February 21, 1935, Red commenced the practice of law in Fayette COUf,ly, Alaban'la in l\13rch of 1935 in an office on the second noor 0( th~ First Nationaillank Building In l'ayette. The firm he est.lbliJhed remain5 in this 5<1me lI)CJtion today, ovcr 60 ye/lrs later. lind Ited was active in the firm until the last year of his life, lie \\'35 for many }'t'ars a member althe Fay'l!lte County. Alabama and American bar Il.uociations, Throughout the six deCJdes of his legal Cllreer, Red was known as the consurnmate "country la\Yyer." lie was skilled and

experienced in many areas of the law. and vigorously represented the interests of' his clients. which consisted of a wide variety of the 100,1 populace. indudinll farmers, small businesses and localjlovernmental agl:!ncies, The hallma rk~ of ned'~ legJ!1carter we~e honesty, integrity and 5tralghtroffiardncss. His fellow members of the I>.,r. as well as the membcu of the bench, alw:l)'S knew exacl1y where fl ed stood on any given issue, and his stance l'.'iLS invariably shared In a humorous. plainspoken manner ,,'hich was characteristic of the man's considerable wit, ~I is local bar wi1l Renuinely miss Red's unique personality and characler. as well as the aroma of his ever·present pipe, Although Red loved practicing law, he also gave of his time and talents to h s church. country and civic interests. He was a lonR·time member of lind significant contributor to the First United r.lcthOtlist Church of f ayette. having held practically

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every office in the church, He served in the Fourth In(antl)' Division a5 an enlisted man through the Normandy invasion and the march through Europe during World War II. Red also served as mayor of the City of Fayelle. was a chart er member Ilnd for mer president of the ~'ayetle ~:xch~n~c Club. O rll~ n i7.ed in 1936. and was active in other civic lind chllritable organizations too numerous to 1i5t. Red has provided a511bstantlal leltlcy to the F'ayette County Memoria l LibraI)'. Red W,t$ preceded in de:ath by his fi rst wife. Clarice Patrick "Bill"· Itolder. to whom he was married 57 years. lie is survived by his widow. Billie Tillman ClI!'gile Holder. and a sister, Bernice H. TIdwell. No writing can adeQlI.ltely expre55 the significance 01 the life of I~ed Holder. n ,e legal profession has undergone tremendous changes since Iled first stepped into a courtroom. not aU of them for the better. and the present members of the bench and b.'r will be wise to strive for the stantLuds of decency and honor exemplified by fl ed's Icg.,1career. ned Holder was a mentor to all the preIICn! mernOcr5 of the Fayi'tte Coullty BM Assodatk.n. and his devotion and adherence to lhe values long cst.~blishcd as bench. nwk.~ 01 the legal profession should be an InSllirlltion to 1111 memo bers of the bench and boIr. -J, MelnU Nolen, Jr.

I'rulden t. FII}'Cllc County B.r

Auocll \lon

"' red Blanton, Jr,

Thomas Nicholson

fultondale Admitled: 1946 Died: July 31. 1996

Jasper Admitted: \975 Died: July 17. 1996

Olivcr Wiley Brantley Troy

Atlmitte(/: 1939 /)jed: Ju ly 15. 1996 Ralph C. Burro ughs

Tuscaloosa Admitted; 1963 /)jed: Augusl 13. 1996

J ames R. Cooley, Jr,

Mobile Admitted: 1979 Diell: May 15, 1996 J\1axwell C. lIudlon

Birmi/lfIllam Admitted: 1949 Died: f\1ay 20. 1996

Francis William Speaks, Sr.

Verbena Atlmilled: 1950 Died: June 22, 1996 William I,ane lrung

IlulIlslJilie Admitted: 1969 Dietl: June 29, 1996

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Ronald l;\,wid ~klJirM... ll, IIlIItiJl"'IQ ....udI. Mor\lo'n ~111t, f)lmtb!ghum IItb«Q C¥18roob, ~ Panwl.l; I I.lmetI Oucy. 7l~ '''llieu Colt' Ilumt. HirmilltJIhwr llett)' 1\Qbl)IU 1M: IlJ'l'fII'. ,l!Ql11von"'I'/I

IWnrvlh Ray Calli. )1'" fJimN'!f1hum Sllelbonnie Coirmill·1bll Nubik Ctllde ikmanl CoI\lll, "b~ CI.w;Iy$ Mine DIIm&. Md!iht o.nItIlltor f"lllrntll, Jr. MOf1/IIfln""f

I......TCnal f'l't\Irlck C.:>r!lella, N()II/gfNINlr~ ~tfdori~k ~loIt Gilrftckl. Jf.. IJinllillj/ilum

Joon Cojller C.ulWloorn, AlIx.,h'"'" \\1noJy ,,"*Ia ~hllm.ll\ . .luIP/" ~ Mdrtw I lair. Birm/twlt<ltn r~1I1 \1'hIIIOn.Jolwon. Th$crl/oosll ~ G~ Keit"- lIulllsdfht Ilullh ~'cLean 1.«', 1!J.oru1(l(llJ<1 'Ilun:I.", YQUn~ Lft. 'I<.'Irtli/<O"Jl'f}l

llroob I'ibllM Mtlhll£ Moil/III Anne ....'hIt. ~lildwl~ Ilirmilwhum

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Ttrry Allen Moorfo. Mdlil<! CIIll,I •• It~nl ~IO$CI. III. Hirm/'lJIillllll

Katherhw t:liM Mow,lIw11M11N l"",n. t:hulJl:th Nobo\ l>k.rfllVO-'rII AIltn ~ Kallkill, III. Mob/Itt Robfrt SWI'onI Robauon, /lUll/ill'" I'lmi'll I'atrict Ko&illlOO, '\/O'Itp""')'

&:011 Alfltd lIogcl'l. U,n>/:lJ'ifk Ilobtrt I).mll Si:Q.ilII.HlIIt/jJolllt!'g Iltnry f'lo)1lSho:!TIld. J,.. I'IM."n Jama Opp SmIln M.JnJfIlJt"Ii'l'¥ /IWy Kathbn WiIIQ Stetit'. 7UMuIoosu Albtn Loriflll \·I'ftLard. 1!«uIoofo Md,ndII M,'~hell 1\'aItI'J.NQII/~1I<Y)' Sta.nley lI'ei"nlll,l. MOilll/QI'II.'f'J/ limn Mitchell \\1ule. D.!rulur Tult . 'om! on Ad .. IIUlft'aC)'

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Oroob,Mc.11uun"'Il'

TM Alab<rmG 1,11"""

<.1v./r. ROOtrt Auj.tirl llufI';>kcr. t+lttl/lfll1Wfl \'\R.c:llllr. n _ Il.Md Il.1ldwin CtIolIIltl'lIn. B/..m"l(1hm" \'lfe.cllllr: g..!.IIn Shil'Ol:k l>tl'aota. N!lIl1g(11'IN'rV \\"lIlQIn TIJ,ullIli C~.lwn.lr.. Ma1Iuunh.'>'¥ ClIlIria Il!luitW: Clt\yiMlII Hir",~ Gltndi ~ Coch~ llirrrlt¥}hum JoNo;thln &morl Crt*, ~ Mailor)' 1)Qn:IId I).M" Jr.• ~/oIJIkt 1~l,Iana Sh.;U'ollIle ll:wlJ. ,./oIr/gooll.'f"/I JoKph ~lictlKl1)ruhln. Ir" Mobi'" Undi c.:.,1 IIIIJlI')o'I.l1irrnil..",."n \'oCt~ Ir»lllt' I'Bnklln·SWoo, HirmirtJ1/tam Shtrrl Tucker FrftfNn.lJnllltw/lu", WilliMl G,lfOOI't Cl.rIl~ IJiTmn¥Jham Jan~ \',~IIi:lm Ccwin, 8lmlh¥Jhu1ll Dcbr;a I lolly Golilil~jn, /Jin"/'l$IIWm Willi.lm ROiIt'r GonIoo. MfIIlgIJn""ll LbllllIj/gIN. Hirmillgh;"" 4'nn IWberWn Jlclooll. CJuvtoI, Mldwl Arthur Kit1lin11. ,lIOfll{J!iIfI<'f'V IWneI.:i LomJnt ~~~.IIt.m/u ~;u~nt:.llof~mmann Mull tU. /lirminghlllll l'atrk:1a l.flgh O'[Jo:II. Moul(/o" tfIt'/I Sovnucl Anthony RlII'I'IOI't.lr.. /Jim'"""''''' R<:totrI ScIIeI'J Smith.lhtrnSl~IN John Qu ....CfY Somtm.IIr. ~"''''.II Commlll M on AhmlltM Mt :hod.l 01 [)I",.,tl Ilt.ollltion Chain

SleYtn All~r U.. nct>l:kllJlm/l!tlNm \b-<hAIr: MmlWI1i~. Hlmw¢!am llekn JohNOll A11onl. Molik Wwanl Jadlson AMllon. 8irmitlfllrum John 1Jill/l:un l!.lrnell. III. N()I,I'M""~ M:ity[,ynn l.l."ttu, 8i..m;'~", Ddom 1I0000lta 110)0II. Mor~n.o.r Drbtnh Swill t:lr.adfn./Jirnulf/lWm \\'~ltu Glrnn Ilrid1lu. fltsImlf!r John Newton I\ty..,. Jr.. //irlnirlp/l<#n Karen 1","\IOIUu~ Ilry.m, 7L.«:v,1OOIIu

Frank

~l.:Irk

Caprio.llun/p"lI;t

Jo< Calvin ~ Jr.. A)!I~

.10M Charlts Culrmn I)oIhan

",,1I1im ItoI:lert C~ler. ~bl/f1Umo.""

AnItt~

John C~rltr; Clirllt. MUII/[IOmI'f"I Sue Hell Cobb. ~b!/i/ome", William Ofal C<)I~m.u,. Mf)f;lfIO/'li!rJ/ lulu! Ilr:tntley Cnwley. oI/all/lOllll."1I Charles Homer 1>I,,,h;om. ilL N()tllfJOO"-'>'¥ I tub Bolt Harrinltlon.IJirm}f/htG" ClInntt Thto 11t11umJ. Ir.. Ct."",","i/" IJIOOI GimnltolmtJ. Jr.. ftIotHIq .:rnt.lt C1.I)100 • lormby. Jr.. iIkxt"~ 01/1 Iknjamln loft 1..odt1.1r. AAJtIIi/Oln;:ry M.:Irion l).ll~ Manit. A}u<"1VrW Iokllw ( ' _ ~bth, M()I'/IfJI'"WI)

I.onIt Cooner. ~1(}"lfIOIl"'"

GiNo Th(mu C"*,.h5pc..,

lIul't'lIU1 ~:Yllns CI'(lWt. ~IQI:H/tl Th<ell'lla Smith Oun. C/JJ<.1iku Arthur ~·<'ffUl.:on Filr. Ill. ,Lm!/$IOI! S>I:lric C~1yn GI'lMS. Euluu', ktomf Albn 11oII'man. ~ Mirk MooIllOO'otlY I~. 8mrm~ ClIU~ Anne LoAI!\' N(}tlil,/flf'''-''' lull~n RUlhtoo ~'eck-u.lJirmh!gh;Jm Ic«~ty W;woII ~"Klnl'lt)'.II<1ltl£u'll~ CINo; Marif M,llcr. Hinnil1Jl/KJm

Mobct1 L..altr I~Ul'~. ,lfoolflOl'lO'l'¥

StlfIhm ft.ll#lllltf PI:irlfrlkkl. Hmninj,thum 1.alie Mirle l'roIl.l1inningham W)'nn MilH Shuford, /Jim!illg/t(Jm

RI:U'Iey And~ Mlx. /linrtitv/hum

.'nrtk 11.1"'1'100 Mcfaddrn. Ib!lfItJII'Ii.7J F,dIo."nll'all[ ~\t'non. nirrmt4lhum \\ilh:lln A11')1,,,lder Mostlry. }IOO,"1.l

FORCES

Camtlll Cmnc NorrnM, /JII'mitr,lhum John Lawrtnct ~Id. M()II!/fIJtrH.'1'II Jam., Roy PrltU. m.IJiml"1(JItum " _I~ "atrb Robinson, ~/()I"(IOt'1e>J

John l),wid ~ IJmll"ll}ilalll An;.IrI 00ndI Sp.:..IQ../tirrnbltlhurr ChI,," 1),J1'iJ St~. JJtrmnlflhcm

\\~ "aulk TlJmc:r, ~bl/Jllll""" Amy Cathtrille Vibt)llrt. NOrl19O<'1l"l' IUathamle Anile I\·tbtr. IJ/rr"IngIJ.J", ROI/Cr Courtl.JIld Willi;ln", 1!~ TiItI ....~6orI!HI 1.IIUfI'I' 8Ir Oil'Klof)l CQRtmlUN

""' " \u·dwn

\\~Ilil<m RONId \\.... kImro.

John

\\~her

/lirrnir4/JtJm

Shltrhrough. lit. ~/QI)i{~

JOkph !;cott AmmON. t'iJ.'Il Rood DoooI W~n!llt.ek. NuhiW

.klhn OIwer Camrron. NI)tI19O<'IIC'I Tt.m Uichanb J.tcOIlJ. MOnlfIrJ!I'Ift'V 1.I~ Walry Moorr. Mw/1I'I"""r Wllh~m H.. "I U""'~'IW. 8Irmllll/h<J"t

Tult

~'OIU

fill I:I<nch . nd Itar Rrl.:illool

'''''"

EII"th AM MdoWIIr\ 8IrmirlJlrmn \'bocNIr: AIYt IIIll#I ~,l~Ii~ }r)wph Ar1lfl4\OO Cul4Uln. 1I/~ Auhrey fonl. It" 1I/J,\\l.''tI

Marllill1t IJ~ GN!Ian.Ma,/f/OtIH.'f'J/ \Villiam l«>tItr CorOOn.. M illl(IDmUJI \'kl0l' l.n ~·:l.hp, IJirmlrWlhatn Ibrokl FnnclS IttrrinQ.lfunIM.,/1t Ric ....nlla I klIma. ~b!~ William AMllt JlICiooI,. I/inllilllll!J1rI ~'l'lI"k Sll.mucl lil.nwl. UI . I/imlil1l1lrum .klhn ~tI KarT", 7I«u1OOlfll IIobc:rc Cordon KtntN.II. III. MolIik TImothy Abn l.cwi" Non/9(WI""1 l~ IlInton Unit. II'" "",'I$u'/k ~:dI.·.Jn!lkrmulin Mc/)trmotl. ,'kDihi I~llilp Ikn ~\d..llU(hlin. Jr" Ol/If/( nU,,;ml Okn ~hl(hell.IJJmm¥lhum SunUfllloit Mook, U. ArIl1U/()I1 ea....11I1I Gmnt Normlrl. H"~ l)onald H(M."nll'.Uel1Oll. Ronorta' C.r,oIl'tnnry """""./Ii""in(Jh<J,n Uo/fxor;Ih Sue SaIIdeI'J, Nt)llll1'm,,-..., Kennelh MaIUIeW Schuptlllt1, Jr.. {);mlu.. \\'~)'l1W1 Crow Shcrl't'r. OMorI/II ChuIU l,rnwood S.mth. Ir.. lIurIiSl.111.!

WilllMll llowani Suelt. ~/(}hjk Cltnlenl CIiyT~rt. lII. MfJI,I/IIlI'1Ii.7')' Abillilll 1'111>11 \'M! Abt)'Ilf. lJirrnlniJhom K~nnflh I).allon \\'<1111 1, II . M(}ftIJl(]lIIftry Joe Ilant(Jrl \\'h:.IIty. Jr.. lJiml/lIghu", C~hy Suunnt 1I'l111hl. CommU'" with the IIlnnintham Offa 0I 11Ie IUS IloNki AIM! LevIn. limn""""," Thom.u Jf remWl Mahonf)'. Jr. /Jinni"ghum i\dI-'l1Ol')' ComntltlH: l~ the 1J0IIn! of U.r .:.o lnl ....... ClWr. Cathy Suunnt 1I'ri1!ht. Hlm!ilpl Dwid lloyd, Mottlpl..." s.mutl Anthony Rumott. Ir" Hlrr'tJl/IhtI1l! CIwIClft a.nd f'lIIIUI C",,,mlltft

HI""...,.I

'''''"

Ric~rd ~ ~1WowI, fokltl/VOOll'tf

.10M GfttorY AlIK, MottItJOml'r'W Robe ... L¥ry 8fadf:.rd. 1/irmIrwItum DMd KI')'ICn 8ym!, Jr" MiltllfIOI'I/fI'r l~k Mi,~1 C~, (JoIhun Mark ~:~r.U ~'"JI.r, t,rlerprUil

Cwendolyn HlllJjtr ~mer, MClfllgOmcfII looith [l'Alu":lIIdrtl Hol~ IJlrmlngoom lIobtrt IIlak~ IAWJby, 7W1iKkg.J I IQwIIrd Ally" ~Il, Ml/nlpll."

Mldwl 0aIf M.:K~, 8iml~m John l'crt)' OIM', II, f>utkr"'141 Mlrbrih JrrnlllM I'otkr, IJi~n CW IllII'dwkk Sttwlllt. l/imrirflhum Commltt... on CIU:zff..lhlp rA!lICIItlon

""'"

1)001\11 \\'UIOI\ Srmllty. 'TUst:ukioIu \'ke ... lWfI Crady ~lI l tO!l MtC~ ... Ily. J.".I<~IfIl.'" IIOyI Luther Haugh. II" flob1.!L11!. Thomu Semky, m./Jirmblfl/Jom Srqnn n.,m Hl.rkbum. ~ll'ood "~Ilr.vn I'IorthInQlOfl Clark.

II.... t:rnat

/JInnlrlllhom

eo.r. Bimritpfl

MICIIKI Lawrtoo! Culllfllon ..,obllll

IIONkl l>"IlI IRlit.Nobi,.. ~ Capon bougIu. JI.. lJlrmlt¥Jlrum [)\ant IAIIIh OunnlnQ. /Jinflhllloom ~1irhllel J(~ph

('.lInlbl •. I}(JII"JII

Ilube ... Marcus ClI"Ur; IJlnIl/' lfIhum Samuel St~~n ('oIimn. Gurr4.,rd<Jk Sar.dy 5.i.nl'onlllollldiy, /AAllKMlI CMJlOPher Knial'i,"/obilft J.wnta I~ MeE..,.. ~ Krlth Andmon NnlN. ,.loIl/fIO"/I'""N l¥IIne St~ O'SuJ,/lImrlrigllum JAlllU t.)'IlIl I'tny. ~1tJIJiN K.lli WII( Iby. fofQt!IW-TJ/ ~ll1rk MlhOl'l)' Siln.!t/iIOIl. f'lomlOI Thonw CIa,1lk: Thnke/Jlq. NUlr/(lOm<.'171 II.1.IVl')' )eronlt lllOIl11~. M()llllon

Joim Culllmll\ll \.I'~tklN, Jr" ~ Cllont s.curi~ Fund Com mlUH

S. ,""'" ....... ~I

Rowr.If.mlSl'i1ht

E\JII£nI Bi.llird. folcblk \\'oooJIonl \\')'ndIl:lm I>iMlnjl. Jr" lNmopo/iJ Mk~1 I'~trick

IIooo.'atd Cr"i\V!$. Jr.. llu"I$l·iI~

IJaa ~11 1 .. r II~f1(;(JI"k. C",r/i.=~/hl $Ic.....art O'I;;'lIoon, III. ~'It.A'1fY T'ho!nu Lrc IIountrn:.llldHmt 1_-.:11 AlhH WIIfNdt, Ilfrmbrghmn Cornmllttt on ComdJoMl l nltJl~I Ion ••1Id A",,~~

1"rI)(wd"",.

"""

IIobrrU l.tjlllcl\OO.>ll FlIltOl"l, IJirmbI{!hun!

\'kM:haIr.

\\1111am ItfrrtWl lliroomf. ,I"'tisIClf' CynthL, l.cc Alm()I"Itl. TwlctJIooMJ \Ylillam Hil'u Ill~nc~rd, Jr.. MllIlliJOm'..'fI/ ~larJlartt YI/unlt Uwwn, Aubum .101m IItnl')' England, Jr., "1!.<.rroIoosI1 Chirltt Alief! ~1owert. Ill, /JimringhDm .101m 1I0111S JKb:n. Jr.• CIImlotl John Chirln KtIMy, (NII/TII ~rlet ~lodI.vl

LN. foloo1vonkTJI 1'qjW A1li1on McC urr, f"1lirfkId

c.ry Coul~ f't~,." lIirm~rr M.1ry ~:gk.ltool J~k:hrr. folatrlflOt,HIfY Andrew Weldon 1I(\kI, ~lotr/{lUf'''''171 Willi~n, bllld S/unl'utd. II. /III Mdgs Jon ~lIrtln Spechalslre, Mobil;1

L..twb IRoniel TI.,rI;totville, Jr.. lllrm""oom Dr.id Jduuon \vn, IiJnnb~ M.l.rk Ooutbs Will(el"l(lO. foloolflllttlO.'171 t:/hlu ~:cIllClluo.o CooIImil1H Ch.a.lr: Ch.:rrld I",rlis Mliltr, MOn/p,1eI'f \'k«IWr: 312 NovnMIIER .UDO

101m I'"r~nklin JlIf'Iottky,

,.,»1/11

Robtrt RiehlnltM &.4J. 8Irntittphlmr IIobb)< Nral BriIlhI, Mott/f.'Ol1l"fl/ l"'ulStril>lina eong.-r. JI.. 'nntvIooso Cary Wayne .'arm. BinnfWlham Will~"UT1 t.I""'(In IbJriIQn, 1Il ./lImllnlJhum M.try AbboIIIIMkIN. BJnrll,¥thlllr !'~u~' Whitley Ili llltinbol~~I', 1l~1roI00fU ~ I~ Johruon. J f" IJifm/'lf/hum AIif)' Aahtr Ki1dli~ Jr.• fo"'"I{1Uf,..,., Cynthi.l C.I.MUfollart, IfrmltlVh;lm Jill,.. Brooks lA~1I. /JimtiJwIIum loa 11011\1 UIlIt. Jr.. Mtl,ndl Ltt fobdIbc. HrnI'IOft JOIITIn r~rd M.Uo!1c.llIrn:ilk

Mobt.

Jrnelle M11III Marsh, 1l~ EdwIn Je~n ~I~rthur. Jr.• M(ln11JOm#'F1/

f rank TlllluIhy ~teCoJlum. Moo/{Jllrtll'171 Wnllam IItnry ~kl~l"TT1Q(l, MobIIfI tiline lIell1}l ~lilJa./Jinnirrghum 1Wbt... I\'lwler Nania. Bimr/,1(1hIIm

II.... Flowe", Nt>rIhMt. foIUlI/(ItImt!f'J IIobrrt William O'Nr:ilt. ~ P.. trido: o.wkl PinbCon. 1I\>o'/lIItMu

/lruce .',.wnck 11011<""" &"'''''l/lluIII

Mohrrt I>Md 5fi.ln. ftlQ/I'(IOtIWI'I Jock ~1k~1 Smith., 1l1~'''~'';I/''Jlilul~ ! telena ~'rulCell Tou~ BJ,mf,!fI/Itlm ClrM Cl:,..ld \\'o1tliII:II. /limrillgh.,m

Jamu 'erry WOOO. Monl()Ot'~1I

f fdt ..1Tu ClInic CommltlN WoorIIwn Wtn<leIl ~ult1, Jt.. fo/()lr/fP'litfII IlI"UCf l'du ".Iy, 1I4a:iooJu '1"homoI Fr~m C>rth, MaIrI4t Cmlr! 1I'IIde !1atI1ry. ,IIo)rll/lO',.." Henry Ibmilton IlutmilllOO, III, Mu"lj/Omery 50:011 ~:dwanl LWwi& JIut/~11k Anllt White MllChrl!. m,,,,llIllhu,,, John Wjlli~m Uose, Jr.• lJirmirrg/lllm IIrlan Thonw Williams. mnlllllflhnm l 'uk f(>ffe \Ill II... I>b pule Ruoiulkln C_haIr. lIodrli!)' AroIIrew Ml«. 8i~

"""""

1I'IllIAm W<MXIrow s.ndtttool, 'r.,I/Im/sn1" hma 11oIf)' 1IWOO<.//uMftl.ood [~ I:lrwte Ootrr, Jr~ III~ Mlrlefle Henry Proh&in.. IJim,irlIfh.nn Willillm liunon 11a11'll0l'l.11I .IJlmr/llflhum C/~lIOry IllUCal Ilawley,I)InIl/'l/Iholm I'c!IIIY Chn~tinr ! 1",lIItr. Hirmnl/Prum ('.ary n. 11\lOIlI!r, f/lnllirifl/rum Jan"" SmIth l.kryoJ. //irmi11fihut1l

I~ ~

Lukn.81rmirvlhum

John r,a,II7oIuzzj, 0m0If1Otl IIrtnd1.1o)'cc Pitm."~ ~1111onv::1 Pulliam. Jr.• Hin.nlflhom 1'.1r\c1a l.t1Jlh S~monUIolIl/lOl1hII'¥ Jan"" 1)wlR/11 Smllh. ~ Ilryl," A11~n !ilrwnson. /llQfl/JlOfl"ilf/l Ranilall &:oIt SWikiIlll. ~latl/gotll<"~ Seth I\:olfour 11l1'lonJ»Orl. CuI/m.1II John Mirk II'hlt~.lJIrmhVJhum Wrndy loH WilliIuAA 1Jirm"~'"

Jarl Ltt WilllllTlS, ~

Robt ... \'00 1\'ooIrI~, HI. ~ 1"",_ rro,nrm Committ"

""'"

JolmfIl /lmllq 0Iwns. 111.1/irmIryJiIum

\'Ic«halr: t:li~lh Coen 11ookw~ller. ~/(wI/(/Ol1H.'I'/I CII(fQl"dl.oull Calli,. 'r., RuilIbou., '1/~ Jan"" Atn.nrlcr II.tj/g< ...y, Jr.. IJimrhlfl/r<lm Iknry 11"oMW IltrlXtl. B;mtlr~m Ralph Nioobon 1 1obba.~ ~n K.oi1h HUn/ft, '11OnIJ1OtM'l I!hon t:trjItnt ~ ,'Iott/gOftWrJ kfl'tT)' I\~ Kt:tlq<. E./IJ<I 1\,lliam Ibrrison Ktnntdy, 1WalIooJu llinka Chrltli.1n l.add. Mobi'" Roo:co J, Leo.IJlnllilighum Don Iloyiknl.onJl. Jr.. fJ/nrrir!plwm I!tUy Coole t.(M:, ru//ado!f/u EI ....lh Ccwm MtAoIory, iltdll'," 1'wI .\lbr... Mjll!:,. llirmh'llrUIn MkhId IlougIaI MIl~ IJimr!twhum Brlin Knwwlh I'W•. /Jirmhfllw>n ('.Imn AI~ r.vllrr.~

",1I1i/T1 ~'rlInklln ,';\tty, Mo;IrI/~

"Jltom;Ia .hMtth Saunclm. M,)n/IfJlIw, IUlity .:~"lIi Stalrr. Motltgoo"." "'~r\c \Vllliam SintllOl'l. Jr.. C.u.hdt."

Shurr1 t:dlo.m S!nllh./IwrlM!/I1i1 UN [~ \';\11 lI'i\IlI1Cr. MI}II/~

J .... IdIoI Con rema r.... tho Slall or AiaNrIIII M jcllKl l.~on Edw.Inls, IJimrIrV.um \1'In~ InNd l.cc, UI.DoI'hutr

(''hM1cs Al'fmt StMr:1y, Jr.. folortli/OOll'fr l.aw I»y CommlttH

""'"

Oll1l1H Nod McKnight, Mk"-l SkpIlcn ~l'Qlt,Mo/IiJoo Anl)' Klrlcbnd l>I)-.:n.lh'"MllIghum John Aubrfy Nichol.. l.uItmil

TtdoJIIMlr Carte,Tu""., MOIlltplH'171 \"ia:>(hllr: l>.wid 1.11"'1'11"1« t'aulknrr, Jr.. Wmrhl(lhum Cordon ('.nyArrmtrong, 1/1, Millo/iii Stlirlqo 1.tlglet o.tx.rr\t Ii/own. Hutr/JIQI11IIfI/ ChI''' SlIM Chrlll, lJimrilltJlw'" hnk: Raktlt Cb;i!t. MortlflOnN'!r II~ Scott Coiaon. III. /JmnIrwhInr M.vi.vmc TiI'lOn ~ Atlanlll Charta DMd ~r. Dothan

II.... Cnffin RobQon.i'wL"IL'iOIt1

MobI,..

IWham 110IHm Salibi. ~'obilll Conlon ~ 'r,Inrwr, M<./IlhI (".e<rrge AI.IIIWI", 1ttumrl"" Jr.. Mob/iii WIlHam Ktllh 1\'lIlki/!$. 1hw I nd,*,n1 Ikr~1IH Cumml litt

......

101-1 " ,""'

Lrc SoIIoI, ~

Stqnn R<1Icr CLv.$n.JIh,fof<n/~

Ibnrty IItJtIU Urooks. Ai...ut""' f.l'fIHtl tampion Drown. /Jimr1r1(Jhum llmothy NO)' o.lIl1l.. IIU/1ISL"ilit Kat)' Smith Campbell, !W~'I/J Mlch.'lC1 Albrrt CrtJpi.I)utlunr t:ric: Clark n".,j .. Doihurl John 1I'111On I)j~. frinnitWlham I)onaIJ l>uarw lloi! ..... Jr.. lJQx MMelI~ kfftf'j CIy<;k l)Uffcy, Non'fIO"~ ••~ ClOUItr ~'rMCh, Qt«Jw

Bnn ~ ~rdntf.I/UlfM!II'" .hMph Hmry I miry. Hirmilll/hlm John lours Kno\o,'1H, C0u'O

l.tiR/1 Flynt. M()fll{/Ollllfrfl 1Iit... ltlt (".oIol"I'tll, folOlllpOOWfl/ [).Jwn \\111111111 I ~rt, fofoo'f1ff.~//C "I"hor1w II/Iil()' Kllnnl't, Moo/f/{HtH'I'lJ Charlu I), l..IInllforll. ~footgoolCl)" 1I').llcr ....~nklin ~rdI., IlimIi,y;ltum Ri(~nJ

Sttphtn Wright MIlIllnJ. ~"" \'llerie [¥line f'almcdo. A",UsIon

HOOtrt Jadrson lIuwll Jr.. I<1OI1QOftw, ~Ima [)!1\IIkf Smith. HobII. 'Ttrri ~lu""11 Snow, ~,w Charia Arnot TIlomctfon.IJirmIt!ghum AMn l iolma Whiddon. Jr.. foiubh CommlltH on

AIII'ffII,lnl lrld

~~lrII111mt

CIIoI" Tony (~~hlltr. /Jimrl' lfIhum l'k:wh.a.lr: T'ho!nu lIynum AlhnllOl"l, AlWlusJu ~1ucuJ CIIy AlspiUllh. 8irmb!ghurn Jul~ DI;tNW Ibnb. MdJW

DIlly CIwIH 1IfIboIc:. foMbIN \\'III~ Ibynn Urooltt. /Jirttrir4IIam Tully l).;woillt IIrt1W1l. Nob/It!

"'!I1Wn Crumbly Ilynl. 1I.1JirmJIltJhum Anthorly LH Cicio Ir., HIrm~n 1~lIid S~n

ComoII. MobIw

Ilobtrt CllQter Dillon. NlllislOtI Oallid l'liuI OOI'l'l./i'rminp"Clln S~ Ken! GooIer. Bil'rllinvhum Irvin Grodsky. tokJb:I/I ~iJ l'utchtJOllllaft. Jr. fJirmilrIham Richard .'r«1Nn Honley. 8/mrillgllum ThollliS MalVIn tJttle. 'nN1<Kl,'fjU RkNnJ Ilunley Mook. IIl .Birmirw/hum William AIwollkr MoIcIcy. Mob'''' John Milton l'tnnlrlllon. HIrm~ BuYyAlln ~.IJi~n Wil1iml Boyd R-. MobIhI John f'~ul !kat!, Jr.. Birmlllvhq",

KcJU'ltlh

~:';""anJ

Stxton. II.lJJrmll1phum

I'Mrick Mic~1 ShtIIon, ,Iiotl/JlOf''''TN K.m.I Ann Sh~"" i'rrzI/l.l/111 I~Jili SIIt\I*lI1.RW7uU·n. Wilh"m ~'rankl1n SnUth. II .lJim~ M.:!rtUj l..r.oo MllItIqI.AIabu$II."I' Cli fton .:arl Wri~llt, f'/oM!nI

hmu AlVllndtr Y~lI(c. Mobllil COmmitlft ..... a-y.r ''''bile IItut!on" tnfOf'mllUon and ,"kdla Itrlltlon.

""In Cr,l'IIkl Raymond 1'~Ik, SroII~ \~·dlll" ~'I7u\k lIuUcr

1'oI1S, ftomlOl Ilrl\lamln lkM\"lnl Albrinon. MobII;r JCft I.otkc Ik~, Hon~ IllM'InJ MeCntl' RelJc,r. Jr. D«:uIur l'hilip RUNI'II CoIIii\l, M,... U~ Malk Anll'lony l)ultcn. Moullllri CRIIII Bl'llntley t:Wretl. Momf/Ol7H!rV .>tnu.e Ann .'cr~llIOO, JlutlIM'lIk RobIn 1""lStn GD\.\'t, IJIrmmphilm ~ IIdI C~_. BJrmilr(thum John Ralph ClIO/\, ~ St~n \\n IlammMd. o.wwr Alicia ~ Il;w.el. 8!rm/nvlKlm Jamn Co;nUln IIoI~on. Jr.. {lfollIJlOtlH.'I'tI Woodl'QW ElIIItmlluwMd, III , MolJiIfI

Rhoo .:ug,ne JonQ.MonlflOt'tft'J

Wllter Allm KeIIty.IIuntSl-'iIIII KaIJl/l I~ 'AlYfInl,MobIhr

IKQlItline loft 1.)'On ..., iJlQll. NOtII{l(lm;.",V J411'1fl1 I'lynn ~IOIIlnJl<l. {l/OlllfllNII1"1I I.bIo AM Naml1·l>tco1d.lJimlhlJlhmn I~ TlnUfy O'II.1oI'll.,ItoM.r Hdltrt i.aI(f PiUIIIiI:I, Hanlgom.."

ITiI Drayton t'rultt, Jr .J.iI~

Mick:>rl Dtnn;J ROIl;m. Nl1tIJl(.oT Andlew John lIul(IIJ.Nobiw Mitchell KhIIJrd SlwJI~. Mobi,*, ,)aIe !louse

W.id. CI.I11Dn

"""t_

IbthrimOwtns WibJm.~n

~ Rormal ~ 80tnI III

""' " VktodWr:

(;rtliO<Y Allen I!tt'IItS l>trolur

I»nkl Gary llamm. MQr,/IJOnJl.91l ~r, '1!I.faIb:IM I>kJi"" C~rlton !\(Mm. I'nIIIIWII I!oIJt,rtl \ola IJrolIdm,Oturt lRInltl l J05fIlCf CrilYC1. Jr.. (MfSlton!s

Clrnn Ntbon

Coon C~. [)ak!r.Y/!Q 1llonw IAwis n.vis. IJimlbiiJhu'" Robert CU!'l')' 1'I1n:1ot'l. 1h1r ~

o",rll Tr;oIomd f\rfTNn, IlwuJtwl4l llmothy I),wId Carner, C.ulfSht:Jr'lll

Jac:kic O'Nc~ 150111, Ilamil/t1Il Viloon \\11$(ltl J:\)'C, IIWIIII1IM"II JaJllliI Alf~ K«. Jf.. l1innn~m J&IllH Yt'ibon MI"htll. Fforo.'101 Joteph AnthofI)o ~Ian-.. Dothan RichmI N'f:WIan, ~

R_"

ROlIn WlIlIvn l'itou.Aubum

J_llt~SfaIr. III Cn<msOOro ea,l flt'lndon Seller!, 111, CMD'!k Tho",,,, Albert Slnilh. Jf.. QltI" lIJIl Vaullhn MQI10n Stew.tlrt, U. NIIIIsI/lrl Ronald HowanJ Str:owb~, I~ DiMIt WindtU Vk:bn. MlIl/IJ{)nIIIrJI RlchlrnJ Yt'Um'l Y.'ttit~, t'lll~ Clif\on Earl Wr1~.I:'1(jm"" Thonw I'mirKk VounJl, Jr.. Akx<hKkrCl1V ',awyt:rl II~lpln.ll; u...,...n CcmmlttH Chair: Paul An:hlr l'hill'PJ, IIimtIrtJhum

James Scocll..anQncT". Birm/",!lldm '''"'"'''" RobIIrt Ilrown AdtthoII.

Motll~

D.wi~

.:dwanJ IWtry. III. MOrllgomt.'I'tI Jocl \lk:10f 1Jowrnan, N mulOiI Howfn Itill O..-II,/'hmtll tilf Willlvn Tefry Rulbn;\. Dodwm In lloMd CIwmIlk. MoMt Cury AlI'rtd G.uton. MoIJf" RobIIrt Wtlllngton C...;/\, Jr"lJirmlr19lwm ChI"lu Ikrr.1nllleu. CRt¥k l'rfttOO loft Wc:ks. ~"'tJ4oJI ThotNI Ror Jonn. Jr. ~ kIM ChIr,It$ Kcbcy, CAr!1~ I\.1ny Cllryton Lowll. Not:1fIt/mIlI) SamUl!I Cnh.1m McKtI'lllI. Cud Shon:r Nar.cy IIOW\'II Mitchell. Norlfiptyl l~nJ Kcnrot:th Moolf. L'<'M4.",,,,,,, Mic'-I AWl Newsom. Hinnlrl{}MJII Dorothy fwdJ Norwood. HotI/gOmerJJ BtMttt loft I\of!. HinnlJwhnm JlI/TlH ChrblOPhtr Hfilly.IJirm",gh<lm Julkn MUM)' Relft. Jr.. 8Irmfnvham Jam" MldoJlcton Siwnol'f, )1" i>IottI(JOtIH!f'V Jame. 0. St1nd~, ~ Carlton Terrell \\o'ynn, Jr. lilmril¥Jhum

n.a ~'0I'fe 011 LrtaI t:.fuatlan

""'"

lVill ilm IIoIcoo\bc 1'r)o;Jr, JI" MOtllflOtTll!"V VIao-chlIr. Colin Ilcnry I~,~. /Jirm"rjlum Orrin Kf,1ey Ama. Ill. ,1IIlMr c.I MicNellk"*,,Auo'.Ium Chmtolft-r I'mr 1koIvia,11I, Hirmfr¥lham CIUl,leIlhlboM ClIIt, IJirmq,hum Wendy IlrookJ C~.lJirm/llfJ"(Jm CI~fIOry Sl~plim Cusimano:, (~isd"" ~Hchael ~ f.l'IIltrt, &rmbJJhmn t>tnIM Ann .·orauson.llun«'nt.t Chrillophtr Kalph Jonn. ~ llaroid 'Inyl Ku~hner.IJiIT1'''rv/latrr f.dw~rd DouaIaa Llnfonl, Jf" 'fIdt'u1t;K)5(l Icntlle ~llnu M~r¥1.1W<:ukKJ&J I)Qnnl &ndrl'l Pale.lfunls.'il/Il Wdlty Pipe$. i>/obi'RolaAlkn Ita)', IU,,I/()6i/e Robert Werner Rltdr;r, Jr"lIulIl$l.w" ~tlchatl Rtitl SilbeTl1Wl. Bimlhtflhtnn

J~. TImothy Sntlth.IJI"'~illflhtml

James .'nonk Vickrey. Jr.. MUlIgOt,1#!I'IJ Sus.ln hnII Wilktr. />WIPHtrII JotILH Witlilmo. 7hI¥ Commltln ..... !.Mal lIAr AdMlin II1II Stnica

Holman ""'" \'ke-cholr:

It~roId 5k~ns. IIlIlIISlWhl

I-:dward lIurm ''irbr. II. MWlfIOIlIi.'rIJ Rkhlrd MUIin Adam$. 0011_ lart'IO$ '1\rtllJ.Jrrttl Opdikfl Richard Goodwin Broc:k, Md.!lk V~IIC$ Vlrn.n C.unrrbtll, 1JI"',il~rr Mary l.)'Itn C.mpiJi. 8/,m('lf/ham Itcnry Crowell Cl\arlptll, Jr" NOtlIJl(JtrH!fJ Ilfborah Ann Crillin. rIIobi/.t John frrdrlc: Ingram. flimrl¥ram Mkhatl 0.. McKlbbtn. 8irJr~ Mark Anthorly Mc:v.'ho)r\(f. /iirmlt¢tam

Jo.cJ)h Anthony Morrii, DoIhun

JoIltlh TTcnl ScoIidd.IJIfY"ltl(lhuon

n~ley Irl'OO1l Sklllr, mrmil~ Hunda Smith SWllharn. .... lrliU(.Jn ~Ik 'I'hotrw W"IIQOnI:f./J/rmlrlJ;Joom Melinda Milchi'll Wllr"" Honl~ Hrrbert lIarold Wat. Jr~ Blrrnlrlflrum John CurtiJ Wright, U. GuUsdm TUIr .'om on M~mbel'lhlp Snvitt. CIIIoI" AMI M.\~ l;ombrrt. MOtllfJOt//tJ'f

\'kwhllr.

Samurl Alr:undrr Spoon, MonIlJ<mttr¥ ~ .'rfderick Campbell, MotIl(lUt)tr¥ ~",h

han Qn1Wt.llirmfnv/rlmt

l'et'l'yl'l GoIIbcc C.,rro!l. Hinn/upham ~mmy Lort'll!nt "ruicr, $Q,isa/lro Ruy Wylit: G!"ifIIIt;r, III. MctI/gOtt>UV Ann ~ M.:I~, IJimrInpIImr RQr OIiYfr />kConI. ~ Mkhwt ~ McKcriey.llInnltt}h<lm Michael Sttf)htfl McN~ir. MoIJilll M.l\l')'3m'oC t:llubeth Mclko.MOtI1~""'V Salrm NaJaJf RaN. Jf" IJjm~ M IC~I

Stephen SuIy, MctIIIJOmtqJ

!...ton IIfI'fWd Smithltrt. IMktn ~ ('o(r;oId 8tm.ud T¥or. Ir" fIirmIrwhqm William Brig: W~rd. Jr"lIunlJu'lI~ MilliN)' I..... CommlllH Choln BemanJ IIoDHf '>owns. Jr" /Jirm~ \'kwhalr.

John ~ l'irk. Jr~ M()tI/{IOtrIi!fJ Jut"'n Oonlrld B&nb. i>fobII. And~ .Io5cph Coicman. Ilirmlfll/ltllln Axl, J).J.vJd ~""""31, IlI'rm"!J1hom Ccln,w Murphlft Pow\i:f. Jr., CoIurnb'WI(J 'I'hotrw .:lIio!t Junca. AutIum

c.Jn James Kmnfdy,,I1obiIII John Thomas Kina. JI" IJirmbr¢am Mlchiel Arthur Kirtland, i>Iot!I/IOt11'1fJJ San<ln KAy Mcad<M" />lob/III Robert 'fI.Irncr MCl>lk7wl.III. ~iNJ ~t(f 0Mrc1l1'hl1llPJ, ,'1<uudI1IFB WilliAm IbMY Roc, ()wo,II0 WiIlWll r..t..vd Scully. Jr., INphr/e Chi,," l.any SIlarb. Blrmirlflhum Rkhltrd AlllUl ThomflKlll, Jf" ~ Will!ltm COlI '1\rcktr. Jf., Hirm"rghim Jon Kclth '1\rrnef. i>lOtu~ f>Iotrdl Mdw llf«h, DaIo.'If4 ark "'1llrtd W~IKt. Jr,. Mon/IJfIrfIrrr l)IIt fom on MilMlril1 l'artldpo.tlon IlMI Orrr«tunll1

""'"

l!lwell JloCkson Dnkc, IJ/mll""ham

\'\u.(halr:

ClwIt$I~. foIot~ ~rly Paolo &kn.llimti1w/llPn RmH 1J1Idcmon,III&IH. Hirm~m Oelom Ro6ttlll Bc,JyoJ. ~1Ot11{}Otrter¥

I tOU&tOll Lanlrr Brown, IJIm'irrtIh= l'alllll MeCoy ~f1l(f1ttr. 1luadiIMIJ ~ Williams Chnton. MQnlgonwry John Jart'IO$ (;oIcfTllf\, Ir" /Jirmit¢m, Cedrk 8tnwd CoMn, i>lOtTlf1OtnI!rJ Mur Cr!lQtR Oavb. i>lotllj#rH.TN

Thornu IlkhanllkUny. />IOtI/{l(ltIItl'V John Croom I'hiktnbfrry, Hirmir!g/fJf11 'I'homIIl ltnry ~m. Mdn·/tt

s... .'ranm Htklt, n.rminvhom Willie JuliUlltuntlry, Ir. HoIJik

Talllln Youns Le\!, {·iotll/1f}l1WrN I'Wid.l Trott Mandt,lJirm~

'JYrone Carllon MtaN. M()III{l(ItIIef~ Kmotth J~ Mtndfldm. ~lOtllfl'.Jl'rl>TN OtlTlCtlillS Coiphw; Newton, /Jirm~ ~IMCIMbnd .... Jr"lJin~

.'rrdtricAlbcrt RImorn.ArtnWon Ktnnetll O'Nw Simon,lJirmlt~",

Sltwllrt CrtjOr)' s,ringtr, Himl/rwh9m

Ckorh.... 'J'hQmos, 'r"MnU/f1t! Robtrt Sorl\lTlJ ThomcIton. Th.skfJIW 1'rtpAld """,!MTvkn Commillee

''''''' Robert

~rl s.w.tr, i'lC/fIl~

\'ke..:"'Ir:

Joon IlmnUry Cr;IW~, />follli/Of1lC1'6 ~'lIe Milton Ikll>OO, Jr.• J/unl$l~·//d \\'ilillm Ttrry &Jt..nl. DoIhIln Hilllry CoieRWl lMon.llunl$l';/M knni(H Mithlorls C'tlambl1IIl, MotnIIJOII~ Thoma IAWII ~ Himlilll/hum William Cakr r.JliU:l./OOlli{lfJllMlf Krnnrlh ~ J~ IIrmtR.-iI/ol DiII)'V,~ J:lckw/, Cullmmr John ~'rtd Klnsren.I"JIrmhllJllum

unce P.wmt KuylienWlI, IIwllsn·'/f

("..:r:.ld loft ~"II(r.llin.If"fIIl/Jm J)tMIII.£ll«1I RUM)!n, Ashd/Iii I!IIttie />brie t btt lhomlOfl. />l<itltgonWf'6 CommlU" on R.. wl oll'rofHliollal CondUCI

V,"o111Mll c.Jbway val, BimJinghllm .bma SltI'tft \\'vII. BifJ~ W~ltr CrqIOfy W~ Uma."i/ \\'~ KyIf Wrillht, CUJI/tra'illo! Jout1C$ Gusty Vt~rwt. n.·l?ningIwnrt

Spedll l.IIllOn Tlx Com mltl"

,,-

,""'"

~Ila.abrth

""'"

J.,:,rry Hrooks ~, ~7M.ont:rf Joon Nkk PJ~06,/>IOII/flOmt"1l I'wlck I),tvld I'inluton, U"lunqM"II John I'aul Scott, ' r.IJirmI,tghIlm Bt~ln Damett SprJtlirIL III, IJimmtfl/ltnn MIdlKI t:a..o;inl tJrdIutdt. MobIIu Jamu EUIttfre \\"lII.mrs, f>/oIll~

1).Md Crorge V,io1Q, Jr. /olobik Solo and Sftllll fimll"rIdllloMn

""' " I'k«halr:

Commllt"

p'ul AWnI5 Hrantlty. MontgonN.'t)

Wi lliam I L"ukl Albritton, IV. AmAl/usw

I'atrlck -'<*ph Andmon,All1t'tll Ebtr~rd Erich BaI, lokw l>Ii'lI1l" Thom.u ItaillIoggI. Jr. ,IMmopoIiI k*Ph Thomu Booxh.. IV, ,llOIlIfIOnk'rI /obi")' 4'nn Campis.• ~ 11111)' Lrnlllrd Qlrirr, />bli~ urry Joel Colli",., Plw:rli.r C'~6 Nul l'l"t'dey COOIlIT, /NoJtUf

DIOOJ(I(l ~rd,Hrm'WIIJhum

t:mil)' Sidd 8onIIi. Bi~n

lIober1 llrian AlI~, &n..'mOl'r AMIIf)' Alben 1\Ytr&. Blrmblgllmll )1,11111 Nln [k",Icy, MC/fl//IC'II"-V

V.roniea 4'llII lltnnett. '1lncu1ooaJ 1).wId Crawford Bibb. PrrIIrn·" " John Abu BiWns, ~ W~lttr

1\~lham Hurton I br1lon. III. fJlr",b~" 1'b..:haIr: l)ouab.t Jootp/I C""t~no. n.rmnl/llOm .I<Iwph P~trkk Ilerkan Il.1bIl\j(ton, />I00I/01 Anthony l.. Cicio, f:im'i'llJhllm CllIorlel McDowell Crook, M&llpor'NIrJI TIIOmo"II Mcnfm .:11olt, Jr., IJimrhl/lhom JtUI! l"rkt t:wru, UI, Birmh!gh<Jm IIruct Llntr Gonkn. Birmlnghmn CIlriJtophu Josrph Ilugha. MotI/J1(/1m1.'r6 AItII. \\'lIltr hcloo.!, Motli~ RotiI:cr elfn Ki1t~ fflrll'VI/tW 1Iobt" D.I~ ~ltWhorttr, Jr., ('.udsd.!r, William IIayu Milb, Bi,mi/!g/IIrm

rOt lilt

So!,l1.... t Ilfi10n 11lO!1W II~mlll(Hl Ih'inkiry, IJirml"ghilm Cwn 1'Il"tr Brock. Jr., />/00/111 Shill" JuHph Fn:nll. n.hnirl/lhllrn Commltl" on SlIbltun Abu.. uwI 1'IoItne-

I'.rktr CI"OWnOYH, 1I~

00IIIId EIIw.1rd F~"""'" $;lruImd It"..1tf)'noW t:ll/S. II. MonIIJO"Wr'l

mlllllm Roy f'mnrr,HimrirttIhflm Cn:jIOry I..ft c.vnbrlt, Alldllmkl

Sltllhtn Willis Cuthrle, /JifJllillj/hl.lm \\1Ih,1m

Sl~phc:1\5OI1

I bill)', 111, llirmlnghum

C',(ral~ Ml>ur~ Hlldson, 71lm~ )~ff~ Soott Miller, llirmilwhmn

l>tniM! ,Jont, i'omtrw, H/lmlt'(}ham \\~ BrK)' Rlhrrwl,MvlJiJ. ~Il.andit Salon, MutllJOnlft"¥

Patrld& Amt Snyikr, />~ MyQ Ileth St>aJ. n.·rmirVrunr J*roh 1~I~r Van I tmt./lfofll{1Ot1lllq $iltnctr Brent Wlilktr, CItIw Ilill Stephen J!l5ljlII Zitmkow$kl, 1I/$(11100su Alabaml Sil it Ihr COO1ntlllkl,....' SU I,/\,m. Court IJJlton C(tmmill..

""'" 00nIII SMIIeI1 Pittr.llurtSllil(,

Walle IIarnjlton 1!.ulry.IJflIltoIt

[),wId R.iodlll &rtd. ,~ Ullluthurind l"ractb 01 Uw Commltlft

""' Ch.l.rIu " Noel McKrlight.

Nubi/;,t \'k:M:hIlr: lIufw &Iw.lrtl ~;tliotl, III, /JImtlttghum

Karen IIrl1,"""J IklIn. IJi""ltttPwm

\\',lIl11m Mamu Brakdlrid, ~ I..Iny.lotl CoIlll1l. f¥II-,oli.r 0'/6 Jlmnl)' 11,Il50l1 ~·tl'l\ll'dtz, /oloblk IIinIIlI Sif11lllO!l ford. ~

r-bthMt I'IlIlhp Frledbndlr. NoI!iff Sttphm Vin I bmmond, Dtc:ulUf

FAIIolr Cu~n (".(nt\(, m,Hirminghum

Vincty I,....,.I.Q(I. Jr.. />kIJtIol AlIne \\'hllt Mltchrll. Bi"'llnvIIIlm J.nier IJo)'II Nt~l, Opt.ofi/(ll

Willie )uli"$ I hmtl")', Jr.• Mobik John Machn K!nntmer, 1wcvmbla

Jamn Wallace 1'0l'W, lI ,jJirmit¥Plllm

l~ura K:ol£ C~SOtl'. Northport JOhn frank Ilud, Coillmbknll'

[)jn Ckfro

KIna. U,/k-ss;.""",

WiIiIMll OdvlIeltt Ku~ IV. 0nmI11Otl \\r,1I1m! OJ"""r Kirt, Jr~ OmoIhon kmoltT loft 1...,..,1 •."kIn/flOtl1ft"6

Ken&1I \\'IlIOn ~ BInnirfI/HJm &mlltl ~~ /Jitminghlrm ~brlll '!"wttt Nrwrrill\. DoIhtnl t:ven:tte AOOIpht I'mf, Jr" IJIl'/NOtI

MIIrcul \\·.,\deIlI~Id. All.rlf/on C.rter Alan RobiN.')n, 1I111'1Sl.~11II And~ J;ock$f)tl SiMI", Jr., Himrfrwham t:Mnll..ft

01. SmltI~ ,Whi,*

BtrIIIrd Smilha", (.+!ion Spr/nIJI t:liobtLh Couty 5.lIt/wt, tmIon ~ MiehMl Clm Stood.....I, Mt;rn/flOm0l1 Sa~ l..ubtrb Tho/npKoI\, '1UJtuIooro 374

NOVfiloOoEn '000

Nalh:11I IIobtn N(),ril.IJlm,iIIgoom

SIImllfl AIIt~ llunlOrt. Jr.. IJlm1frVHJm V\oonnr; II.. I t. Saxon. Motl!JlOnwrr l>.ltricil \\'l)'nc Cobb 5Iew~rt, Sa:JlIJbom I brwy Jfl'Ol'llt Tl\omclIon. Mam/QtI ~ Altifwt .... "l"!:>n$mftn:, Jr. MJbIk

Wi!t1Ml1 On WillI«\. III. ~iIru Commltl" on \\'OIIMn In till 1'1'1.>1,..I0Il

''"'"

Ctcilia Josrphlnt CoIIlfll.Na/JIIf

1'I«..:"'Ir: ~bf"\lo1lrtt

lttkn ,"()Ung. fIonorN:'e

I~rly 1'ooIc Da~r, lJiffl'ill/lllJm Cl.lin: AlfUnder BIId!. ~

Otlam RoIittl.l Boyd. /oIfJ't/~

~1lI 1 b~ Huo;y, 1b$a/1oosII Robin 4M IkImlL 8In.ilV/hdm Sos.1n Shirock Dcp..., ,\IoIltVO"1IIrI

\'hnrJI D.MJ ~ /oIorJlf/OI'~

VIctoriI.IGMe ~·nnkhn-Slwn. Blrmb~m

0.- "'laiRJIIMt, Mo,JrotI.'i~ I~

1Iobt.uon hck:son. CluwIOtl

t:IIAbeIh Darry .IohnIon, ~m Cynthi.t C. 1. :III.... r.lllort IJirmil/lIAiun Merarll l..wonr.t llld!lood, IIltsJ1ll/glon, D,C, M~rlll Yvett# Newm."ln, DiJJllim Effie TerUli MIller Noonan, MOtIf1o/l1IIf1I ,o\p!ilah Cftr Owe"" 7i«"u1oosu .>o:booh BtU Putur. I-"/ottnat Mllbtth hmlllan PoNr, Hirmitlfloum

nne ClftAl' ~ /Jirrr1ir4lItir

..1LL1btt11 Coury SmltIwt, lmIon &nllJ

s..oo IlkIII Slcw;u1, MobiW hili FJ-.gIish 1\yIor, MobiIIi Mary 0I1«1rl To<Ix", oIfQtl11/OfflWJ 001)1 TYnu \'h!tlho!im, Ilim'ltlf/ht!lII

Sharon C!ltxn Vatu. oIfOIl/fIO/l/t'rV Leglst.Uv. Wr.p· Up (Continued fr()ln page 348)

University of Alabama School of Law, CUltodlalTru.1 Act·Alabama does not have such a law but wi ll be addressing this act under the leadership of altorncy L.B. Feld of lJirmingham, This law is designed to provide a statutory standby in/itr lJilJOS trust (or individua.ls who typicaliy are nol as afOuent or )()phislicaled and are probably repreS(!nted by MIOT' neys engaged in general practice rather than specialized estate praellce. The UCTA bendits the elderly as an alterna· ti~ to court admi nistration of assets in tht Mnt of disability or incapacity, Trall,fer on Death Act.Upon the com· pletion of the revision of the Custodial Trust Review, the comm iuee wi1llook al the law dealing .....ith trilnsfm on death. When Alabama p~ssed Hs limited liability COmpany law it was the IMh state to do so. Now virtually every slate has passed such a law. Th~ Commission on Uniform State Laws has subsequently drafted a uniform lIet. Further, the Internal nevenue SeNice Is conSidering new regulllIlons which may neell to be Ilddressed. The Limited I..lllbility Partnership Act .....as passed by the Legislature earlier lhis year and although it has not gone into effect. a standby committee is available to moni· lor the effect these two laws ha\'t and to answer questions that may be needed. Anyone wishing any other or furthe r information concerning tht Jn~lItute or any of its projects may contact Bob McCurley, dircctOt, Alab:lma Law Institute, P.O. Box 861 425, 1\ucaloosa, AI",b",ma 35486·0013, FAX 1205) 348· 8411,or phone (205) 348·7411 , •

Godbold Receives Devitt Distinguished Service to Justice Award Senior Circuit Judge John C. Godbold of Montgomery was presented the Edward J . Devitt Di stinguished Service to Justice Award in a ceremony at the Federal Courthouse in Montgomery. Judge Godbold becomes the 15th recipient of this national award and the second Alabamian. Senior Circuit Judge Frank M , Johnson received the Devin award in 1983. u.s. SU}Jfeme OJurt Jluticc Qnd /IIrs. AJ/lfwnv Judge Godbold was nominated to the U.S. M. K(!Illwtiualld$4.路/I;orCircl.lilJudgi!olldMrs. Court of Appeals for the Fifth CirCUit in 1966 by John C. Godbold Preside "It Lyndon Johnson. In 1968, he began working toward the division of the Fifth CircUit into two separate circuits, His efforts and other judges did not succeed untit 1981, the year he became chief judge of the Fifth CircuIt. When the Fifth Circuit diviced into two circuits, Judge Godbold became the first chief judge of the new Eleventh Circuit. He is the on ly person to have been chie f judge of two circuits. For five years, 1976-1981, Judge Godbold served as a member of the board of the Federal Judicial Center. He became a member of the Judicial Conference of the United States in 1981 , Judge Godbold served as a member of the beard of the Federal Judicial Center. He became a member of the Judicial Conference of the United States in 1981, a membership he held through 1986. Shortly after resigning as chief judge in September 1986, Judge Godbold became director of the Federal Judicial Center in Washington, D.C., a post he held until he returned to duty as a senior judge with the Eleventh Circuit in March 1990. He continues to sit with the Eleventh Circuit and as a visiting judge with several other circuits. Judge Godbold's selection as the 1996 recipient of the Devitt award recognized his administrative accomplishments and how he supervised dividing the Fifth Circuit when no model for such a spilt existed. The award further recognizes how, as director of the Federal Judicial Center, he precisely defined the function and goal of the FJC and hoVi. through new means of teaching and decentralization, he made educational programs easier for thousands of judges to attend . As noted at the presentation of the Devitt award : "Judge Godbold's long career demonstrates that judicial independence fosters the origi'1ality, creativity, commitment. and diligence that all federal judges seek as they serve the cause of justice and freedom ." The selection panel for this year's Devin award included Justice Anthony M . Kennedy, associate justice of the Supreme Court; Judge Procter Hug, Jr., U.S. Court of Appeals for the Ninth Circuit: and Judge Sarah Evans Barker, U.S. District Court for the Southern District of Indiana . The Alabama State Bar hosted a dinner in honor of Judge Godbold following the presentation of the Devitt award .

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dou nolllrohibii the enforcement of a contract where an insurer a~ ree5 1 0 Ilay for injuries suffered by third parties as a result of intentiomll acts of the i n sured.~ In 1957. the Fifth Circuit. in Thomason

whelming majority of courts, including

United Stales fidelity & Guaranty COll/IHlny. 248 ~:2d 417 ()957). applying

the Supreme Court of !he: United Slales. have lldoplCd the forlu lty doctri ne and hllve limited Insur/mce coverage, regard. leu of the Ilinguage of a parlicular policy, to fortuitous or accidental events:' Ostranger and Newman. Handbook on Insurance Cowrage Disputes. I'rintice Hall Law and BusineSli (5th Ed.). It may well be thallhe above rule is correct where all risk policies ue involved but m"y not be the law in AIc.bama where third party coverage is involvetl. but on Ihe other hand. it M lIY. It lill depends on whal Alabama case one chooses to follow . Some Illh Circuit cases have held that Alabama's public policy prohibits insur· ance coverage of intentional wrong5, The c.ue of Bumham ShfAi. fllC, /J. \Vest Amorican 1115. Co., 504 So,2d 238 (Ala.1987) expressly refused to comment on whether insuring against an intentional act violated public policy or not. Titan Jndem. Co. II. RiJl!!/, __ So.2d _ (Ala.1996) correctly pul that proposition to ~Ieep ...... Alabama·' publ ic policy

AlabJma law. concluded that where an insured, not knOWing thJl a row of s tak e~ did not properly mark a boundary line. intentionally entered and cleart:() prOperty belon"in" to a count ry club. there was no coverage because tht.a(\ was an Inten· tional one. The court said thl\!. "Where the acts are voluntary and intentional and lhe injury is the natural result of the act. the result was not caused b)' accident even though that result mny not have been unexpected. unforeseen and unintende(). ~ /d. a141 9. The pol!:y in thaI case insure() a.I!Jinst sums the insured was legally required to pay ~caused by accidenl.~ Thi'! case clearly docs not state the presenl Alabama taw. In 1973. Ihe ISO form. uu d by the major insurers. hroodcned the coverage by providing protection for bodily Injury and properly damage caused by an ~occurrence. " The policy dc/iliad occur • renee"' as an IIccident resulting in bodily injury or property damage reilher "ex.ptcted or intended from the stand-

/ 1.

point of the insured,MTht definition of "occurrence" mooe ilplain thitllnten· tionalacts of an insured, wher~ he either expected or intended the injury, was not covered, The 1990 ISO form provides: I. Insuring Agreement. a. We will pay those sums Ihal Ihe insured becomes leAal1y obllg· I1ted to 1),lY as damages because of '"bodily injul1'" or ""property dam· age" to which this insurance applies. We \\.;Il Mve the rilj:ht and duty to defend allY "slIit"" seeking th05e Wlrllage5. We may 011 our dis· cretion invt:stigate any "occur· rence~ and $Cttle any claim or "suit" that rllay result. The "expected or intended" language was removed from the definition of "occurren ce~ but 1-1'015 included as an exclusion: This insurance does not apply to: a. "8odily injuryM Or "property damag(t expected or intended from the standl}()int of the insured. This exclusion d(W1 not apply to "bodily injury" resulting from the u~e of reasonable force to protect persons or I)roperty. The change dOts not eUect the IIpplica· lion of the provision. The forluity doctrine evolved In the context of maritime lind all· risk insurance. however, there is a certain degree of that doctrine retained in third party insurance. The exclusion noted Ilbove, pertaining to "bodily Injury or properly damage expected or intended," clearly provides that damage which is intended or expected by an Insured is not fortu · itous and, therdore, not covered. There should be no problem with the foregoing statem~n t s, hO\\'e\ler, there is il larJte problem in detCTmining what standard is to be llsed a~ to whether /\11 intentional IIct is covered, SeveralleSls may be found in the AI..Q.1n1a decisions thllt haW! construeJ the ef(eel o( the words "bodily injury or property damage expected or intended from the stand· point mthe insured,~ Hartford Fire 1m. Co, /J. BlClckney, 340 So,2d 754 (Ala.1976) (reversed in Alabama f'orm Bureau Mut. Ins. Co, /J, Over. 454 5o.2d 292 (Ala,1984)) stands (or lhe proposition that if an insured could reasonllbly expetllhe injury from

the act. there would be no coverage. In pilSsing, il may he noted that Dyer Is the most cited case in Alnbama selling out the standard to be used in interpreting the "expected or intended" language, and where ciled, except in one case, has always betn followed, T~L1I$e1ld Ford I', J\UtO·au.7Wr5 IllS, Co., 656 So.2d 360 (Ala, 1995), applying

nn objective standard, stands (or the proposition that all Intentional acts nrc excluded from cO\'tra,e, Smith

fl.

North Rim.'!' Ins. Co .. 340

So.2d 754 (Ala, 1978) holds that a JI/ltely subjective lest is nece~.s.1ry to determine whether damage was expected or intend· ed (rom the standpoi nt of the insured. This is the overwhelming effect of the majority of Alabama cases. Slate Fanll Fire and Cos, Co. /J. Ikwis, 612 5o,2d 458 (Ala.I993) applied an inferred inll'!lIt rule, i.f" an injury 15 inferred from the nature of the lIet. and applies to child sex abuse cases. This is the only Alabamll case applying the "inferred inlent" rule or, ilt least , the only one applying it ns such. As pointed out, most cases decided by the Alabama Supreme CQurt hold that the determination (rom Ihe "standpOint o( the Insured" o( what he thought the result of an intentional act would be requires a subjective tut. The issue must be decided by II f~ct finder, In some other cases, the court has applied an objecti\le U:st and concluded that it is not material what the insured thought and hhS treated the exclu ~ ioll ary language expected or intended -from the standpoint of the insured" to simply excl ude intention,,1 acts, If this article accomplbhes no other purpo~e, it collects the major Alaooma cases deciding various Alabama Interpre. tations thllt have been rlaced on the words "Bodily Injury or Property Damage fxpected or intended from the standpoint o( the ;nsur~d :' 1\ has been pointed out that the most d ted case in Alabama for the proposition that an intentional act would require cOVtrage ir the resulting injury was not expected or intended i$ Alabama Farm Bureau MI, Cas, Co, /J, Dyer, 454 So,2d 921 (Ala.1984). In that cue, the insured intentionally shot lind killed his brother, after an argument over a waler skI. Probably filled with remorse, the insured

committed suicide, The lowtr court (ound thllt IIlthough the shooting was Intended, the injury to the brother was neither expected or intendetl from the 5Llndpoinl of the insured. The insurer IIppealed, In afl'irming the lower cou rt. the Supreme court t."\refully explained the purely subjective standard: We, therefore, hold that a purely subjective standard governs the determination of whl'ther the insured Wayne Dyer either expected or intended to inflict bodi ly injury on his brother, William. Under this subjective test. an injury i$ ~intended (rom the standpoint of the insured" if the insured l)Quessed the specif· ic intent to CIluse bodily injury to another, whereas an inillry is "expected from the sLlndpo;nl of the Insured"" i( the insured sub· jectively possessed /I high degree of certainty thai bodily njury to another would result from his or her IICI. lei. at 925, The court clearly distinguished subjec',4 I~ II".. JIIO.". . " - , Irhtlll qf

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live Intent rationale from objective melhodology by explaining: Because Ihe presumplion inlorl and criminal law that II perSOn intends Ihe natural and probable con$(Quences o(his or her intentional acts has no application to lhe interpretation of the terms used in the Me~pec ted or intended fro m the sl;mdpoint of the Insured~ policy e~cl u sion, the policy term, "c~pec t cd or Intended injury," cannol be equilted with ~fo reseeable injury." Id, at 925. The court hiU Ilppli~d a subjective standard as set out and explained in fJ.IIl!r in mlUly cases: IVlllto I', Mary/mill Cas. Co., 589 So.2d 1294 (Ala.l 991) (insured nled declaratory judgment action against his homeowners' insurance carrier, seeking an order requiring thllt the insurance company defend him and pay IlIly judgmenl that mighl be rendered allalnsl him In a wrongful death action arising from an intent ional shOQting): Uniled Slales f,delity & Cuar. CO, I), Amulrollf/, 419 So.2d 1164 (Ala, 198.')) (liability insurer sought declaratory judgment determining qu~stion of insurllnce coverage for a stv.'age overnow cnused by insureds engaged In construction of sewage sys· tern where sewage line was intentionally crushed):Jlf/state fns, CO, I'. Por/l's, 472 So.2d 991 (AI(1.1985) (homeowner's insu rer filed declnratOI)l judgment action to determine applicability of "in\cntionalact)" exception afler wrongful death action was filed by family or neighbor f&t&1Iy shot by the insured): JUI,~lalfl lns. Co. v, Shirah. 466 $0.2\1 940 (Ala.l985) (automobile insurer asserted that insured intentionally caused injuries to police omcer who was In pursuit of insured): Watson v. AII/homu Fan" IJurL'(/u Mul. Cas. filS. Co., 465 So,2d 394 (Ala. 1985) (insured filed a dcdarato!')' judgment action against the insurer, seeking 10 halle insurer defend him In a pending assalllt and batt ery CMe lIrising from a shoot· inllincidcnt). In SWte Fal'm Fire alJd Gus. CO, I', /)(Jllis, 612 So.2d 458 (Aln, 1993), the court, after reviewing Dyer and other Alabama authorities, held in a child sex abuse case: "Alabama joins tho$( jurisdictions that Ilpply 'lhe inferred-Intent rule,'" Id. at 464, Under the Inferred Intent rule, intent to injure is inferred as a maller of law from the nature of the act committed. Whether inju!')' is expectrd or intended by the insured is of no matter. The Davis court was very careful to point out that it~ "holding today does not niter the holding of Dyer nnd iu progeny, bul only cn'tltes olle IIUn'(JW I,', I'Ceptiofl of sexual abuse of chil· dren ," td, at 464, ( ~: mphasi5 added). Despite how narrow the "one n~r row exception" was meant to be, the cou rt, in thre~ months a11p1led lin objective stan· dard in the CaS~ of Jackson County Hospital /I, A/abaflw Hospiia/iUsocioJtiOfl. 619 So.2d 1369 (Ala,1993) /Jackson I). In that case, tht hospital .....as sued in the state court by Adkins, a terminated employee, alleging a retaliatory discharge, She atleged that the reason she was terminated was becausc: she filfd a workers' compensation action against the hospital. Adkins and another employee. Webb, filed sex discrimination actions against the hospital in the federal cou rt. The Insu rer refused to defend the actions lind sued for a declaratory jlld~ment a~ k ing the court to declare Ihat it pro· vided no coveri\JIe <IS to Ihose actions. The subject o( Jackson

31.

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I was only the sexual discrimination case. The policy of

insurance provided coverage (or injuries caused by an occurrtnce: occurrence was defined as an M accident",which results in personal injury or property damage neither expected Ilor intended (rom the standpoint of the member." The to\\'er court granted summary judgment for the insurer. Affirming that ruling, tht supreme court said: "Under the terms of ils policy with lhe Trust, the hospital has coverage fo r w1int(!nliQmt/ acts: accordingly, Ihe Irial cOllrt properly determi ned Ihal the Trust has no duty to defend Ihe hospital on the ~exua l discrimination clairns.H (court's emph<lsis). Id. at 1312. The court reasoned that to sustain this "disparate treatment" cause of action the plaintiff must prove that the employer acted with discriminatory intent, The doctrine of inferred intent \\'as not mentiO:'led nor was any number of Alabama cases where the court applied a purely subjective standard in interpretinilihe same policy language. The court merely held that sex discrimination was an inten· tional act and not covered. If it c:an be s.,id that . ex\lal discrimination acts, as 11 mMter of law, cause bodily injury or property damage, the case is correct. 1\ may be that th&l is what the court intended. In October 1994, Jackson CoulIly Nospita/II. II/a/xmw Hospital Af.foc/afi'on 7J-usl. 652 So,2d 233 (Ala.I994) Vacholl

"Alabama joins those jurisdictions that apply 'the inferred .. lntent rule'."

II), the 5 upr~ me court determined the effect of the retallato!,), discharge nllegations which was nol decided in Jackson I , The court affirmed the lower court's ruling on summJry Judgment in favor of the insurer. The court sct out the definilion of occurrcnct as personal injury or property damage. "neither expected or

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strmdpollit of th e member.·

(court's emphasis) and held: After reviewing lhe record, \0\'(' conclude that the triOiI court, OIl remand, properly entered Ihe summary judg:. ment in fnvor of the Trust. Adkins's wrongful termlNllion claim was b.1Sed upon an llcti()ll alleged to be intentional on the Iwt of the Ilospilal: that is. Adkins illieged th;It the lIospilal intentlon:.lly di!IChargcd her because of her nllng: of 11 workers' compensation claim. /:.·-Z 1..I)(I(Ier IJQilI 7J-ailers, Inc .. supra. In her complaint. Adkins alleges that the Hospital took "intentional conduct in terminating the Plainti(r' and alleges that the Hospit.'li ~in tentionally terminated the Plainti/f, constructively or otherwise, solely bec<luse Plaint f( claimed rights under the Workmen's Compensation Law of the Stille of Alab.lfTlil," To provt her allegations. A,Jkins would necessarily be required to show that the Hospital Intentionally terminated her employment because she nled a workers' compt:n~'It ion d:.ln'l. In accordance with this Court's holding in Jackson I. we hold that the

at i$$ue here, excluding coverage for injuriu 'expected or 'n-usl's insurance allreement with the Hospital imposes on Ihe Trust no duty to provide coven,ge for Adkins's intended from the standpoinl of the Insured' as r~q~liring 8 subjective ;Inalysis of what the Insured expected or intended." wrongful termination claim, /d, at 235-236. The court cited 11 Alabarm ca$es for the stated prOpOsition. The doctrine d inferred intent was not mentioned, nOr were One would have thought the decision was specifically meant \0 Ihe many Alabama cases concerning the application of II §ubclearly notify the bench and bar thaI in this stHte! subjective jective standard where an intentional act is Involved, under test is required to determine whether or not an i l~ury was expected or intended from the insured's standpoint. Jackson II substantially the same policy provisions. The case is correct came one month 1;tterl only if it e.1l1 be said that a wrongful termina.tion, as a mailer of law, will produce an Injury expected or Intended. On r.1arch 25,1994, in the clISe of 7/JwlI.f(md Ford, IIlC, II. The subjective standard and Inferred-intent doctrine seemed Alllo-OIIJt1ers hu. Co .. 656 So.2d 360 fAla.19951, the court opined that intentional fraud was not covered , holding It \\'as to rove been abandoned in Jackson ' and II, In favor of a rule that intentional acts are simply not covered. The court applied an intentional act excluded by the words "bodily injury or properly damage expected or intended from the standpoint of an objective standard. The only reasonable conclusion is that the Insured." On rehearing. that decision was withdrawn and there are some intentlonllillcts, that. because of their n.lture, a substitute opinion was rendc:red on February 11. 1995. demand an objective test. According to the Jacksoll litigation, retaliatory disehllrlte because the plaintiff fil ed a workers' com- which III lea5t as to intentional fraud, opined the same thinl!. During that period (1 1 months) Jackson II wllS dtcided (sex pensation action and discharge because of sexual discrimination are two such acts. discrimination claims not covered because an intentlonal act) Prior toJocksoll II , which was rendered on October 28. 1994, as was Co//i/ol AfliallCe (rape to ~ judged by subjective stantht court , on April I , 19!M, decided the case of Copita' A(fiatlco dard) and Haisten (intentional removal of safety device Ins. Co. /I. 7'horoL'gll -Clecm, IIIC" 639 So.2d 1349 (Ala ,1994). required subjective st'lIldard). Thorough-Clean was sued for negligent and wanton practices Some three months following ToI.I'lIsend came Jacksoll fl. State Form nrc and Cas. fA .. 66 1 So.2d 232 {Ala.1995}, In in hiring, managing and supervising an eml)l~e. who raped that ca$e an insured shot and killed a person who stole his S.l-1.. an employee of the Alabama Power Co, The Power Comp,~ny had a contrllct with Thorough-Clean fo r "mitorial automobile. I-Ie was acquitted of charges of assault in the first degree. State ~'a rm refused to defend an action l'lIed by services. The court pointed out that the employee of the deceased's representative on the basis of an e_\cI\lsion Thorough-Clc:an \o'as not an additional insured beeauu, in exempting coverage for "a, bodily injury - •• (I) which is committing rape. he would have bttn acting outside hi ~ emplo>,mcnt. M to Thorough.Clelln. the court applied a "pure- ne ither expected or intended." The supreme court held that whether the intentional shooting causing injury was expectly subjective standard" to "govern the determination of whether an insured either expe<:ted or intended to inflict bodi- ed or intended from the standpoint of the Insured required a ly injury and crunt to the conclusion there wu no evidence to subjective slluldard, Justice Cook pointed out that. in indicate that it kn~ of the propensity of the employee toward AI8bomll Farm Bureau Mul, Cas. Co. u. Oller, 454 So.2d 921 violc:nee and did not know of past arrUI$. (Ala, 1984). the court would not allow evidence to be admitted of the insured'! conviction of manslaushter "which Probably to avoid tht rillors of Stale /o'orm I-/re & Cas. Co, /I. Daui,f, (Ala.19931 (Involving allegations of sexual abuse requires (I finding or objective intent" to be used "as eviderlce tlllit lthe defendant) subjectively intended to injury Ithe and mole~ l ation of children) , In which the inferred intent standard governed the detennination of whether an insured decedent)" and commented: If a conviction, standins alone, docs not conclusively "intended or expected" to innic! bodily injury on another. the enablish the elements of subjective intenllo injure Capitol Alliance court said thaI the case W/IS distinguishable anolher, how can someone's acquittal be considered on its faets and on the speeific wording of the exclusion in conclusive on the Question of Ih.1t person's intent? the polic)'. The ClIclusion in Delllis exempted coveraAe for a, bodily injury The facts of thi5 case create a genuine issue of disputand property~ (II which is neither expected or intended b>, lin ed (act as to whether Lambert. Jr .. subjectivel>, intendinsured: or (2) to uny person or properly whleh is the result of ed to shoot Goldsmith. Jackroll, 661 So.2d at 233, willful and malicious acts of an insured." Tilt exclusion in It ....,ould appear that. if rape, shootings and intentional Thorou,qh-Cloon was, "Thl$ insurance docs not ~pply to 'a' bodil>, injury expected or Intended from the standpoint of Ihe insured." nmoval of a safety device require II subjective test to deterIt is difficult to see any r~1I1 difference between the two provi· mine, (rom the standjK)int of the insured whether Of not he expected or intended bodily injury or property damise. all slons. It is here noted that exclusion (2) in the Davis case W3S held by the court to be an intentional act exclusion. intentional acts should require the same test. with the ueepJust II. month prior to Jackson II. the court held. In Jlaisten Ii!)" of sexual molestation of children where intc:nl to injure is /J. Audubon /ltd. Co .. 642 So,2d 404 (Ala.1994 ) that II. subjective inferred or if there are other actJ; Ihat fall into the nme category with sexual molestation of children. Where this i$ so, Ihe test must be applied to determine the issue of coverage where an insured was ch/lrged with removal of II ~fet y device causing supreme court should ~y so. There are two CMes that must be read together to undera trench to collapse resulling ill the death of Ihe plaintiffs dece;l$ed. The court said th,lt, in the past. it had "consistently stand the present status of at Icastlntcnlional fraud. Cily interpreted insurance provisions phrased euctly like this one Hi'alty, Inc. I'. Conlinl!ntal Cos. Co" 623 So.2d 1039 (Ala.19931 M

H OYE .. oH 1ft"" I l10

(here referred to <Ii C<J1I/iIlCnluf I) and Coll/illental Cas. Co. II. case inllolved only claims for intentional conduct.~) and /..adner Ci/g Really. IlIc., 673 So.2d 399 (Ala,1995), rehearing denied u, Sou. Cuar./IIS. Co" 347 5o,2d 100 (Ala,1977) (misrepresen. October 20, 1995, (here referred to as CoII/illclI/al ll) . tations ;nllOllled in the sale of property alleged as intentional) tn COlltiIl2ll/ail, the court reinstated a $300,000 V(:rdict i!l held: "The complainl$ In the Underlying actions allege that the favor of the plairltiffs, growing Ollt of fraudulent misrepresenta. pillinli(( su((ered damages as a proximate result consequence of tion in reference to the snle of residential property, In that intention;l! acl~ of fraud by Townsend Ford's agents, Under slime decision, it overturned ~ summary judgment ruling in l"adller and TapsCQIt Lhere is no duty under the insurilnce poli· favor of Continental to the effect that it.s policy was not applic. cy to defend the allegations of intentiona.l fraud," 1bwIlSl!nd, able because the allelled fraud \\'as intentional. On revening, 656 5o.2d at 363. the court pointed out that there was evidence Cochran acted The court went further to say there is coveraR:e under the with intent to inmct the harm on the Forbuses and agreed lhal cause of action suppression of a material fact since that cause the summary juJgment in Continental's favor was improper. of ~ctl on 15 not necessarily ~n Intentional act ~although" if The court pointed out that. "The summary judgment was based shown to have been committed intent ionally. II ca ll come on evidence from the Ilorbu5 trial. There were Issue$ of m~teri · under /lla same exc/us/on, ~l fa ct at the trial: the culpttbility of Cochran was an issue of II is here respectfully stated that the cour!. In 'lbi" JlScnd, matuial fact at the trial, and is an i~ ue of considerllble fact may have confused the exclusion which tefel'S to d~mages as here. Furthermore, a determination of Cochran's degree of cui· el'pected (rom the standpoint of the insured as bting an inten· pability was not indicated by the jury's verdict." .... "The evi· tional act el'clusion. rather than an intentional injury excludence before the trial court on the summary Judgment motion. sion as the provi~ion seems, with 00 ambiguity, to be an injury that fro m the Forbus trial. created genui ne luues of material exclusion, not an act exclusion. fa c!." Id, al 104 7, The question remains: Where intentional fraud is alle"ed, is GOJ11in(fllloll WM decided prior to 1bumsl!lld and Oil/V holds that there was ellidence both ways 3S to whether the defendant's sales poople ••• the court applied a acted intentionally to defraud, On rel1lJnd. the trial court changed itJ mind and determined "purely subjective standard" to "govern the that the errors and omissions policy did prOllide determination of whether an Insured cOllerage (or the $300,000 judgment. Continental appealed th{lt rliling, and in eUher expected or intended" Continl!ntalll, Ihe S1.!premc court, relying on to inflict bodlJ.y illiury ••. the cases of Alabamll fllrm Bureau f ful. Cas, IllS. (;(), II. Dyer, 454 5o.2d 921 (Ala.1984) (intent ional killing of brother over a water ski required it subjectille standard) and United Slates Fidelitll & cOvtrage. as a matter of law, excluded (~tII'lS",l(/) or is it necCUllr, CO. II, Anns/rong, 479 So.2d 1154 (Ala, 1985) (subjective essary to ~pply a subjectille test to determine the state of mind test applied where insured Intent ionally crushed a sewer line), of the insured (CoIlI/IlI!II/a/lI1? Surely the two cases Clmnot be affirmed the lower cou rt . The supreme court, applyi ng II subdistinguished on the basis that intentional fraud in Toumselld ject ive t ~5t , $<lid: "Prom a relllew of the record, we conclude WOtS in the sale of an automobile and the Intentlonal fraud in that, although the ellidence was disputed. there was ellidence to Collllmmtal II the sale of real estate, It is ~uppostd that support the trial court's find ing that Cochran's actions were COll/humlalll, since it was the CO\lrl'5 last declaration, takes covered by the I~nguage of the errors and omiuions policy. j,e., precedence Ovtr Townsend, that Martha Cochran did not el'Ptct or int ~nd the injury to the The words of the dissenting judge. in ThomllsaJ Contractor ~'o rbu5es as a result of her act io ns,~ /J. U.S, f.&<;" 248 F,2d 417 (5th Cir, 1979) (applying Ala., law) 7bllJ1lsemi was decided prior 10 Contillt'll/al /I and needs q\lite effectillely pOint out where a rule denying COIIerage mere· elaboration, In that case, in t ~n tlonal fraud wn ~ nlleged by a Iy because an act is intention wou ld lead: customer of Townsend in thaI ,111 employee of Townsend, in the lis truly!lO M innumerable similllr cases which might sale ohn automobile, represented that it had only been driven be conjectured, ~u ch as (a) 11 wife takes her husband's by fo'ord manaller5 under the constant ownership of Ford Motor ml:dicine by mistake and the resultant Injury to her is Company and was being sold as a demonstrator, when actually caused by accide.nt; (bl a hunter is mistaken for a deer the car had been used as a rentlll car, Auto·Owners brought II and fatally shot by his companion and his death is declaratory action, taking the poSition that an exclusion in Its t:lused by accident; (cl the owner of a prO$pect iv~ road· policy "a. 'Bodily injury' or 'properly damage' expected or side bUSiness has just paved the approach fro!n the Intended (rom the standpoi nt of lhe insured," excluded coverhighway to his business. a motorist mi$tl1kes the line of age for cJainu of intentional fraud. The trial court agreed with the right or way and drives over the property line, dam· Allstate and Townsend appealed, The supreme court, relying on aging the newl), laid pa~menl. against by accident. Tapscott II. Allstate IllS, Co" 526 5o.2d 12()8 (Ala.1977) (mali· In tht case or Unitlersal Umlarwri/f!rS illS, Co, u, Sl okes. clous and fa lse imprisonment, detaining and arresting the 990 F.2d 598 (11th Cir.i993). applying Alabama law. the plainti((, intentitlnal inflict ion of t!'llotiOl'lal distreu were not court affirmed a lower court ruling that intentional interfercOile red "because there was no dispute over the fact that this ence with contractual and business relat ions were cOllered. if 300 "OVUMIlf,n "'00

the insured did lIot e~pect or intend harm and the determination of that qtle~t i on l'.'a5 a question of fact for the jury. The court commented on the troublesome and unexplai nable cases of 1'tIPSCO(f and I.Of/ner. In distinguishing those cases. the Court said: Univtrsal ar,ues. hOl'.'evtr. that Alabama hM adopted an exception 10 this gener;!1 construction when the insured is charged with 1II1lntenlionai tort. Accordin" to Univers.11. Alabama has established Ihal intentional torts will al"'aYs be barred from coveralle under policy prOVisions limiting coverage 10 injuries not "intended or expected" by the insured. See Tap.fCfJ/t IJ. AflsWfe l1/s. Co., 526 So.2d 570, 573-75 (Aln.19SS): LudmlY & Co. Inc. I'. Soufliem Guaranly/ns. Co" 347 So.2d 100. 103·04 (AJa.1977j. Our review or Alabama lllW indicates that althoullh Alabama courts have indicllled some willingness 10 presume that an intentional tortfeasor Intends or expecU injury by its actions. the Alabama decisions rendered thus far have notllb:lndoned Ihe traditionlll analysis of delnmining the insured's sllb;ective intent to injure. Thus. in /Adner and TupscOIl. the pleadings themselves alleged that the insured parties subjectively intendcd or ex~cted injury to result from Iheir tortious actions. See T"pSCOIl, 526 So.2d at 572 (complaint alleging intentional infliction of emotionCiI distress and mal cious and false imprisonment. detain· !'nent. and arrest indicated that the defendant inten· tionally caused the defendant's injuries, and the I\l~i n · tiff testified under oath thllt the ins\lred intentionally acted to harm him); IAdn{lr, 347 So.2d at 102·03 (the insured nectmrily "expected" the nood damages suf· fered by the plaintiff! under the plaintiffs' allegation that the insurtd fratldulenlly sold them property which II knew would nood). Moreover, the court in Tapscott did not hold, as it might have, thnt insurers are automatically reliMd of covtrage undu "intended or eKpected" injury limitations whenever 11 complaint alleJtes only intentional torts. I~ather. the court held that when an intentional tort is IIlleged, courts must proceed to "look!! to the allegations in the complllinl. as well as llvallable admissible evidence to determine the insurer's respon· slbility to defend lind indemnify pummnt to the con· tract." TdPSCOlt. 526 So.2d at 574 . [n light of Alabama's position that the general tort doctrine o( "presumed intent" hilS "no application" to intentional injury exclusions, we conclude thllithe Alabama cou rts would construe the policy's occurrence clause as affording c~rage unless SCI subjectively intended to injure Atkinson through its interference actions. See IVhlfli. 589 So.2d llt 1295;Anl1stl'OlIg. 479 So.2d at 1167. Ul1i1'Orsol Um/I!rwn'ters. 990 ~:2d at 603·604 It is of further interest to note that the federal court (StokeS) distinguished Tapscott and I..odner. The state court (1bmlSend) followed 1'tIIISCOI! nnd /.tldl1er. II is here res~ctfully suggested

that if those two UlSCS. which appenr to have created i1 misunderstand ing of lhe difference between an illjur.II exclusion lind an act eJilctusion. are gOing to continue to confuse. they be s~dfica lty overruled or thlltlhe many, many ca.S(:5 involving all SOrts of inlentional acts which require a subjective standard to determine if an intentionnl act is covered be sptcifically overruled. It is intere~ting to note that Siokes followed Over and Tapscoll distinguished it, Tapscott is the only Alabam.1 case that mentions Dyer thai docs not follow its annomcelmnt that whether an insured e~pect5 or intends injury to result from 3n intentlOllnl injury is a subject for n fn cl find er. It 15 not unctly clear why Dyer was rejected by the 1'tlpsCO/l court. It is simply not true thlllln5urers, in General Li~bility Policies, exempt coverage for intentional acu. I nsuru~ expect to pay 1111 damllges that are not expected or in t end~d resu ll in" from bodily injury or pro~ rty damili:lc. I·'or that very reason the exclusion reads as it does. An in$urer Is perfectly able to restrict the C()\.'trage it offers In any manner it chooses. so long as it does not offend public policy. The problem with narrow coverage is it is hllrd to sell. If an insurer desires to eJIIclude intentional acts, H mlly easily adopt langullge to the errect that bodily injury and property damage are excl uded if caused by an intentional act. It couldn't scllthe policy. but nevertheless. it (ould adopt such li provision. Intentional acts are the specific subject of some exclusions usua lly (O\lnd in special coveraltes. By such provisions. an insurer. without ambiguity, c.ln tet his policyholder know that intentional ads are not covered. In Univers(ll UIJ(/enIJrilers fIlS. CO. II. StoJt'e$ CI1(wrolel. fife., 990 ~:2d 598 (11th Cir.1993). Ilpplying Ah,bamil Illw. Univeual first took the position Ihat TupsCfJII and f.a(IIII.!r were clearly the law and that intentional interference with contract and business relations. bein" an intentional act. was excluded from coverage. The court correctly disagreed and held whether such charges were covered or not depended on whether the ins\lred cxl'ICcted or intended the injury, alleged by tht plaintiff. The court, in face of the grell! number of Alabamll CIlUS to the same effect. co\lld hardly hoave concluded otherwise. Uni ~ r~lil's second position was that the policy conillined a specific provision exempting intentional acts liS opposed to intentional inJu ries. The exci usiQII provided: EXCLUSIONS - This insurance does not apply to (a) injury. product related damllges or legal damages. If caused by any dishonest, fraudulent, illfimliOllol or criminal oct committed by nny Insured .... (Emphasis 5upplied). The lower court. In its consideration of the excluJion. held that it was ambiguous. The ~ppella t e court fou nd no ambiguity concluding: ... Ihat Atkinson's intentional interferenct claim fell within the policy's intentional acts exclusion. The complaint alleges that SCI intentionally interfeted with Atkinson's business and contractual relations, and Atkinson cO\lld not have succeeded on the claim on any lesser showing of intent. See Unt/oru'()()(./ IJ. Soulli Cel//rdl 1Je1/11.!1C!phone Co" 59() So.2d 1iO. 177 (Ata.199 1) (plaintiff must prove that the defendant's interfe rence was intCrltionalto recover for intufn-

ence with business and contractual relations), Therefore, we hold that any liability arising (rom SCI's intentional lnterlerence with Atkinson's contractual and business relMions was expressly excluded from coverage under the terms or SCI's insurance policy. This result is consistent with Alabama's requirement that the insured's duty to indemnify be determined by examining the lllnllull!:!e employed In the Insurance policy and the allegations of the complaint. See T(lpscol!, 526 So.2d at 574. III. at 605. The lower court, in fi nding coverage, determined that the policy .....as ambiguous In that the intentional act exclusion connicted with other parts of lhe policy that clearly covered certain specified intentiOl'k11 acls, The appeals court, in refer· ence to thaI holding, said: "We agree with the district court that although lhe policy may be ambiguous with resptclto the intentional torts specified (or c()\Ifralle, this dCH!5 not make the exclusion ambilluous with regard to intentional torlS not named In the imurance p(llky." Id. Footnote nt 605. In TitOIl Illd. CO. I I. Riley. 641 SO,2d 766 (Ala,I994). the City

exists under a policy, the policy must be construed for the benefit of the insured .. .beclluse the policy is ambiguous on its face, we construe it against Titan and conclude that Titan must defend the deftndant on the claims against them, (Emphasis added). Id. at 768. Once the court incorrectly determined that the policy Hdoes preclude coverage for intentional /lcts." the decision is absolutely correct. There was .Imbill:uily. The Alabuma court has interpreted cKclusions Ihlll do not contnin the speci nc word "intention" U Intentional act exclusions. In Slala Farm /1. Dm>ls. 612 So.2d 458, 465 (Ala,1993) (intent will be inferred in child sexual molestation cases) the court held that an exclusion exempting coverage {or bodily injury or property d.lmage "(2) to any person or property which is the result o(willful and malicious acts 0( an lnsured. said: There Is another reason why the judgment of the trial court is due to be affirmed, The discu$Sion above Is blued on the policy exclusion precluding cov~ rage for bodily injury "which is either expected or intended by an insured," but we illso hold, b<lscd on the facts nnd circumstances pruented here, that coverage would likewise be precluded under the objective standard of the second policy exclusion. which denies covmge (or bodily injury or properly Once the court incorrectly determined which is lhe result o(wi1lful and malithat the policy "doe. preclude cO\leralle for cious acts of an insured." It is interesting to note that the policy, in Intentional act., .. the decision is absolutely Contillcn/of If, has an exclusion almost correct. There was ambiguity. identical to the one referred to by the Oouis CO\lr\. Apparently, the court did not consider that exclusion or W:t.1 not called upon to consider 11. See also edward Dod!/lt II. Hom/I. Nllt. Nul. Cos. I"s. Co" 510 of Montgomery had in force a "Law En(orcement Omcers' So.2d 225 (Ala. 1987) and 51. Palll f'ira and Mori/:/! Ins. Co, IJ. Liability Coverage~ l)Olicy providIng coverage for all city law MOI/lloll. Allen alld Williams. 592 So,2d 199 (Ala.J99I). inter· enforcement omcers. The policy provided coverage for an preting a simi1:'!r exclusion and arriving at the SlIme result. "occu rre nce~ wl-kh ""as defined as Han event , .. that results in : In conclusion, Ule law. as it presently stands, is far from I. personal injury the Insured did nol expect or intend ...." clear- retaliatory discharge Vackson I): sexual diKriminalion Personal injury ""as defined as "Bodily injury ... : The policy Vackson In: detaining and arresting (7UpsCOIl): intentional then provided covera"e (or certain intentIonal acts-false (r:lud (Uldlll!r, 'n:xlm.wn(/); and intentional inOktion of emotion· arrest. malicious prosecution. etc. Titan's de(en$(: (relying on al distress, fal se imprisonment. intentional $uPPTUsion of matethe "expected or intentional" exclu ~lon ). Wll5 that "the acts rial f8cts ('nmmselJ(f) are excluded because they Ille Intentional were" in t ention~ 1 wrongs and could not give rise to a duty to acts. Manslaulthtcr (Oller); <lS$ault lInd bMtery (SIIIII! farm Fire defend under the policy. It cOrltended for the application or an & CAs. CQ. Ii. Oyer): intentional fraut! (Conl/mmlaf /I): lind lit· objective stllndard. er,lilya dozen or morc cases inV()lvlng intentIonal acts are The court held the policy was ambiguous and because of the excluded only if the insured intended or expected the injury. 'IInbiguity, the insured was entitled to coverage. The court said: Perhaps there are certain intentional acts that are so extreme TIle language of the policy docs preclude COl-efOgc for that they simply should not be covered. An extreme case perilllllll/ional acts, but it also specifically providu c~ r haps is illustrated by the facts in Titall Ind. Co, u. Riley. 631 age for acts of malicious prosecution. assault and bat· So.2d 766 (Ala, 1994). If that is so, those acts should be named lery, wrongful entry, piracy, and other offen.5Cs that and a formula given so one may intelligently determine what require proof of intent. ~' urther. the pOlky specifically other intentional acts are not covered. The inferrtd intent doc· provide5 coverage for c1aim~ brought under the trine ShOllld be specifically adopted in those cases. howt'Ver. IItts Federal Ci ... il Right ~ Act. The conniet be!\\'een these should not be rejected on the ba~i$ that they are Intentional prO\li5ions creates all Inherell! Ilrtlbiguity within the ~Ct5, unles$ lhc polity so provides. TIle insurers never intended policy, and It is well settled In this stille thllt when i ntention~l acts not to be covered or Ihey would. as some have, there Is IIny doubt as to whether Insurllnce coverage 5pecifically excluded such acu. • M

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I~TI(On

L' flCI~

This Code of Ethics for r-Iediators sels forlh Standards to gUide mediators in their mediation practices. These Standards 8re intended as mles of rcason lind should be interpreted with reference to the purposes of mediation. This Code does not exhausllhe moral and ethical considerations t!1<It should guide a medi<ltor. [lather. this Code provides II framework for the ethical practice of mediation. Failure 10 comply with II Stand,lTd set Qut in this Cooe may be the baSi5 (or removal from the roster of mediators maintained by the Alnbama Center (or Dispute ne5()lution ilnd (or such other action 35 may be taken by the Alab.lma Supreme Court COrnmissiol\ on Dispute Hesolulion. This Code is designc(] to provide ~uidance to mcdiillOT$. ViolRtion of 11 Slllndar(] shall not give rise to a cause or action nor shall it create /lny presumption that a legal (]uty ha~ been breaehe(]. Nothin" in this Code shoul(] be (]eemed to establish or llugment any substantive leWlI duty on the part of medilllors. II. SOll'l·:. !JlFINITION.

~H'/II'-\T(llfS

lUlU·: t;r·;NEJ(;\l.I'i(INl·OU:S. Mlil! HFEl'TIVF Jj,\TE

Scope. The Stnm.!ar(]s set out in this Code shllll apply to: ( I ) Mediation of ellses pending in courts o( lhe State of Alabama: and (2) ~I ediation conducted by perSOIU whose Mmes are liSle(] on the rosier of mediators maintained by the Alabama Center for Dispute Hesolutiol1. (bl I)efinilion of t>1ediation. ~l e(]iatlon I~ <L process whereby a (lcutr,,1 third party encourages lmd (acilitates the re50lution of a dispute without deciding what that resolution should be. II is an informal and non·~dver5llrial proce~ whose objective is htlping the disputing parties reach a mutually acceptable agrefment. (c) Hediator's I~ore. In mediation. decision-making authority rests with the disl:H1ting pllrties. The role of the mediator inclu(]es. but is noilimited 10. 1155islin" the disputing pllrtiu in identifying issues, (acilitating communication. focus ing the dispulinll pJrties on their Interests. maximizing the exploration ofllltnnatives. and helpinll the disputing parties reach volunillry agreements, (d) Ceneral Principl~s, Mediation is based on communication, negotiation. facilitation, and the technique or method of solvinll: problems. It emphasizes: ( 1) The needs ,lIId inter~sts o( the disputing parties: (2) Fairness: (3) Procedural flexibility; (4) Privacy and confidentiality; (5) Full disclosure: and (6) ScU·deterllli nation. e) E((ective Date. This Code shaliliovem all mediation protei!dings commenced on or after MllfCh I. 1996, (a)

III

~T..'NH,\RIIS

STANIlAlW I

t~ENEIv\L

(II) Integrity. Impartiality. and Profe~ionar Competence. Integrity. imrartiality. and professional competence 3rt essential qualifications of any media.tor. I'rofes.slonlll competence means the knowledge, skill, and thoroughness rtll· sonably necessary fo r lht mediation. (I) A mediator shall not accept any engagement, perform any service. or undertake any ~cl thnt would compromise the mediator's integrity. (2) A medillior shall maintain professional competence in mediation skills. This includes. bulls nol limited to:

(A) Staying informed of, and abiding by, all statutes. rules. and "dministrati~ order! rtlevant to the prlctice of mtdi1ltion: nnd (81 Regularly engaging in educational activitiu promoting profeuionlll growth. (3) If the medilllor decides that a case is beyond the lYIedlator's competence, the mediator shall dedine appointment, withdraw. or request technical assistanCf, (b) Concurrent Standartls. NOlhing contained hereil1 shall replace, eliminllle, or render i1l<lpplicable relevant ethical standards n(ll in connict with these rules that may be imposed upon any mediator by virtue of the medilltor's profeulon,

STANllr\IUl 2. HESI'ONSIBII .ITIES TO c011lns A mediator shall be candid, accurate, and fully responsive tf) a court concerning the medlalor's qualifications, availability, and other matters pertinent to his or her being selected 10 mediate. A mediator shall observe all adminiSlrative policies, procedural rules, and statutes that apply to mediation. A mediator shall refrain from any activity that has Ihe appearance of improperly innuendng a court to secure placement on /I roster of mediators or appointn'ent to a case.

STANlJAHU :1. TI lE r.W ]IlAT!ON f'lmn;SS (a) Orientation Ses5ion. In order for parties to exercise self路determination they must understand the l11ediatiorl process, At the belolinninR of the l11edilllion seMion. the mediator should explain the mediation proceu. This explana. tlon ~hould Incl ude: (I) The role of the l11edilltor 115 a neutral pllrty who will f(1cilitate the discuS5ion belweel\ the disputing parties but who will not decide the outcome of the dispute; (2) The procedure that will be followed during t.h~ mediation session or sessions; (31 The pledge of confidentiality that applic~ to the mediation proces.5: (4) The fact that the mediator does not represent either parly and will not give professional advice in the absence of a party's attorney and tha\. if expert advice is needed, the parties will be expecled to consult with experts other thlln the mediator: and (5) The fact that the mediation can be terminated at any time by the mediator or by any of the pari iI's. I'urther, in the event a party is nOl represented byan attorney, the mediator should explain: (I ) That the parties are (ree to consult legal counsel al any lime and Me encouraged to have any sellle路 ment agreement resulting from the mediation process reviewed by counsel bcfore they sign it; and (2) That a mediated agreement. once signed, is bindin" and can have a significant effect upon the rights of the parlies and upon the status of the case. (b) Continuing Mediation. A mediator shalt withdraw from II mediation if the medialor believes the mediation is being used 10 further illellal conduct. A mediator may withdrOlw if the mediator believes any agreement rtached would be the result of fraud, durC5s, overreaching, the absence of bargaining abilily. or unconscionabilit)'. A mediator shall not prolong a mediation session if il btcomts apilarent thM the case is unsuitable for mediation or if one or more of lhe parties i5 unable or unwilling 10 participate in the mediation process in a meanin"ful m01nner. (c) Avoidance of Delay. A mediator shall perform mediation services in a timely and expeditiou5 fashion. avoiding delays whenever rcasonllbly po~slble. A mediator shall reirain from accepting additional appointments when it becomes apparent that completion of mediation assignments already accepted cannOl be accompll~hed in D timely fashion.

STANIJI\JtIJ 4. Sl\I.F' IJETEnr.1JNATJ(JN (II) Parties' night to Decide. A mediator shall assist the parliu in reaching an informed and volunlary agretment. Subst.lntive decisions made durinll mediation are to be made voluntarily by the parties. (b) I'rohibilion of Coercion. A mediator ~ha ll not c~rct or unfairly Innuence a party into entering into a seltlement agreemert. (c) r.1lsrepresenlation Prohibited. A medilltor shall not intentionally misrepresent material facls or circumstances in the course of a mediation. (til Balanced !'rocen. A mediator shall promote a balanced process and shall encourage the p.lrtJU to p.lrlicipate in the mediation proceedings in a non 路 adver~rial manner. (e) Responsibility lo NonpartiCipllling Parties. Amediator may promute consideration of the interests of persons who may be affected by 3n agreement resulting from the mediation process lind who ~re not represented in the mediation process.

~.o

NOVOUDCA , .....

STANIJ..\1t1J 5. l1>lI',\RTlAU ry .\!\III f 4JNFI.Il'l

I JI-" INTEl-EST

(a) Impartiality. A medilltor shall be impartial and shall advisc all ",vties of any circumstances that may result in possible bill.!, prejudice, or Impllrlialily on the pnrt of the mediator. Impartiality mellns frcedom from f;lVo ritism or bias in work, Ilction.llnd appcllrance. Impartiality impliu a commitment to aid all pllTlies, as oPl>osed to one or more spe· cific ptlrties in moving toward :lI1llilreement. (I) A medilltor shall maintain impartiality while ra i~ing questions for the parties to consider concerning the fairness. equity, and feas ibility of proposed selliement options. (2) A mediator shllil withdraw from mediation if the medilltor believes the mediator can no longer remain impartiill. (b) nCQuired Disclosures and ConniclS of Interest. (1) A mediator must disclose to the di5Puting partitj lhe (ollowing: (A) Any current or past representation of or comuiting relationship with any pllrty or the attorney of Imy party involved in the mediation. (11) Any pecuniary interest the mediator may ha\\f in common with any of the p..vties or that m. \y be affected by the outcome of the medilllion process. (el I{nown potential connicts, including membership on a board of directors, full· or plirt.tlme ser· vice as a representative or advocate, consultation work perforrmd for a fee, current stock or bond own~r ship other than mutual fund shares or appropriate trust arrangements, or any other form of managerial, financial. or immediate family interest with respect to il party involw:d. A I11cdilltor who i5 a member of II law firm is obliged to discloH lI!ly representation of any of the disllutin~ parties by the medilltor's firm Dr a member of that nrm of which the mediator is aware. (01 Any close personal relationship or other circumstance. in addition to those specifically mentioned in this Standard, that might reasonably raise II question as to the mediator'5 impartiality. (2) Mediators estabri~h per50nal rellltion~hips with many represen\,ltives, attorneys. other mediators, and members of various other p rofessionala~5oc iatjons. ~l ediator~ should not be secretive about such friend ships or acqlJaintances. but disclosure of thcse relationships is not necessary unless that rel11tionship is one of tho.w mentioned in Ihis Standard or some feature of a p.uticular relation~hip might reasonably lI11Ptllr to impair impartiality. (31 Prior ~ervice 015 II mediator in a mediation involving a party or <ln attorney for a party does not constitute representation of the party or consultlliion work for the party. However, mediators are strongly tl\cou ra~td to disclose such prior relatiomhips. ~lediatOT$ must disclose any ongoing rela· tionship with a party or an attorney for a party Involved in il mediation, including member5hip on a pdnel of perSO!15 providing mediation. arbitration, or other alternative dispute resolut ion services to that party or attorney. (4) Amediator shall not provide coun5eling or therapy 10 any parly during the mediation process, lind a medintor who is II lawyer ~hal! not repruen! a p;!rly in tiny m~Ucr during the mediation. (5) All disclosures requir~d by this Standard shall be made as soon i\S prllctlcable aner the mediator becomes aware of the interest or the relationship. (6) Th~ burden of disclosure rests on the mediator and continues throughout the mediation proccss. After appropriate disclosure, the mediator may mediate the dispute if all parties to the mediation agree to the mediator's participation and that agreement is reduced to writin~. If the mediator believes that the relationShip or interest would affect the mediator's Ill1l'Irtiality, he or she should withdraw, irrespective of the expreued duire5 of the p.lTties. (7) AmediMor shall not use the mediation process tosolicit any pllTty to the mediatiOll concerning future professional services, (8) A mediator must avoid the appearance of a conflict of interest both durin" and after the mediation. Without the consent of all parties, a mediator shall not subsequently estllblish a professionlll relationship with one of the pllftic5 in a ~ubsta nt ially related matter. ;T"~II:\I(])

h. ({l:\FrPENTI.\IJn

(a) Confidel1lilility. A mediator shall preserve and maintain the confident iality of all medilltion proceedings excepl where required by law to di ~close information gathered durin" the mediation. (b) Ih:cords and IteseOlrch Oata. A medi;ltor shall store and dispose of records relating to mediation proceedinR! in a confidential manner and shall ensure that 1111 identifying information is removed and the anonymity of the parties is protected when materials included in those records are used fo~ ruearch, training, or statist ical compilations.

if..\N IMfm i. I'I({WE IlIm,\I. ,\lJ\1('1-: (a) CerlfTally. 1\ mediator ~hall not provide Information the mediator Is not qualified by training or eltperlence to provide. (b) Independent Legal Advice. When 1I mediator believes a I»Irty does nol \mderstand or i1ppreciate how a potential i1greement reached through the mediation process m"y advmely a((ecllhe party's leila I rilthts or oblig<ltions, the medlntar shou ld advise the participants to seck independent legaJ advice, (c) Absent I'lIrty. If one of the parties is unable 10 pllrtici[»te in the mediation process for psychological or physical reasons, a mediator should postpOne or cMcel mediation until such time as all parties are able 10 participate, (d) Personal or Professional Opinion. A mediator may discuss possible outcoml'$ of a case, but a mediator may nol offer a personal or profe~~ ional opinion regarding the likelihood of any specific outcome eltcepl in the presence of Ihe attorney for the pMly 10 whom lhe opinion is given. STANllAlW S FEES ANII ~:XI'ENSES: ''NO flOSO SEf(\"ll"f(a) Gen~ ral Hequlrements. A mediiltor occupies a pOsition of Irust with respect to the parties and the courl system, In chargin~ for services and eltpenses, the mediator must be gOV<!rned by the same hillh standards of hOMr and integrity thatallply to all other phases of the mediator's work. A mediator shall be scrupulous and honest in billing and must avoid charging eJlcessive fees and expenses for mediation services. (b) Records. A mediator sh"Il m.,int.,in IIdequllle records to support charges (or services and expenses and shall make an accounting to the parties or 10 Ihe court upon request. (c) Referrals. No commissions, reb:!tu, or similar rem\!rltr(ltion shall ~ given to or received by a mediator fo r referral of person5 fo r mediation or l'el8ted services. (d) Contingent Fees. A mediator shall not charge or accept a contingent fee or bll~e II fcc in any manner on the outcome of the mediation process, (e) Minin1um Fees, A mediator may specify in advance minimum charges fo r scheduling or conducting a mediation $Cs5ion without viollllin~ this Standard, If) Disclosure of Peu. When a mediator is contacted dl re~t ly by the p.1rtiu for mediation services, the medi.,lor has II profcuional responsibility to respond to que~tions regarding fees by providing" copy of the basis (or charges (or fees and expenses. (g) Pro Bono Service. t>1ediatou have a professional responsibility to provide competent services to pe rson~ seeking their IIssistance, Includ; n ~ those unllble to pay (or their sen.'ices, As a me,nl5 of metting the needs of the those who are unable to pay, II mediator should provide medifl tion services pro bol1o or al a reduced rllte of compenSiltion whenever appropriate, !I. n<" I~INl ANIJ EIWf,\TIO)\: Training. A mediator is obligated to acquire knowledge lind trllining in the mediation process, Inc.ludm~ an understanding of appropriate professional ethiC$, 5tand;! rd~, and resllOnsibilities. Upon request, a mediator is required to disclose the extent and nature of the mediator's education. training, and experience, (b) Continuing Educ<llion. It is important til,!t mcdiaton continue their profession;!1 education as long flS they are actively servi n ~ as mediators, A mediator shall be ller!".On:dly responsible fo r ongoin" professional ~I'owth, including I»Irtieil»llicnl in such continuing education as may be required by law or ruJe of an ailpr01Jriate authority. (c) New f.lediMor Training. An experienced medilllor should cooperate in thc trainin~ of new mediators, including serving as a mentor. SH~II,\f( IJ

(a)

SlN~I~AItIIIU .. \lJ\"I-.In1SING Advert ising or any other communication with the public concerning mediation services offered by the med~' t or or regardinll the education, training, and expertise of the mediator shall be truthful. f.lediators shall refrain (rom mll k in~ promises and guarantees of resulu,

sTAN"DMUJ II. ,,/«( 11 umn:u ..\{,HEI-.~I· ~T A mediator shall not enter into a partnership or employment agreement that restricts the rights of the mediator to mediflte afler Ihe relationship forming the b.,sis of the agretment is lerminated, except that a mediMor may enter into an a~reemen l concerning benefits upon retirement. STANJlt\IUJ 12 ,\])\".-\Nt:EMENT I!l' ~IU)J!\TJIlN A mediator should support the advancement of mediation by encouraging and participating In research, evalulltlon, or other forms of professional development and public education.

United States District Court, Northern District of Alabama Standing Order Effective July 15, 1996, the appearance in llny civil case pending in !h i~ court by any counsel in addition to. or in substitution of, a previously appearing counsel {or the ",me party shall, if such appearance would or might constitute grounds (or re~usal or disqualification of the Judge to whom thf case is assigned (which did not already exist by rtason of the identity of the previously lI]lpellring counsel), be Ineffecti\'e unUI such lime IhM a molion. seeking Icavl:' \0 lldd or sub· ' 1Itu!!' such new counsel. is approved by a district judge or magistrate judge of this court . Ordinarily, such a motion shall be referred automatically lind 11\ random to it 11111gistrllte judge 0( Ihi5 court (or prolll])! hearinA

~nd

decision, There shall

be a strong, but rebuttable, presUlllptiOn that the reason for such it proposed lIddition or substitution of counsel is to cause recusal or disqualification of the assigned judge: lind the judge to whom such motion i~ referred may also considtr the disruptive effect, if any, reassignment of the case to another judge "'IQuld have upon the court ;md other parties, Ordered for the court this the 12'" d:ly of July 1996, Sam C, IJolnt~r, Jr. ('hid Jlld~c In the ll nlt~J StlllU UI8trlct ('(lurt (lr Ihe Norlh~rn Obtrlcl of AI.bama In Itt: wnenl Unitt for Refunl of fj"'iI !'>lllIera 10 Ill. t 'nlled Stltet 'I.gIAlrale Judltu Gentnl Unitr The incre;uin[l clIselood being experienced by the Court, coupled with the loss of II temporary judgeshil), 11M ctlused the Cou rt to cQn5ider ways in which civi l mailers may be assigned to provide more c(ficienl lmd expedient handling, Pull utilization of the judicinl skills of the magistrate judges of the Court is one of lhe ways identified. The Court has and continucs to encourage litigants to consent to the elCercise of full, cllU.dbl)Ositive j\lrisdiction by m<lgistrnte judges. With this in mind, it is, therefore. ordered as follow~: 1. Beginning September I, 1996, the Clerk ~hn ll1l$sign every eighth newly filed civil c.ue, subject to the elCclusions identified below. to a magistrate judge randomly selected. who shall De re$ponsible for at! pretrial manngement of the cases assigned to him or her in this manner. includinll determi n3tion of all non·dispositive motion ~ in the case, The <ly illnment shall be to the maj:listrate judge and neither the courl file, the docket sheet. nor any other cou rt record shall reflect lin assignment to a district judge, ellcel)t aS l'rovided below, 2. ~:xcluded from the civil cascs ayigned to magist rllte judges pursuanlto this Order are Social Security appeals, adlninistrative agency appeals, bankruptcy matters (including mot ions to withdraw the reference) and llOy CllM: in which a tempot<lT)' restraining order or other emergency relief is sought. Consistent with the pn:$ent practice, magistrate jJdges shall De referred all prisoner cases assigned to district judges. 3, The Clerk 5111111 continue in all cll!ies lo forward to the parties, in the manner provided by LR 73.2(a), notice of their option to consent to ;uriMliction by a magistrate judge under 28 U.S.C. §636(c). If consent is given by all parties in II CIIse al ready ayigned to a magistrale judge purswnlto this Order, tht case will be assigned to the magistrate judge for all nutters lind heor she will ClCucise full dispositive ju risdiction. If consent is given by al l parties In a c.lSe assigned to a district judge, the dist rict judlle may, in the exercise o( discretion, reassign it to a magistrate judge or may decline to do so. In such " case reassigned to a Il1n{tistratc judge by the district judge, Ihc magistrate judge shall exercl~e full dispositive juri5diction under §636(c) and LI~ 73.2. 4. In cases assigned ]lutSU4Il1t to this Order to a mastistrate judge (or management o( pretrialmatlen but fOr which §636(c) coosent tw not ~ l b«n given, p.1rties retain tht right to seek review of a magistrate judge's rulings and ordcrs on non·di5positive matters in the manner provided by 28 U.S.C. §636(b){ I)(A) and Rule 72(:1) of the Federal Rules ofCk'il Proml/Jf'/t. In the event a p.1rt}' seek! review of such a matter, the Clerk shall r~noom l y select II district judge for tl1~t purpose and Ulal purpose on ly: the Cll5e will nol be reas~lgned (or an)' other purpose to the district judge to whom a review of a rrmgistrale jlldgc's order is referred. Ench such order or rulin~ by a magistrate judge on which a review is Mlught shall be randomly referred to a district judge, who shall be responsible only for reviewing the specific order or ruling in question. The selection of the <!istrkt judge shall be (rom II special draw without reg.ml to the court's divisions. I)uring and upon compldion of the review by tht district judge. the magistrate judge shall retain man.lgcment of all other pretrial matters. 5. In cases assigned pursuant to this Order to a magistrate judge for management of pretrial 1I1"llcrs but fo r which

§6:16(c) consent has not been given b), all parties, the magi$trate judge mil)' deny motions for remand and motions to dis· miss for failu re 10 slate a claim, If the mallislrale judge believes an)' such mol ion is due 10 be grarlled he or she shall prepare and file a report and recommendation. Upon Ihe fiI· ing of a report recommending Ihe granting of such II motion, the Clerk shall randoml), select II district judge to review the recomm~ndlltion of the magistrate judge. an), objections to ii, and to detnmine the motion, The selection of the district judge will ~ from II special draw without regard to Ihe court's di ... sion! and It shall be for the purpose only of reviewing the particular motion the mililistrllle judge has recommended granting. I( the mot ron is IIranted. the districi Judge will enter 5uch orders as are npproprinle. If the district judge denies the motion. Ihe ffiililist rate judge Shllil resume mllnagemcnt of all other pretrial matters. 6. In cases assigned punuantlO this Order to a magistrate judge (or m,magement of pretrial mlilters but (or which §636(c) consent has not been given by all parties. the magis· trate judlle 5hall prcrwe a report and recommend"lion on "II ~.15e·di~IMitive mollons nnd other motions specified in §636(b)( IhAl. Upon the filing of a ~a5e·di5Positive 1lI0lion. except tho~e specified in the precedin(l p.lrililraph, the mngis· trate judge shllil conduct such proceedings nnd enter such order~ as are necessal)' to brinll the mothm under submission. When the motion is taken under submission. the magistrate judge shllil enter an order notifying the pnrticsthat U1C motion hilS been taken under submi~~ion arId that they must notify the Clerk of Court in writing within fifteen (15) days whether they wish for tile magistrate judge to exercise 1636(c) jurisdiction for all pUTJ'OSC5 including determination of the motion, or ..... hether they decline to consent to §636(c) jurisdiction and wish for the motion to bt determined by a district j~ldge. In the event all puties consent to §636(c) jurisdiction, the case will be assigned to the IYUIgislrate judge pursuant to I.H 73.2 and he or she shall proceed to determine the motion and txtrcis(: jurisdiction (or all purposes. inciudinillrial "nd final judgmtllt, In the event one or marc parties declinell to consent. lhe mng· Istrate judge will prep.1re ~ report "nd recommendation with regnrd to the motion :md Ihe Clerk will randomly select II dis· trict judge to whom the cas(: will be reassigned (or all (urther purp05es. The selectioTl of the district Judge will be from ~ 5;>e· cial dr,lw without regant 10 the Court's divisions. Neither th~ mallisl ratejudlle nor the districljudge witt be informed of the identity of :m)' part)' declini ng to consent to §636(c) jurisdiction. Notwithstanding the reassignment of a cllse to district judge. he or she remains (ree 10 make specific references of any motiorl or Illatter to lhe magistrate judge pursuilnt to ~636(b)( Il:A) and (11) and LR 72.1. 7. Except as provided herein. all other local rules and stand· ing orden dealing with Ihe ,u5ignmcnl of cases remain unchanged. Done and ordered this 25'" day of Jul), 1996. on behalf of the other judit~s o( this courl with their express permi$sion.

Sam C, Pointer, Jr. Chi ef Judge , ... NOve .. lliJII , . . .

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BAR LEADERSHIP CONFERENCE

The Alabama State Montgom ery Montgomery Public Schools Partnership Program attracts 156 volunteer teachers, lawyers and judges {or fifth -grade classrooms.

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ALABAMA STATE BAR SECTION MEMBERSHIP APPLICATION To join one or more sect ion~, complete this (orm and attach separate checks paynble to cOIch section you wish to join. Name _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Firm or Agency O((lcc Address _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Office Locatio" _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Office Te ephone Number Section

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l..abor and Employment Law ............................................irpraclicing less than 5 years- $IO if practicing 5 or more years-S30 o Li tigation ............................................................................................................................ $15 o Oil, C,\S and Mineral L.lw ,............................. ".................................................................. $15 Cl Professional Economics and Technology Law .................................................................. $25 o Heal l)roperty, Probate and Trust Law .............................................................................. $10 o Taxation ................................................................ "., ... " ..................................................... $15 ] Workers' Compensation Law ............................................................................................ $20 o Youn~ Lawyers' ...................................................................................................................... 0 TOTAL _ _

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