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NOtI('mbn- J959 On Ih, COt"" l.IttI~ HII*/' C#IVIO" Nltlloflul Prfsm... The !.Itlle River Canyon Na\iOn.lll'reserve is located in northeast Alabama In Cherokee and OcKalb I;Qunt ics. The 14.DOO·acre preserve contains in oul51andlnll eKample of ~n Appalachian Plateau I' rovinct canyon .ystem. The canyon and the nearly pristine I.tltle River lollether form an EXt raordinary naturltl (talure 01 Alabama. and offer exceptional OPfI(Irtunltlu (or whittlOlJlft kayakingl carl(ltinlL photOltrllPhy. rockclimbing. horseback rldinlL fishlnlL hunUnR. or hiking. - PIwI{)f/t'Oph biJ l'aul Cruwlorc/, JD, CW

396

IN THIS ISSUE JUSTICE MCK1NU."Y HONORED ." ............ , ... , .•• • .... • . . .. , 379

Do SoMETHINC OWFERENT

••• , •• , , ••• , , •• • •.••••.•••..•••••••.

385

Al.AiJ.AMA SUI'KI::Mt; CoURT COMfollSS10N ON I)ISI'\lll; IlESOUlTION AND

AlAMMA CENn:R t'OR DISPlfl'E l~ t;SOurrION CEIJ:llltAn; FIVE YEARS Qt' ACCOM1'L1 SHM~;NTS ................ , .... , ... , , . , • , 387 AlABAMA STAn: BAR VOLUNTEER LAIVVt:fCS PROCHAM Rt:CEM:S NATIONAL Ft:U.oWSllIl' , . , , , , , , , , , , •• , ••• , , •.• , ....... , 393 TIlE AIAI!.\MA RELIGIOUS F'Ht:t:OOM MENI)Mt:NT: A UWYER'S CtnDE " •• ,, 396 RE.')I't;cnNG Tm:

RI..Lf..s: TIlE I..t-:GIS....TUIU·: TlNKt:RS WITH IlULE 23 .".", 404

AI.AUA."1A'S MI NOlllrv A11'ORNt:VS , ••• , ••• " •• , " , . , " " " , . , ' , . ,

TIlt: BIRMINGHAM PLEDGE -

, 410

A LAWV£R WI IO HAS MADE A DIFFERENCt: , , , 414

BUSINESS TORTS ""RoM APLAlNTlt,,"S I'ERSl't:cnvr. , , , , •• , , •• , , • , • , , ••

415

ALAMMA SD\TE BAR

Wh:u'. New + l'ubllclJlloru + On-Line Comm\lnhy + Alab.1ma Bar Reporter OOC C\llnlonl + CLE Calendllr + On. Llne B.1T Directcrv Nove MOe" IOOg I "13

Published seven limn a ~8r (mo June Il8ue I, 8 bar dlrootory edillon) by tne Alat:.ama Stale Bar, P.O. 6¢Ic 415«1. Ml)f1tgomery. Alabama 36101-.4 158. Phone (334) 269' 1515 ' www.alabaf.org

DEPARTMENTS President's Page

366

Robert A. lo4ulttokf,r... .. ... " .. " ........ "" ........ "." .... ,., ....... ,"""""''''''''''''''''''''', '" "" .. "., .. ,., ...... ""Cn.1f & EGlIor &iH" Shlrock DePaola .".... " ................................................................................... ,Vg·Chalr & .... oodaoiO EdI!OI

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Executive Dlrl!clor's Report

368 BJ.tr Briefs 37 1

MemQrials

372

Aboul Members. Among Firms 381

Building Alabama's Courthouses 383

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ALAIIAMA STAT~: liAR II f'AOQUAR'ft-;RS STAFf' 41 5 J}Qlu Al'I'nue. Montgolnu)" AI. 361G4 (334 , 269. 15 15 • I'AX (:)34' 261 ·6J 10 • Web lIlt: _ .al&Nr,or'il f.w:ull .... Ol,oclo, ~ ...... " ........ " ... " ... "" .. K,lth~, roQ' "",n

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Opinions of the Gener&l Couflsel

420

422

Young Lawyers' Seclion

425

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Recent Deci5ions 427

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The substantive law and practical, hands-on advice you need In one comprehensive volume

AIAIlAMA

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Merit Selection of Judges-A Concept Whose Time Has Come

206 NOVUMOIII 10. .

SU5P'!Cl that only a small percentage Ismaller of lawyer$ in our state (and an even percentage of the voting public) realize that Alabama ;5 one of a handful of ~tates remaining which still holds partisan pol)ular elections to fi ll pillee5 on its appellate courts. Has the lime arrived for us, as lawyers and officers of the court, to take the lead role in persuading leglslMou and the general public of the need for judicial reform? , have be, ome convinced lhal the time (or our stale to Institute II merit selection proctss (or judicial offices has Ilot only arrived, but is over· due. Contested judidal races for appellate and trial court poSitions were extreme· Iy rare in Alahanu until the 19805 when a viable two-party system begim to evolve. Prior to 1980. judicial offices generally were filled through appointment.s by the governor when vacancies occurred a$ a result of the death or retirement of a sitting judge. Of course. this was during a period of time when a single-party (or a no-parly) political system dominated the Alabama electoral process. To fill a vacancy created by the death or retirement of 1\ circuit Judge or circuit solicitor/district attor· ney in tht 20'" Judicial Circuit (I-Iouston and I-Icnry counties), the presIdents of our respective county bar associations would call a joint meeting of the lawyers practicing in the circuit and eventually select one of it.s memo bers by unanimous consent whose name would then ~e presented to the governor for appointment. [ understand that thi$ $arne method was routinely utilized ~y bar a.55OCiations in other circuits in that day and time to fill vacan·

cies. This consensus selection process changed somewhat wilh the elecUon of George Wallace as governor when the designated appointee ....as required to have some connection with insiders in tht local or state Wallace camp in order to ~ecure the ilPpointment. [n todlly's highly partisan political climate In Alabama, I believe that a recommendation to the governor from II county or a circuit bar association would be routinely ignored. Durinll the last decade. the Alabama Stllte l3ar, throullh its Board or Bar Commi5$i(lner$. has taken the followIng stands as concerns the iuue of judicial uiection: I. December 14, 199O-1n responK to a merit selection recommendation of the Alabama Siale BAr Task Force on Judicial Selection chaired ~y Robert l)enn[Slon of Mobile, Ihe Board of Bar Commissioners adopted (I resQlu· lion calling for Ihe nonp.1Ttisan eleclion of judges to the appellate, circuit and di$lrict (.ourts in Ihe State of A[abama. 2. February 9, 1996-0n this date. lht Board of Bar Commissioners considered a report of the Third Citizen's Conference co-chaired by forme r Governor Albert Brewer and Alabama Suprtme Court Justice O~ar Adams arId reaffirmed its support of nonpar· tlsan election of judges by unani mous consent. 3. July 16, 1997- /\ report of the Merit Selection Drafting Committee was made to the Board of Bar CommiuionctS. Chairman Frank Wilson of Montgomery noted that the merit selection p:an drafted by thIs committee closely followed the

Oennislon Thsk ~'orce report pruented in 1990 except thaI this new proposal only Included the appellate courts. The proposal also set forth lhe establishment of a judicial nominating commission and a judicial evaluation committee. After a lengthy and sometimes healed debate among the bar commissioners. the Board of Bar Commissioners approved II motion to accept the drart of the foler[t Selection Draft ing Committee by a vote of 24 to 19. The most widel~ u:std argument put forth by opponents of II merit selection process is that this method will take away II citizen's "right to vote for the candidate of hi~er choice. Opponents compare this merit selection process as being similar to the metime appoint. ment of federal court judges In IlIl attempt to slir up opposition in the publ ic forum. However. volers generally have a total lack of knowledge regard· ing the personal or professional qualifi. cations of Cilndidales for judicial o(ficu including the incumbents. This "right to vote" argument tcnds to ring hollow when you review polls taken ovcr the past decade which have generally shown the same results. Thue polls and/or surveys disclose that voters do not identify with or recognize the names of candidates running for appel· late court positions. ~'or example. in October 1996. one month prior to the general election in five state appellate court races on November 5- , the USA Polling Croup conducted a survey of 400 Alab3ma residents 18 or older with the re~u l \$ showing: a. Only one In 100 could name :1I1y of the Democrats or Hcpublicans In races for three seats on the Alabama Court of Criminal Appeals. b. Only one in 100 could name at least one of the nominees in the Alabama Court of Civil Appeals race. c. Even after an intensive billile of television spots aiIT,ed at innuencinA the race for a stat on the Supreme Court of Alabama, only 18 percent of the poll respondcnu could name either Oemocratic incumbent Kenneth Ingram or Repoolican challenger Ilarold See. (RC5ults published in the October 6, 1996 editiOl1 of the MooRe 1'n!ss.Regislcr) H

A more viable objection to merit selection by those who oppose this process Is the fear of who would "con· tror the judicial nominating commis· sion. It is interesting to note that four judicial circuits in Alabama- Jefferson. Madison, Mobile and Tuscaloosa coun· tiu-<urrently utilize nominating com· miuions to fill vacancies In the offlces of circuit judgc and district judge by submitting a list of nominees to the governor for appointment. Baud upon reports of which I am aware. these commissions have worked extremely well. ~'u rth er, it is my understanding that lawyers in these circuits have been quite pleased with both the general makeup of the membership of tht: commiuions and the selection proceu in particular. The makeup of the membership of the judicial nominating commission set forth in the proposed Constitutional Amendment endorsed by the Merit Selection Drafting Commi ttee appears to be workable and fair. The proposed membership would consist of four non·attorneys selected by the "ov· ernor, lieutenant Aovernor and speaker of the hou!C as a group ilnd four atlor· ney members selected by the ASB Board of Bar Commissioners. Alabama Trial Lawyers Association. Alabama Defense Lawyers A.s.5ocilltion and Alabama I.bwyers A.ssociation together with a judicial member selected by the appellate court justices and judges. As a laW}'fr. I am deeply concerned about the current public perception of ou r judicial system in Alabama. An independent and impart ial judicial'}' cannot continue to absorb the abuse to which it has bten ~u bj tcted over the Ilast several statewide conte~ t ed Judicial eltctions. The mote hotly contested Cllmpaigns for judicial pOSitions have been vel'}' negative and demeaning which has resulted in diminishment of the prestige of our justice system. The cost of running a campaign for a statewide judicial o(fice has become exorbitant. Informal polls lend to show that judge~ do m)t enjoy having to raise large sums of money for these campaigns. Additionally, lawyers dislike being C.lliled upon by judges or their representatives to make contributions. Due to the involvement of special inter· est groups who contribute huge sums

of money In support of one candidate or the other In these judicial races, members of the public perceive that the winning candidate will lean toward issues supported by a particular special interest Aroup and decide casu in favor of the specil1llnterest group which financed that candidate's campaign. Are nonpartisan elections the answer to these problems? It is definitely a step in the right direction. bul I do not believe thllt ;t will prevent expensive and demeaning campaigns between special Interest groups. The Judicial Campaign Oversight Committee estab· lished in 1997 by the Alabama Supreme Court did an outstandinll job in monitoring the 1998 elections and helped to substantially prevcntthe negative campaisn! which we had witnessed in pre· vlous statewide Judicial rncu. An txcdlent article authored by elmn C. Coe entitled "Alabama Judicial Election IMorm: A Skunk in Tort 1-1(11," Cumber/and ww ReIJiew , volume 28. no. I. contains a thorough discussion of the pros and cons of the various judi. cial selection reforms currently in prOllress in Alabama. The <luthor concludes that ~the merit selection plan would best prevent the types of cam· palgn practices that have troubltd voters~ in past supreme court elections. I believe that a great majority of lawyers in Alabama agree with this conclusion. I am a practical idealist. Al an idealist. it is my opinion that II merit selection procm for both appellate and trial court ])Ositions will enhance the public perception of our Judicial system. Ilowever, in considering how to accomplish this from a practical viewpolr'll, I understand lilat we will have to over· come obstacles in convincing tht legis· lature and the general public to make Ihis Constitutional change. It is hoped that after the next general election in 2000, the Alabama Stale Bar will have eno\lgh support in the legislature to introduce the proposed Conslitutionlll Amendment to Article 6 providinA for the merit selection of appellate judicial candidates together with a bill provid. ing for the nonpartisan election of trial court judges. When the time comes, I urge)lOu to actively and publicly sup· port this amendment and the nonparti · san bill in your local communities. • Nove"lIlt ,,," , :><11

EXECUTIVE DIRECTOR'S REPORT 8y Keith 8. Nonnull

s we approach the year 2000 and a new millennium. we also begin The Alabama lAwver's 60th yellr of publication. POT the last 5il decades, The Alabama /.(Jwger has recorded much about the profession, With II new century at hand, I lhought I W()uld look back al previous issues of the IAwver and share with you somt of the interesting

things r found. In this month's col umn,

I will cover the 1940$. The decades of the '50s, 'GOs and '71l5 will be featured

Looking Backward1 on 60 Years of Alabama's Legal Profession

in the next issue while the '80s and '90s will be included in the third :lIld final

installment. With vol. I. no. I. appearing in 1940, Th41 Alabama IAwger became the official organ of the Alabama Siale Har, containing legnl articlts to a$$ist the practition. er, disseminating infl)rmation of interest to the profession and recording relevant legal evenl$. Judge WlIller 3. Jones was the lAwyer's first editor. He begtln what would become for him a labor of love for the next 24 years. Prior to the l.llwyer's publication. bar members received a printed jO\lrnal of the proceeding! o( lhe IInnual meeting of the bar. The journal usually included the annual meeting IIddru,S. a nttrology o( dece.ued attor路 neys and papers wrillen by leading prac路 titioners of the day. I~i ehard T. Rives of f.10ntgomery, who would later be appointed to the old I~'ifth Circuit, served as 5tate bar president in 1940. He penned lhe firs t president's article (or lhe bar',S new publication entitled, ~A Ne"" Era o( Usefulnus (or the State Bar. In this article. Judge I~ ives dlSCuMed the new disciplinary process (hearings be:ore the Board o( Bar Commissioners Instead of jury trials). legal in'slitutes. the unaulhoriud practice of law and the newly published Alabama LAwyer. The bar's first "regal in5lilule" was held November 16, 1939 In Monlgomery althe Whitley HOlel. The seminar 100~ t ed all day with more K

than 140 lawyers and judges attending. These institutes were the beginning of the bar's involvement with continuinlt legal education (or the profusion lind a prrcursor to ABICI.E, the Alabama Bar Institute for Continuing Legal Education. In 1940, Harold M. Cook of Birmingham served as 5etretary of the bar. In his report, ';Trendl ln IJar Admission Requirements," Mr. Cook noted that of the lhen 48 m lt:$, Alabama was one of nllle stOlte! which ~ lm retained the di ploma privilege. He highlighted an emerging trend initiated by the states or California and Texas. both of which had recent;y abolished reciprocal membership with other states. He also mentioned that charac路 ter and filrleM rrview$ for bar examinees was quickly becoming a standard practice across the country. Alabama had begun requi ring chllrllctcr and fitnll55 reviews the previous year. The Houston County Bar Association was organized in HMO with the merger o( the separate I)Qthan and l"Iou5ton County organizations. J.R. Ramsey was elected lIS president of the newly orga路 nized association. The annual state license fee (or attorneys .....as 525. ~'ifteen dolllltS of the stale fee ""ent 10 the state bar. which had a budget that year of 57.500. Ove r~hadowing all the ~ctivitiC$ of the state and locallxln was lhe wllr in Europe and America's loonling Involvement. Judge Rives remarked in his annual r~porl of the president of the slate bar lhOlt year: In these dark days. whtn democracy is on trial (or its life, lhe lawyer with his understanding of the value o( our (ree institutions and our SIIcred libertie5, can and should resume hi5 historic posi. lion of leadership. More, the lawyer himself by a scrupulous

Duringtht WIIr years, the Pilges o( Tile Alabama I..auyer; not surprisingly.

renected the nation's and the pro(ession's C()(lcern with the war efforl. ~ F'reedom of Speech llnd Press v. National Security," M i\rmy.Court (\1artial System," and ''Tennination of War Contracls" were just a (ew of the war related article$ appearinlt the IAwver. In spite of the attention given the war effort, the profession continued to address concerns relaling to the practice of law. The fir!t comprehensive rules governing admission were adopted in 1941, and the reci procity rule was repea led in 1944, That same year, the American Bar Association's Section of J"ellal Education nnd Admission to the Bar, wh ich was cll<,i red by William A, nose o( Birminlttu.m, released its study, The study recommended apprenticeships and problltionary plans as a prerequisite for admission to the bar. Lawrence ~: Gerald o( Clanton was

We must now apply sound bU$lnt~s methods to the hnndli f)g of law business, to the conducting of law office and to receiving proper compensation (or services rendered.

O WNED

F O il

2 !>

_...

VEAII S

~ "1'\(It.t(I !_iph o.e-~ DC. f4(; l .. WO<CI "-!fc;t ~ II. DOIly Coow ......... UpOn " - - '

010I<I''''

~~-.

\llclMltoot •

11",..,--.0

o.c_ ,-,Ip!

A knowledlte of the law. o( its making and constt'\lction can be very helpful. This does not mean

Richard 1. RivC.$' elOQuent remarks made in 1946 opposing the adoption of

THE HIGHEST QUALITY IN COURT REPORTING L OC A LL V

the "Boswell A m endment~ in 1946 were reprinted in the (AlWver. The purpose o( the constitutional amendmfnt had been to legally disenfr.mchise Alolbama's blnck voterl. In response to the rtprlnt of the Rives remarks, Circuit Judge tiorace C. Wilkinson posed his not,sooJubtie arguments for the amendment's passagf!, SoIdly, the amendment was ratified, but was later found ullConstitutional by the Federal District Court for the Southern District of Alabama. Alabama's fi rst black member of the supreme COurt. Oscar W. Adams, w;u admitted 10 practice on Scl)tember 30, 1947. The first black fe male Inwyer, (\1ahal/l Ashley Dickerson, w;u admitted to practice a year later on October 9, 1948. A year after completing his term as Cow:rnor, Chauncy Sparks, who served from 1943- 1947, offered sev· eral examplu o( how the practice of law helped durinA his term as Governor. In an article entitled "How Knowledge of the Law l lelptd Me," former Governor Sparks wrote:

elected secre.iary o( Ihe bar al the annu· al meeting the previous year. With the conclusion o( World War \I In 1945, The Alabama lAwyer reported that a poSl·war planning meeting was held to focus on auisting lawyers returning (rom the war, Abo in 1945, the category o( ~s pecii!.1 member,~ a cal· egory that stili exists today, was created, For the fi rst time, law/eTS, who becal,l5e state or federal office prohibited them from practicing law, cOl,lld still rCCf!ive the priviltges and benefiu M full memo bers of the bar. F'ollOY.ing the war, law office managemenltechniQues were for the fi r5ttime discussed as having a valuable role in the practice of IIlW, In a 1946 article entitled, "Lawyers' Need (or Better Business Understanding." Ben Leader of 8irmingham wrote:

~r(ormance of his full duty In every rupect can make plain to all men lhat domocracv does work. (ltaliC$ in the origina1.)

Chap7..13 · .... 'r.f"r-u Filing " l'rodl.l«'ll.1l the alTktnl \Hnkwl"cy fQrm~ ~nd Kht'(lulcJ fOl wh~tl!vel

chpter)'<lUl diem II nll118 - 7, 1L, 1211r 13!

... Thl! plogrilln'. Llnlqut Caw Explorl/r mak(!A It eu,y to l!l1tur d"t" ~lId track Lhe JtalLlI

for I he ca$C'.

hankruluq

... Thu rt'(,\ef~1 c~~mp!IQn~ l'll~'fTIptlorlll

and state

are lnduded

_ . nnply point lind click 10 ~ppl)' to property

... AU moth lind Crtodol0r JOlting II nutomnl ic ~ nnd IK;CUlDLei

.. Include. vahwblll nllng checkHmllnd pruc ll c~

forrnli.

.. J1I~-ctr()nlc flUng lsa click uwny.

.. Fr~ technk;nl.upport frOIn WeSl GroUII.

_,.....cw. 1-800·762·5272

.A.

191~ ~<Ju' M 'u" ''''''.' ' , ,," ' nU~"'" 10~

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• WA TS I 800 ..... 10~ lH 0196

9 1 ~1

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6031

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. . WESJ' CHOUP ,I",

'"" "'"

~ Mov~

.. ["n

'ft1)

I ~ "O

that $Omwne other than II lawyer cannot e((iClenUy administer government. But it did mean, for me, lhllt II gtneral knowledge of the law and tht process of law making and construillg wcr~ vcry help(ul the (our yeats I was GoW!rnor.

System--409i Origil\lllly Appointed 8y Covernor- Rise and tall of Pay of Judges." Mr, r-lartin reported that in addition to the 40 percent of trial judges having been first appoi nted to office. 57 percent ot" the appellate court Judges had ~en or~inally appointed by the Governor. I Ie di$cuSKd the variance of compensation fo r judgu as .....ell 115 the historical increue and decrea$e5 in judicial pay. BeCilust of county supple· ments. the pay of trial Judges at the

As the decadt of the '40s came to a close. William Logan Martin or Birmingham authored an article entitled. ~A lahama Judges Under Elective

whom will you trust with our

next va untlon

time varied from $6,000 to $9.000. Concerning the county supplements, r-1r, Marlin observed: 11 cannot be contended that this is the best system, A circuit judge is a state official. His entire salary should be paid by the state and, it may be added, it should be ade· quate to keep the ablest [a\yycTS on the bench and to invite other lawyers to join them. It WQuld take another 50 years with "[ouse Bill 53 becoming law this past June before Ihe practice of county supplements Dnd the disparity In judicial compenS<'ttion would be tHminated. In 1949, a plan of group iruurartce first became available for bar members. [n that same year, a bar SUMY indicated that thne were 1.490 lav.,),ers pr/lcticing in A!/Ibama; ~evc n supreme court juslices: three state court of appeals judges: 48 circuit judges; and (our federal Judges. The ten counties with the largest number of practicing lawyers were:

E ~pct1 Vlliualion II criliclll ror

Birmingham .............................425 Mobilc ....................................... 147 Montllomery ............................. 115

)"\IIl llId YOOT dknlJ. Whalever

YOllr n«d. no other v~luullon p=tilionn In AIHoolII~ hilt

ThscaIOO$ll,.,.,." ..... ,.. ,.•.•.•.•.•.. ,.•.•. 53

Doo Miny:m1'. COIl1/J1lllllio(l cI Upcrtik II'"

G/ldsden .....................................47 Bem mer" ....... ,........ ,................. .34 Dothan ........................................33 Huntsville ................................... 26 Anniston ..................................... 25 Oecatur ....................................... 24

rrttknlU1~

• 111.11 In A<.~1I11UI1CY • Accrtdllcd 111 Ill1si ncll,l VlllU.IIllon

clshl In AI"IMml.) 1\llllic ACCO\lIllnnl

(0111;: or only

• Certifica

• Cerllfiro fraud

1:Xllmln~ r

I II.. yoc::" " or ICllth lr~9; uJlcricncc hal'\! gll'\!11 him Ihe IIbIhly 10 u l'>I.:tln a..n l~ IlrllulCil1l IIIIuu In II monne r Iinyone-c~peciully

FORn . 1c Accountl.s • Ut!.yltlQl1 SUIIJIOI'1

• t:Jperl WIII1\,U

Ju roT&- CAli UlldC1'311111d. "l'msl

• 11I111I1I:U Vnhwlilln • i"m,jd ~~AjllhtaIiOIl

l'ulu"1I011 10 [)on Miny:IM 'l1d his ICII,".

YOUT next

Minyard

• CcmuU''IIS • StnlCl u~ Seuk:IlICIn

Associates, p.e.

CI'A Accredited hi UushlCSS Vuhmtion _

..... ~ 11114".1< '" CmIlWd I'IIb(j,; "'"",M,.,." ...woo... s.."'irIl' <II

Cnl,JiooJl'Ioio!lC" lornluOWO", _ . . , . '" Cnlditd 1'-1 r.u,".ffi

DonAld H. MinYArd . Ph.D.. CPA. ABV, CFE

The Committee on Public Education and Public Relations. cilalred by Calvin Poole of Creenville, relea~d its report in 1949, stating that in order 10 improve the public image of the profession, lawytrs must be instilled with ·· .. ,higher i deal~ and grt<lter accomplishments in the way of service to our fcll ow men,~ Thllt same year. Thi! Alabama Lowger documented Ihllt The t'lorida Bar became a mandatory bar. The Alabama State Bar had become the nation's sccond mandatory bar in 1923. In the next i$5U~ 1will look back on the next three decades or Tho Alabama l.awl/or,

•

Endnote I

Not 10 IMo ~ wiIh EdwMI tOO4*9~.

"0 .. ovm.IIER .000

bOC*.

BAR BRIEFS

/.611/0 Righi; l.mda WlJIbkJl' (choir of NtWlIII Publk

Sm,*" ,,"UN

CommIUH). NUIt /oI~ (prakkn/ oI8IM "bmm~ $«tioflJ, McirllNl.km. AlUM (lJkrt.pnaidmlllfNClt'11lt urN bounJ ~/UIw.oIliM Ilbmtrr~ 5«fiOtlJ. kin\! Hartin (NCWEJApmkk,rlJ, urNJ Ikim Hul/VP fJouru (ptUi. <kn/~ "" HlJA \ttII'nft~ S«IiofI)

Internat ional convention in Singapore, l'lalaysia as part of the team which will determine the global service orgllni1:ltion's pol!. cies and programs July I. 1999 through June 30, 200 1. /'>1"loney is one of nine new memo bers of the I~otal)' International Board of Oirectors whose 19 members are from ten different nations, t-lllloncy will help implement\he NurlllJalikiNdlorWV IIloballheme, "Rotary 2000: Act With Consistency, Credibili ty and Continuity. ~ Under that theme, the world's 29,000 Rotllry dubs, with their 1.2 million members in 161 countries, will be encouraged to focus their Ilctivities on projecls addressing the needs of children at risk around the world. /'>laloney Is a member of tilt firm of Blllckbum, Maloney &: Schuppert , L,L.C.

• 1'he Women', Sect ion of the IJlnnlntlhl m Bl r

Au oclaUun has won the National Conference o( Women's Bar Associations' 1999 Public Strvke Award. One of the NCWBA's objectives is to advance issues of concern to women In the profession and wornell in general. The NCWBA gives this annual award as part of fulfilling lhal charge. The project submitted by the Women's Stelion (or consideralion for th is award was the stclion's

parln ~uhip

with lhe

YWCA. According to Anne tolar!in, president of the NCWDA, the Women's Section's ~ partner5hip with a non.profit group such as lhe YWCA to lend financial and profeS5ional support is uactiy the type of project that women's bar sections and QrfV!ni,.alions have found to be s\.u,:cessf(ll and rewarding. The advice and 5upport that women lawyers can provide, and the $ k m ~ lhllt we possess, arc unique. The YWCA has many wor· thy projects Ihllt truly benefit from thi$ assistance, Hnd this coordination of efforts helps both organizations succeed in their work. These Ilrojecls, which I understand run lhe gamut from provid ing legal advice to victims of domestic violence to collecting clothes fOl" needy families and raising money for public service projects, is admi rable.~ Anne Monl, president of lhe Women's Section of lhe BirminAham Bar Association, accepted the Eleventh Annual NCWtlA Public Service AWilrd on the section's behalf at the NCWBA'5annUIlI meeting held in conjunction with the ABA Annual Meeting in Atlanta In AuF/ust. • l'llIrk D~ n lel Maloney of Decatur was Introduced to more than 17,00{) Rota.rians and gue~l$lI lte n ding lh e RotaI)'

• TIle National Child Support Enforcement Association recenlly honored Anniston allorney Gordon F. Blliley, Jr. lit the association's annual convention in Chicllgo. Wi th more than 2, 100 in attendance, Sailey was presented with the President's "Child Support Community Service Awud" and become only the second recipient of the recognition. IJailey practices with the finn of 150m, Jackson & Bailey, P.C, • Birminllhllm attorney l)avld C. Skinner has been IIppointed to the Hum:1O RC$ources Cert ification Institute ]\'ational Practice Anlllysis Tuk Force, j·mCI is lhe credentialillg affi liate of the Society of I'luman Resourcc$ M,lnllRemcnt and administers the "Professional In Hurllllll nesourccs" and "Senior Professional in l'luman Ilesourccs" certification e.~am inatio ns to qualified human resources professional! worldwide. • Elouls" W, wil Ha ml , wife of

Birmingham allor· ney !lu old WIlllaml,

recently chosen president-elect of the American I....wyers' Awtlll II 1)'. • \\ilS

E/OU/# a1ld lIuroid IVllliam$

"DW~"D.R

,gg .. , H'

MEMORIALS Judge John Percival Oliver hereas. Judge John Percival Oliver was a member of lhe Tuscaloosa County Bar Auodation since 1946 and dcp,Hted this Ufe on July 27, 1999: and WhereM, be it remembered thaI John Percival OliVfr was born in O"deville, Alabama on October 31, 1921. He grad. uated (rom the Thllapoosa County High School and attended lhe University of Alilbama ~nd received Ii bachelor's of science in chemistry degree. He served 115 lin officer in the United Stales Marine Corps, assigned to the Third Division, and was a highly decorated Marine who served In Guadalcana1. lwo lima and Guam, among other assignments. He remained in the USMC Reserve (or over a decade after being released from ser· vice in 1946. Whereas, I,lpon discharge (rom the Marine Corps, he attended the University of Alabama and earned his u.. n. degree and opened his pr:l;clice in Dadeville. Alabama. He was admitted to lhe Alabama Slate Bar In 1949. Judge Oliver was appointed district judge for 1'll11f1poosa County in 1976 fll\d sCMd 14 years on the Ix!nch Ix!fore retire· ment. Whereas. Judge Oliver HIVed the community thl'()ugh various organiza. tions and was a faithfu l member of the First Methodist Church of D:l;deville. He was 11. member of the Dadeville Kiwanis Club, selV!ng as president and in other leadership roles. He was the Utllc League ba$eb~1I coach fo r lhe Kiwanis team for 25 years. As II volunteer, he spent over 20 )'taTS promoting the American Red Cross and organir.;ng blood drives. himsdf donating over 110 pints of rare AB negative blood. Whereas, Judge Oliver survived two of his sons, John Percival Oliver, Jr. and Francis Weston Oliver. He Is survived by his wife of 53 years. Julia Jervey (Smith) Oliver. a formtr Governor's cabinet member and a retired state employee (DHR): two sons. Edward Hanks Oliver

31'

H OVn UOEJl . 000

of Dadeville and William H. Oliver of Marbella, Spain (also II member of the Alabama State 8ar): and grllOdchildrcn /\111500 Banks Oliver, Abigail Vaughn Oliver. Amelia EIi ~a beth Oliver, Jonathan Hen!), Oliver, Sarah Ju lia Oliver, and Joshua Tift Oliver. Now, therefore, this resolution is offered as a record 0( our admiration and affection for Judge John Percival Oliver and in recognition of a life of ser· vice to his community, his love of his neighbor and a sense of humor that will be missed. Most importantly, he taught us the value of always doing one's best to do what is right, rather than doing what IIppeIU'S to bt popular. - Mark Allen Trtadwell. TIl. president. 1I1lapooll County Bar

Frank Minis Johnson, Jr. rankM. F Johnson. Jr. was born October 30, 1918 in Winston County. He was the old· est of the seven chll· dren 0( ~'rank "linls Johnson. Sr., the only Republican legis. lator in Alabama dudng the 19405. His father also served as probate judge of Winston County and postma.ster of Haleyville. His mother. Alabama Long Johnson, a school teacher, taught him how to read and spell before he entered school. Frank Johnson grew up in Winston County. He left Winston County to attend Gulf Coast Milita!)' Academy in Gulfport, MissiSSippi, where he was II star end on the football team. Upon graduntion, he was admitted to Birmingham·Soulhern College on a {ootball scholarship. When Birmingham·Southern dropped il! foot-

ball program. Johnson enrolled in Massey BU5ineu College in Birmingham. He met his wife. Huth Jenkins o{ Haleyville, when he WIl5 15. She was two years his junior and by the time he was 19. he knew she was the 1M of his life. On January 16, 1938 they were married in Ilirmingham. and btgan a IUt.long sto!)'book romance. U.S. Circuit Judge L. mier Anderson recently noted. "No matter what was happening al court, at 5:00 p.m. cach day. Frank would stop and call Huth- his t,llks with her were obviously the most Important part of his day." After ,.l:wey Business Colle"e, he attended law school at the University of Alabama, where he met and became friends with George C. Wallace. !-Ie received his 1.1..11 from the University of Alabama in 1943, then entered World Wilt II M a COmmander of an infantry platoon. which landed in I-:urope five days after D.Day. lie was wounded twice and received lhe Bronze Star. leaving lhe Army as II captain. After the war, Ruth and ~'rank moved to Walker County $0 that he could set up a private law practice in Jasper with Herman Maddox and Jim Jack Curtis. He also found time to bt actiyt in the Republican Party and 5elVCd as campaign chairman (or EisenhoY.-er's fint presidential campaign. When Eisenhower was elected. he appointed Frank Johnson as U. S. Attorney for the Northern District of AJabnma. where Johnson successfully prosecuted the last slavery~onage case In the United States. In 1955 Judge Charlu B. Kennemer. the U. S. District Judge for the Middlc District of Alabama, died. President Eisenhower chose Frank Johnson to be the next U. S. DIstrict Judge {or the Middle District of Alabama. At the age o( 37, he became the youngest federal judge in the country. One of hi5 first imponant decisions, lLS part of a three·judge panel with Richard Rives and Seybourne L.ynne.

was Browder 1/, Gayle, where Jegrega· lion on the to10ntgomery buses WllJ ruled unconstitutional. thereby effeclively overruling f'ft5M!Y v. "'i!rfIuson . The decision caused a nrestorm in Alabama. A press editorial said that the j\,Jdgu had "forfeited their riAht to be buried on Southern soil." Astate senator from Hllcon County said he hoped "lhe while people of Alabama never forget the names of Hives and Johnson !andlthis great wrong they have done to the good people of this state:' Thereafter, a bomb exploded at hls mother's home, In Montgomery, JudJte Johnson went on to desegreg<lte the Alabam" public school system, the Alabama State Troopers, lhe Alabama Department of Transportation. the Allibamli Civil Service. Alabama col· leges and universities. the Montgomery public libraries, swimming pools. the Montgomery Yr.1CA, and a host of other public entities. His rulings were truly color-blind, (or he also found that the predominately black Alabama A&M University had discriminated against whites. He permitted the Sel ma·toMonlAomery March and also issued landmark decisions concerning voting righls and the constitutlonal righls of prisoners and Ule mentally Impaired. Judge Johnson was fo nd of a quole from Abraham Lincoln. ~ he re Lincoln said: "I've done what I consider to be right, and I intend to keep doing so until the end, If the end brings me out "II right, whill's said against me will amount to nothing. If the end brings me out wrong, ten angels swellring I was right would make no difference." The tnd did provt Judge Johnson right. Alabama rfcognlzed his contributions to lhe state whtn he Wil$ inducted into the Alabama Academy of Honor. Over 20 academic institutions, ineluding Princeton and Yale, and his alma mater, the University of Alabama, awarded him honorary degrees. Perhaps

the biggest honor came in 1995, when Congressman John lewiS. who was Jeverely beaten when a student In Montgomery during the Freedom Rides, sponsored a bill to name the federal courthouse in Montgomery after Judge Johnson, Bowell Hemn shepherded the billlhrough the Senate. A$ a lasting tribute to his legacy. the United States Courthouse in Montgomery. where 50 many of the landm:\Tk civil righls decisions were made, is now called the ~'ran k M, Johnson, Jr. C()u rthou~e and Federal Building. Judge Johnson is survived by his beloved wife, IMh, a brother Jimmy. and two sisters. to1ary Ann and Ellen Ruth, plus a host of nieces, nephews, grand-nephews, and nieces, of Which, I am proud to be one, -

City and taught the $Cnior men's Sunday School class. tie was also a member of the Chambers County flar A$.$ociation, Alabama Stille flar, Sigma Nu fraternity. I'henix City Moose and the Phenix City VIoiV, Judge Caldwell wat also a charter member and the nrst president of the Phenix Cily Rotary Club. Survivors include his Wife, Peggy Roper Caldwell o( Phenix City: two daulthtcrs, Carol l.ee Caldwell, Alpharetta. Ceorgla and Mary Katherine ClIldwell, Phenix Ci t.y; son James Kirk Caldwell, Martinez, Georgia: 51ep$on, Philip It 81u, Phenix City; sister-in·law, Juanita Caldwell, Birmingham: gr~ lld son, Al,lstin Bryant Caldwell, Marlinez, Georgia; and several nieces, nephfws and cousi ns, - lIomer W. Cornett, phenix City

Laure n Johnl on Whllu lde, Blrmlnghl m

Douglas Schelling Webb Judge James Howard Caldwell James Howard Caldwell, Phenix City died Sunday. May J udge at Phenix Regional 1'105pital,

76, of

1997 Phenix City. Mr. Caldwell was born July 21, 1920 in Birmingham, the $on of the late Otis J. and Shi rley Ayers Caldwd l. He was a veteran of World War II , having served as a Navy carrier pilot in the South Pacific for two tours. During his military career serving aboard the USS Saratoga, USS Yorktown and USS Lexington, he received the Distinguished ~'lying Crou and six Air toledals. He graduated (rom the University of Alabama (B.S. 1947: LI..B 1947). He was appointed district attorney in 1955 during the Phenilt City "Cleanup Campaign" and a circuit judge for the 26th Judicial Circuit from 1960 to 1978. He Wa! known as an excellent trial judge, Since 1986 he had betn a partner in the Johnson, Caldwell &: McCoy firm , Be was II 5O-year member of the First Baptist Chl,lrch of Phenix

hereas, l)ouglas Wtbb was born W on November 25, 1921 in Atmore. at the home o( his parents, Dr, A.P. Webb and Ida Stewart Webb. attended by his father. He was the seventh son in a row. and there is a saying that, "The seventh son will be a wise man or a foo l." We know that there is some basis for this saying as DOl,lRht5 wa$ a very wise man. with a very keen inteliect, and; Whereas. he altended Atmore Grammar School in May 191\0, immediately afterward enlisting in the Signal Corps at a ';buck" private. He remained in the service for nve years 1lI1d was honorably discharged at a captain in the U.S. Air Force. After being discharged from the service, he attended the University of Alabama where he received a B.S. degree and Iilter, in 1951, an I.L.B from the University of Alabama School of Law, lie entered private practice in Atmore with Frank G, Horne. and they were later Joined by nobert l\Jcker, forming the firm of Horne, Webb & NOvlMOfiR ,_"",313

'nicker, and: Whereas, Douglas Webb had a distinguished career in the Alabama Senate serving (rom 1959 unlll1962, representing Baldwin. Monroe and E5cambia counties, Many of his colleagues 50ught his advice and direction to the various propO$ltls and bills that C<lme before the Legislature. He always remembered his constituency back home and ",'as always more th1l.n willinllto spend time with anyone discussing the problems faced by the stale and counties he represented, and: Whereas, although he had a distinlIuished career as a practlcing lawyer and as a senator, we remember him best a.s "Judge Webb,M Judge Webb served a.s the Circuit JudRe of the 21st Judicial Circuit, then Including "lonroe, COl1cCuh lind Escambia counties. (rom 1964 until his retirement in 1986, He was a warm and true gentleman to his colleagues at the bar and always adhered to the highest ethical lind intellectual standards, ,.1ere words are not sufficient to define or explain Douglas as a circuit judge, however, it can certainly be stilted thnt he was dedicated, compa.s5ionate. fair, just, reliable, a lawyer's judge. He also had a great sense of humor, and: \\/hereas. Douglas Webb was an active member in tht Atmore First Nethodist Church, serving on its bo.~rd. l ie was a man of strong character with an unparalleled reputation for honesty .md integrity. He .....as a quiet. but forceful leader. a wise counselor, a kindly man, and a very dear friend. BeC<lust his love for his God. hi5 family and his fellow man was so ev,dent, he was loved, admired and rupected by all who knew him, We know o( no greater words of commendation that to say that Oougl;u Webb always conducted himself in such a manner as to bring and glory to God lind His Kingdom. He lived an hOr'lOrable life every day of his life, and: '\/hereM, although this was not tvi-

dent to everyone, Judge Webb had a great love of music. lie played the piano lind spent many hours his last few years listening to tapes of h15 favorite musicians, [t was DouglM Webb's privilege to make (or himself a (ortunllle life and to be given the e lisfaction of knowing that the ample fruits of his labors wtre to rtmain for the enrichment of his family, community and state, and: \\/hereM, Judge Webb departed this life on June 16, 1999 and len surviving him his wife of 57 ycars, Jean Jones Webb, and four children, Ricky Webb. Letha W, Stuckey, Jean W. Therkelsen and Pellar Webb, and; Whereas. the members of the t:$C4Imbia County Bar Association exprcss their great appreciation of these qualities and this service and to adopt this resolution as Ii testimony to th e memory of onc we could III afford to lose. -

R(o Kirkland, prtJldent

EKambla County O.r Auociallon

C. Sage Lyons

W c.here;u, Sage

Lyons. a longstanding and highly respected member of the Mobile Bar

Associlltion, died on ftlarch 5. 1999 at the young age of 62 after a courageous battle wi th a deadly disease; and Whcre(lS, this association desires to memorialize his accomplishments as a proficient practitioner of his profession and a gined politician, who always fol 路 lowed the highest standard of his profusion and put public service over politics and political parties;

Now, therefore, be it known lhat C. Sage Lyons graduated from the Univfrsily Military School in "lobile in 1954 and Washington and Lee Univeuity in 195811.nd earned a law degree (rom the University of Al ~bam~ in 1960, lie served as an officer in the U.S. Army, JAG Corps from 1960-62 with his principal service as Chief Military Justice, U.S. Anny Infantry Center in Fort Benning. Georgia. lie began hi$ legal career in 1962 at the firm of Lyons. Pipes & Cook, but quickly turned down the fami ll(lr voice that lured many shatp men with a taste for politics to Montgomery. Sage WiI$ elected to lhe House of RepTCsentatives in 1969 at the age of 32 and went on to become Speaker of lhe IloU5('; after only two yeMs-the youngest representative, at age 34, ever to take the post. Sasl;t WiU one of Alabama's exceptional public. St:l"\lanl$. He served his city, county and state in numerow positions throughout his carctr. lie chaired the Alabama Commission on Higher &luC<ltion from 1971 to 1978, and as a State Itepresenl.lltive from 1969 to 1975 he helped secure fu nding to est.abli$h the University of South Alabama School of Medicine, now a prominent feature of the University, He was al50 a director of the First Natio,,",1 &ink of Mobile from 1973 to 1985 and.served on the executive com路 mittee of the Alabama Petroleum Council, lie seMd four )'ean a5 Speaker of !lle House from, 1971 to 1975, and left office in 1975 when his tum expired. without seeking re-election. ~ cootinued his law practice in Mobile at 4'om,I'ipes & Cook from 1975 to 1993. but for an 18路month lntel'YaJ, when he was the counselor (or the Alabama Slilte l)ocks. Sa~e was active in both the Alabama State Bilr and the ,.1obile COUllty B:!r Associltion, having served as its president in 1984. He was iKlmitted to practice befoTt the United States Supreme Court, Fi!l.h and EIMnth Circuit courts 0( appeal, all three U.S.

Oistrlct couru In Alab.1ma, the Supreme Court of Ahlooma. U,S. Tax Court. U.S. Court of International Trade. and the U,S, Court 01 Military Appeals. lie " 'ilS a member of the folarithne Law A5s0ciation of the United Slates, the Council 0( the Alabam., I~w Institute and a ~-el1ow 01 the Americ.'ln 11M Foundation. Sage was al80 pmident of the Coastal Land Trust, president and director of Providence Hospital Foundation, former djrector and past president of the Mobile Area Chamber of Commerce. a member of the Ad\'isol)' Board of Bishop State Junior College, director and past president of the Mobile County Wildlife and Conservation Association, and former trustee or U.M.S.路Wright Preparatory SchOOl, I-Ie was a member of "Who's Who in American I~w" and "Besl l.aW)'ers in Corporate America," and he was a member of 51. 1)!Iul's fo.:piscopal Church, having seMd on their vestl)'. [ n 1996, Sage resigned (rom Lyons. Pipes & Cook. lind the State of Alabama again called him to public service, Covernor Fob Jamu tapped him to fill the key office of director or finance in which he served until 1997. Governor Siegelman recentl) issued a statement that. ~Sage Lyons was a man who commanded res~ct an(l II man who made significant contributions to Alabama throughout his lifetime, ... !and! I am proud to have had his SUPllOrt and help throughout my political career. and. most of all, I am proud to have been his friend." Sa~e was an avid sportsman and conservationist. I-Ie loved ROlf, fishing and e5~cially spring turkey hunting. Sage Is survived by his wife, tht fo rmer Elsie E. Crain: his two children, George Sage Lyons. Jr. and Amelia Lyons: and his three gr'lll'ldchildren, Sage Lyons, Ill , Let Lyons and Crai n Rogers. Sage is also survived by a sister, Dr. Ruth Lyons Shields. and three brothers. Mark 1.yons. III. William

I [untH Lyons and James Kelly Lyons. _ fo'red W. Killion, Jr" pre, ldent Mobile On Allllocl,tlon

John Bertolotti ohn Bertolotti passed on to his Jleaving greater reward on January Dehind with our memDers both 10. 1999

admiration and remorse over his untimely demise: and Whereas. John graduated with honors from McCill High School in 1969, winning both individual and team awards in debate and oratury. cilPlurin" Ih~ state debate champion~hip with his teammate. Bob Calloway, and servIng as preslde!'t of the natiorul. regional and local Debate l'lonor societies; and Whereas. John attended the University of Alabama on a debate scholarship. graduated with honors from the University and. lhereafier. the UnIversity of Alabama School of 1..1W in 1978, and served on tht editorial starr of the ww & PsychQlogy /..ow R(!lJi(!w. contributing various articles to that publkation. including ' I~C5ponse to J.gnch u. &JiI~y, An Evaluation,~ and was inducted as a member of Omega [)elta Kappa Uonor Society; and \\/hereas. John ~'as voted an outstanding orator in the Tennessee Regional fo100t Court competition and served as captain of the Alabama Law School Moot Court Team; and Whereas, John g.we freely of his time and talents to the Downtown Mobile Buslneu Assodalion: and \\/herea.!. John was a respected memDer in good standing or the American, Alabama State and folobile Bar assocla路 tlons: and Whereas. John will long be remem路 bered as a storyteller exlrllordinaire, and an attorney of great wit, intellect. professionalism and civility: and Whereas. John devoted the vast majority of his ~ho rt cned legal career unselfishly giving of himself with lIttle

or no remuneration to defendIng many hundreds of indigent criminal defendants both at Ihe trial and ll?pel1ale levels: and Now, therefore. be it resolved by the Mobile nar Association. in its meeting assembled this day. that the members of thi~ association deeply mourn tht death of John Bertolotll. whose eJCempl:.ry life and service to others has betn an inspiration to all of us who knew him: Ilnd whose divene talents and warm friend ship and understllnding hllve enriched the lives of all the memDefS of this IlSS0diltion who have been privileged to know him; and whose unfortunately abbreviated carter has done hooor to his chosen profeuion. - Fred W. Killion Jr" pretldenl Mobile Har A&loelatlon

Bonnerrae Hastings Roberts hereas, I30nnerrae Hastings W Hoberts, a highly respe<'ted member of the Mobite Har Association, departed this life on October II, 1998. and Whereas. this association desires to memorialize his accomplishments as a profident practitioner of his profe$$ion and his beneficent innuence on those who knew him; Now, therefore, be it kno"" that Bonnerrlle HlIStings Roberts was born in 1913 in the Semmes community of Mobile County, He was a graduate of "' urphy High School, Springhill College and the University of AlllbIlmll School of Law ilnd w~ admitted to the Alabama State !Jar in 19"6. He beg:.n his legal career emplo)'td by the United States Corps of Engineer~ in Albuquerque. New Mexico, but, after a )'tar, he returned to Mobile to open a private pr:.ctice. In 1948 he was a.!soclllled with the firm which Decame known as Pilillns, Reams, Thllplln, Wood & I{oberts, ,lnd remained with that firm through its various name changes until hl ~ retirement in 1980.

Bonnerrae ....3$ ....'tll versed In real property law. He was known for hl~ competent representation of the Mobile County School Board in its frequent real e~ ta te acquisitions. He .llso was skilled in Oil and gas law lind in writing drilling opinions and distribution orders. He frequented the recording orfices of the probale coum of southwest Alabama. reading Ult rtcorded documents and dictating ab5tracls thereof to his secreta!,),. fland icapped from childhood, Bonnerae was forced to walk slowly and painfully with the use of a cane, yet he never complained and greeted everyone with ajOVi,,1 expression and pleasant salutation. He was of Ihe Haptist faith Ilnd was a loyal "nd supportive meml>er of his church. Preceded in death by his wife, Lois Evans 110berts, he is survived by their two children. Shirley R. Short of "10bile, his son, Robert It Roberts, a CPA, of Selma, eight grandchildren and one great-grandchild. - Fred W. Killion, Jr" president Mobile Rar Association

Byron H. Hess, III hereas. W1·less.Byron Ill. H.

beller known to us as Bar!,),. died on April 21, 1999 Ilt lhe younJi age of 60, after a long batlle with C<'Ulcer; IlIld Whereas. the Mobile Bar Association desires to memorialize his accomplishments as a highly skilled. compas~ion ate and proficierlt lawyer who epitGmixed all of Ihe highest qualities of our profession and always put his client, Imd the caust of his client, first and fore3 1<1

NOVUMOHIl . 000

most while ever rmintaining a r(spectful attitude toward the judges and lawyers with whom he practiced his professi on in which he will be deeply mls5ed and long remembered with both love lind resptcl; and Now, therefore, be it known thai Bar!,), lieu was born in "10bile on f.1ay 10. 1938. He graduatw from McCilI Institute in 1956. alter having been judlled and awarded debale hOnors in bolh statewide and regional compelititon in which he petformed splendidly in the area of impromptu orllto!,),. He was awarded a Kholarship and allended Springhill College. He then wenl on to the University of Alabama School of Law where he received law review honors and his J.D. in 1962.l-'rom the ve!')' beginning as he began hb pr<lctice in Mobile, he quickly earned the reputation of always preparing himself for any case that was in litigation. !-lis practice was general, but most of his dfort and skill ~re devoted to defending individuals in both state and federal criminal procudlnlls in the Mobile area and in this region of the cQunt!')'. Bar!,), ~Iway~ loved. as he called it, the flora and the fauna and helped org.lnize an orchid society ~nd grew orchids for many years. He beume interested in the breeding, racing and SIlle of quarter horses and participated in this avocation fo r a number of years. Be IOvtd the water and sailed sevual different vessels during mo~t of his adult life until his 1:'lter years. He excelled in his profession and. as a result. served as city attorney for the City of Mobile and II) a special assistant to the Attorney Central of Alabama for many years. He was active in conlinuing leJial education, speaking at seminars, and had published legal wdtirlgS In The Alahoma LAwyer and other perlodical~. He was a member 0' the Mobi le Bar Association, Alabam~ State Bar and the American Bar A$$ociation. 11e also was a menll>er of the Alabama Criminal

])efense Lawyers AssocIation, serving as an officer. He l>elonged to the Alabama Trial Lawyers Association and the AssocIation of Trial l.aW)·ers of America. 11e devoted II great deal or time to the American Board of Criminal Lawyers, serving on the board and attending meetingJ all Ovtr the United States. He abo was active In the National Association of Criminal ~ftnse Lawyers and was instrumenlJll ln persuading many lawyers in this Mea to join and participate in that organi1.1llion. Harry was a founding member of the Paul W. Brock Chapter of the American Inns o( Court. Bar!,),', name can be found in the various publications In hisl'ro(ession, including "Best l..a'N)'ers In America" and he had an AV rliling in Martindale1·lubbell. For many years he shared his vast knowledge llnd understanding of all aspects of the law with the Ilublic by cootlucting, on a weekly basis. a law show known as "Law I..ine- and many of our local judges and lawyers were Invited to participate in this television callIn, live pre5ent.llion. Bar!,), flus is survived by his wife, Treu; his daughter. Sonya Van Cleave, of Dundee, Mississippi; h iS $On, ilyran 1·leu, IV, o( Hueytown; three stepchildren, Forrest Floyd of "13gnolia Springs, John i'eter Floyd of Mobile and "1a!')' McCurdy of Foley; four brothers; four sisters: and three grandchildren. - .'red W. Killion Jr., pre8ident Mobile Count)' Rar AuoclaUon

A Tribute to Lee C. Bradley, Jr. (1897-1999)

"When an old man dies, a library burns down. " n the we of C. Bradley, Jr., the Ithisarchives of Ihe libral')' envisioned African proverb were voluminous I.A.'e

and substantial. Born in 1897, Mr. Bradley (as all of us called him) wu an astounding resource of information: about his long-lime home, Birmi ngham. about Alabama and the South. Ilnd about his profession. lie had pe r~onll il y sccn Birnlingham ri $\! from a small steel town, with its dirt roads and railroads, to ll\ke Its place as the largest city in Alabama. I-Ie hlld witnessed his state and lhe South go through tremendous economic and social change. And, he had watched hil belovtd legal profession grow in complexity and adapt to incredible changes in technology. ThrouAh it all, t>1r. Bradley contributed his intellect and energy to improving his home lind his profUsion, while maint"inln!! lhe highest standards of ethics and civility. A recilailon of Mr. Bradley's credenlial5 is indeed Impressive. but only touches Ihe surface of the life of a man that spanned over ]01 ~ars. In (acl, Mr. Bra.dley had confided to his fami ly that he hoped 10 li\lf; to the ~a r 2000, because that would mean he had !i\lf;d in three dmerent centuries: he came ever so d ose to fu lmling thai dream. That is one of the few failu re~ experienced by this re m~ rka ble mlln who fllce lled In college at Princeton and law school at Harvard. before returning in 192 110 Birmingham to practice In his father's law firm. then known as Tillman, Bradley & rolorrow. With his photographic memory. mastery of the tax code. work ethic. and attention to the smallest ddail. he quickly established himself as one of lhe preeminent tax lind coq)OrOlte allorneys in Alabama. Pe rha l)~ the greOllest compliment to be paid to Mr. Br/ldley as a lawyer is to note that he was 50 Wfll respected for

Mr.Iln1d/qf. "" 1M o«tWotr "his 1000h blrtlrdq. _ltd IIT/(MIr II p«lrrJil 01 hi11!kllpuirlltd in 1940

his ieg.ll ilbilities, lawyers from other fi rms ~uld send theirdients to him for tax advice. In turn. when he had concluded hi~ t;uc work for thai clienl. Mr. Bradley senllhem back to their attorney for any other leg,,1matters that needed handling. He defined profession. alism. It would be impossible evcn to outline the many accomplishments in his stel. lar career, which would necessarily include how he developed an ingenious legal plan to 5a\lf; Ilirmingham Trust National Bank following lhe crash of 1929, how he ....'Orked with Mrs. Oscar Wells in drafting her wlilto provide lhe funds used 10 establish the Birmingham Museum of Art. and how he would dlctille-in one Silt ing and in fi nal formcomplex. detailed documents lind briefs

completely from memory. long before the days of tape recorders and computers. roloreover. he w;u instrumental in building the law (jrm that now bears his name first. In addition to his own consummate legal skills. rotr. Bradley was a mentor for a number of younillawyers who. under his tutelage. dC\'eloped into excellentlilwyers in their own rillhl. He was never too bu~y to help a 100wycr. young or old. who came to him for advice. Thai advice could come in /I myriad of forms. For instance. my partner, John 1. Coleman. tells of the time as a young lawyer when he accompanied Mr. Bradley 10 a conference with an Internal Revenue Service agent in an attempt to ruolve a dispute regardinll aclient's tax problem. Durinll the nellotlations. when neither party had budged. a silence ensued. After a minute or so. John decided he needed to break the stale· mille and help Mr. Bradley out wlUI a few cogent remarlu. Jusl as he opened his mouth to speak. John fe ll a sharp pain on his len shin. and realized immediately the source hlld been a swin kick under the table from Mr. Bradley. John wisely decided to say nothing. After a few more minutes, the agent made an important concession. and soon thereafter Ihe mailer was re50lved satisfactorily. On lhe way back to the office, Mr. Bradley e~p ];'IIned to lhe nowlimping young lawyer. "John, you need to understand that silence il one of the most impomnt techniques In negotia. tions. John ntVf;r forgot t~t lesson. Mr. Bradley also realized Ihe importance of family, and this was altested to by the obvious affection he had for his three children. seven "randehildren. OInd five gre'll-grandchildrcn. as we11 as for his wife who preceded hit" In death. He also thought of his fi rm as part of his family. and we regarded him (or H

",-A4ItwtINI,ay«

•

I 11,1I,%II !! ',,+

many years Il$ our patriarch, long after he had officially retired from Ihe acliVil practice of law, Furthennore, he was active in the community where he was a member of the I~edslonc lind Rotary dubs. and served on the bolIrds of IJIrminghi\m Trust Nalionlll Bank and Avondale Mills. He gave of his time and mOrley to numerous civic Ilnd charitable orgllnizations, orten without seeking any public rec(lgnition for his generosi.

Mr. Br.1dley continued to go snow skiing and horseb~ck riding well into his 80s, and he came to the o(flcc every day until he was in his late 90s. One could hear Mr. Uradlcy dictating letters to the editor of a new.paper a!>out some political iuue in which he was interested, or to various state officials a!>out public education and teachin" methods, subJects about which he was passionately concerned. Even Oil this stage in his life. he mllintained ~ keen Interest in his firm and its lawyerll. Moreover. every now and then a senior partner would come by and shut the door, a sure sign that the firm WlS faced with lin important issue about which Mr. Bradley's sage advice was being solicited. His son, Dr. Merrill Bradley. once asked his (lither why he continued to go to the office tach day, since he no longer practiced law, to which Mr. Bradley replied,

lIollon, Arthur IJ., III

Hour/own. PA Admitted: 1974 Died: lu/y2O, 1999 lIoward, Don Alan

Huntsville Admitled: 1979 Died: 10101/29, 1999

"Tiley ntfll to know someone is watching them." And we didl Tht passing of this prodigious human library tru!y mark$ the end of nn era, Our bar, indeed our state, will miss the likes of Lee C, Bradlty, Jr.- hi$ wisdom, his love fo r the law, his intere$t in polit-

J ohOllon, Judge Frank M.•

J" Mon/gomery Admltted: 1943 Died: luly 23, 1999 ~Cro)',

Alton C.

IJimlingham AdmiU(!d: 1932 Dit.>(/: l illy 30, 1999

leal iuuts. and his civility. Whether you knew hinl or not, wt are all his benefi· ciaries. for he left us an enduring legacy of devotion and service to (amily, PTofes· sion and community. - Nonman Jtlmundsen, Jr., Uinni ngham

1'011. Michael Allin

Tatum, James ThomllS. Jr.

IJinnin{Jham Admltted: 1994

Nuntstil/e Admitted: 1962

Died: July 23, 1999

Died: September 8. 1999

Tl\te, Ralph Bryant

Binllingham Admilled: 1936 Died: Mog27. 1999

Justice McKinley Honored B.1I William E, Smith, Jr.

n Mn), <1 .1999,01 dedication cer-

emony was held to rename the United Stlltes Post Office and Courthouse in Florence, Alabama to the Justice John McKirley federal Building. A crowd of ~r 200 people allended the event to honor one of Alabama's most under-appreciated and overlooked political figures, Throu,hout his tife. Justice McKinley contributed in many cilP<lcilies. lie was one of the founders of Florence lind served in the Alabama Stale legislature. McKinley rc:pruc:nted Alabama in both the United Stales Senate and U1C United States House of Neprescn!nlives prior to becoming II United States Supreme Court Justice. Birmingham aHome)' and (ormer

American IJar Associ.ltion president Lee Cooper was the keynote speaker at the ceremony. nwevent included speil.kcrs from various brallcl~5 of govemment renecting McKinley'J public service. Some of Ole speakers wue U.S. Di~trict Court Judge Inge Johnson, University of North AlaOOm., President Hobert PottA, Florence Mayor Eddie Fro.st, and Alabama. State Bar Executive Director Keith Norman, The effort to honor Justice f.1cKinley was initlilted in 1996 by William E. Smith, Jr.. the McKinley Young Lawyers and the Lauderdale County Bar Association. It came 10 fruition on O<.lober 27, 1998 when President 8ill Clinlon signed Public Law 105-299. Lee Cooper called the action ""long overdue when you consider just a few of the achievements of JU5lice McKinley." Prior to the movement. the only recog· nition of r.1cKinley In Florence was an isolated historical marker where his home once stood. Judge Inlle Johnson noted this tribute is ~not only to Justice McKinley but to all judges," John McKinley WM bom in Culpepper County, Virginia in 1780. At an early age, his (:tlher died and his f:tmily moved to Kentucky. In 1800, r-lcKinley began the practice of IIIW in Louisville and Frankrort. Kellluc~ John McKinley and olher Kentuckians moved to Huntsville,

/.ItIIltJ r(phi- If/lllam Smith I6paJklntJ), ROOnI PoIII, Ktllh N()ftOOI~ ffPT\'HlJlalill/l

ro.- CoopNJ.Imtlll

C1lmwr. 1M CQt:¥X'r. Jtld9f 1"Iff JMII.WfI, C/Qrkl 1)1500. /Xin GurskN

Alab.,mllin 1818. He was one oflhe early settlers of Hunlsville. While :t resident of IluntAville, he lived in the house known toWlY as the Iloward Weeden Home. It is listed on the National Register lind located in l-Iun l!Ville'~ Twickenham l-tistoric District. In 1818. McKinley, along with members 0( the Alabama Land Company and the Tennruee Land Company, formed the Cypres.s Land Comp,my. This comp.,· ny was created to buy land from the (cd· eral government and develop the new town of ~'Iorenct:, Al.. ba.ma. As onc of the

acting tnlSttu 0( the Cypress l.and Company. lit is considcred one 0( the founders of Florence, and he oversaw much or the town's early development. f.1cKinley served on Iht: origInal board of trustees of Florence's Firstl'resbyterian Church and is credited with starting one of the area's first schools, In 1838, while 11 resident of Florence, John McKinley was appointed the 2Jrd Associate Justice of the United States Supreme CQurt by President Nartin Van Buren. Upon inst<ll1ation, he bec.1me the first justice to serve on the oewly.(nated Ninth Circuit and nloch or his tenure was devoted to his "circuit riding dulies." In just one year, McKinley was reported to have lra\/fled over 10,000 miles, Justice McKinley's contribution to con· stitutional legal IheoT)' include his opln· ions in Bank of Augus/a Ii. Barill, 38 U.S. (13 Pet.) 519 (1839). CrT)UC5 II. Slaugh/cr, 40 U.S. (15 Pet) M9 (184 1) ..1"kl1'he Pas.sengi..". Cases, 48 U.S. (7 IICM'.) 283 (1849), lie was Of\ the court when the decision In United States II. TIlt [)tN!lIants arK/ Gaimanls of tlw Schoom.'" Amistad, 15 Petcrs 518 (1841) was issued, ThIs CMC served as the basis for Steven Spielberg's epiC movie "La Ami5t.ld.~ Tra\/fling requirements, age lind stress took a toll on f.1cKinley's health. In 1842, he moved to I.ouisville, Kenh1cky to reduce his traveling requiremenl5.

1M eoo,w und " ilIMnn Smith ailh pliJqW honor· "" Jwlkw Itkl{~

McKinley continued serving on the Supreme Court until his death in 1852. He is buried In Louisville's Cave Hill Cemetery. Prior to Meindlng to the high court, McKinley mad~ a substantial Impact on the state's history. lie repre~entetl North Alabama in the Alabama Stale Legislature, Justice McKinley represented Alabama in Congress as both a United Stales Senator and a member of the Unlled States House of Representatives. [n Congress. he was a leading advocate of public land sales and introduced legisla· tion which many consider to be the (ore·

runner of the Tennessee Valley Authority. llistol")' regards McKinley as one of the leading benefactors of public educalion in Alai);lma. As an original member o( the Board of Trustees of the University of Alabama. he helped design, plan and develop the University. In addition, McKinley donated the properly (or the education/ll innitution known today as Athens State University. Throughout his life, McKinley dew:]· oped many contacts and friendships. In Kentucky, he performed legal work for Henry Clay. They became (riends and t-1cKinley supported him in the Presidential election of 1824. In "'Iorence, he developed friendships with John Coffee. James Jackson and Andrew Jackson. While II membtr of the U.S. 1·louse, he developed a close friendship with then·Speaker of the !-louse and Columbia, Tennessee native James K. Polk. It was Polk who advocated McKinley's appointment to the Supreme Court. President Van Buren. who appointed McKinley, may have felt some obligation to HcKinley after he helped ensure Van Buren'J 1838 I'residential election. On the Court, McKinley and Chief Justice Roger Thney shared a boarding room in Washington, D.C. while the Court was in session. Justice McKinley is one of three

Alabamians to serve on the United States Supreme Court, John Archibald Campbelll'illed the vacancy on the Court created by the death of Justice Mc.Kinley, and the federal courthouse in Mobile is named in his honor. The Hugo Black Ft'tleral Courthouse in Uirmingham is namtd afttr the third Alabamian to !eM on the U.S. Supreme Court. The Lauderdale County Bar Association plans to have an Alaooma Legal Milestone Marker erected in (ront o(the McKinley Federal Duilding. A plaque. marker and portrait of Justice McKinley will be displayed inside lIIe building. •

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ABOUT MEMBERS, AMONG FIRMS

Due to the huge increase in notices (or "Abo\.lt Membel'$, Among Firms," The Alabama lAwyer will no longer publish

address changes for firms or individual pl'llcliccs./IIIJi/l COIl/ina/! to publish announcemen t~ of th~ formation of new firl'lu or the opening of solo practices, as ....'ell as the addition of new ASSOCiates or partners. Please continue to send in address changes to the membership department of the A1t1oomll Stllte Bar,

About Memb.r. Norman 8radlc)" Jr. announces the (ormation or his solo practice at 207 Eustis /wenue, HurtsviUe. 35801. Phone (256) 536·2292. Captai n C. Urandon lIaillead. Jr. announces his tr.ansler from the U.S. Coast Guard to the U.S. Air rorce JAC Corps, lie will bt stAtioned at RAP Lakcnheath. England. and can be rCllchtd via

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Among: Firms Jamn & Jamu announces that Christopher I'lIchltl Sledge has become

an associate. Offices conUnue to he located at 104 N. Cotton Street, Andalusia. 36420. Phone (334) 2221051. g. mail:jallllj@afuwcb.com.

Hand Arendall annOlUlces that Heather H. Crumpton has joined lhe firm. Offices are located at 3000 AmSouth Bank Building, 107 Saint Francis St reet, Mobile, 36602. Phone (334) 432·551 1. Starnes & Atchilon. L.I...P. announces the opening of its t>1obile office and that Chris N. Calanos has joined the firm as a partner. Offices arc 'ocal~d at niverview Plaza., Suite 1106, 63 S. Royal Street, Mobile, :16602. Pholle (:134) 433-60<19.

B. 800zer Downl, Jr. and Lanette LImb IJerg ilnnounce lhe formation or Downs &. Derll, L.L.I~ and that Elizabeth Patlenon Wallace has become a..\Socintoo with the firm. Offices are located at 27447 1·lighwa)' 5, Woodstock.

35188. Phone (205) 938·2024. W. Kirk Davenport announces the formal ion of Law Omce. of W. Kirk Davenport, I).C. and that Ted C. I'leadowl hal joined Ihe firm. Officts are localed at 3829 Lorna Ro)d. Suite 302, Birmingham, 35244. Plume (205) 988·4038. Burgeu &: lIale, L.I.. C. and Lamar.

Miller & Norrla, (I.C. announce the merger of thei r firms Into Lamar. Burgess. lIale, Miller, Norrlt & Feldman. P.C. omcn art located at 300 Financial Center, 505 N. 20th Street, Birminghilm, 35203. Phone (205) 326·

0000. Smith & EI),. L.L.P. announces that SUlln Rogerl has joined the firm as a

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Ogletree, Deakin" Nu h, Smoak & Siewart, !'.C. announct$ that S. Andl'ilw Scharft nber51 has joined the firm as an associate. Offices are located in Aillbama, Georgia, South Carolina, Illinois. Texas. Tennessee, North Carolina, and Wluh.ngton, D.C.

_ No minimum chargcs - rate! Ilarting al SlS per hour. _ Staffed by allomcys and leial profcuionall wilh O'I'eT 25 yean' eJCpericnce In IC831 rcseafth. litigation ~'JPporl aIMI lhc practice of law.

Domlnlc:k. Fletcher. \'eUdlnll, Wood Lloyd, P.A. announces that OOUlllu I... I'lcWhorter, Anne R. MOlle. and Denise J . Pomeroy have Joined lhe firm. Offices are located at 2121 Highland Avenue, South, Birmingham. 35205. Phone (205) 939·0033.

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partner and that SUlin C. lIaygood and J. Toby Dyku hrlVe Joined the fi rm as associates. Lin B. Singer and Kelly !llmle Lamberth have become of CQunsel to the firm. OAces Bre located al 2000/1 SouthBrid,e Parkway. Suite 405. IJirmlngh/lln. 35209. Phone (205) 802· 22 14. Ualch & mngham, L.L.P. announces that Charln H. Paterson has joined the fi rm's partnership. Offices are located in Birmlngharll. IIUl1tsville, Montgomery and Washington, O.C. Jim L. InBardelaben and Dorothy Norwood announce that Milton J. We~ tl')' has joined the fi rm. which will now Ix! knowr'l as OeUaroelaixn, Norwood & WUII')'. P.C. Omces are located at 1505 Madison Avenue. Montgomery. 36Ui7. I'hone (334) 2659306. Robert J. \lta1 and Kenneth M. BUl h announce the formation of Veal & 8u8h, Ll.C and that N. Alexander Nolte and l~obl1rl M. Jack,on have joined the firm as anodates. Offices are located at 200 Cahaba Park Circle, Suite 125. Birmingham. 35242. Phone (205) 9910082. Clark. Scolt & Sulilvan, I'.C. announces that Margaret Deakle and David Urlghl have joined the firm as associates. Omces are located on the 10th Floor. I{egions Bank Building. Mobile, 36602. J>h(lne (334) 43,1-1348.

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I'eltus & Smith anno\mCe5 that Mary Frllnk· Brown hIlS become a partner of the firm and the firm name is now PettuI, Smith. 8rown &. Auoclatet, L...L.C. Offices are located:lot 217 S. Court St reet, Suite 206, f.10ntgomery, 36 1{)4. Phone (334) 264 -8484.

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I.lngaton, Frazer. Sweet &. Freete. I'A. announces thal Jamu S. Roblnlon has joined the firm liS Iln associate. Offices are Ia<:ated at 2900 HighwilY 280, Suile 240. MOfgan Keegan Center. Birmingham. 35223, and in Jackson. Mississippi. Phone (205) 871-4144.

Stone. Granade &. Crosby, P.C. announces that T. Dtvrn Moore h1l$ become a member of the firm and that Jamet 1<: . Centl')' and Jonathln D. Head h."ve become associates. Offices are located in Ray f.1inette, Daphne Dnd Foley. Wi lker, lilli, Adlml, Umbsch, J\leadowa &. Walton announcu that I'atrlck C. Davldlon has joined the firm. Offices are located al205 S. 9th Street, Opelika. Phone (334) 745·6466. Watl on Jimmenon, P.C. announces that M. CII,)' Martin hll5l)(:come a partner. Offices are IOCllted at AmSouth Center, 200 Clinton Avenue. Wut, Suile 800. Huntsville. 35801.l'hone (256) 536·7423. Thomu &. Crumley, L.L.C. that Benjamin I.. 80YInton has joined the firm as an associate. Offices are located :lot 301 ~'ranklin Street. Southeasl. lluntsville. 35801. Phone (256) 551·0103. announce~

l)avld.on, Wiggins. Jones &. Coleman, P.C. announces that Roman Alhl!!)' Shaul has joined the firm as an associate. Offices are located at 2625 8th Stretl, 1\r~cllloosll. 35401. W.O. KJrk. Jr. announces that Timothy 8. McCoot hM Joined tht firm of CUTTY &. Kirk lind a new partnership hM been formed under the name of Kirk &. McCool. Offices are located at 100 Phocni/t Avenue, Carrollton. Phone (205) 367-8 125. Roger" Young & Will, teln, I..I"C. announces that William II. Juksan and Joseph E. Whittington havt become members of the firm . The firm's new name will be Rogen, Young, Wllbteln, Jllck_on &: Whllllngton, I,.L.C. Offices arc located al 130<1 Quintard Avenue, Anniston. 36201. Phone (256) 235·2240. Abiu, Baxter, Parker &. lIall, I'.C. announcts that Jonathan W. Illppln has become an associate. Offices are located at 315 Franklin Street. Ilunuville. 35801. I'hone (256) 533-3740. •

BUILDING

ALABAMA's

COURTHOUSES

8y Samuel A. Humore. Jr.

-- ,

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n the ~pring of 1999 my family and 1 took a vacation that lncludw Sl'Vtral days In Spain and

IFraocc, l'iclures d courthou$(!$ we visited in Spain

,."u~ ~,

were featured In the Jul)l l999 I"ut of The Alabama

Public " Pressc

Lawver. We also saw several law-related facilities in France. Because the French nllg wall one of the "Six ~1ags over Alabanm," il is appropriate to consider AlabiUl1<" S French heritage. AI:IIJ.lma's first ~ermO\ne nl, seU lement. MIS French. The LeMoyne brothers, Pierre, known as Iberville, and Jean B..lplis\c. known as Bienville, e5tablishcd Fort Louis de 111 f'.lobile In 1702 on the west bMk of the f.lobilc Hivcr, approlCill'llttety 27 miles north of the river', mouth. In 1711 , this fort , named (or Louis XIVof France. was mO\ltd 10 the present location of Mobile. Earl)' Nnbama remained unlkr f"rench control until the Treaty o( Paris In 1763 ceded the territory to the English. \Vhile in France, we toured the historic wine country and saw -bastidcs" or fortified toYmS that d.1ted back to the 1100s. In this area we saw the courthoust at Bergtrac. lhe home of French author and soldier, Cyrano. who was known (or his skill in $WOrd fighting as well a.!I for his lonll nose. The courthouse was located on II public Jquare. In Paris, we visited Ult Palais de Justice located on lhe lie de la Cite, an island in the middle of the Seine River. ncar Notre [)lIme ClIthedral. This building was constructed around the Sainte· Chapelle Church which was built in the 13th Century. There is also evidence o( the ~'rench I~evo l u !ion.,ry Period in this building. The three portals of one entrance-way are crowned by the • words: "Libcrte," · Egalite." and "Fraternite." '.mllel ... "limO,.,

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the holiday season approach. es, it may be wise to remem· ber there have been books wriuen. workshops given and many articles published about lhe

A I

By Jeanne Marie Leslie, director Alabama Lawyer Assistance l>rogram

sion auociated with this lime a year. L/lW)'ers life

children are few.

• Say "thank )IOU" more, and melln it. • Don't dwell on what this holid:!y season could be or shouM be; celebrale what il is.

increued SI Tus,anKiet)' and depres-

n is rcul.

Take a break and a bath, and have a banana.

already more susceptible to depression and streM. llnd liTe al grellter risk (or seeking relief in alcohol/drugs, th.~n most other professions. At a time when alcohol is abundant, and stress (ac· tors are high, keep in mind many this hoi·

• Gel proper resl and nutrition. Thke a break and II bath, lind have II ban.ma.

On behalf of the Lawyers J Iclpinl:l Lawyers Committee, and the Alabama L.awyers Assistance Program. have a sa(e lind joyow holiday mson. Please keep our loved ones safe-don't drink and drive. •

iday ,$e<l$On will attempt to drink away

their worries, stull thtir loneliness down with another helping of (!Ike, "max out" their credit cards to increase their feeling! of worthineu, sci family eXJlC~tJ.t i()ns beyond the limit. and be left feeling hung-over, fat, broke and nlone with ali lhe "would Org," "could ors," and "should ors" dancing in their heads. Does this sound familiar? Individuals who find themselves in this unique position are usually puzzled and confused about what happened. They know it wasn't supposed to turn out this way, so they find tht mseives declaring, yet ilgain, with all the earnestness and determination they can muster, "Next year will be dj({erent.~ The delinition for insanity, 1'\It' been lold, is continuimt to do the same thlnlP over al'ld over al'ld expecting the results 10 be different. If )'ou Iolould like for lh ing~ to be different Ihi ~ year just fol Iowa few simple suggestions. • Si:t realistic expectations. Expecting people 10 be different (rom the way they are is only inviting diAUJII)Qintmcnl. • Seek out tht support of h~lIl1y family and friends. r-lake su re you ask people who arc capable of giving II. Or Rue» what? You won't gel it. • Limit your alcohol intake. Alcohol is a depressant and. contrary to what you think it does (or you, It will make you feel depressed, • If you have never been invited to thal spectacular Christmas party on the hill, with the "who's who", don't expect 10 110 this year either, • Spend precious time with your children; their Chrislrnl.Ues

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Assistance Program Thetaw Offlce Management Asslstan(e Program (LOMAPj ls a clearlng·house for Infonnatlon on aU aspects of the operc:IUon and management of !he modem law office, For more Information or to ~ confidential assistance with your oIfIa

_Ions """"':

Laura A. (alloway, LOMAP Director The Alabama State Bar P. O. Box 671' 415 Dexter Avenue Montgomery, AL 36101 (134) 269-1515, ext. 116 Icalloway@alabar,org

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What if give you the ti Imagine what it must feelliko to hBve a problem-and not know where to go for help. Or to know what you needed to do, but not have any money to do it? Tllat is what hundreds of Alabama citizens feel like every day when it comes to legal problems. They don't know what to do. They don't make enough money to afford legal counseL Sometimes. they leellike no one will even give them the time of day. That is where the Volunteer Lawyers Program steps in to help, Over 1,600 judges and lawyers volunteer their time to help their fellow citizens who cannot afford to pay lor legal assistance. They encourage and recognize their colleagues who join them in providing this imponant public service. TIley donate thousands of hours every year as their gift to communities throughout Alabama. Call and volunteer to participate in tho VlP, By assisting with only one or two cases a year, you have the opportunity to truly make a difference.

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Alabama Supreme Court Commission on Dispute Resolution and Alabama Center for Dispute Resolution Celebrate Five Years of Accomplishments has bten five years since the Supreme Court of Ailibama es~ 1i5 htd lhe Alabama Supreme Court Commission on Dispute Re:;olution by court order June 30. 1994. AI that time, the court t

requested lhal the commission develop <Inti over-

see a center which would ael as the central offi ce (or the state regll rding alternative d i ~ pute ruolution (ADlt), Hnd take the lead In dcvelotl!rl(l, among other important items. mediator ethics and J:la n d~ rds, and R roster of trained mediators. Commission members, appointed (rom various K~1 o rgllnizalion~ 11$ stip\Jialed in the order, have mel every other month since 1994 to work on Ihe development of ADR In Alabama. In August of that same year, when the center o~ ned . Aillbama became the 18th slate 10 have II stlte office eX dispute ruolutlQn.

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From the very Ixginning, there was a commitment to be brood-based. and the commission and the center have hwarded grlll\U and technical support (or commtmity/neighborhood mediation, school connict resolution and peer Oledintion. court programs. and alternatives for administrative a.gencies. Ori~inal programs are now being dupli. cated In additional Ala.bama counties. The commission and the centcr have Dccn loca l sponsors for "Partnership (or Prcventing Violence." a six'parl teleconference ovcr a three·year t)Crlod from Ihe Harvard School of Menial Health [hOlt networks and unites people in every state to preveTlt school violence through successful school-community partnerships. Pari of Ihe work of Ihe commission has been 10 formu laiC Ihc Alabama Code of ~;Ih ics (or Medintors, and the Interim

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r-1ediator Standard5 and negistralion Procedures. The roster of trained Alabama mediatorS has grown to 360. Where there was no mediation or arbitration training offered in the state, there are now 25 to 30 cour~s a year. A roster of Alabama arbitrators is currently available. The commi15ion and the center. In conjUilcUol'I with the Alabama Slate Bar, have published 11 handbook on AOR entitled Allemafit'C Dispute Resolution Procedures in Alabama willi Medi(ltion Model, a public information mediation brochure. IUld al'l I~~ue of The Alflb(mlfl I.mliVllr devoted to ADH, and havt developed television and ,,,dio promotional 51}Qts on mediation as part of al'l NCSA media partnership with the Alabama Broodcasters Association. Commi15ion members and the center director are available to speak about AI)H (or any org.lniUltion requesting 11 speaker. The center responded to over 800 request5 for writh:n information in 1998, an increase of20 percent over 1997. 115 Web site, www.a/abamaAJ)R.org, answers questions about AJ)R in Alab.lma. includes a county map of the stale which can !w used to 10000te mediators in any county, and conlains training information, a conference calendar, opportunities of interest. ADit legislation and sl:mdard~. and link~ 10 nat ional ADR organizations, The cerlter w(lrks with m,IIlY ADn orgllllizations. in and outside Alabama. but particularly with the AJ)H Committee of the Alabama Statt Bar, and the Governor's State Agency ADR Thsk Force. The center's director. Judy Keegan. has been written about, interviewed and quoted in national publications and on radio and television. Ms. Keegan has published numerous artidu. has a law review article forthcoming. and hll5 !wen a guest speaker and CI.E presenter at over IS{) programs. She has rep·

resented Alabama Oil many national meetings, has developed and !:Iughl mediation courus, including training (or the Administrative Office of the Courts. Ms. Keegan has over 100 hours o( mediation and arbitl'lliion training, and has conducted 29 pro bono mediations in the last year and a half. She has been appointed coordinating director oflhe Governor's State Agency ADR Thsk ~'orce. Current commission members lind their IIppolnting organizations include: Judge Sharon C. Yates (court o( civil appea!5), chair; Judge John II. Alsbrooks, Jr.. (district cou rt); Steven A, Benefield, (Alabllma State Bar): Charles Y. Boyd. (Alabama 1)-ial Lawyers): William D. Cotem,IIl, (Alabama State Bar): Judge Aubrey ~'ord. Jr. (district court); 1. Noah ~'"nderburg, (at large): Judge Philip Dale Segrest (circuit court): Anne Isbell (at large): Thomas ,.1cPherson, Jr. (at lalge); John J. Park, Jr. (attorney general): Ted Ilosp (Govemor): Justice Harold See (Alabama Supreme Court): James R. Seale (Alabama l)e(ense Lawyers): Judge P. Wayne Thorn (ci rcuit cour!); Marshall Timberlake (Alabama StMe B3r): Justice C.C. Torbert. Jr. (Speaker of the House): and Robert C. Ward, Jr. (Alnbam3 I..,wyers Association). Liaison members include Frank W. Creilory (Administril(ive Office of the Courts), Keith 11, Norman (Alabama State Bar), Alex W. Jackson (Alabama Supreme Court), and Judith M. Kee,,3n (Alabama Center for Dispute Resolution), Contact the Center at (334) 269-0409 or (33~) 269· 1515, ext. 111 . (or ADR training, copies of the rosters, videos, reading materials, promotional items, school connict resolution and pee, mediation information. a speaker for your program, community mediation, and court pilot examples. •

Judicial Award of Merit Nominations Due The Board 01 Bar Commissioners of the Alabama Slate Bar will receive nominations for the state bllt's Judicial Award 01 Morit through March 15, 2000. Nominations should ba prepared end mailod to: Keith B. Norman. Secretary BOlrd of Bat Commillionerl Alabama S'I ' I Bar P,O, BO)l 671 Montgomery, Al36fOf Tho JudicIal Award of Morit WIIS ostablishod in 1987. Tho award is not nltcossarlly an annual award, It must be presented to a judge who is not retirod. whothor stoto or lodllul court, lIIal Of IIpplillate, who is determined to hal,'O contrlbutod slgnlfi. cantly to the edministretion 01 Justice in Alabama. The recipient is presented with a crystal gaval bearing the stete bar seal and the year of presentation. Nominations are considered by 8 three·mllmber commineo appointed by the president 01 the state ber, which then makes a recommendation to the board of bar commIssIoners w~h reSp ~c t to a nomin~~ or whother the award should be presented In any glvon year. Nominations should include a dotaillld biographical profile of tile nomlnoo and a narrative outilningtho signilicont contribution(s) tho nominoe has made to tho administration of Justice. Nomlnatlon5 mov be supportod with lenors of ondorsemont.

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Disability strikes 52 Americans

EVERY MINUTE! Yet disability insurance remains the most under-purchased form of protection . Your AIl.bamn State Bar Disability Income Plan Features: • •

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Underwriting through the ccurity of America Life Insurance Company, nn American General Company. American General is rated AA· by Standards & Poors and A I by Moody's lor rinnncial strength and AA- by Duff & Phelps for claims payi ng ability. After the wai ling period. up to $),000 per month in benefits nvuilable fOI members under age 60 with no medical exam or blood testing in most cases. Max imum benefit S I0,000 per month. Extremely competitive group rates. " Your own occupation" defin ition of disability. Renewal available to age 70. Coverage docs not offset benefits against group disabili ty insurnnce pinns.

Y OUR INSURANCE SPECIALISTS , INC. (15 1) REPRESENTATIVE IS AVAILABLE TO ASSIST YOU IN APPLYING FOR THIS VALUABLE ADDITION TO YOUR INSURANCe PORTFOLIO .

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LEGISLATIVE WRAP-Up By Robert I... t>1cCurley. Jr.

A.vl.lona Under Study n between the legislative s~S$i()n$, the Law Institute has committees studying and revising laws for presentation tQ the Legislature. These studies usually lake two to four years. The uniform acts undergo great scruliny by a committee of lawyers and judges who are knowledgeable in lhe arell under study. Even the besl law has to be made to accommodate the Alabama law surrounding lhe subject and may require some modification. Often an Jnslitu!e committee will simplify laws which do nol havt a modd to follow. The revi5ions currently under study are: Uniform Principal and Income Act. Iktermination of Death Act, Buslneu Entilies, Uniform Commercial Code Article 9, Eminent Domain. Uniform Public Employeef Pension Fund, and Rulcs o( Crinlinal Procedu re. The institute il making three bills ready (or Introduelioll Into the l.egislature.

Merger•• nd Conver.lon. of Bu.ln ••• Entitle. uring the past few year.; the number of business entities available in Alabamil ilnd throughoutlhe United States has greatly expanded and virtually all existing buslne» entities have been revised. Alabama now has eight choices of business entities. and not only has kfpt pace wHh the rest of the nation, but. in some cases, has been out fronl in providing a range of business entities available. This act 15 Intended 10 provide a convenient and simple w<ly (or the different types of business entities for profit to convcrt or merge with each other. Business enlities allowed to merge under this act include the following with their effective dales: business corporation ( 1995), limited liability company (1993), general partnership (1997), limited partnership (1998), limited lillbility partnmhip (1997), real utllte inveslmenllrust (1995), and professional corpOration (1984). 11lese laws, haVIng been created and rl'V ised at different times, may provide clear laws (or mergers and c~rsions of entities of like kind but, when entities o( different kinds mcrge or convert, the laws are often incomplete and conflicting. This act is not exclusive. Business entities may be converted or merged in the manner provided in lheir own acu or under this aCt. This bill was written by the Business Entity Committee chai red by Jim Pnlelt of Cadsden with I'ro(e55or Howard Walthlill serving as reporter. Senator Roger lJedford and Rcpresentative Bill Fuller aTe SpOn$OJ"$ of the bill.

Det.rmln.tlon of Death Act his act provides l!. comprehensive basis (or determining death in all SItuations. Alabama's currtnt law found in Ala. Codo §22.:J/-/ o( seq, WII5 pJlssed in 1979. This uniform law has been adopted in 41 states, Including Ceorgla and MI 5s i~slppi, since Alabama passed its version. The interest In thi$ $tatute arose (rom modern advances in

!ife-saving technology, Aperson may be ilTt ificially supported (or respiration and circulation after all brain fun ctions irrevocably CCMe, The medical professi on ha.~ al.~o developed techniques (or determining 10$5 of brain fun ctions while cardiovascular support is administered. At the same time the common law definition o( death cannot llSlIure recognilion of these techniques, The common law standard (or determining death 15 a cessation o( all vital functions traditionally dtmonstrated by an absence of spontaneous respiratory and cardiac func· lions. There Is then a potential disparity between current and accepted bio-medical practice and the common law. Part I codifitd the common law basis (or determining deaUI- total failure of the cardiac respiratory system. l'ar12 extends a common law to include the new procedures for determinlltlon of death based upon irreversible loss of brain functions. The overwhelming majority of cases will continue to be determined according to I'art 1. While artirlCial means of support preclude a determination under Part I, lhe act recognizes that death can be determined by alternate procedures. Under Part 2 the enti re brain must cease to (unction irre· versibly. The "entire brain" includes the brain stem as well as

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the neocortex. The conccpt of "cntire brain" distinguishes determination or death under this act and "neocortical dealh~ or "persistent wgetative state." These are nol deemed Yillid, medical or legal bases for determining death. This act also does not concern itself with living wills, death with dillnity, eulhanasia, rules on dealh certificetu. maIntaining life support beyond brilin death in cases or pregnant women or organ donors, and protection of dend bodies, These subjects art left to olher laws, This HCI is 011:10 silent on ;1I:ccpt"blc diallnostlc tests and medical procedures. It sets the general, leg.. 1 sl.. ndMd for determining duth but nOllhc medical criteria for doinllso, The medical profession remains free to formultlte acceptable medical practice and to utilize new, biomedical knowledge, diagnostic tests and equipment, Time of death also is not specifically addressed, In those instances in wh ch time of death affects legal rights, this act statu the basis fo r determining death. Time of death is a (act to be determined with all others in each individual case and nmy be resolyed. when in doubt, uPQn expert testimony before the appropriate cou rt. This bill will be presented to the 2000 Hegu lar Session o( Ihe legislature nfter its review by the Alabama l.aw Institute Counci l. Alabama Uniform Principal and Income Act

here have been two uniform principal and income acts prior to the current 1997 Uniform Principal and Income Act. This act hru. already been adopted in seven states and is under review in many others. The first act W/15 the 1931 Uniform Principal and Income Ad (UPAIA) and (ollowed by Ihe 1962 Ifeylsed Uni form Principal and Income Acl. Alabama has the basic 1931 Uniform Principal and Income Act wilh some amemlments and additions 11111de through the years. The 1931 UPAIA wasdr~ (tcd when the nation W/15 beginning to recover from "Ihe Great DepressIon o( 1929" 'lI'Id reflected financia l attitudes relative to fiduciaries of that period. Except for a few minor bumps in the graph, our nation's economy generally has been on the rise and, to some extent, Inflation· ary since 1931. The 1962 UPAtA, which Alabama newr adopt· ed, refl ected changes in attitudes over three decades and gen· erally gave fidudariu broader ~n and more discretion, The 1997 UPAlI\ continues that trend of giving fiduciaries more flexibility \lith broader IX'lWCrS and more discretion. fI.5 stat· ed below, one of Ihe major con~iderations in draftinJolthe 1997 UPAIAwas Ihnl financial instrumen L~ and Investment opportunilies h"ve been developed over six decades that were not even conceptualized in 1931. Asecond major change WM that today fiduclariu, and p.lrlkularly corporate fiduciaries, conduct multi-stale operations as fidlJtiaries. Thirdly, much of the large holdings of property intcrt'Sls, particularlY of timber and other natural resources. is held by property owners who operate interstate. Generally, with rtspect to real property, the law of the state of the property controls. The Alabama Supreme Court has stated, in b'ng/ulld v, Hrst NI1!iorIal &11Ik ofIJirmil1ghom, 381 So.2d 8 (Ala, 1980), that even though a testamentary trustee was granted YCI)' broad power to allocate trust receiplJ between principal and income, the trustee was not authorized to l1ll,ke IIlIocalic,lll$ where proper allocation is not a matter of honest doubt. If a trustee Is IlItcmpllng to apply lhe principal and income acts of

difference states to different portions of the same trun, attempting to determine when "a proper allocalion is not a matter of honest doubt" may put II trustee in some jeopardy. The taUer two considerations make uniformity of legislation dealing with princi. pal and Income allocations imperalive among the Yilrious statC$. The harm from Alabama's inattention to lhe developi ng law regarding fiduciary investments has been minimized, because m05\. if not all, of the statutory requirements can be changed by good drafting of instruments creating fidu ciary relaUonships, Alabama aUorneys. throuJolh very good drafting, have provided mosl fiduciaries with the fl exibility lind discretion neceuary for them to ycry IIbly perform thei r fiduciary duties and responsibilities. This revision of Alabama's yerslon of the 1931 Uniform Principal and Income Act has two purposes. Ont is to revise the 1931 Act. Revision is needed to support tht now widespread use of the revocable living trust M a will substitute, to change the rules in the act that experience hM ~hown necd to be changed, and to establish new rules to cover situations not provided for In the old act, including rules Ihal apply to finlln cial inslrumen15lnyented since H131. The oUler purt)Ose is 10 provide a 1Of,: i1nSfor implementing Ihe transition 10 an Investment regime based on principles embodied in the Uni form Prudent Investor Act, especially the principle of inycsting for total return rather U\an a cert.., in level of ~Income" as traditionally perceived In terms o( interest, dividends and rents. The currentNabama Code conU-ins some lan· guage tMt seems to adopt the concep15 of the Unlonn Prudent InVC$tor Act, but a comparison of the Uniform Prudent Investor Act and the Alabama Cotk provisions also is necessal)'. One major provision changed by the Institute committee is Section 104 of lhe Uniform Act. This provision grants the trustee the power to make adjustments between principal and income. The Institute committee requires the settler to expressly provide for II trustee to elcctlo reallOClte between principa.l l1nd Income rather than give the trustee the inherent authority to do so, The committee is chaired by Leonard Wertheimu from Birmingham. Professor Tom Jones, who serves lIS reporter, provided this brief overview of the bill. This draft must be approvtd by the l.egislatiVf. Council before introd uction in the 2000 Regular Session which will begin I<'ebruary I, 2000. For more in(ol'T1'\ation about the tn$lilute or anyof its projects contact llob McCurley, dirtttor, at I~O. Box 86 1425, Thscaloosa, AJilromll 35486,0013, fax (205) 348-&111, phone (205) 348.7411, or through the Institute's Web site, U1LVV.l(lIlW(Wc/Il/(I/i, •

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Alabama State Bar Volunteer Lawyers Program Receives National Fellowship Ctlmllerl alld S~hool 01l aw COllllnulng l egal Ellilulion Fall 1999 Schadllie Novclllbtr

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CLE Opportunities The Alabama Ma!l!atory CLE Commission continually evaluates and approves In-state. es well as nationwide, programS which afe maintained In a Compllter database. All are identif'ed by sponsor location, dete end sp~iel ty area, FOI a complete listing Of Curfent ClE opportunities or 8 clliendllr, contact the MClE Commission office at 1334~ 269-1515, extension 117. 156 or 158, or you may ~iew a complete listing of current programs at the state bar's Wob site. www.aiobar.org. "",AMwm;J~

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Changes to Form 1099. Reporting Payments to Attorneys There hIlS been 8 change in Form 1099 reporting requirements concerning payments to attorneys. It will probably apply to

all businessn al some point in thoir existence. For e.1I8mpI8. if ~ou use the services 01 an attorney in your trade or business, then thll recently enacted Intornel Revenue Code § 6Q45tf) may apply 10 YOII. What does till new law require? Beginning January 1, 1998, Imornal Revenue Code § 6045H1 odds now requiremon ts to the existing law lor filing InformltiOil

returns on reporting pllymentslo anomeys. II you milk!! a payment in the course of your tfade or business to an attorney In con· nection with legal services and the attorney's feBs cannot be determined, the total amount paid to the attorney (gross proceeds! must btl rep orted in box 13 with new Code A on Form 1099·MISC. For example, an insurance company pays an attorney $100,000 to settle a claim. The anorney's fee cannot be det.rmined by the insuranca company. Thorofore, the insurance company must report $100,000 in box 13 of Form 1099-MISC with Code A. If the insurenca company knows thatthn attorney's fee is, for Ilxample. $34,000, the Insurancll compllny must report $34,000 in box 1 Bnd nothing in box 13. Further, thue rules epply la) whether or nOlthe legal services are provided 10 the payor and (b) whother or 1'101 the attorney is tho exclusive payee (e.g. the Bttorney's and claimant's names on one check). However, these rules do 1'101 apply to profits dislfibuted by a partnership to its partners !hal are reportable on Schedule K-l (Form 1065). Pertner's Share of Income, Credits, Deductions. etc" or to wages paid 10 attorneys that are reportable on Form W· 2, Wage Bnd Tax Stlltllmenl. The term MettornllY" Includes 0 lew lirm or other providor of legel servic81. The exemption from reporting paymenls made to corpore-tionl no longer applills to payments for legel services. Thereforll, lor Igss end leter years. you must reportettorneys' fees (In box 7) or gross proceeds (in box 13) as described eboveto corporations that provide legel services. The inlormation return. Form 1099-MISC, must show the Mme. Bddress and texpayer identification number !TIN) of the attorney and the aggregate amount of all payments. The necauery information regarding the attorney must be secured via Form W-9 or tho 31 pllrcllnt backup withholding rules apply. 11 the required informalion is nOlsecured on Form W·g and backup withholding is not withheld from tho attorney, then tha 31 percent will be assessed against the payer. Any person failing to file Form 1099 may be subject to the penillies under IRC § 6723. This section slales that any Gerson who fails to furnish a required 1099 may be subJoct to a penalty of $SO per Form 1099, up to Bmaximum of $100.000 In any calendar yoar. If the failure Is due to Intontional disrogard. the penalty is the groater of $100 per Form 1099. or 10 parcent of the amount re quired 10 bEl shown on the return. When are th. information return, due to be tiled? The Form lD99·MISC must be furnished to the attorney on or before January 31 01 the year follOwing th. celendaryoar for which tha raturn is required. For exemple. payments made during 1998 must be furnished via Form IOSS-MISC to Ihe attorney by January 31, 1999. The samo information. Form 1099·MISC, rnust bo furnished to tho Internal Revenue Sllrvica, by February 28 of the 'leer fol" lowing Ihll calondor yaar lor which the return is require d. For example, payment$ mode during 1998 must be furnished via Form 1099·MISC to the IRS by February 28. 1999. The Internal Revenue Service has many ways to access IRS tax help and forms. For deleited information for getting informalion you may order Publication 2053. Qu/ell and Eesy Access 10 IRS rtJx Holp end Forms. or visit www.;rs.ustrotJs.gov.

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The Alabama Religious Freedom Amendment:

A Lawyer's Guide By Thomas C. Berg and Prank Myers

Introduction In Ule Novtmber 1998 election. Alaooma voters approved a constitutional an'lf:ndment protecting the (Ne exercise of religion (rom unnecessary restriction by government. The Alabama Religious Fl'eedom Amendment (AIUi\) provides that "govtmmcnlshall not burden a per$On's freedom of religion" unle~ it demonstrates that the burden "is in fu rtherance of a compelHng governmental interut" and "is the least restrictive means of furthering that" interest. ARFA. I V. Alabama joins several other st.l1es (Ariwna, Connecticut. t1orlda, Illinois, Rhode Isl:md. and South carolina) that have enacted such a rule in recent yea~; but Alabama is the only state to do so by constitutional amend· ment rblller than ordinary legislation. ARFA is an import.1nt Ilnd wide.ranging civil liberties enact· ment. It aims to ensure that religious exerCiAe,1I constitutionally protected activity, will not automatically be subject to tvel')' law in our highly regulnted $OCiety without regard to severe effects on religiol\l conscience. Oul be"1use AHFA covers all nctlOfi$ of Ihe slale and itl! subdivisions, It will raise many issues of interpretation, This Article is me.mt as a guide for ~1wye:rs and judges dealing with the Amendment. We review its background and elklCtment, Ikfcnd its constitutionality under the E$tablishment Cl~usc of lhe U,S, Constitution, and sel forOl principles for interpreting it ~en5i bly.

I. The Background Dispute

Over Free Exercise ARFA addresses tho} mOSI Important legal issue arisIng today concerning the ' free exerelse" of religion, iI right guaranteed in the ~·ir.;t Amenoo,ent to the U.S, Constitution, There is wide oonsensus that the govemment may not punish someone solely for her religious opiniQf15 and th.lt a law or regullllion may not single out religious conduct for prohi bition, for example b.lnning Ihe killing of anlmll15 only when it is done for religious reasons, Churr:h of tile Lukumi &balu Aue IJ, CitU of Hia/('Oh. 508 U,S, 3DIl H ovuaDEII , •••

520 (1993) (striking down animal-cruellY ordinances targeting only Santeria religious rituals), However, few law.s intentionally target religion; most conflicts between religious ronscience and the law occur when conduct subjecllo a general, religion-neutral law happens. in II particular case, to be required or strongly moti· vated by the faith of II religious individual or group, Such conOids between religious conscience and I!enerallaw$ are frequent and wide.ranging, because America hM a great variety both 01 laws and of religious practices, taws against seMi'll! alcohol publicly can ban the G:!tholic mass or Jewish seder; laws agairut SCI' discrimination in hiring can bar a m31e-only clergy; laws requiril'lR certification of teachers can boln home schooling by many parents; laws forbidding Ule wearing of headgear in particular cirCUl'IUtances can force Orthodox Jews lind others to violate their religious tenets. From the 1960s through the 1980s, the U,S, Supreme Court held that even a fM:ially neutral, generally applicable law could violate the First Amendment's ~'ree ~;xercise Claust in a particular case if the law Imposed II significant burden on religion and was not justified as the least restrictive means to serving II ~com pelling" or "ovt:rriding" state Interest. Applying this test, the Court held in Sherbert IJ. Verner, 374 U,S, 398 (1963), that a state could not deny unemployment benefits to a Sevenlh·I)ay Adventist because she refused to accept a job that would require her to work on Saturday, her Sabbath, Accord Thomas IJ. Review Boord, 450 U.S. 707 (198 1), The Court also held, in Wisconsin /J, }'cxkr. 406 U.S, 205 (1972), that II state could not apply compul· SOl')' school·attendance laws to Amish parents who refused to send their children to scllool alter age 14 becau5e the children would be "expo5e!dJ to worldly influences~ at a seruitive tlme and drawn away from the Insular Amish community. The application of the compelling interest test did not always Iud to religious exemptions from generally applicable laws. No one argues that iI religious cult would be fret to practice human sacrifice on unwilling victims. Compelling interests that override religiow exercise have incllided the prevention of publicly.supported racial dlscrimin.ltion, see [Job Jones UniIH..'fSitV /J, Ullitecl Stales. 461 U,S, 574 (1983) (upholding denial of tax exemption to

racial di5Criminatory college); and the preservation of a universal Social Security system. see United Stat{!;f IJ. U!tl, 455 U.S. 252 (1982) (refU$ing to exempt Amish employers from social security taJ<es). Some observers claimed that the compelling interest test had come to havE: no teeth. But it alleast required the govem· menl to give It good reOlSOn for restricting behllvior required by religious faith. However, in 1990 the Supreme Court surprisingly aoondoned the test. In t.'mpJogmerlt DiIJisicll IJ. Smith, 494 U.S. 872. two drug. rehabilitation counselors in Oregon ~re fired from their jobs because they ingested the drug peyote at a worship service of the NativE: Americ.m Church, to which Uu:y btlonged, The state denied them unemployment btnefi15, and the luue might. have been framed as whether the stnle hlld II com~ lI ing Interest in discouraging the use of peyote-which is a hallucinogenic drug but Is /llso ctntr:d to the historic Native American ritUliI ;lJ'Id i5 seldom ~ outside that limited context. Instead, the Supkme Court held that ~use the state had an -across·the·bool'd" criminal prohibition on peyote use. the case raised no free exer· cise iu ue. Because the law against peyote was "neutral and gen· erally npplicabl e~ (/ri, at 871), il! lIpplication to the Native Americans did not require Ilny cOflstllutiOl'lnl JU$tific.11ion. no mailer how the seriously the law hampered their sincere reli· glous practices. The Court limited the compell ing interest test of Sherberlllnd Yoder to it few sitUlltionA-jXllentially important ones, but not imm«1ialely relevant here. Smith's rellSOnirtg rested largely on concerns about judicial activism. The majority argued that applying the compelling interest test striclly would create anarchy, allowing each religious believer to become a "law unto hiJll$elf' (id. at 885), bulthlll applying lhe test Imte moderatciy would require couru to 001· ance the importance of a religious belief against the Importance 0( a particular law, ~ prospect the. majority found "horrible to contemplate~ because it WQuld depel'ld he.wlly on the subjective impressions of judges (id. at 889 & n,5). nle Court did not. how~r, disapprove of special accommodation for religious cOl'lduct In geneml: It virtually invited legisilltures to protect kligiouS liberty themselves by enacting "nondiscriminatory reHgious·prac· tice exemptlon!s]" in statutes. 'd. at 890. Immediately after Smith, sevtrallower courts I'tad it to limit severely any protection for religious exercise agaiNt general laws. For example, II feden.1 district judge reluctanlly denied relief to a family of Vietnamese Ilmong immigri1Jlt5 when a county coroner periomled an unnect:ssary and unauthorized autopsy on their deild son, an act that under their beliefs was a mutilation of the boy's soul. lang /J. Slurrwr. 750 ~: Supp, 558 (O.lU 1990). Religious and d\lilliberties groups, both liberal and conserva· tive. ~re startled by the implicatiON of the Smith decision. They feartd ihallellvi"tl protection for religion to legislatures would tend (lIS Smith itself acknowledged) to favor politically powerful groups and religious practices "widely engaged In" (494 U,S, at 890). A broad·based cO,'I1it ion, including entities as diver· gent as the ACLU and the Traditional Value$ Coalition, sought to have Congress restore lI'Ie compellil'lg interest tut across the brood as a statutory right. CongreM Mr'ltUlilly did SO in the Religious Freedom Restoration Act of 1993. 42 U.S.C. f 2OOObb-- 1 et 5«/., knovm as "IU'RA. ~ RFRA decreed that federal. state. and local govemmel'l l! could not "substantially burden" the exercise

of religion. tver'l pUl'$uant to a generally applicable law. unlw imposing the burden Wil$ the least restrictive rneansof accomplishing a compelling gowmment interest. However. RfRA soon became embrOiled in challenges to i15 constitutionality. Congres., had relied on ils power lilder Section 5 o ( the Fourteenth Amendment to enforce the provisions of the Amendment by "approprillte legislation." RPRA. it II$SI!rted, enforced the right of free exercise, "incorporated" In the Fourtetnth Amendment's Due Proceu CllIuse, tlowtWr. the Supreme Court in Citg of IJoeme IJ. Flores, 52 1 U.S. 507, 117 S. Cl. 2157 (1997), htld that IWRA exceeded Congress's power to enforce the rourt«nth Amfmdment against slate and local laws. because the menning of the (incorporated) Free Exercise Clbuse was set b)' the Court's decision in Smith. Citing Marbury IJ. Madison , 5 U.S. (1 Cranch) 137 (1803), the Court said tb.,t 11.5 interpretJtlon of the Free Exercise Clause must control over Congreu's, and that RPRA could not be setn as a "proportional" re:sponse to laws discriminating against religion (the standard of Smith): instead, the statute legislated the broader rule protecting religious conscience from even non·discrin'lil\:ltory restrictions. rd. at 2167·71. After i1oeme, the responsibility for protecting religious freedom from state and loc.11laws has returned largely to states themselves. Some slate courts have retained higher scrutiny under their own constitutions, but the RFRA coalitim did not want to rely solely on judicial decisions. It fonned a lask force to $tek HFRA·like legislation in the states (see Web site at wwtIJ.reli· gious· fm'liom.org/coolilion.hlml). Alabama b one of the states where such an enactment has become law. but our provision dif· fe rs from olhers in important ru~c\.$.

II. The Enactment of ARfA Alabama was among the states where a legislative response was necessary in ol'der to protect rcligiow; conduct from generally ~ppl iCllble laws. A1abam.' courts had several times rejected the claim that general laws unconstitutionally interfered with rell· gious practices, RhllUl1rk IJ. Stale, 601 So.2d 135 (Ala. Crim. App. 1992), app. dism.• 625 So. 2d 1206 (Ala. Crim. App. 1993) (laws agaiNt drug possession); llill /J, Stale. 38 Ala. App. 4f)4, 88 So. 2d 880 (1956) (law agaiNt handling dangtrous snaku). Therefore, shortly after the lJoeme decision, state Attorney Genual Bill Pryor had his office dran leAislation modeled on I~PRA. Like nFI~, Ule draft forbade government to burden religion, Mn through ~a rule of gl!neralllpplicability." without a canpelling TelOOn. At the Mme time, a slightly different slralegy wM being pursued by Eric Johnston, a Birmingham lawyer associated with the cOl\5e1'\lative civil liberties group the Rutherford institute. Johnston's draft largely tracked RFRA as well, but it styled the provision as an amendment to the Alabama Constitution rather thal'l as ol'dinary legislation. For 5e\Ieral k aJOru. the bill eventu· ally emerged in the form o( an amendment rather than a statute. TIle fi rst reason for 5fckil'lg an amendment was thill such an enllctment would be immune from challenges based on the state CQrutitution. (A possible challenge based on the U.S. Constitution still remaiN bec.au~ 0( the Supremacy Clause 01 Article VI, I 2.) There ~re two pouible state constitutional challengu to a reli· !jous freedom statute, Opponent..s havE: argued Ih.1t such statutes, ~ legislating a general slandal'd for religious freedom claims, N OVO .. OnR 100g I ,g1

violate the sep.mtion of powers by interfering with the courts' pOwer to interprd the COnstitution, We ,*Iiew tlmt those arguments are erroneous,' but they could howe cast doubts on II statute, AlaOOma.'! existing constitutional provision on religion could also have raised difficulties, Article I, section 3 states, among other things, "that the civil right:;, privileges, and capacities of any citizen shall not be in ,my manner affected by his religious principles," fhatlanJluage could be read to forbid exempting any citizen from a generally applicable law beCiluse of a conflict with his religious principle. fhe lansuage need not be so read- its pu~e is to protect citi;r,ens from dis.1bilities bastd on their religion, not to forbid government from showing SI)Cchd concern for religious freedom. See Roberlson u. Siale, 384 So. 2d 864, 867 (Ala, Crim, App, 1980) (provision abrogates commotllaw rule requiring witness to swear a belief in Cod and disqualifying athe· isis from testifying), fhe federal Establishment Clause. as we will see, permits exemptions to protect religious freedom: and Alabama's provision on religious establishments is interpreted no more restrictively than the federal provision. tII(lbam(l £tlucalioll Jilin. u, James. 373 So. 2d 1076, 1081 (1979). In any ~nt. enacting protection through an amendment rather than a statute has IIvoided :lIIy potential stille corutitutional dlfficullic$. If there is a connict betW!!en Article I, ~ 3 ,uld AfWA. controls. A later statute cannot override lin exisUng constitutional provision, but a later constitutional amendment can. When two constitutional provisions appar~ntJy conflict. the later and more specific enact· ment controls over the earlier and more general one. See JefferSOIl Cmmlg /1. IJrtlSl/)(dl, 407 So. 2d liS. 119 (Ala . .1981). AHFA would prevail over Article l. § 3 because it was enacted later i.lnd it spei.lk~ directly to the specific i5-5\IC whether relil:fious exercise should ever be exempted from a ltencr.Llly ilpplicable law. The second rcawn to n't!k a constitutional amendment WitS thai once It W~ ~nact(:d, it could not be limited by ordinary legislation. Freedom for religious conduct is often unpopular in par· tlcular instances, tspteililly frctdorn for the mirlorily fai th~ thlll ARFA seeks to protect. Under a slatute, the Icgi~lature could reverse court nllings protecting particular religious practices, but reversing a ruling giving protection under ARFA requires another constitutional amendment. On the other hand, it WJ5 more difficult to pass ARFA in the first place as a constitutional amendment rather ttlan a statute. since the legislative vote for an amendment merely puts it to the people for decision by referendum. At the federal level. seclJring a con~ti tutional amendment 15 vcry arduous (requiring approval of three-quarters of the 51.1t(5). But Alabama has a tr..dition of rllthcr easily accepting conUitulional amendments by rcferendum-a corollal)' of the fact that so many Issues. often minor or local ones, are dealt with in the constitution. See Albert P. Brewer and Charles D. Cole, Alabama COllslilulionall.l111J vI·viii (2d ed, 1997) (noting frequency of Alabama constitutional amendments), Thus, pursuing Alabama's version of IWIV. throu${h constitutional amendment proved a sound strategy, although it mi${ht have failed in other slates. AIWA passed both h(lu$Cs of the lesi~lat ure in May 1998 and Wll5 approved by the voters on N~mbe r 4 by 55 to 45 percent. Neither h\ the lelli$lalurc nor b<>fore the rdcrcndum Wa$ there substantial discussion of the Amendmcnt"s terms, Three groups raised objections to AIWA, but only one succeeded In gelling the 30a NoveMDHn ,000

proposal modified. Prison officials argued that applying the compelling inlere5t 51andard would undermine $Ci.:urity and Order in their institutions, but no exception was made for them. because the record of HFRA litigation showed that courts almost always treated prison discipline and security as a coml>elling interest. Ira C. Lupu, The Faf/uro of RFRA. 20 U. Ark. Little I~ock L. J. 575, 591 (1998) (only 9 of99 1WRA claims in federal and slate prison succeeded from 1994 10 1997); f-(/w(J{/d II. JO,ICS, 81 E3d 1084 (II th Cir. 1996) (Alabama requirement that Islamic prisoner list both his ",lmes 5erved compelling interest in prism security under IWRAj. [1'1 addition, the Alabama Preservation Alliance complained that ARPA WOuld allow churches to "mow down historic h OUM:S to build p;trklrlJ:! IoU" and would create "a ca.ue system" where religious institutions wcre above the law. Speech of Brandon Brazil. APA Executive Director, Montgomery. August 3, 1998 (on file with authors). But the preservationists fai led to mobilize other groups to join them. Finally, the Alabama Education Association, the sl.1te teachers' union. did succeed in inserting language in the Amendment Implying th)t some eduCil' tional policies amount to compellins interests (A1U'A, § 11(5)). The Ilouse SpOnsor of ARPA st,lted that the Amendment was necessary "because of liberals determined to destroy the foundation of thi~ country." ClImp.'ign Malcrial$, nep. AI KI\ighl ( I~ Shelby) (on file with authors). But as the breadth of the proIUlRA coalition Indicates. tllis is not an issue that necessarily pits libemls against con!Crvatives. The protections of ARFA have Httle to do with the W!!1l·known disputes ~r public religion in Alab.1nul, such as Judge Hoy Moore's posting of the Ten Commandments and Judge Ira Oef-lent's order limiting religion in public ceremonies in DeKalb County public schools. Those cases raise the question whether the govemmenl itself may promote the majority reli${ion in official activities. AIlFAprotects the religious exercise of private citi7,cns llnd groups. often of religious minorities who~ unfamiliar practices Me inadvertently restricl~d by generally applicablc seculllr laws.

m. The Constitutionality of ARFA

Because AI~PA is now part of the Alabama Constitution, the only potential challenge to it comes under the U.S. Constitution, particularly the t'irst Amendmenl's prohibition on laws "respect· ing an establishment of religion," Critics are sure to claim that MFA viQlates the Establishment Clause by favoring or promotinlt reliltion over other activities that are not eligible for exemption frOm generally applic.1ble laws. The U.S. Supreme Court's ~~tablishment Clause jurisprudence remains in a confused state. I~or a long time the Court employed lhe te~t of Lemo" /). Kurlzmatl, 403 U.S. 602. 612- 13 (1971), to forbid g~rnment to advance religion or become "excessively entangled" with it. Hocently. however, the Court has SOmetimes looked to other general tests, while still sometimes relying on U!mon. See Coullly ofAlfcghenu II. ,ICW, 492 U.S. 573 (1989) (test of whether government action endorses religicm); 8d. of t.'d.. Kirgas J()(!/ School Disl, /1, Crumt!l. 512 U,S. 687 (l994) (test of whether government action is "neutral" toward religion), More helpfulth:m these gcneml tests are U\c dedsil)ns In which the Court hou specifically reviewt!d IIttemllts by Congras lind the state~ to aCCOrMlodate religior\,

The Court has allow-ed the government to show special con· cern for religious freedom and protL"("t it from the burdens imposed b)' geoerall> applicable laws. For example, Corporation of PrcsidiTl/lIJishop t'. Amos. 483 U.S. 327 (1987), unanimously upheld a provision of Title VTI exempting religioU5 organi~tions from the prohibition on religious discrimination in employment. The Court distinguished protecting religion from promoting it, saying that "[a) law is not unconstitutional simply beC,lUse il (Illows churches to advance religion"; rather. an establishment of religion "connolels) sporl~l'$hip, finilnciill S\lllport, and active ;n\iQ[vement of the sovereign in religious activity." /d, nt3J7. Amos also unanimously held that it is a legitimate government pu!'pO$e to "lift a regulation that burderu the txercise of reli· gion,~ that the gOYemment may act even when the burden would not iuelf violate the f'Yee Exercise Clause, lind that such accom· modlltions 0( religious exercise need not "come packaged with benefilJ to secular ertities,H Id, at 336, 338. Each of these principles solidly sUPPQrU ,\Rt'A's protection of religious exercise. The Court has reached similar conclusions in other casts. Sherlx!rf /1. V('f1wr It$elf ~lid ttl<lt protecting the practices of a minority faith from being suppressed by a genmlly [\llplicable law shows not fllvoritism, but rather "neutrality in face of reli· gious differences." 374 U.S. M 409. The Court has also commend· ed '''our IlapP>' tradition' of 'avoiding unnecessary conniclJ with the dict..ltes of conscience,'" Gi{{e(fe 11. Unit('(/ Stales, 40 1 U.S. 437, 453 (197 1) (upholding dral't exempliOll$ for religious consti· entiom obj~tors). And it has said that to forbid accommodatiorl$ for rtligious activity would ~show a callous indifference to reli-

giGU! gTOUp5." Zoruch

u. Clauson, 343 U.S. 306, 314 (1952) (allowing schools to retea$C students early to attend oll'-campus religious instruction). Even Emplogmml Dillaion /I, ~1//(h, while holding that exemptions are ~Idom required by the Free ~;Kercise CIlIU5e, Mid that a sl;)te ~ be "solicitous ofthe [free exercisel value in ilJ legislalion" and suggested that "nondiscrim;rutory relillious· proctice exemption!s IIrt) permitted, or even desirable." Smifh, 494 U.S. at 890. Although enactments like ARFA give distinctive protection to religious conduct, this is consisten\ with the OVfrali structure of the First Arnendmcnt'5 religion provisions. The EsUlbllshment Ciluse places a unique. and onen controversial. limit (In government action sponsoring or promotinll relillion. The public schools may promote democracy, free·market capitalism, or any number of other views to their students, but they may not promote religion or any particular faith_ In striking doYln govern· mtnt-sponsored prayers at public high school graduation cere· monies, the Court reemphasized that the Constitution treats reli· gion differently from other ideas and IlCtiviUes: "Ule Establishment Clause is a speCific prohibition on forms of state inlcJ'\ltlllion In relillious affairs with no precise counterpart irl Ule speech provisions." 1.L'fJ 11. Weisman. 505 U,S. 577, 591 (1992). This removal of government from :active promotion of religion tw a corollary: religious activity i5 "committed to the private sphere, which ilUlf is promiS«l freedom to purme that mission.~ Id. at 589. Laws like RFRA and AIU'A reOecl thatspeciaJ con<:ern for the autonomy of religious individuals and groups, Without 5uch special concern, the corutitulional structure would

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be !kewed :IgIIil'lSl religion. [1'1 some cases the Court has struck down particul:ir exemptions of rellgim under the Establishment Clause on the ground that they went beyond accommodating religious conduct and instead affirm~tive ly promoted it. Estate ofrhornton II. Coldor. 1172 U.S. 703 (1985). struck down a state law that Wive employees an absolute right to refuS(! to work on their S.lbbalh day; imd fuus MQllthly II. Bulkx:k. 489 U.S. I (1989), struck down an exemption of religious publicatlon~ from ~L1te salc~ Utxc~ . But the Court has continued to affirm that many acrommodations of religion are permissible. See Kirva$ Joel, 512 U.S. at 705-06 ("thc Constitution allows the State to accommodate religious nceds by alleviating special burdens"); nu-as Monthly, 489 U.S. at 18 n.8 (pl(Jr(lliIY opinion) ("[wle in no way suggest that all accommodations of reliltion arc unconstitutional unless required by the Free Exercise Clause"). These dccision$ set forth S(!V(;ral principles for ilnillyzing AHFA. Pirst. the state may not simply accommodate one reliltious Itroup or ~ed without accommQdMing others that arc Similarly situated; exemption! must extend to all believers who engage in a given practice. J(irva$ Joel, 512 U.S. at 706-07 (striking down a special school district created to accommodllte practices of onc insular Jewish sect, and holding thllt "neutrality among religions must be honored"), This principle strongly supports a geneTIII enactment like ARfA, which applies the s.lme stand<lrd - the compelling interest test - to all claims of religious conscience. r:tther th.ln leaving it solely to the lell:islat(lre to choose which groups to exempt. Individuals and "roups that ilre not large or org:.miicd cnough LO lobby the legislature can have their interest evaluated :ind balanced :IgIIi n~t the 5tate'~ interest in the relatively neutml forum of a cOurt. Second. an exemption thttt Imposes substaJltial or di~propor Honnte burdens on other individuals is more likely to be unconstitutional. In Caldor. for example. the Court objected to giving workers an absolute right to have their Sa.bbath ~ off. The statute reOected an "unyielding weighting" of religious interests over all others; it made no exception even when accommodating a worker's Sabbath would "cause the employer substantial economic burdens or limposelsignificant burdens on other employees required to work in place of lhe S.~bbath observers." <172 U.s. at 710. See also 7exas Monthly, 489 U.s. at 18 n.8 (plurality opinion) (an exemptiOfl should nut "Iml~c substMtinJ burdens on nonbeneficiaries"). ~:nactments such aJ ARFAdo not give any such unqualined righL The com]>elling interest standard provides a means for balancing the rights of other individuals IIgnins! those of the religious claimant. And as the next part will discuss, courts have been willing to interpret the test in a way that does not allow reliAious believers to impose Significantly on other individuals. Pinlilly. the plurillity opinion in 7e.ras Monthly also suggested that exemption of religious conduct should not occur when it removes only a minim.11 legal burden from religious conduct. In 7I!.ras Mont"ly, Ule exemption removed no more than a fi nancial burden. small in percentage terms, caused by the application of sales taxes to religious literature. The plurality noted that there was no evidence Ulal paying the 18)( conflicted with Ule religious beliefs of religious publishers. or that it substantially deterred the publication of reli j:[ious magazines. <189 U.S. at 15-18. The fact that the burden being removed was not "significant" counted

against the excmption. AnPA may face difficulties under thi$ f:.ctor, because iL~ compelling interest test appears to be triggered by any burden on religious exercise, N~FA's section V(a) states simply thllt "lg1overnment shall not burden a person's (reedom of religion" unlike RPI~ and other slate enaclments, which lire qualified to say that government shall not "subslonlio/{V burden" religious exercise. Critics will no doubt argue Ihat the omission of such a limit ~ "substantial" or ·;s ignific.~nt" makes AlUlA st<lt(Jte favor religion excessively in Yioliltion of the principles of 71!Xos Monthly. Por cxamplc. docs ARFArequire the state to show a compelling interest in Impo~ing II general $10 licen$C fee on a van owned by II. church? These concerns about exceMive favori tism have some force. but they should not be enough to strike down ARPA. First, the Alabama courts shoul!.l construe the Amendment sensibly and hold th.11 it does not cover burdens that have only a minimlll effect on religious exercisc. Agovernment action that neither connicL$ with religious conscience nor imposcs significant costs on reliltiously motivilted activity should not be considered a "b(Jrdcn" triggering AnrA's the compelling interest standilrd. Examples W()uld include the modcst vehicle li(;ens(: fee. or the sales tax at Issue in 7I!.ros MOllthlv. Under both federal and Alabama law, enactments should be presumed constitutional and should be construed in II way Ihat avoids constitutional difficulties. Edmond II. United Stoles. 117 S. Ct. 157J, 1578 (1997): House II. Cullman Counlv, 593 So. 2d 69. 71·72 (Ala. (992), The Alabama courts would not have to stretch in order to interpret ';burden" in such a sensible way. When the federal Rf'ltA was first introduced. it did not contain the qU(lJifier "substan\i(ll" before "burden," and yet no one then thought that it thereby freed religion even from minimal regulntion. This does not me.ln that the standard for a burden triggering ARF'A'~ protection must be stiff or high. Laws and regulations can restrict religious activity in a variety of ways lhlllilre more 1hlln minlmili. M we di ~u:l$ In tht next S(!ction. Second. even assuming that some applications of MFA might give excessive ilccommodation to religion, that is no reason to strike down the statute as a whole. Most applications of the com· pelling interest st;lndard are perfectly pennissible protections of religious conscience, and if the standard goes too (ilr in a p;lrticular case. that application can be inv(llidated alone. In recent years the U.S. Supreme COurt h,l$ bten VIlI')' reluC!.ln! to strike down statutes altogether becau$l! of some unconstitutional ilppliciltions. See, e.g.. United States II. Salerno. 481 U.S. 739. 7<15 (1987) (a statute should be upheld on its fllce wllcM "no $cl of circumstances exists under which (itl W()uld be valid"); see also Bowen II. Klnldrick . 487 U.S. 589 (1988); Roerrwr II. Rd. of Public Works. 426 U.S. 736, 761 (] 976) (both upholding stlllutts against (llcilil E5tablishment Clause challenges).

IV. Interpreting ARPA Interpreting UIC! prQVision~ of ARFA is complicated because the Amendment occasioned very little legislative or public dcQ.1te. However, for the most part AHFA was modeled on RPRA, which in turn sought to reinstate the I)rinclples of Sherbett II. Ven127' and WISro11Sill ll. Yoder. MFA should be interpreted in that light e~cepl where its text dictates otherwise.

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agency In a particular neighborhood-yet if a law had the e(fect The finit key issue is what constitutes a "burden" on religious of barring someone from the ministry, or if a wning rule ban a freedom tho,t tri"en the government's duty to show a comchurch or shelter ftom a neighborhood, the result is certainly a pelling interest. Clearly, a burden exis15 when the government forces a religious believtr Or group l(I violate a mandatory tenet seriolU restriction on religious activity. But as we have indicated in part III. some limitation on the of its faith, for wmple, when laws forced the Amish to send their teenage childrrn to school OM.or). Ilowcver. in interpreting burden concept is probably necessary in order 10 ensure that MFA does not unduly favor religion in violation of the the F'ree Exercise Clause the U.S. Supreme Court has otten refused to treat other effects on religious prncticc as significant ~:st.ablishment Clause. A:; we said there, modest Increases In the cost of religious activily because of leg:.1 regulation should not burdens. The Court held that there is no burden from an gCl\eral Irigger Ihe compell ing interest test. Por example. if a ~oning or government action tnat "make!s! it more difficu lt to pracUce" a preservation ordinance 1Th1kes it somewhat more costly for a religion but docs nol "coerce individuals into acting contrary to church to enter a Ioc.ltion or expand in its existinll one, the comtheir reli"ious belicfs." l.gng II, Northwest Illdiall Cemetery pelling interest ttst should not be triggered. On the other hand, ProIL'Ctiue I t.un., 0181) U.S. 0139. 450-5 1 (1988) (government did not burden Native An'Ierical'l bdicvcl'$ by destroying sacred sites iflhe regulation effectively ban the church from locating in a particular plac&--e\l'en if there is no doctrinal requirement for 1000ted on federal land, tvel'l though destruction would make WON-hip there impossible). The Court also held that there is no lhe particular loca.lioo-then the burden is significant and the Mconstitutionally significrl1'1r burden unless the general law stlte shoold be put to the test. The other key issue is the interpretation of "compelling forces a person to'Violatel hisl sincere religious beUef," either interest" and "least restrictive means." Those two concepts mandating "conduct proscribed by a religious faith " or preventlogether require lhat the government prove thai the law is neces路 in" "conduct mandated by" the faith. Jimmy Swaggarl NinislrW 5aJ')' noljuslln the abstract, but as at>plied to the p.lrticular reliv. fld. of Eqllalization. 493 U.S. 378. 391-92 (1990) (no burden gious believer or group. III l'c>der pul II, even if the slate's asserfrom lales lax, applied to 5-illes of Bibles, because organi1.1ltioll lions have ''val1dlty hI the gcrlcrlliity of c<'l$$.~ the court must had no doctrinal objection to payin" tax). This I1mit could set "examine the Interesu thai the SlIIle sCfks to promote by its aside proleclion for much religious i1ctivity that derives not from some mandalory tenet but from the believer's desire to .,-... lparticularl requirement ... and tilt Impedimen15to those please God In her own way. ~ objectives that would now from rw.'o!l"izing the c/uimed I J AltFA mould not be telld to fl'lCOrporlllt thue narrow cx(!mpliotl. ~ 406 U.S. at 221 (holding U131 although edurcatiao was a compelhng interHt generally, uempUng interprewtioru. ARFA's broad. unqualified tenn '1>urdel\$~ shoold not be read narrowly. Alaw can seriously burden Amish teenagers from school would not harm educational goals). If exempting the religIOUS believer alone religious activit), even though it does not Interfere with a V would not cause $CriO\lS hann. then the interest in specific rmndatory tenet of the faith. For example, " i). denying an exemption is not compelling, and there may be no specific tenet requiring that a person 11 pU1'$ue the ministry, or that a church open Il ....oelfart , ~xemption 1$1I1e5$ restrictive means of 5Crving the

C' 'J\.

IMPORTANT! Licenses/Special Membership Dues for 1999-2000 All licenses to practice law, as well as special memberships. are sold through the Alabama State Bar headquarters. In mid-September, a dual invoice 10 be used by both annual licansa holders and special m9mbers was mailed to eve!"i lawyer currently In good standing wi th the bar. If you are IIctively practicing or anticipate procliclng low in Alabama between October 1, 1999 and September 30, 2000, please be sure that you purchase on occupationallicen!e. Ucenses are $250 for the 1999-2000 bar year lind payment must have b99n RECEIVED between October 1 and October 31 In order to avoid an automatic 15 percant penalty 1$37.50). S8cond notices will NOT be senti An attorney nOlengaged in the private practice 01 law In Alabama may pay the special membership fee 01 $125to be considered 8 member In good $landing. Upon recaipt of paymant,those who purchase a license will be mailod a licens8 and a wattet'$ize license for identiliCition purposes. Those ,Iecting special membership will b& sent I) watt&t-siza 10 card lor both identilication and receipt purposes.

If you did not receive an invoice. please notify Diane Locke. membership services director. at 800路354路 6154 (in-stata WATS)., (334)269-1515. axt. 136. IMMEDIATELY I

st<\te's goals. Moreover. the govermmnl's Justification must be "searchingly e:<amined" (ld.) and may not rest on mere speculation. See Sherlx!rl, 374 U.S. at 407 (rejecting as iMufficient Ule mere ~possibility~ that giving r-1rs, Sherbert benefits would encourage fralldulent unemployment claims), I-Iowever, the compelling inlnest te5t does not give absolute protection from gen· erally applicable IIIW$. II requires a case-by-case analysis in order, in the words rJ ARFA.to "strik(el sensible balance$ between reli· giou! lioorty and competing gov(!nlnlcnt<ll interests." AIWA. § 11(5),

Some kinds of governmental interests are simply not compelling. The aflplication of the law must prevent "some substlllltialthreat to public safelY, peace, or order." 1Odt."'1', 406 U.S. at 230 (quoting Sherbt>rl, 374 U,S, at 403). Thus, for example, (:ouru have held that historic preservation laws and some zoning laws urve only aesthetic interests and cannot overcome a church's righl to serve the poor in il.$ neighborhood or alter its building for religious reaIDM. Wi!.t/em Presh. Church I I. 1kI. of ZOlling, 849 ~~ Supp. 77. 79-80 (D.D.C. 1994); first CoIl/malll Church II. CilyofScalllc, 120 Wash. 2d 203, 840 P.2d 174, 185 (1992). By contrast, other 1.oning regulations may be justified as nece~r"y to prevent crime or excessive Iloise or congestion. Protecting the health and safety of others is a compelling interest generally. Even there, however, Ihe state mUllt show that the religious activity ;w:tually pc»e$ a threat and that methods short of prohibiting it run too great a risk of being un5uccwful . Por WImple. yOung mt'n of the Sikh faith are required to carry ceremonial knives with them al all time: when a Khool forbade Sikh students 10 bring the knives to school, the court ruled for the students undet RFRA baM:d on evidence that the knives would be safe if they were St........ n securely Into their shealh$. Chl.'cmll II. ThompsolI, 67 F,3d 883 (9th Cir. 1995). Some courts mi"hl concluda the opposite under the coml>clIirlg intere~t lest, bllt the dedsiorl shows the casNI>ecific nature of the allalysis. AIU'A has spedfic language referring to interests underlying public education, specifically listing "pedagogic."ll interests" and "regulatioru necessary to alleviate interference with the educational process." ARFA. § 11(5), These phrases, added at the behest of the public teachers' union. identify educational interests but still simply say that ~sensible balances~ should be struck "between religious liberty and (such interestsl," Thus the added language does not do away with the balancing test in cases involving public schools. WIScoIlSin v. Yoder itself carefully balanced educational interests against religious freedom. The Court there protected the Amish from the pressure of assimilation l>OSed by modem education, but it also stated tluit "reasonable," generally applicable educ."ltional sland.lrds could be applied to religious private schools without violating religious freedom. Id. at 235..16. Courts applying the compelling interest test have distinguished bet-wun necH$IIry and unnecw."lr"y regulations. Cf., e.g., Slate II. DdabnMt!, 154 VL 237, 577 A.2d 2501, 264 (1990) (finding compelling interest in requiring religious schools to Thom•• C . ••'11 C a.. 1I 11. PIOI_ 0I11w II CumblliInd SCIIOOI OIl1w, SImIofd U!WorIII~ ....... WlUI"" oxt<tnalvvlv, .nd IwIOt 11111 1111(1 belOIt Conort.., r~

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report enrollment and curriculum): with Prop/Il /J. Deknl{J(!. 442 Mich. 266, SOl NW.2d 127, 14 1 (1993) (slrikingdo-wn requirement that home Khool teathers be stale·certified, because standardized testing Wil$ less restrictive meaM 01 ensuring quality edUClltion). OUM!r factors /Ire highly relevanl to the cOnlpelling interest analysis. Couru must examine whether a law ccrrtairu exemp.tions for olher Intcre.sts besides the religious chum at issue. If the lIovcrnment restricts religious conduct but not other conduct prOOtlc!n" similar harm, the govemmcllt's interest is not com· pellinJ{./,/JAlmli, 508 U.S. ilt 546; see also Thomas /I, AllchorOfle Equ(t/ Rights Comm .. 165 F.3d 69'1, 716. 17 (9th Cir. 1999) (no compelling Interest in forcing religious landlord to rent to unmllrrll'd cohabiting couple, because state itsd conrers many ocnefits only on married couples). In addition, if other jurisdic. tions have granted the claimed exemption withwt difficulty. the state's interest in denying il is not likely to be compelling. See, e.g.. Sh(>roc>rl, 374 U,S, at 407-08. On the otller hand, courts will often cOMider whether the claimant's behavior is the sort in which many people ....,ould like to cn~age , so Iha\ granting ont exemption will require granting 5Corcs of others, in order to be consistent, and so undermine II Jaw's biUic purposes. See, e,g.. See SmUll. 494 U.S. at 914· 15 (Blackmun, J.. di:\.~nting) (de(ending exemption ror limited Native American peyole use but not for l1"I<,rijuana use, which is far more widespread /lnd is a.uodated with orllanized trafficking): Olsi'll II. Drug Enforcement Admin., 878 ~:2d 1458 (O.C, Cir. 1989) (R. Cinsburg, J.) (same); linit('t/ Siales lJ. /A'f!, 455 U.s. at 260 (denying Amish claim (or tax exemption and expressing concem about "myriad" potential objections to taxel), However, the COllCern about multiple claims must be based on specific, credible evidence, not on speculation or a mere "possibility," SlIerbtrt, 374 U.S. at 407.

Conclusion Freedom of religious exercise .....U$ a central concern of our founding generation, and it ii one of America's great contributions to the world. In a highly regulatl-d socidy, religiow exer· cise will not be fret if it is subject to every law that applies to other activities or institutions, ARFA seeks to ensure thai gt:neral laws will not restrict religion ucept for slrong rfa5OrlS. The Amendment does not and cannot give absolute rights, but it dOts require real justincalion before even a gClleraJ law can applied to coerce reliQious COnscience. Our hope is that courts will indeed use It to "strik(eI 3el15iblc b., lanm" between religious liberty and social interests. • Endnot•• I

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Public Notice For Reappointment of Incumbent Magistrate Judge The current term of the o{(ice of United St.llC5 I'obgistrate Judge Vam:etla Ptnn MePhcr$()n i$ due to expire April 5, 2000. The United States District Court Is required by law 10 establish a panel of ciHzens to coruid路 er the reappointment of the magistrate judge to a new eight-year term. The duties of A magistrate judge position include the following: (I) conduct of most preliminary proceedings In criminal cases; (2) trinlllnd dislX)$ition of misde-

meanor c.l.~es; (3) conduct of various pretrial matters and evidentiary proeetdin~ on

delegation from the judges of the district cour!; (4) trial and dispo$ition of civil cases upon consent of litigants: and (5) examination and recommendation to the judges of the district court in regard to prisoner petitions and claims for Soci,,1 S芦.urity benefits. Comments from members of the bar and the public are invited as to whether the Incumbent magistrale should be recommended by the panel (or reappointment by the oourlllnd should be directed to: Chair, Merit S~ lection Panel do Debra P. I-Iacket, Clerk U.s. District Court I~O. Box 711 Montgomery, AL 36101-07 11 Comml! nts mual be rece ived by

Tl~e m ost dJfietJt pwbiems r.equiJ:e tJ,e lTIost innova:l:ive respo nses. "'ho:fl.,... ..I!00~

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December 10 , 1999. : MI~ SSIl'l'1 VAIJJW Tn'1.I': '" .' INSURANC.: COMPANY

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' O~

ecting The Rules: The Legislature Tinkers With

By Jerome A. Hoffman

ct No, 99·250, effective May 25, 1999, which will become §I 6·5640 through .642 of the Alabama Code, Inundates the general provisiollll of Rule 23(c)(1 ) with a rnllSl of detail. The lext of the Act. bearing iu prospective code su.l!on numbers, reads as (ollows: , 6·5·640. Scope and erred on other lawl or rul u. This article $hall apply to and govern all civil class actions brought in Ihe state COI,Jrl$ of Alnlmma Ilu r~uanllo Alnbama Hule of Civil Procedure 23. The provi· sions of this article, where inconsistent with art)' Alabama I~ule 0( Civil Procedure. including. but not limit· ed to Ala. R. eiv. P. 23, shall super~de such rule5 or P.lrU of rules. § 6·5·&1 1. CerUOcaUon of dilies. (a) No class of civil litigant! shall be certified or recognh:ed by an), court of the State of Alabama unlw there shall have been compliance with the procedures for certification of Ihe class sct forth in the article. (b) A~ soon as practieable aner Ule commencement of an action in whkh clainu or d4:fensts are purported to be asstrted on behalf of or against a clau, or as soon as practicable after such

404 NO¥U"[IER 1000

asstr'llOIU in an amendtd pleading, but in no Mnt prior to the lime allO\rtti by Illw for e..ch PMt)' (including, but not limited 10, countercl.1im. crru~ claim, and third-part)' defen· dants) to file an answtr or other pleading responsive to the com· plaint, counterclaim, CTOSScl..im, or third-party claim, the court shall hold a conference among all named parties to lhe action for the purpose of establishing II schedule, in the same manner and to the same extent contemplated by Ala. It eiv. P. 16, for an)' discovel")' in which the parties maywish to engage which is both (I) allO\'JCd by Ala. R. e iv. P. 26-37, and (2) germane to the issue of whether the requested cJas~ should or should not be wtified. At this conference. the court may set a date for a. hearing on the issue of class certificalion. but suc.h hearing mllY not be set sooner than 90 days after the tiMe on which the court issues il5 schedulinf{ order I)ursuant to the conference unless a shorter time is agreed 10 by all parties. (c) Upon malion of any party, Ihe court shall, exc.ept for good

cause shown and evtn then only if the intertsts of justice require that it not do so, slay nil discovel")' directed solely to the merit.s of the cl(lims or defenses in Ihe action untillhe court shall have made its decision regarding cer· tifiClttion of tht class. In considering such a motion, the court shall consider whethtr any prejudice to the plaintiff txisl$ because of the fil ing by the defendant of 11 Rule 56 motion for summaI")' judgment prior to lhe court's decision regarding class certil'ication. (d) The court shall. on motion of any party, hold II full eviden· tlary hearing on class «rlifieation. The hearing shall be recorded. and /III named part ies to the action sha.1I be given notlce of lht dllte, time, and place of lhe hearing by written notification given to the party's attorney (or if appearing pro.st, to the party) no later Ihlln 60 days prior 10 the dale set for the hearing. At the hearing, the partin shall be allowed to present. in the $arne manner as at trial. any admissible evidence in support of or in opposilion to the certificalion of the cia».

(e) When deciding whether a requested CIMS is to be certi· fied. the court shall determine, by employing a rigorous analy. sis, if the party or parties requestin" cla.s5 cerUfication have prOvtd its or their entitlement to clw certification under Ata. R. Clv. 1'. 23. The burden of coming forward with s\lch proof ~hall at all times be on the Pont) or parties Keking certification. and if such proof shall not have been adduced, the court shall not order certifi· calion of the clau. In making this oetermination, the court shall anlll)ll!e aU facton required by Ala. H. Civ. I'. 23 for certilication of a class and shall not order certification unleS! all such factors shall have been established. In announcing iu determination. the court shall pillce in the record of the action a written order addressing 1111 such facton and sl~cifyin g the evidence. or lack of evidence, on which th~ court h:u based its decision with regard to whether each such factor has been established. In so doing, the: court may treat II fl\Ctor liS having been established if iillI parties to the action have 10 stipulated on the record and if the court sh))1 be $ilti5fied that such factor could be proven to have been e~labHshed. (I) Nothing in this article shalt affect. or be con~trued to affect. Ala. It Civ. P. 12 or Ala. R. Civ. 1'.56, including the provisions of Itule 56(1). § 6·5·642. Atltleal of cerUncaUon order. Acourt's order certifying II clII55 or refusing to certify II cta5.~ action shall be appeall!.ble in the same manner as a fina l orde~ to tht appellate court which would oth· erwise have jurisdiction over the appeal from It final order In the action. Such appeal may only be flied within 42 days of the order certifying or refusinlllO certify the da.s5. The filing of such appeal. the failurt 10 me tin

appelll. or the IIffirrnance of the certification or denial order shall In no way affect the right of IIny party, after the entry of final judg. menl, to appeal the earlier certifi· cation of, or refusal to certify. the class.tflhe appeal is not the first appeal taken by the J)<.uty, the sub· sequ~nt appeal Sh.l I be based upon the rtcOrd at the time of final judgment and shllll be considered by the court only to the extent that either the facu or controlling law relevant to certifica· tion have changed from that which existed or controlled at the time of the earlier certification or refusal to certify. During the pendency of any such appeal. the action in the trial courlsllllll be lllayed in all re~l)ccL~. Following adjudication on appeal (or, if the initial appeal is to:m Intermediate appellate court. ildjudicalion of the action on any writ of certlo· rari granted by the Supreme Court of Alab.lma), if the class is not to be certified, the stay in the trial CQurl shall <luoomatically dis· wive and the trial court may proceed to IIdjudicale iny remaining individual claims or defenses. J(, aficr such appeal or procedure on writ of certiorari. the class is to be certified. the stay shall likewise diuolve and the trill court shall proceed with IIdjudicalion on the merits, except that the trilll court shall al all timcs pr or to entry of a final order ret.lin jurisdiction to revisit the certification issues upon motion of a party amJ to order decertification ofthe class if during tht litigation of the case It shall become evident to the cou rt Ihllt the action is no longer rca· sonably maintainable as II class action pursuant to Ihe (actors enumerated in Ala. It Civ. P. 231bl. Although the Act works few changes In Rule 23 ll~ th~ Alabama Supreme Court has already interpreted it. It doe~ effect extensive additions to the text of Rule 23(c)( I). In net effect. these addi· tions lm~e nondiscretionary burdens of preparation and documentation upon circuit court judges. Present Rulc 23(c)(l) providu simply

thnl. "(a Is soon as practicable after the commencement of an action brought as a class action." a circuit court "shall detwnlne by Order whether it is to be 10 maintllined.~ It makes no express provision for the ca~e in which a party amends an action not origir\lllly brought as a elMS action 10 include class allegations. Beyond the aspirlllional "Ials soon as prncticable,~ it placn no limits. either inside or out· side, on the circuit court's discretionary timing of iu certification order. It maku no provision about discovery directed solely at producing Information bearing upon the appropriateness vel non of certification. It maku no provision about regulating the time of dis· covery directed to the merits of the action. It does not require 3 heMing, either ex parte or adversary. nbout the appropriateness vel nOll of certificntion. It makes no provision for precedence or priority between or among competing actlons seeking certification of the same class. either in the s,lme court or in dif· (erent courts. II says nothing about wheUler. when or how certification orden are to be reviewed. The Alabama Supreme Court and thc Alabama Court of Civil Appeals have, case by case. filled or narrowed most of Rule 23(c)(I)'1 gaps.*Act No. 99·250 hM duplicated some judicial solutions already in place and filled or narrowed wme remaining g.lpS. It has alw repillced judicial solutions with its own hert alld there. Act No. 99·250 extends its timing provisions (and. by implication, other proviSions, IlS text and contellt require) to "such assertions Ion behalf of or against a class first IIppearingJ in an amended pleading:" It repeal's Rule 23(c)( I)'s discretionary "Ials soon as pr,u.:tlcable after ... commencement" timing provision.' but-unlike Rule 2J(c)( I)-the provision relates only stepwise 10 the timing of the order granting or denying certifiCiltion. Instead. It relates most directly to the scheduling of a manda.tory conference to plan discovery relevant to the appropriateness of certification IItI non.' In further contrast to Rule 2J(c)( I). the Act qualifies the discretionary timing prOVision with an imide limitation. That is, the circuit court may. "in no event. schedule the discovery cl.mferM

NOV.UIIIR ' GGG, .0.

ence "prior to the time allO'ollt11 b)' law" (or all responsive pleadings required by the action's particular configuration of claims and parties.- The Act also requires a ci rcuit court, with very little discretionar')' leewa)'. to "5ta)' all discov· e!')' directed solely to the me r i~ of lhe claims or defenses in the action until the courl shall ka. ...e made its decision rellarding certification of the dan.''' Under the Act, a circuit court must. "on motion of all)' party, hold a full [onthe.reco rd! evidentiary heari ng on class cerUfication.'" The circuit cou rt may set 11 date for this head nll either lit the dis· covt!')' scheduling conference or (by implication) at some other time, but it may not schedule the hearinll "sooner Ihan 90 days after the date on which the court issues its [discoveryl scheduling order," unless al! parties agree upon an ea rlier lime.' Thus, even SUllllOSlng (I ) that service of process occurs the same day liS plaint iffs initial filing, (2) that the pleadings include no counterclaims, cross·claims, or third·party complaints and (3) th<ltthe circuit court issues its disco ...er')' Kheduling order on lhe da), of the discover')' $chcdulinl:l conference,

the evidentiary hearing cannot take place earlier than 120 days (four months) after commencement of the action. Accordi ngly, e~ n supposing that the circuit court issues its order granti· nit or denyinlt cntifi c"Uon on the day of the hearing. the orde r cannot issue ear· lier than 120 days aft er commencement. The actual intervals bttween discovery scheduling conference and discovery scheduling orde r and between evidtntiar')' hearing and the order granting or den),ins cert ification will. one 5UPPOSU, be meas ured respectivel)' by the "as soon /1$ practic;.ble" slandard. Act No. 99-250 requires a ci rcuit court's decision about certification to rest upon the urigorOlls analysi5~ antici· pated by pre.existing caselaw.' In reac· tion to the reported practice of some circuit courts of certifying cOllditionally without nn)' showing and then reQuir. ing parties opposing certification to show Iload grounds for decertification. If the Act providu that "Hlhe burden of coming forward with such proof lof all elements of entitlement to class certifi· Ctltion i shallllt all times be on the part)' or parties seeki ng cias5 cerlifiC<ltion.Mu

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The Act requires a circuit court to sup· port its decision granting or denying certification wilh "a writlen orde r addressing all such factors IreQuired b), Rule 23 for cntltlemenlto cl ..ss certifi· clition I and spcdf:ying the evidence, or lack of evidence, on which the courl has based its decision with re~ard to whether each such factor has been tstab l ished.~ " In so doing, a circuit court need not accept a unanimous stipulat ion trealing"a facto r as having been e5tablished."11 The Act makes orders Aranting or den),) n" clas5 treatment appealable "i n the same manner as a fi nal order to the appelillte court which w<luld otherwise ha ...e jurisdiction over the appeal from a final order in the attion."I' It docs not, howe ...er. require thai an aggri('Vtd part)' mllst appeal immedinlely from an order concerning certificlllion or lose its right of appeal. To the contra!,)" It preserves the parties' rights to challenge. on appeal from the final judgment, an unfavorable order concernin" certifica· tion. provided 0 0 1)' Ihallhi5 appeal "shall be based upon the .ecord at the time of final judgment and shall be con· sidc rcd by the court olll), to the extent that either the facts or controll ing law relevant to certification have changed from that which existed or coni rolled ilt the time of the earlier cerUfication or refu$tll to ce rtify.~'1 The Ad provides for a stll), pendin" appeal and goes into ~ollle detail concerniogthc circum· 5tances under which such a slay dissolves." The second and final $entence o( I{ule 23(c)( l ) provides: ~An ord~ r under this subdivision may be allered or amended before the decision on the merits." Act No. 99·250 provides: "I TJhe trial court shall at all ti mes prior to enlr')' of a fi nal orde r retain Jurisdiction to revisit the certification issues upon motion of a party and to order decertification of the class if durinll the litigation of the cast it shall become evident to lhe court thllt the action is no longer reMOnabl), maintainable as a class action .. .. ~ " On its face. this pro... lslon 5t1i1llnts that a circuit court mlly belatedl), decertify a clan. but ma)' not belatedly certify a

class. Recall tllal neither Rule 23(c)( I) nor any other pari of Rule 23 makes provi· slon for precedence or priority between

or among competing actions arising from the same action-provoking conduct and seeking certification of the same class, eilher in the $arne court or in different courlS. Act No. 99-250 doesn'l make provision either. Ihus leaving conlests over precedence or priodty to judicial resolution under evolving ta5elilW. If writinlt on a clean slate, the community would most likely draw its rule from amon~ five alternatives: ( I ) brightline priority to the first-certified action: (2) rebuttable priority to the fin t-certified action with ClI!Hptcific equitable considerMions weighing in the balance: (3) bright-line priority to the first-filed action; (4) rebuttable priority 10 the fi rst-filed action with case.specific equitable considerations weighing in lhe balance; or (5) no ilSsumptive priority with eilse·specific e(fuitable considerations eontrollinllthe O(ltcome. When duplicative claSl actions began to emerge as a problem, the Alilbama Supreme Court first experimented with bright-line priority to the first-filed action, resting ilS choice inadvisedly upon jurisdictional doctrine." The court ntlCt turned to bright.line priority to the first -certified action, applying Alab'-lma's "two·action" statute" to class actions "pendi ng at the same time fo r the same cause and alUlinst the same party,''' cven when nominally prosecuted by different class representat ives,ll especially when "brought by the same lead aUorney. and ... containing the identical class allegations and ci<lims. on beh<ll( of the same alleged class,''' When the pending ac tion~ were 1111 class actions, a motion to dismiss invoking the " tWQ-action ~ statute became appropriate only when al leasl one of the actions had been certified." According to thc court: "Oncta certification OCturs in any courl, that certification IIbates all other pending actions and the n<lmed pillintiffs in the other actions .. . become members of the certified claSl in which the cerlilication has occurred,"" That did not melill. however, thai the .. t....,o-action" statute was self-executing: in order to abate other class actions after Olle had been certified , "the defendant must fil e a motion [invokinlt the statuteJ."" Although neither app;arcntly did 50, both the court ;lIld commentators should

h;l\Ie foreseen that this rule would induce unseemly races to «rlifieation. Lawyers mowed themselves quicker on the uptake. Both first·filers and claim· jumpers quickly got the message, urging the circuit courts ever doser to "drive·by certifiCfltion."" In response, the court backed IIway from i($ first-t<Kertify rule of priority." Atlatcst rc~d ing, the court wavetS between bright-line priority to the first·flIed action'" aoo rebutt.,ble priority to the first-filed action with CMespecific equitable COluiderations weighing in the balance!' The four justices advocating brightline priority support their position by supposing that Alabama's Mtwo-action~ statute applies to cla55 actions "pending atlhe same time fo r the same cause and against the same pOlrty." They extol the obvious virtue of any bright-line rule, that is, its certainty of applicatlon.They prefer to overlook the perhaps leu obvious Achilles' hfel of bright-line rules, that is: Any rule that can be subuert(.'(1will be subuerted, and a/l brightI;ne rules con be subverted. As what should be an obvious nample, counsel fo r target defendants will ql.lickly see lind seize the opportunity fo r pre-emptive strikes, filin~ thei r own class actions In friendly courts althe fi rsl

sign of trouble to cut off the anticipated class adion fited later by good·faith repreunlatives. They might do this either by causing a marionette class representative to file against their tal'Jlet defendant in a friendly court or b}' causing their potential cllus target to file a declaratory judgment action against the putative class in II friendly cQurt." The fou r justices advoclltlng rebuttable priority wisely do not overlook the 50ft spot of briltht-line rules, preferring a nexible first-to-fit e rule leu vulnerable to manipulation. They deny or, at least doubt, the wisdom of extending the ~two action~ statute to class actions. A5 Justice Lyons has i nsightfull ~ ob:w:rved: The ("two action"J statute (Ala, Code § 6.5.4<10J deals with the plaintiff who deliberately hll.5 filed two cumulative /lclion5. I have diffi culty with lhe concept of apply· ing it generally to {l member of a class because It ascribes an Intent to proceed in cumulative actions, an intent that cannot logically be found merely from II person's sta· tus as a member of a c1:us.Justice L.yons concluded: While we need to ameliorate the problems caused by redundancy of

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in the elMs-action setting. I am not convinced that a creative application of I 6-5-440 is appropriate. We should invite the Advisor)' Committee on nules of Civil l'roceoJure to propQ$t an amendment to Rule 23 thaI deals with mul tiple claims in the con· text of sep;arale individual actions and dau atlions as ~11 as multiple clau actions de~1ing with the SlIme subJect.l) Justice Ly~m5's 5ultgeslion hi15 much 10 recommend it. Iltdeed, Ihe wi~dom under!},in" Justice Lyons's 5uggution might have persu/lded 11 wiser, less C3ptivt leFlisla· llire to forebear any Intervention In matters of cia!! action procedure. The Alabama Supreme Court had, cau by case, already filled or narrowed most of I~ u l e 23(c)(1)'s gaps.~ It seemed 10 have unruly applications of Rule 2J(c)( I) well in hand. Act No, 99-250 failed to address the only problem the court had not already successfully addressed, i,e" "the problems c.'I uscd by redundancy of claims in the clllss-lIeti!)n ~ellinlf' that Justice Lyons would refer to the court's advisory commiltee. Time wililell whether Act No. 99-250 hiUi contributed anything to the law but inOexible, mamlatol')' complications IhIlt a ralional system of procedure does not need, L,LW)'CU must now look, altheir peril, beyond the Alab.ln\a nules of Civil Procedure for regulatiom they might justifiably have txpccttd to find in those Hules or not at all. Courts. both trial and appellate, now race 1M prospect of interpn:ling and applying a second source of regulations that contains ~eve railimes as many words, many of them vulnerable to competing interpretations, M Rule 23(c)( 1). 10 the con5idmble extent that Act No. 99·250 overreguilltes details. it violates a widely accepted canon of good Tulunakin", that ;$, provide general ~ rules and trust a well·chosen judicial')' to \\'Ork oul U\t dtlails a5 questions about them ilrise in I\Clulll ca.ses. ~'urthermore, II principal reilson ror adopting ~c ts of rules like the Alabatl\ll Rules of Civi l Procedure and the Alaoomll Rules of ~;videnct was 10 site those rules In one conveniently accessible place, One carelessly considered Act after another, our legisllllure pull that important aspira.

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211.

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A1Ia"aml3~s;

Milnmit, AtlclJfruqs; By Po/rick R. Coller ami James G. Stovall

Have Alabama ~ minority attornegs experienced discrlm;natr'on ill O,eir careers? How did they get illto the legal professioll? How do their careers compare to those 01 white altomeys ;n the state? ho~ life

just some ,,( the qucsl ion~ the Tllsk Porce on

T answe r curl ier this yeur, They did

M inority l'ur1icipmion in the A labnmll S1111e !lat SCI out to

in Plln, by commissioning Smuhcrn Opinion Rtscnrch of TUliCuloosu to conduct 1\ survey SQ.

of minority members uf the bur.

What the survey ruund

WIlS

Ih u\ Alnb:um.'s minority IUlor·

nc)'s ex hibit 1I\8ny similnrilics to thd r white coulilcllmrtS. but

or "discrimlnlllion In prullloti()ns" (20 percent ). More tlmll nine· in·len (94 1)Crccm) minority Iuwyel'll believe thul the "old ooy" network cxisting omong Al;lbumu IllIOmeys IHilI COHSliluted a scriou.~ problem for their leglll CllJ'l.'ers. Almost the $Un lC oumber (!1M percent) believe thm "minori ty lawyel'll' ItlCk ()f visibility wit hin tllC prorc.~$iQfl" hll!J been a serious problem in their career. About th!l:e-(tu:iner:s (74 percent) of the respondent& report that "the rchuivcly small nu mber of millOfity !;OInpate<\ to non· minority Illwycn;" has bc:cn a serious carcer problem.

T.ble 1 "A~

a rcsult of your mce. hfive you expericneed lilly of the fol· lowing du ring you r Curter liS 1\ lawyer?"

"/JfC'''' "Yu" conde!ICending rrcntlllclll by non-mi nority allomeyS or judges

there ure also some striking differentC/!. Southern Opinion

tliscriminmion in work assignmentll

Research hud 1I1$Q CQrWl\lCled

exclusion from social {unctions or groups

survey of bur mcmbc:n: in 1998.

Mlloy of the IllICstions were Ihe same for both ~ u rvCy5, th us allowing a oonlparisoll of the resu lts. One fuet should be noted at the sta n. Alabumu h:ls fewer th un 610 minority members out of more thu n 12,800 membcl'$ overnil. So JUSt whut ure the problems th:u minorhy IlUorneys (IICC? R(1Cinl discrimination. cOl1de~ee nd jns treutment. und even hUrllssment wert problems men tioned by gi~ nili ellnl Ilunlbcl'll of minority "ttomeys. Almost six-in·len (~II percent) minori ty IIIwyers say thut du ring their career they hllve experienced. II.~ II resu lt of lheir mee. "condescending trclltment" from a non· minorhy attorney or judge (Table I). About 33 perttnt have expericl1ccd "discrimil1ation in work ~ss ignments" while 30 percent has been excluded from "social functions or grouJl:i. About one-in-four mil10rity lawycrs hllvc expericllCcd ", lack of lruinlng or 11\entoring IlCtivitic.," (29 percent), "verbal abuse or hUl'IIssnlcnt" (26 percent) or "hiring discriminmion" (25 perccnt). Fewer respondents report experiencing "Jluy discrimination" (22 percent). 'Woblems in Working with people" In their fi nn or orsunizatioll (2 1 percem), "UlI$UI>llonive lelidersh ip" (2 1 peKent)

II lock of tmining or mcntoring activities ~erl»i1

(lbu.'IC or huntSsment

hiring disc riminmion

"" ,,%

plly discriminmiOIl

"" ,,%

problems in working with or "fining ill" with people in you r Iim1 or orguni7..ntlon

21%

unsupponive lellder:s wi thin you r fim1 or orgnni1.ntioll

2 1%

di'iCrirnill:llion in promotions

20%

your fi nn or employer's membership in clubs which do 1\01 hfive minority members

,,%

reduced opponunities for couM appcllrn nces

16%

ditlicu llies in devcloping good working relali()uships Wilh clicl1l$

12%

Characteristics of Minority Lawyers TIIC Iypical minority lawyer In Alabama Is less than 40 years of uge, llIurried (for the first lime) and the ]lht'Cnt cr one or two children. Women mllke up nbout hlllf lhc minorll), Jawycl'li In the 81111e, The medlllllllnllulll pcrsOIlIIJ income for minority

Illwycll in Alubtumt is between $50.000 lind $60,000, Typic:dl y almost 1111 of this irK:omc com~~ from Illw-rcllll cd work. Usi ng d lUA 8mh~red froul the 1998 ~ u rvcy. we found thlll

minority In wycfII in Alaoamn are you nger and less likely to be nmrricd thull their while C()UIlICI'J)lIrlS. About eight. ln.ten white luwycl'lllll'e mule, compared 10 Ihe roughly even gender diyi· ~ion

among minority lluomcys. White ~nomcys 111M) have II

mcdhtn

])coollnl

Income of between $70,000 lind $80,000.

higher thun linn found for minority lawyers. Whil es IlIwyers lire

IIlso more likely 10 have non-Iuw rc::latcd liOurce8 or income. (Th ble 2) Minority nnofneys Me gencruli y quite s llt i ~ fi ed wi th their cureef'llllS luwye rs (TI~ble 3). On il ten-poim "very dissluisfi ed" 10 "very snl l~ fi ed " scale. abOlU 27 percent of minol'ily IlI.wycrs rule Iheir curcer li S u " 10." Only about 7 pereent of minority hlwyCrs express dissullsructiorl (i.e. scores 1-4) wilh thd r career. Minority nnd white all umey! e~pn:S$ generally the same level of salisfaction with their careers :as lawyers. About 64 percelll of 11Iioority IlIwyers ure in privme prnclice. whlie 22 percent IWrk in govenunent. or thc minority nllomeys who say lhcy work for govemment. ubout Imlf (~I percen!) are employed at Ihe StOtelcvel. Abouttwo-Ihirds (66 pcrccnt) of minorit y lawyers h ~ve been ndmiucd to the Alublllllll b.u .~ i nce 191:18. Most work in the st;lIe's largc~t counties. particularly JcITcrson nnd Montgomery counties. About one-in-four (28 percenl) minority lawycrs Slly Ihm they have worked III their present orgunil.1ltion for two years or less. Abotn 16 percem of minorily luwyen ilfC also nll'mbers or tho bar in some other slilte. In the ~ urvey. nU!lOrhy hlwyers who are in privllle 1ll'llCliee were asked It series or quc.~t ions concern ing how mllny people their firm employs in difl'erenl posit iom lind how many or these IlOSilions well: filled by minorities. About 70 percent of priviile l)rIIClicc minority 11Iwyelll (compllred to about 40 l!Creellt of white l1ttorney~) wo rk in un organizillion In which there nre one or more "htwyer8 who are solo pmctitiollers Of proprietors." Most privmc pmclicc minority IIl10meys work in orglllli za lion~ in which Ihere lire no "lawyers who lire part nelll or shareholder$" (67 percent). "Iawyen who ute or eoullscJ" (88 percent). or "associ:lles" (67 IlCret nt ). About hlilf (.50 pcreent) of private praeliec minority lawyers woo in organl1.lI1ions whic h employ a paralegal. Most finns, however, do not ernl,loy uny law 5Chool 51udem clerics (7~ per· cent), non-Illwyel' t.dmini~ lni t ()nI (60 percent). IICC()lUn anl ~ (69 perce nt). mcs~cngers (64 percent). or invcsliglllOfll (&4 percent). Among non-priv,tle pracrice IIllnorilY lawyelll, llbout 35 percelli work in orgnni1.utions which employ more than ten allorncys. Abuul 4 I perr;ent work in OfllJlnizutlons in which there i ~ II single minority ullomey.

Tltbl.2 Social Chmuelcrbl1c5 of minority IlrId whi te I;twycrs in Alllb.1nll'· MIl/or/I)' AG"~

0110 ,.,,1111

,,%

20-30 YEARS 31-4QYF.A RS 4 1-50 YEARS ~ 1 -60 YBARS 61 -70 YBARS 71+ Y[!ARS

3J 3J

Il%

"32

MARITi\L STATUS Mtlrried Sepllnucd Divorce Single NUM8 ..: R T IM ES None Once Twice Three or Mort

Whi/t

Dflornllls

MARRI,,~ I)

NUMIJER OF CHILDRE N NQrle O~

1Wo Three Four or More

,,%

7.%

•

60 12 3

12%

"17

28%

'0 , 0"

84%

,,%

18 15

Gt: NI)"~ R

Mille Felllitie TOTAL INCOME Less 'n lllll S 10.000 $IH-20.<XX> S20·30.(XX) 530-40.000 $40-.50.000 $~0-60.000

$60-70.000 S70-S0,OOO $80·90.000 S90- IOO.OOO Sloo- I25.000 S I25- 150.000 S I ~0-200.000 5200-250.000 S250-300.000 More Than 5300,000

6 12 14

"12 10

4 8

•

10 8 10

8 3

3 4 2

8 7 3

PERC ENT 0'" INCOME FROM LAW-REI.•A'I'En WORK ~O I'ereel\! or l..ess 8% II % ~ 1-75 Percent 2 6 76-90 Percent II 29 M OI~ TImrl 90 Percenl 78 53 • M issillK (1(1/(1 (it'le lrd Nov ..",m '80, I."

hbl.3

TIIbl.4

" Imagine a ...o de runging from I 10 10. wit h I being very di5' sllIisfied lind 10 hl=i ng very salisfied . On Ihis lICale how $i1lisficd nrc you overnU wit h you r career liS II lawyer1"·

(Employed IIt1Qmeys only) "Do you personulty feci thm you hllve more work than you ean handle. about lire nahl amoulll of wQrk. or not enough work [0 kcep you busy?"

Minority aflorlleyl

Very OiSslIlisfi ed

, 3

I'Ilt1t~

Mil/ority

attor"'l'

at/ort"!'

More Work Ttl/In 0111 Hnndle

40%

Aboul RighI Amounl

Nm Enough

, ,

Whftt allarlltys

"" , 53

23 24

attom'JIl

a/lOm,y,

" 14

Mon: Work ' n llUl Can lI ul1dle

41%

About Right AmOUnl

"" ,6

10 Very Sluhfied MEAN ~n:I>IAN

DK/NA

271

(ElIlployed ~1I 0meys only) "I)oc.~ your firm hJVC more work tlml1 it CIlI1 handle. llbolilihe tighl amount Qf work or oot enough work 10 keep i[ busy?" White MimlrilJ

7.'

NOI f.!nough

8.0

DK/NA

Aboul 40 percenl of employed minorilY attOr'l\Cys guy Ihal lh<:y Imve "mOfC wort" Ihlm Ihey can handle (l\lhl<: 4). Similarl y nbou! 41 pCJ'(:ent gllY [hUllhcir organil.urion has more work tha n h can Imndle. Those in ptivnre prnclice are less likely (35 perccnt ) 10 8uy tllll! they hllve more work chun Ihey CUll hand le compared with other en[ployed minority uI1onleY5 (411 percent). Private pmclice . nomeys an: 11150 Ic.~~ likely (34 percent) [0 say thnt [hcir finn h.us nlOfe work Ihllll it C:1I1 handle wort. Aboul 48 percem of employed minorilY altomeys say lhey ~ 1)Cnd . Qn avernge, more [han 50 hoors II week on professional work. Those in private prnctice (meuII,.53 hours) spend morc lillie on profc.~sionlll wort Ihlln do other employed minority uttomep (nlean-44 houl'!i). AtOUI 44 percent of employed minoril y III10mey.~ suy [hid their ellll)loyer has u policy encouruging thcm " 10 devOle time to prQvldlng fn;e h:glll services fur low income individullls," Among Ihose in privme pruclice. nbout 58 perccnt slIy Ihul their emplQyer Il1ls ~ uc h a policy. Among eml,loyed minority 1I11orneys. the median nUllIber of hours spent prQviding free legal services i ~ 40 houl'll per year,

Cases and fees About 10 1>clU:nt ofprivlllC pfllclice minority III1Qmeys never hluldle lIny cllse~ Qn II "contingency buis." About II percent 511y 111:11 nlllheir cll5C:s ure h ~nd led Ihis way. About hulf (51 per· cenl ) of those who hltndle coruingency CILSCS suy they receive 33 percent of the pwnrd if successful. Aillong mi nority priville

3 363

271

• M issiflK d(ll(l delttttl

Amount of work

363

prtICtltionen, tIle median hourly rule cha'lled clienls is $ 125. Aboul 2 pen:enl ehllr8e clienlS 1II0rc Ihl1l1 S2()() per hour. While Illwye~ in privme p11IClice arc SOll1ewhat less likely 10 handle CIl.\CS On II contingem;y bush!. Howcver. lile mnounl of award rece ived if successful on 11 comingel1cy case is uboullhe ~!l m e for minori ty lind while privllle pftlc!ilioners. Simllbrly. th e hourl y rmc chargcd is oOOlitthe ~IHllC for minority lind white uttomeys in privll te pmctice.

T.ble 5 "'low did you obtain you r fin;t full -time job lIS lin :momcy?" PCfSOI1ld

[nvitnlion

Imcrvicw

Orrer After SUlllmer Ch:r'kship/lnrenlship

"" 18

OiNctly Contuctl.-d Employcr

Sinned Own I'mctice

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

LlIw School llllcrview Prognrm

Used I-nmiiy/Friends/Collcagues

JlIdicinl

(,Ierk.~ hip

3 ~~----~--------~ Based on Ihe RI.'<:Mlmcndntion of Someone Else 2

(hher

IJ KjNA

• QUNllfm Iwr inl'illfJe(111! rile 1998 SIII'\'I')'

Initial and current employment Minority Inwyers were a.~ked how they obtained their "lil'5t full-time job IllllUi Inome),." Thblc.s ~hOW5 thaillboot 25 percent SII)' they obIained their first full -lime position throllSh a "personal i,wi tut lon 10 illlervicw," Slightly fewer respondents obtained their III'llI full ' lime position 1l0er II $ununtr clerkship (18 percent ) or by directly rolltllCling the employc:r ( 17 percent). '111(se auomcys were 1l\1IO asked wlllu factors lffl..'(;ted their decision 10 work for their cu~m employer. About 2 1 pt:rceru say Ihal a desire (or "independence" or " nuibiliIY" was the most imponant factor in their decis ion, l>rivll1e pnt(:lice anorneys (30 percent) IlI'tI more likely thnn olhers (3 percent) 10 cile 111i~ !'Cason as the mos. ImporuulI factor IIffecl ing their CUITCn!

em ployment decision. About 18 l)treenl guy \hlll tho most irn por1anl fllClor affecting their choice of employmen t WitS n need for II job or money. Priv:!le pnlclice nnorneys ( 15 percent) ure less likely limn othen; (24 percent) to rncr11 ion this fuctor. An additional 17 percent !Illy tlml the "'ypc of won:" wi1ilthe most illlponam faclor influenclng their choice of employmcm. Non-private pmctice lttl0meys (23 percent) were more likcly to memion this (OCtOI' than were those in privmc I)mctice (14 pero:nl).

The survey of minority lawycrs was commissioned by the '(ask Porce on Minority Paniciplttion of the Alobnmo SIIIIC SM LlIld WIlS conducted by S()\Ithem Opinion Resellrch,:\ privule survey research linn loclued in Tuscaloosa, Alabama. TIle study begun by hllving the !itllle bar stnd a leiter to eneh minority lawyer in the "tate. Thi8 Ictter eltpillined the purpose of the pr0ject and asked the individunl receiving it to pw1icipJte in lhe survey. Ne,"(t, a Southern Opinion Research interviewer elliled eneh respondent CUld either completed the telephone il1terview at that time or schedulc:d • time to conduct the interview. A lolal of 276 telephone interviews were complClcd between Muy 3 lind June 29, 1999. A lotal of 426 minority IQwyer'll were included on the list provided by the 8tllte bar. Current te lephone numbe", wcre uvaihtble for 386 of tllCllC individulIls. An additioolll 12 individullls were unovailuble for interviewing bccliUse of illncs~, traveling or sirnilor rellsons. "IUS, the re~pollsc ralc for the minority lawyer survey (number of eomplclcd intcrviews,ltotal number uvaitllble reS[Xlndents) is 74 percenl. •

Petrick R, con. r

"'.m•• O. Stov.1I ... trlo_ JIL . e.II •• .oo ... _ . O. "iwlll ,re eo-dItec\of1IoI SOuIIIetn Oprion ReLIe~ch. .... ~1OtI~ 1\IfYIY'-u. ~'" 1n"lUlcaloou TlMty boIn IIIIIeh .. IIlIo lJnMnILy III AtaIlIIIN

Anote on the survey This repan presents the rt'.~u hs of a survey of minority tllwyers in Alubama. One purpose of the survey wus 10 collecl informa. liou nbout the ehanlCleri.'>licl or the 8tnt C'S minority lawyers. Addilionally, the survey eXllmined minorily allomey's alli tudc:s cOllcenling diffcrenl scrvices and IIClivitiC5 or the Alabama Stale Bur. Finally. the survey invbtigll!cd what tyJlCll of ruce-relutw problems aRl encoumercd by minorilY I ~wye~ in Alilbamll.

A full service Investigative bureau servi ng the legal community throughout the Southeast (surveillance, backgrounds, asset checks, etc.), Call Coburn Investigative Agency at 1-800-CIA-0072 or visit our web site at www.cia007.com . Gathering intelligence,

intelligently.

HOwf"IIB~

.0. . . "

THE BIRMINGHAM PLEDGE

A Lawyer Who Has Made a Difference im Ratch will be the first one to tell you, the Birmingham Pledge is not about one individual. The BIrmingham Pledgt is. however, the brainchild of Ilirmingham lawyer James E. Rotch. The pledge is a simple and eloquent statement of one's belief in humanily and the dignity lind the respect every person should enjoy. It is aboullhe elimination of racial prejudice in our time. and fo r all time. To understand the pledge. one must

first rccall the racial history of Birmingham and, for that matter, of lhe South. and lhe resultant shame. What beller name to adorn the pledge thlln " Birmingham.~ a nlmt synonymous with racial discrimination in the '60s? In lhe 1992 Leadership Birmi ngham Class, fo r the fint time Jim really [earned and understood the racial histo· ry of IJirn,ingham and the impact th:lt is still carried In tht community. In the 1997 Leadership Alabama Class, he and

THE BIRMINGHAM PLEDGE S I G N IT

• LIVE

I believe IhalllV9IV person has WOIth as an IndiVidual. I believe that avery person is entitled to dignity end respect, regardless of IlICe or colol.

I believe Ihat every thought and evory act of racial plejudice is harmful; if it Is my thouoht or oct. then It is harmlulto me as well as Others.

Therafore. 110m this day forward I will strive daily to eliminlile raeilll prajudice from my thoughts and actions. I will discourage racial prejudice by others 8tevoIV opportunity.

I Will treet all people with respect and I will strive daily to honor this ptedge, knowing that the workl will be 8 beller place because of my effor\.

ISignaturo) "'"""""""", .. """"",.".,,, .. ,...............................mm." .. " ....... "

.... "" ",.,."".", •

IPlease Print Name).......... ,...............•" ... """"""""" ................................... ,"""',.,"', .. ,... ,.... .

!Streot Addressl,.,.,.,.,.,.,."""', ............ ".... "',.,""', ............ ..................... .....''''''''''''''''''''''''',. (City!State)... ,....... ,.,.,.,.,... "...."" ....... "... ",........... ,., ............... . (ZIP Codel ................................ ""~'M ...." ................. ,'.".. . " ................................................... " (Organilation~Opt ional ............ ""....... '

,.. .

(DOle) .. , ,......• " .. """""""".... ,,"",,............. ..

PlEASE COPY AND RETURN THIS FORM TO: Blrmi~ham Pedge P.O. Box370N2 Birminghllm. AL 35237·0242

OR FAX US AT: 205/324·8799 www.onb.org

A projOCt of ths Community Affairs CommiltDB of Opsrat/o" New B;rmlnglmm ••• HDvnllo.n ."uo

other members were challenged by t>1arsha Folsom, wife offormer Covernor Jim Folsom. to think of a way to make a pQsitivt impact on racial harmony in the slate of Alabama. The Birmingham Pledgt ....-as penned by Jim ROlch on the long dril'e back to Birmingham (rom that Leadership Alabama meelingln Mobile. It occurred to him that if the ptoonal pledge were made public, not only would it motiwlte the person m.,kinll the pledge to honor it, but it would also perhaps motivate other people to m.lke the same commitment. Jim and Lou Willow. III . a fe llow member of the Community Affairs Committee of Optration New Birmingh:lm (CAC), took the pledge Jim had written to the CAC and ilsked the CAC to sponsor the project. The CAC readily agreed. The CAC was born in Birmingham in 1969, growing out of the racial strife so prevllient In Birmingham and across the country in the '505 and '605. It was formed by a grO~lp of prominent local black and white leaders who came together searching for racial peace in Birmingham. Following the adoption by the CAC. members of the Uirmingham City COUJlcilllnd the Jefferson County Comminion IIlso lent support to the pledge. On Janu3ry l9. 1998, the pledge was offiCially launched at the Birmingham Marlin Luther King Unity Breakfast. At that time, some 2,000 people stood up and together recited the pledge. People from all over the world h:l\lt signed and returned the pledge, over SO,ooo to date. Among thO$e persons are Pruident William Jefferson Clinton and First Lady llillary Rodham Clinton. You, the lawyers of Alabama, are encouraged to read this pledge, sign ii, cut it out. and either mail It or fax it to the mlmber provided. But above all. LIVE IT. •

BUSINESS TORTS FROM A PLAINTIFF'S PERSPECTIVE By Thomas J. Mel/win

he Intensity of busincu competition is steadily rising. Though businesses of equal economic power are tapable of rneeti'll the competition blow for blow, the smaller competitor may be driven from the arena, Oftentimes. those forced out of competition have been Ihe victi m of illcgal busir\eS! praclicc5. 111 1997, Dun & Bradstreet Corporation reported Alab-1ma as leading the nation in startup busincssC.5. A5 Alabama's business community continues to grow. the need for l~gal reprcunta.tion of business intereslS grows as well. Numerous cases with businesses as parties have arisen acron the Stille. The fo llowing is II synopsis of lhe most commonly seen dalms.

I. The Alabama Trade

Secrets Act, ALA. CODE § 8·27·2 (1993) Though relatively unknown 10 the traditional litigntor. trade

secrets are an Increulnilly Important legal consideration when representing Innovative companies which have made Alabama their home. Because the Alabama Trade Secrets Act (ATSA) was not p.used until 1987, that area of the law is slill relatively undeveloped. Beca~l$e so lill ie is known about trade secrelS litLgaliC In. a substantial portion of this article Is devoted to Ihat topic. Under the ATSA, .t trade secret is information that: 11. is used or intended for use in II trade or business: b, is included or embodied in a formula, pattern, compilation. computtr software, drawing. device. method. technique or process; c. is not publicly known and Is not generally known In Ihe trade or bu slne~ of the person userting that it is a trade secret; d. cllnnol be readily ascertained or derived from publicly available information:

t. is the subject of efforts that are reasonable undtr tht cir-

cumstances to maintain its secrecy; and (, has significant economic value. The ATM draws heavily on common law, particularly as it is embodied in the original I{estatement o(Torts. Common law docs not define "trade secret," but comfmml b to the Restatement explains: "1\ trade secret may be any formu la, pattern. device or compilation of information used in a businw which lIives an opportunity to obtain an advan· tage OllCr competi tors,~ The information must be presently or conllnuously \/sed in il trade or business. "Neglllivc" information, I.e. what will not work, can be a trade secret and is ujed when unworkable approaches are avoided. The secret is not the object. process, etc. but is specific Information, The categories listed should be construed broadly sinct the jlur· pose Is to protect individual property riJlhts and, thereby, foster and encourage the development of new products. technology and Ideas. Cenerally, it relates to the production of goods. Sounders v. Florence t,'Immo(illf/, 540 So.2d 65 1 (Ala. 1988)(quoting Restatement of Torts f 757). An exact definition of "trade secret" II not possible. Filctor5 to consider are 1) elltenl to which the Information is known outside of the business: 2) elltent to v.h ich it is known by employets and those involved In the business: 3) utenl of measures taken to guard the secrecy of the information: 4) value of the Information to the owner of the secret and his competitors: 5) amount of effort or money expended by him in developing lhe illformlltion: and 6) east or difficulty with which the information could be properly acquired or dllplicated by othen. ld, rhe information must not be readily ascertainabl~ or derivable from information that is publicly available, Courts have protected information a5 a trade secret despite evidtnce that such information could be tasily duplicated by others compeNOVU,,"OCII11IOO

141~

tent in the giwn field . MasQII IJ. Jack l)(mi~J Distillerg, 518 So.2d 130 (AI •. Aug. 5, 1987). The ability to combine ele· ment! into a succusful product may be a trade secret entitled to proteclion. ld. The fact that every ingredient is known to the industry II not controlling for the secret may consist of the method of combining them which produced a product superior to that of competitors. Id. One is liable for disclosure or use of a trade secret without privilege to do 50, if it constitutes a breach of confidence reposed in that perSQn by the other. Additionally. when someone uses a trade secret of another with notice that the secret has been miSllppropriated, they too, are liable for that use. If you Innocenlly acquire a trade secret and discover that it WllJ misappropriated, you must terminate your usage or be held liable, See INfO tl. Sys/ems EnghwcrillY Assoc., 602 So.2d 344 (Ala. 1992). Several remedies exist fo r actual or threatened misappro. priatlon. To tile extent that they are not duplicative the following are available: ll . injunctive or other equitable relief; b, recovery of profits or benefil$ attributable to the misappropriation; and c. actual damages. Reasonable ~ uomey's fees may also be awarded to the pre· vailing party if: 3. the miSllppropriation claim is made or resisted in bad fait h; b. a motion to ten'l'linate an injunction is made or resisted in bad faith; or c. willful and malicious mis<lppropriation exists. The remedies arc not necessarily alternative remedies, and tht court has broad discretion when fashioning equitable relief. If actual damages do not cover ",II the profill of the misapproprial<tT aUributable to the misappropriation. then such profit.! may be awarded and vice versa. The intent is to make lure the plaintiff is made whole and that the misappro. priator recognizH no profit from its wrongdoing. Punitive damages are permitted even if only nominal actual damages are awarded lIS long as the wrongfulacll were committed with malice, w;1t(ulness. or wanton <lnd reck l C5~ di~regard of the righls of others. NasQII, 5 /8 So.2d 130 (A/a. /987.) The duration of an injunction normally is fo r the period tht trade secret is expected to remain a secret. Because Alabama CllS(' law on this subject is relatively undeveloped, II reference to case law of jurisdictions with II sub· stantial history on the subject can be insightful. Generally, there are three brOlld categories of alternative remediH: I) plalntifrs lost profill; 2) defendant's unjust enrichment: and 3) that agreed to by the parties In contract. Courls and commentators have suggested that In choosing among competing theories, the measure which 'affords the plaintiff the greatest recovery' should be se lected. /Jioncertl. l1olden. 35 f.3d 1226 (8th Cl r. 1994). The standard for measuring dlllllages Is very nexible. An imagi native approach should be used, and each •• 0

N o vn"D.~

. a..

t.'Ise is controlled by its own peculiar facll and circumstances. Unlversitv Computillg tl. Lgkes-)'ou/llfston, 50-4 f'.2d 518 (5th Cir. 1974 ). When measuring damages that are difficult to prove. "Ihe wrongdoer shall bear the risk of the uncertainty which his own wrong hilS created." ALPO tl. Ralston Purina, 913 ~:2d 958 (D,C.Clr. 1990). The governing test: "If it is speculative and uncertain whether damages have been sustai ned. recovery is denied, If the uncertainty lies only in the amount of damages. recovery may be had if there Is proof of a reasonable basis from which the amount can be inferred or approximated.- Piom.'f!r u. Nolden, 35 t:3d 1226 (8th Cir. 1994). When a defendant has no profil$ by which il$ gain may De measured, alternativt methods to determine gain are utilized. If the plaintiff is unable to provt specific injury. damages may be calculated by the money spent by plaintiff in rescarch and development of lhe SCeTet thllt the defendant wrongfully took. In Salsbury, defendants were employed by plaintiffs after signing non-compete and confidentiality agreements. While employed. defendants learned plaintifrs trade secrN. Defendants were recmited by a competitor and began developing and selling a substantially similar product. The Court found lhat plaintiff spent one million dollars on restarch and development and two million dottars on marketing and advertising. By Improperly taking advantage of the plaintifr, work, the defendant received a " headstart~ in the business. The Court awarded plaintiff onc mi11ion dol1an. representing the savings in research. development and marketing enjoyed by defendant, discounted by an amount from which Ihe court found plaintiff still benefited . Punitive dnmngu of 5500.000 were aWllrded as welt as attorney's fecs. Salsbllry tl. HI/rieux, 908 F.2d 706 (11th Cir, 1990). When plaintiff fai ls to prove ill lost prol'lts or defendant's gain. courts have resorted to the "reasonable royalty" theory for measurinlt damaRes, Biodvnamic Technologies tl. Chattanooga CArp., 658 "~Su Pp. 266 (S.D. Fla. 1987). This theory adopts and interprets the fiction that a license WllJ to be granted at the time of the infringement and then requires a determination of what the license price should have been. Unioorsi/y Compu/illg /I. l.ykes-YoungsIOIl, 504 ~~2d 518 (5th Cir. 1974). The primary inquiry is what the parties would have ~greed upon. if both were reasonably trying to reach agreement. Id. It is for the Court to determine a rea50nable royally which represents the value of that which has bcen wrongfully taken by the infringer. White a certain amount of speculation 15 involved in this highly theoretical reconstruction of a sale which never took place. the aggrieved plaintiff must be permitted to present its best evidence on damages and not be foreclosed from seeking damages it deserves due to diffi culty in measurement.ld. Courts should be reluctant to penalite an aggrieved plaintiff by a too unna11stic and ster· lie requirement of proving that the defendant would have agreed to the price the plaintiff thinks is fair. td. In clllculating Il fllir licensing price. the trier of fact should consider: I) resulting and fo reseeable changes In the partics' competitive poslure. 2) the prices which past purchasers or

licensees may have paid, 3) lhe lolal value (prolit) of the secret to the plaintiff, includinll the plaintiffs development cost! and the Importance of the secret to lhe plaintiffs busi路 nus, 4) expert testimony. 5) plaintiffs future ability to $lay in busineu, 6) advantagu the infringer would have received had it negotiated a license. 7) ready availability of alternative prOCe55eS, and 8) other unique factors. Id. An important variation of lhe reasonable royalty standard is the "comparison method" wherein the damages constitute the difference belwten the defendant's crut of developing the trade secrets on its own and the actual development costs of the plaintiff. Universit!l Complllillg, 504 F.2d 51$ (5th Cir. /974.) The cost expended by I,"olher company not a party to litigation in an unsuccessful effori to develop the ~c rel might be a persull.Sive indicllior of the weight to be afforded other evidence in measuring what the misappropriator's cost might have been. Servo u. C.E., 393 F.2d 55 1 (1968). This method is frequently inadequllte In thllt it f<llls to account for the commercial contcKt in which the mi$allproprlalion occurred. If Ihe dcfendant used the secret in only a few situations. was not in direct competition with plaintiff, developed th ~ secret by relining eKisting trade practices, and ceased use of the plaintiffs trade secret , such a limited mea路 sure of damages may be appropriate. Universit!l Computing, 504 F.2d 518 (51h Cir. 1974.) MOlit courts adjust the measure of damages to be In accord with the commercilll selling of the injury. the likely future consequences of the misappropriation, and the extent of use had by defendant anu misappro. priation. While plaintiff Is not required to prove lost profi15, it must be provtn that the .secret was misappropriated and th.OIt the defendant actually put the trade .secret to tae. Id. _ Litigation over trade .secret! can become expensive an4 burdensome. AVMt amount o( time, energy and rHOurces will be required to properly prepare a trade secret case for trial. Though each case has It! unique ci rcumstances, a variety of (actors mlly enter the equation when handling busineu litiga. lion on a large scale. In a pending case, a textile manufacturing company contacted a law firm for representallon after discovering in II newspaper article that its trade secret! had been $tolen. According to the article, the company WIlS one of several which defcndanl.5 targeted in a Itlrge scale spying campaign. The infOrmation wal revealed in a lawsuit recently seWed on lho$e allegations. Discovery in trade secrets cases is different (rom discovery in traditionai liligation. By its nature, much Information lOught from the opposing parties is "secret." Protective orders are commonly entered before meaningful discovery takes place. Once discovery get! underway, the production of document! can be 50 voluminous that II ov~rw he lms the unexpecting recipient. Various methods or computer systel1l$ should be in place to manage the voluminous documentation. Even f:l(ceptional management of document!, hOwtver, is unlikely to equip the tawyer with skills necessary to (ully interpret all documents provided. [)epending on the nature of the trade seeret. expert! in engineering or of an appropriate

background may be retained to testify to the unique nature of the information at iu ue. r-Ioreover, certain cases will require that an economist, market analyst, accountant or other such eKpert be retained to support Ihe allegation of damages. Though trade secret c.ues have a tendency to seem compli. cated, the prepared litigant with adequate rHOurCe$ can handle such easel with relative ease.

II. Fraud and Breach of Contract Fraud and breach of contract orten go hand in hand in buslncss-relattd claims. A contract is established by showi ng an agreement. consid路 eration, a legal object and two or more contracting parties with capacity, Gonzalez 11. Blue Cf(lS5 Blue Shield, 289 So.2d 812, 819 (Ala. 1997). Whether IImbiguity exists in any con. tractual term is II. question of law determined by the trial cO~lrt . (JlldqffllOOll u. Soulh Cenlrallkll 'nIll1phone Co., 590 So,2d 170, 175 (AID, 1991). If the court find~ My 11mbilluity. lht trut meaning of the contmct is a question of fact, I!:solved only by a jury. Scaling /:"quillmenl ProduclJ Co. /J. l'elanle. 644 So.2d 9001 , 908 (Ala. 1994 ). Whether lhe patties have performed under the contract is also a jury question. Cenerally, damages are awarded to the u tent th~tthey return the injured party to the pWilion in which it would have been had the contract been performed, Pule /J. Rollinson Logging Equipmenl, IIlC" 628 So.2d 337 (Ala. 1993). Plaintiff may recover damages which were the natural and proximate consequence or the breach. I'ale /J. Rollinson Logging P.quipment, Inc., 628 So.2d 345 (Ala. 1993). A jul')' need not achieve ~mathematica l precision" when calculating damages since a plaintiff will not be denied a substantial recovery if he ha..~ produced the best evidence available, and it is sufficient to afford a reasonable basis (or estimated loss. Mallnillylon Floor Woods, 1nc. u. Pori f.'pu 1Yansporl, II/c" 669 So.2d 817, 822 (Ala. 1995); quoting Uniled Bonding Insurance Co. u. W.S. Newalllllc., 285 Ala. 371. 380, 232 So.2d 616, 624 (1969).

Fraud is committed by: 1) a false representlltion; 2) of a material fa ct; 3) relied upon by the plaintiff: 4) who is damaged as a proKimate result of the misrepresentation. Underwood u. So. Cen/ml/Jell 'nil. Co., 590 So.2d 170, 173 (Ala. 1991). An action (or fraud ma.y a.rlse Ifthe misrepresentation Is made willfllily to deceive. recklessly, or by mistake. Ala. Code' 6-5-101 (1993.) The plaintiffs reliance on the misrepresentation must have been reasonable: a standard which the Alabama Supreme Court has held Is more practical, allowing "the factfinder greater nexibility In determining the issue o( reliance based upon all or the circumstances surrounding the transaction, including mental capacity, educational backRround, relative sophistication and bargaining powers of the partin." Foremost Ins. Co. 11. Parham, 693 So.2d 409, 421 (Ala. 1997). Compell$atory damages may be awarded as well as punitive damages if the pillintiff shows the fmud Wi\! grou, malicious. oppreuive, and that tht fraudulent statement was m3de with N O~" "O E Q

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knowledge of it! falseness, or $0 recklessly made that it amount! to intentional fraud. Underwood. 590 So.2d at 174. Stveral tips on discovery and how to work up a fraud case include the following: 1. Study the ~pplicable industry regulations. 2. 'J'ry to fin d ex·employees of the defendant to teslify Ilbout the company's practices. This can be invaluable. OepositionJ are useful in obtainIng that information. 3. Find similar occurrence information. Do this by getting the customer list of the defendant. contacting the customers and asking if they have hold similar action perpe· trated on them. Hopefully. they will agree to be witne»es for you. See the cast$ of £X Parle Aywr, Inc" 569 So.2d 733 (Ala. 1990); Ex Parte Stale Fann, 452 So. 2d 861 (Ala. 1984) which allow this discovery. 4. Also, if you are hooked into the Administrative Office of the Courts (AOe) computer, you can find other similar law5ui ts llgainstthe defendant. I(you Me not hooked In, you can use the Aoe network by going to any ci rcuit clerk. 5. 00 a Westlnw search to see If the company has been sued for other similar occurrences. 6. Contact the American Trial Lawyers Auociation. They have a database which may have some information regarding thf companies. 7. Check with the Attorney General's Consumer Division to set if the.re has ever been any investigation of the compllny.

8. Check with the Beller Businc$5 Bureau to see if there have ever been any complaints regarding the company. 9. Additionally, the Internet is a great resource fOr endless information of a wide variety. In the ~ority of cases, companies conduct business with ~ach other under an oral or wrillen contract. When tht contract is breachw, whether the wrongdoer's intent to perform the conduct wu in good faith or fraudulent is almost immediately called h to question. Thus, thest claims are alleged together and arise in innumerabl~ contexts. The poullry industry has recently seen substantial business tort litlgalion of this nalure. As discussed below, farme rs who raise chickens for large integratou have alleged that they are being taken advantage of by the company for which they grow. Contracts to grow contain provisions which require farmers to raise chickens by the stringent standards of the company without any input from the farme r. The large companies dictate ""hen the birds are fed, watered, medicated and delivered. The farmus allege that the companies force farm· ers to incur huge amounts of debt to finance the "latest tech· nologicaladvances~ in poultry farming. Oftentimes. however, serious queslions exist regarding the benefil$ of the latest equipment requirements. The cnd result is that the farmer foots the bill for the companies' capitallnvcstment, while the companies reap the profits. Poultry companies rarely enter into lasting contractual relationships .... ith growers. MOlt contracts e~ is t for one grow., .

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out for each flock. Cenerally, the companies will not guaran· tee the ntxt flock will be dtlivcrtd for growth. but the farmer maintains huge debt services arrangements with local lending institutions to accommodate the demands fo r updates by the company. Farmers fear being "cut·ofr' if they refuse to upgrade their farms. Although companies do not usually cutoff growers for fail ure to upgrade, the farmers allcge that the companies find ways to pay the farme r less for the $.time amount of work. Onenlimes. the companies catch a farmc r's flock for immediate delivery to th~ plant to be weighed, onl> to have the company relive the birds on the trucks for hours losing weight from dehydration and, eventually, death, This costs the individual farmer thousands of dollars which he needs to finance the upgrades required by the comp.lny. There are numerous remedies available to the farmer, includinA:: breach of contract. fraud, negligence, intentional interference, conversion, antitrust. IUCO, nnd more. Success with thcsfJ types of cases depends on the credibility of the witnuses, the documentation available from the plaintiff. the documentation produced by the inteltrator hnd any plirticularly dramatic facts thlll may lead to an award of punitive damages for intentional conduct. Other common cases deal with the pliAht of nfJW business owners. r-1any people are looking to fulfl1lthe'r dream of owning lind operating a small business. Onentimcs, salespeople lead them to II small business thllt is not yet on the mar· ket for sale. When asked for the business' finMcial performance information. the defendants' agents ]lrOOUCe financial statements which are inaccurate and misleading. Rely!ng on the lnformalion. the plaintiffs purchase the business. After quitling their jobs, mortltaging their homes and personally guaranteeing the financing, the new business owners set out to fulfi ll their dream. Shortly aner the purch/lSe, many plain· tiffs have learned lhat the business did not generate the rev· enue that had Deen dajm~d. Of course, discovery is the most Important plirl of these casts. Typically, there are other small businU$CS which hav-e been misled in similar transactions. Obtaining the defendant's customer li~t is vital in developing a pattern and practice of conduct. Any documentation thM reveals the commissiOns on such n sale arc also important to show the defendants' motive for misrepresenting the truth. As one Illst example, the timber industry has also seen a rise in litigation, regarding breach of contract and fraud . Large companies, owning thousands of acres of timberland, contract with numerous timber companies for the cutting and hauling of timber. In whlllllppears to be II common prac· tice, the company contracts with more timDer companies than is necessary to satisfy the company's needs by the year's end. In a pending case, a limber company spent stvtral hundred thousand dollars in purchasing equipment to handle the large contract lind Invested practically one hundred percent of its resources in the venture. respecting the size 01 the operation. When the defendant later determined the timber company's

strvices were not needed, the contract was blatantly breached. Several hundred thousand dollars in debt. the timber company now faces bMkruplcy. Cases involving breach of contract and fra ud abound. The afo rementioned ones are only a small sample or common ones pending,

III. Interference with Business Prior to 1986, one could not recover against third !huiles for Interference with business or contractual relationships, unless that relationship was between an employtr and employee or If a p.arty to n lea.se was induced by fraud or coercion to breach his contract. Gf'OSJ II. Louxlar Realty Better Nomes & Gard01S, 494 50,2d 590 (Ala. 1986), MoreOYf:r, Ule distinction between intent ional interference with business reilltions and intentional interference with contractual relations as two separ~te causes of action caused significant con· fusion in interpreting the validity of those claims. /d, at 593, The Alabama Supreme Court's decision In Gf'OSJ ushered in welcomed relief for Alabama businesses by combining the claims and stating the general rule that "one who, without justification to do lV, induces a lhird per:ron not to perform a contract with another is liable to the other for the harm caused thueby," Gro.u, 494 So.2d at 596 (citations omitted). Claims of intenlionallnterfcrence with business or contractual relations now reetuire: 1) lhe existence of a contrllct or business relation; 2) defendant's knowledge of the contract or business relation: 3) intenlionlll interference by the defendant with the contract or business relation: 4) absence of Justifica· tion for the defend.tnt's interference: Md 5) damage to the plaintiff as a result of defendant's interference, Muluul Sou, Ure IllS. C<J. /1. James Riuer Gorp. or Virginia. 716 So.2d 11 72, 11 80 (Ala. 1998), quotinll, Cross, at 597 (Ala. 1986), Justification for the interfe rence, however, 15 an affirmative defense. GI'OSJ, at 597, n. 3. To determi ne whether the defen· dant's acts are justified, the Importance of the defendant's objective is balancfd llgIIinst the importance orlhe Interest interfered with, taking Into IIccount the Sl.Irrounding circum· stances. ld, citing Reslalcmcnl (Second) of Torls f 767 (1979) and Comments. Generally, the factfinder determines the exis· tence of justification. Polylae, Inc. /J, Utah Foam Producls, Inc .. <139 So.2d 683 (Ala, 1983). Damagu associated with interference claims Include puni· tive damages as well as a compensatory recovery, Southem Slates ford, Inc. /J. Proclor, 541 So.2d IOSI. 1088 (Ala. 1989). Claims are not subject to the statutory cap on damagts when asserted against a municipality. CIIV of liirmingham /J, IJusincss Realty Int!. Co., 1998 WI. 599492, (1998), The followi ng are a couple of examples or scenarios from which these claimnrise. A real estate management company sued a homeowners' association when ilJ interference with the company's customer relationships and contracts caused a substantlallQ» of income. Plaintiff was a relatively new owner of the company, Shortly after the change in ownership, differences arose between the new owner and the wociation.

tu a result. officers lind friends of the association apprOllched several of the company's customers and encouraged Ulem to rent from or through an alternate mllnagemenl c()mpany, [1'1 another case, pillintiff and defendant were engllged in the wholesale grocery business to smllil cl)mpaniu and stores. Plaintiff competed with defendant to purchil.Se a par· ticularly profitable division of busineu, When pla,ntiff secured the purchase, defendant surreptitiously contacted the employees of plaintiffs' new division, After holding secret meetings with lhe employees, defendant convinced lhe employees of the entire division to "walk out" on plaintiff on a designllted da), and begin working fo r defendants.

IV. Tort Refonn Tori rdorm hurts small businesses more than most because businesses cannot get mental anguish. For all civil suits filed by businesses lIfler the effective dale. a cap on punitive damages of three times compensatory damages or $500,000, whichever is greater, is applied. Since bllsineues "1nnot get mental anguish, th ~ir cOmpensatory damages will be only economic lou, Therdore, they will almost always fall under the absolute cap on punitive damages of 5500,000.

Conclusion A particular concern ror the litigator repre~enting lIny bus!· ness is the circumstances under which a bU$iness plaintiff is operating when considering litigation. Oftentimes. a company has been sent nearly into bankruptcy by the defendant's wrongful activitie5. The client can be in a tough positionattempt to independently recover from near bankruptcy or get oul of lhe business entirely, Smaller busineucJ (ommonty are run by individuals who started the business as their " dream~ Ind spent years of hard work and time to make it succeed. Your small busi· neu client may be faced wi th a Ufe-chanl;ing decision. Be careful with your advice. • Thom •• J , Moth"l" ThotrIu J MelhWlIo IN .....-.gIno 01 6eeMy, MItI. Cfow.~ , Poodt, Mw... pc. He 11Il10 11,,1 pretldent 01 the MoI'r(lOll\llV COo..oIIv Bal .... lOClarOrl.t>d lhe Mon1llO"'t'y County 1'1111

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OPINIONS OF THE GENERAL COUNSEL IJv J. IInthong McLAin, ffi/nera{ counsilf

Rule 4.2Plaintiffs Counsel Contacting Former Employees of Corporate Defendant

Qu••'lon: "I hove I'iled two complalTlt$ IIgllir\$t

AUC Credit Union. The suit in Anywhere County II II proposed class action which alleges improper mortgage balances and intertst rales charged to ABC cl,Istomers. The suit charges Aile Credit Union with fraud and brellch of cont ract. The crux of the complaint filed is outrallc, shinder, invasion of privacy and intentional infl iction of emotional d ist re~1 arising out of the branch manager's lrtalmenl of 1m ABC Credit Union customer, "The ABC president has been named as II defendant in ooth suits. Mrs. Doe. the president's (ormer secretaI')!, has retained our fir m to represent her in connection with sex discrimination arising out of the president's treatment of her IMrs. Doel when she became pregnant and took matHnily leave. Upon return aft(!r maternity leave, folTS, Doe tellrned thllt she hlld been r(!placed. "At. stilted, ,.lr5. 1)0( was employed by ABC Credit Union M the president's former secretlll')'. She types correspondence to and received correspondenc(! from ABC's legal counsel pertaining to the two ~ I have pending. Mrs. Doe also had specific conversations with the president aboul the two cases I have pending. "I need a written opinion as to whether Rule 4.2 or any other rule of professionlll conduct precludes me from asking Mrs. Doe about facl$ or information she knows concerning the two pre· viously t'iled Cll5es.~

Answer:

You are not precluded from communicating with this fo rmer employee under the .set of facts yOIl have described in yOur request. Discus.lon:

Rule 4,2 of the Rules d 11rofessional Conduct prohibits communication llooul the subject matter of the repre· sentllllo!\ with II "pllrty" known to be represented by other COlU15el. Consent of the other counsel obviates the prob· lem. Rule 4.2 is a successor to Alabllma DR 7. 104(A)(I) and the two provisions arc substantially identical. In RO·88·34 (also published in The Alabama IAWtler) , the OisciplinaT)' Commission held that a plilintiffs counsel in II tort claim action could contact and interview current corpornte employeeslwit· nems. There can be no t l parle contact when lhe employee Is an executive officer of the adverse PlIrt)' or could otherwise legally bind lhe adveu(! plIrty by his/her lestimony, or if the employee was the actual tort fellsor or person wh()5e conduct gave rise to the c.ause of .action. In any of thest situations, prior consent of counsel for the adverse plIrt)' would be required, Ex parle c:ol'ltad with a (Offll(!r emplo)'fe, as here, Is not subject to the SlIme scrutiny. In (act, there is II strong argument thaI nule 4.2 does not even apply to former employees alany level. A former employee cannot speak (or the corporation. The ABA Committee on Ethics and Profe»ional ltesponsibility in Formal Opinion 91 -359 (1991) stated

that fo rmer employees of a corporation may be C(lntatled without consulting with corporation's counsel because they are no longer in positions of authority and thus, cannot bind the corporlllion. The Disciplinary Commission believes that contact with a former employee is ethically permiuible. unless the ell parte contact i5 intended to deal with privileged matter, i.e.. the inquiring rounsel is asking the former employee to divulge prior communications with legal counRI for the adverR party, and these communic3lion5 were conducted for purposes of ad\'islng the adverse party in the litigation or claim. If the former employee was the actual person giving rise to lhe cause of action, con· tact is also permissible so long as IhM person is not represented by counsel. [lW·92. 12]

•

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DISCIPLINARY N OTICES

•

\\1l1ilm Richmond Stephens. who5e whereabwts are unknown, must

lmswer the AJllban'lll Stale 8<lr'5 formal disciplinary chnrge.1 within 28 days of November 15, 1999, or thereafter, the charge5 contained Ulcreln sh.lll be d~emed admitted III\d 1lPfll'Opn.l!e discipline shall be imposed /IWlil'l5t him in ASB Nos. 96-013 (A), 9.1-26S (A), 94-264 (A), 95·030 (A). 9S-097 {AI, 95-317 (A). 95-352 (A). 95-121 (AI. 96-062 (A), 96-029 (A). lind 96·315 (A) before the OiSCiplirlill')' Boord of thl: AInb.1TTlll State Bar.

•

John A. Aclm-, Jr.. whose where Ilbouu IIrt: unknown, must illlPf<lr before Ole Dlsciplinmy Commission of the AlabaJna SIMe 13M on December 8, 1999, at the Alabam., State Bar l-leadquarteri lit 10:00 a.m. for a hearing on Rule 22 (II). Pet. No.

• Hobert Coopu Wlllon, who.'ie where-

Ulis publlc.ltion (Novcmber 15, 1999)

to come Into oompli,\nce with the t>1andlilory Contilluing l.cll<ll t:ducalion requirements for 1998. Noocompliance with Uw: MeLE requirements shall result in a suspension ofhis license.JCLE 99-121

,Ire unknown. mu~t answe r the Alablulla. 81..1:e &r's formal disciplinllt'}' chm'ges within 28 dlWS of November 15. 1999. or. U\~reafter. the charges oontlined therein shall be deemed admitted Ilnd nppmpria.te discipline shall ~ imposed against him in ASB Nos. 98·039 (A). 99·01(A) and 99-36(A) before the DiSCiplinary 11o;Ird of th~ AIah.lIThl Stllte &lr.

•

Notice is hereby given 10 Kenneth 11. MIIIIar.n. who pl'lIcUccd law in Illlmillon, Alabama. and whl).'ie whereabouts lire unknown. UI<lI pursuan! to an order 10 show cause of the Oisciplinary Commi.l$ion 01 the AI;ili.'l1l;l 51<11e Bo,r. dated July 28, 1999, he has 60 days (rOl1 the date 01 thisl)ublication (November 15. 1999) to come into compliance with Ihe ~1:mtl.~tory ContinuinA1,c!t:,1 Educ.ltion requirement! for 1998. Noncompliance wiU\ the ~tCl£ requirements shall result In 11 susperuion of his license.ICLE 99421

•

he reby Aiven to Pelu A. 8Ul h, who prncliced la\\ In ~1 obile, Alabmlla, and whOM! whtrcabouls are unknown. thlIt pursuant to ,Ill onl~r 10 ~ cause o( Ule Di5ciplin.,ry Commission of the Alaba.ma Stale B.lr, dated July 28, 1999. he has 60 days from the date of this publication (November 15, 1999) to come into compliance with the MlInd.l tOry Continuinll: ).ego,1 Education requi re. ments for 1998. Noncompliance with the ~l C I .F. requirements 511.111 result in 1l5uspension 01 his license. JCtE

aboul~

~1obile,

• Notice is hel't'by gi\'l:n to WUliam Morgan 8utkr...... ho Ilmctlced lllw in Northport. A1wllII. and whose whereabouts are unknown. that pur5l~1nt to an order to show cause 0( the ])isciplirl.lry Commiuion of Ule Alllbmna St.ltCIi;lr, d.lted July 28. 1999, he has 60 dl\ys from the dilte of this publication tNovember 15, 1999) to come into compliance with the Mandatory Conlinui~ 1.egal t:ducatioo requirements fOr 1998. Noncompliance wiUl the MCLE requirements shall result in a sus]!ension or his license. ICLE 99-391

• Thomas Allen Wingo. Jr.. whose whereabouts are unkno....'l. must answer the Alabama State liar's for· n...,1 disci~i nary chllrgcs within 28 day~ of Novcmber 15. 1999. or. there· 'tfter. the ch.lrll1:5 contained therein shlill be dtemed admitted and appropriale discipline sh.ll1 be Imposed against him in ASI1 Nos. 96-356 (A)

suan! to an order to show CllllM: 0{ the Disciplin.11)' Commission 0{ the Alabama Siale 8.'r, d.1ted July 19, 1999, he has 60 da)'$ fJ'(l1l the date of

99-002_

• Notice is hereby given to Paul Martin Foenter, Jr.. who practiced law in ALlb<!m.l. and whose: whereabouts art unknown, Ihill pursuant to an Order lO Show Coluse or the Disciplinary Commiuion of the Alabama State Bar. daled July 19, 1999, he has 60 days from lnr date of this publication (Novembtr IS. 1999) to come into compliance with the ~tandatory Continuing Legal ~~duc.llion requirement! for 1998. Nonc()mpii;lI1cc with the MeLE requirements sh.,11 result in a sus· pension of his license. ICLE 99-101

whereabouts are unknO'.... n, that pur-

and 97·087 (A) before the Disciplinary Bo.vd of the A1wl'l'l3 State Bar.

Notices

•

Notlce Is hereby giVl:n to William Lee ttanbtry. who prncticed law;n Florel'lCt. AlIlbam:t. :and whose

Notice;~

99-381

Dlebarment. • Phenix City allome)' G~gory Kelly WM disbarred from U1C practice of ww by order of the AlaOOna Supreme Court effective Juoe 30, 1999, Kelly's disbarment was a result 0( his failure to respond to disciplinary charges tiled by the Office of Ceoeral Counsel and his failure to appear at a disciplin..'lry hear· ing before the Disciplin.'lry Board of the I\Jabama State Bar.IASB No. 98-264(A)J Su.p.nslon. • l\Jsealoosa allorney Wilili m Morgan Butler was Interlmly suspended from the practice of law by order of the Disciplinal)' Commission of Ihe AJab.ama State IJar e((ective July 14, 1999. IRuie 20(8): Pel. No. 98- 111 • On August 13, 1999, the supreme court affirmed a 9) ·day SUSIK!nsiorl which had previously been ordered for Dothan attorney Kenneth Coy Sheett by the Disciplinary Oo.lrd of the Alabo'lma State Bar. The suspension became effeeli~ on August 16. 1999 and was the result of a plea agree· ment betv.-een ShfetJ and the Alabama State Bar. Sheets left Alabama to go on temporary active duty with the milital)', but failed to notify his clients. ~I is clients were unable to contact him. During his a~nce. client malters were oeglect. cd. The plea agreement resolved six individual ptndinll diKiplinary cases. Sh«ts will be required 10 petilion for reinstatement at the conclusion of his suspension. • On August 26. 1999, the Di5Cipllnm), Commission of the Alabama State Bar ordered that Eufaula attorney Christie Gregol)' l'appa, recei~ a 91-dhy suspension from lhe practice of law in the St,lte of Alabama, wilh Ihe imposition of 5<lid position to be suspended and held In abeyance pendinJ{ Pappas' succesMul completion of two years' proba. tion. Pappas pled guilty to violatinJt I~ule 1.1 5(a), Alubamu Rules of Prof"ssiollal Conduct, which provides that a lawyfr shall hold the properly of clients or third persons that is in the lawyer's pos5U5ion in connection with a representation sepa .... te from the lawytr's (JWIl property.IRule 20(a): PeL No. 97·081 • On August 13. 1999. the supreme court affirmed a rive-year suspension

whleh had been previollsly ordered by the DiKiplinary Board for Birmingham attorney Whitmer A. Thoma&. The suspension was made relro.lctive to ~1arch 13, 1998 which is the date that Thomas ....as interimly suspeoded. Thomas effectively aban· dontd his law Prnttice, causing numerous clients 10 rile complaints about willful neglect d tneir legal matters. ThOmM cnlcl'td into a pita bargain with the Alabama State Bar, which called for the sUlpension and restitution in the amoont of $32. 188,85, The restitution was pri· ITwilya return of attorncy'S (et$ paid \0 Thomas. The plea bargain resol~d 22 outstanding cases pending on Thomas.IASIJ No. 98- 132(A), et. a1.1 • l)lIleville iIltorney Domld Cecil McCabe was suspended from Ihe practice of law In the State of Alabama for II period of lWO yellrs erTective September I, 1999. On July 27, 1999. the Supreme Court of Alabama affirmed the judgment of the DiKiplinary Boord of the Alabama State Har finding j\-1cCabe guilty 0( the following: (I) acquiring a pecuniaI')" interest in a cause of action or subject matter of litigation, a violation o( Rule l.8U), Alabama Rules of Professionol Condud; (2) falsifying evidence, counseling or :wisling a witnes.s to testify falsel), or offering an inducemenlto II witrlW that is prohibited by law, a violation of nule 3.4(b), Alabama Rilles of Prof('SSionol Conduct: (3) practicing taw in a jurisdiction where doing so violates the regulation of the legat profession, I.e.. engaging in Ihe uoauthori1.ed p....ctice of taw, a violation of Rule 5,5(a). Alobamo Rule.f Df PrQ/f!$Si()11(11

Co"dllct; lind (4) engaging in conduct involving dishOllesty. fraud. deceit or

misrepresentation. a viotali<Jn of t~ule 8.4(c), AI(lbamo Rules of1'ro/r!SSioliol Conduct. The respondent attorney appeared as counsel for plaintiffs in a will cOlltcst riled in 1992 in Dale County, Alabama. During the course of his representation 01 the pwirltiffs, the respondent attorney paid a plain. tiffs' witnC51 substantial sums of money aod conferred other things of value upon this witllCSS and other wit· nes.ses in exch.1n"e (or their favorable testimony. McCabe also filed an appearance on beh<ll( of the plaintiffs' witness in a related civil actit)tl filed in Florida. At the time this action was filed. McCabe wa5 nOl licenkd Or otherwise authorized 10 tlraclict law in the state of Florida. IASB No. 96· 248(AII • On September 20, 1999. Gregol')' Nile. lieu was hllerill1ly 5u$pcndcd by order of the DiSciplinary Comminion of the Alabama State Bar. lieu was suspended pursuant to Rule 20(a), All/ball/a Rules of Disciplillorlll'roctdu/'U, The Office of General Counsel filed a petition pursuant to Rule 20(a) based upon t leu' (ailure to apptar (or the adninistralion of a public reprimand, The Disciplinal')' Commission further order that lieu be restricted from maintaining atrus1 accounl. IRuie 20(11). Pet. No. 99-005) • On September 20. 1999. Paul Nlrtin Foerlter, Jr, was interimly suspended by order of Ihe Disciplinary Commission of the AJabilma State 6ar. FOI! r~ter was suspended pursuanl to l~uJe 20(a). AlubwlIu Nules of Disciplinurll PrOCfi/UfI!. The Office of Ceneral Counsel filed II petition pur· suant to I{ule 20(a) based UIXln Foerster's failure to cooper"le in Ihe

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invcstlg:.tion of pending disciplinary Thf Disciplinary Commission further order that Foerster be rutricted from maintaining a trust account.IRule 20(a), Pet. No. 99.0041 • Effective February 9,1999, attorney Gregory Kelly of PheniKCity has been ~u~pendcd from the practice of law in the State of Alabama for non· compliance with the 1997 Mandatory Continuing l.eg:.1 EdUl:ation Rules of the Alabama State BaT. ICLE 98·411 Public:: Reprimand. • Birminghlm attorney E:dward Eugene May received a public repri· mand with general publication from the Disciplinary Board of the Alabama State Bar on September 17. 1999. May was employed to represent and Mrs. ~;dward Stephens in connection with a tax lien which ha~ been imposed on thetT business by the Alabama llipartment of Revenue, On April 27, 1997, Mr. and Mrs. Stephens gave May $7.931.87 with which to pay the t~ lien. May placed this sum in his trust account and later transferred it to hi5 tax account but failed to pay the Department of Revenue, with the ClISU.

result that lhe bank lleCOun! of Mr. and Mrs. Stephens was garnished on October 8, 1997. Thereafter, May paid the sum due the Dermrtment of nevenue, plus interest and penalty from. hiS person(ll funds. In addition to the reprimand the bo.lrd also deter· mined that May should refu nd to Mr. and Mrs. Stephens the Illtorney's fee which they paid him and should reim· burse them for the money which was garnished in their bank account with interest at 12 percent per anum. May wa~ also ordered to pay for an inde/X!ndent audit of all bank accounts maint.lined by him from January I. 1997 to the present and to spend a minimum ofslKhours in consult.ltion willl lllC director of the l..aw Offi ce Management Assistance Program. Hay was found to halle violated Itules 1.3, 1.15(a), 1.IS(b) and 8.4(g) of the Alabama Rules of Professional C<mduct of the Alabama State Bar.

IASB No. 98.017(A)1 • Eufaula attorney Sabrill Gracel),n Crn\'el' received a public reprimand with I on of the

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424 NOVHMIIl!" 1000

discipline imposed pursuant to her plea of guilty to fa iling to make rea· ronable efforts to ensure that a non· lawyer employee's conduct was com· patible with her professiona l obligiltions as a lawyer. a violation of Rule 5.3, Alabama Rules of Professional Conduct. The non.lawyer cmpIOyt:e,

Gracelyn Graves. requested or encouraged present clients to soUcit prospective clients on the firm's behalf in various legal matters in vio· lation of I~ule 7.3, Alabama Rules of Professiollal Conduct.

Although there was no direct evi· dence lhat attorney Sabrie Cracelyn Graves eng:.ged in any improper solicitation, her failure to properly super"l'i se her non-l~wyer employee resulted in the imposition of discipline in this case. Attorney Sabrie Gracelyn Craves was placed on pro· bation for a period of one year. Other conditions of probation were ordered. lAS!) No. 98·931 ,. 1\Js~al oos..l lawyer Joseph Sprately Dice received il public reprimand without general publication and was piliced Orl probMiOn fOr a period of two years for hllving viol~ted Rule 1.1 5(a) and (b), Alabama Rl..les of Professional Conduct. TIle respClIldenl attornt:y pled guilty to creating a trust agreement on behalf of a long·standing client and. at the clicnt's request, naming himself as trustee. During the respondent attorney's tenure as trustee, the respondent attorney used a portion of the trust funds to pay personal eXI)£n~e~ . It was noted thilt upon discovery of the respondent attorney's Illismarlagcrllcnt of Ule trust funds, the respondent attor'!'lcy immediately made restitution and paid all costs associated with a third-party audit of the trust account. The respondent attorney's full cooperation, acknowl· edsment of guilt and payment of resti· tution in fu ll were considered as miti· gating factors in im[X)sing discipline in this case. IASB No. 98·38(AJ] DI •• blllly

Of'

• Athen!; attorney William Chri$topher WIse w;u transferred to disability inilc· tivt staM pur~uant to Rule 27 (e). Alabama Rules of Disciplinary Procedure, effective September 21, 1999.IRule 27(c): I'et. No. 99·041 •

YOUNG LAWYERS' SECTION By Thomas B. Albrillon. ns prr.titil.!nt

he annualm«tinll of the Alabama State Bar Young l..awyers' Section was held July 15, 1999 In con· junction with the state bar's annual meetinll In BirminghDm, Officers for the YLS for the 2000·2001 lerm were elected at thai time and include: Cole Portis, president-elect; Todd Strohmeyer, secre· tAry; and nob Methvin, treMurer, I will SCM Il$ president of this section for the 1999·2000 term, I take this oPl>ortunity to thank immedlate.past Presidenl Gordon Armstrong fo r all of his turd work. Cordon's leadership abililiu and organizational skills guided lhe stction through a suecessful and productive year. As we be"in another bar year, [ wanl II) llcquaint you wilh some of the activities of the Young t..1W)'ers' Section of the slale bar. First of all. who are we? Any member in good standing of the Alabama State Bar who is not over the age of 35 )'fan or who hM been in practice thret yeau or leu is automatically a member of our section, If you t'it this description, then this means YOU. Who leads the section? The officers (president, president-elect, secretary and treasurer) in conjunction with a 20-member executive council lead tht aclivitiu of the section. What do we do? SeYfral things:

Getting Acquainted

Minority High School Pre·Law

Conf.rence Each sprinR the Young La\\lYtrs'

Section spon$Or$ the Minority High School Pre·Law Conference. which is designed to provide minority high school st udent~ cQI\$idering IlleJial career with an Inside look into our pro. (ession. EtJUlbelh Smithart and La Barron Boone worked diligently to pro-

duce a tremendous conference On May 14, 1999. ()Yer 150 high school student! (rom r.lontgom ery and surrounding

In May of this year. over 150 new ildmittees to lhe Alabama State Bar and

counties gathered at Alabama State University where they divided into small groups (or instruction and discussion with succfufulllnd distinguished

over 1,000 visitors participllled in the

minority members of lhe bar.

spring admi$Sion ceremony in Montgomery. This ceremony was COOtdinated by Usa Van Wagner in conjunc.

HighlighU of the conference were: a mock trial where high school sludtnU participated alongside minorityallor.

Bar Adml .. lon Ceremony Thorn. . . . Albritton

tion with Ihe staff of the Alabama State l1ar. The ceremony included addrems by Wade /laxley, then president·elcct of the Alnb.lma State Bar; Keith Norman, executive director of Ihe AI"b.1ma State 8ar: and members of the Alabama Supreme Court, Court of Criminal Appeals and Court of Civil Appeals. United States District Judge Myron Thompson conducted the swearing-in ceremony (or admission to the U, S. Middle ])istricl of Alabama, ~'or the first time, this ceremony was held al the Davis Theatre in Montgomery rather than at the Civic Cenler. il(!cause of the overwhelming success of the program at that site, it was again held there October 27'"' and plans are to hold future ceremonies at lhat site, as well.

------------------------------------------------------------~""~~".. ~".C7'"C,.---

neys and judges. and speeches and yaluable participation from Circuit Judge Chilrles Pric~. Jock Smith from Tuskegee and J,I., Chestnut. This proJectls one: of the more meilningful pro· grams sponsored by the YLS, and the partici pation is increasing each yeM. The target fo r next year's conference i~ 200 high school students, If you are interested In helpi ng out wilh this pro· gram, plea5ecall 1..1 Barron Boone at (330\) 269·2343,

S.nde.Un Semln., Gordon Ann$lrong. Todd Strohmeyer, Stone)' Chaym. Lisa Van Wagner and I~obert Hedge orchestrated another outstanding CI.E seminar a\ Sandestin Beach Resort oyer the weekend of May 21·22, 1999, ()yer 200 )'<lung lawyeu

attended this year's seminar and receiycd CLE crwit as well as haying had a great time, Excellent speakers. (including Professor I)rad Bishop. I'aul Mlllek, Andy Birchfield. Sid Jackson, Kennelh Simon, Judge Joseph Johnston, Judge Sharon Yates, Judge noger Monroe, Judge Sue Dell Cobb llnd Nolan Awbrey), superb entertainment and good weather combined to make a greJ.ll weekend at the beach for all, Other Event. Upcoming YLS acliyitiu include iI statewide conference of local )'<lung lawyer affiliate groups designed to promote dialog belween the local affiliates and the VLS of the Iiale bar: the Youth Judiciall'rogram, which is a joint pro· ject between the Yr.1CA Youth in

GOYCrnmenl Judicial Program and the YLS is designed to proYide studen1$ with a "handl.on experience of our judicial system by preparing and trying cases during the State Mock Trial Competition; and parLcipation in joint projects with the American Bar Association, If you IIrc Interested in helpin" out with one of our prol(rams, if you are interested In seNln" 01'1 the I~xecu t iye Council, or if you have Ilny queslions related to our section, plellse write or tall me at Albritton!, Clifton, Alverson & "' oOOy, I~C" I~O, Bo~ 880, Andalusia, Alabama 36420, (334) 222·3177 • H

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Why? lIecause of the ASH's "To Serve the l'ublic Video Presentation -- a complete PJckage that includes an award-winnin" eight-minute yideo, speech poinl$ IlIld Mn brochures for the audience, It's suitable for civic groups, schools or any community organization, t:very local bar association has a copy of the presentation or you can just call the ASS (800-354·6150\) and request one. Imagine the impact if Alllb:nnb luwyers acrosslhe state did just one presentation in their loca l community. ThaI's right •• there would be oyer 10,000 positiye messages going out about the legal profession! And its really easy to do -- no prior preparation is needed, Just pick up the yideo presentation package and go! Eycn if you still have a little 'stage fright: don't worry, You'll end up being as impressed by what Alabama lawyers do liS the lIudience is! H

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RECENT DECISIONS 8g William N. IJOltJell, Jr. alld Wilbur G. Silberman

Recent Decisions of the Supreme Court of AlabamaCriminal Rul •• 'or Post·Convlction

Discov.ry Ex IHlrte Loml, [Ms. 197 1816, 8/61991 _

So.2d _

(Ala. 1999) should be

required reading (()f prosecutors and defense counsel alike on lhe subject of discovery. This CMe Invol~d II petition (or writ of manda.mus in which the petilioner sought to require the circuit court to grant his motions for discovery. These motions were fi1ed as pllrt of 1\ petition fo r post-conviction relief In whlth Land challenged his dellth con· viction and sentence on Ihe Around that trial counsel WM ineffective for failinll to adequately in~tigale the pouibllity of the existence of mitigating evidence and did not prc!elll any evidence of mit-

igating circumstances. In his dlscovcry motions, L.lnd sought access to the complete files of the district Ilttorney's office related to the case, and the com· plete flies of all other agencies involved In the invtsligalion of the charges against him. induding the sheriffs office. thc municipal policc dcpMtment,

the county coroner's office, thc Alabama Bureau of Investigation, the Alabama DepMtment of Forensic Sciences, and the Alabama Department of Youth Services, In addition. Land sought access to his institutional records, including ptnal and mental health records. Agreeing with the court of criminal appeals (see Ex porte Ul1Id, IMs. CR 971473, July 2. 1998J _ So.2d _ (Ala.Crim.AIlP, 199811, the SUllreme courl held that post.conviction discovery motions are to be judged by a goodcause st:mdard. The courl further held that this does not automatically allow discovery under Rule 32, A.ltCrim.!'.. and that it dOts not expand the discovery procedures within Rule 32.4. The court "cautlonledl that post-conviction discovery does not provide n petitlonl!r with II right to 'fish' through official flies and that II 'is not a device for investigating possible claims, but a means of vindicating adual claims.' ... Instead, in order to obtain diJCovery, a petitioner must allege f~cts that, if proved, would entitled him to relief," The court found Land's petition was not facinlly mcritoriou~. "ITldal coun· sel's failure to Irwestigate the possibility of mitigating evidence is, J)fr st, deficient performance, ". ITJrial counsel may be found ineffective for billng to presellt evidence of adjustment to incarceration, evidence of mental-health problems, and evidence regarding the defendant's contact with a ;uvtnile syst~m." However, the court rejected the state's argument that Land is not entitled to Ihe requuted documents until he can show that they contain evidence of miUgating circumstancu, noting

thOlt Mint is impossible to determine whether the documents contain evidence of mitigating circumstances until the documenu are actually J'roduc~d ." The court concluded that "It would be practically imt)Qsslble for [Landlt{) show that he suffered prejudice from the deficient performance of his counsel unless h~ could show the trial court that mitigating evidence (which he has a reasonable basis to believe in fact exis(5) existed at the time of his tri/ll /lnd then nrgue, on the basis of that evl· dence, thM II 'rea5t)nilble protlability' exists that D. jury hearing the evidence would h."Ivt recommended life imprisonment without parole. The court also held that the trial court erred in limiting discovery to jU5t the district attorney's me. I..,nd was entitled to see documents held by state agencies, including the Birmingham Pollee Department, that acted on behalf of the state in investig.lting the victim's murder In order 10 determint whether M

WIIII.m M. Bow.n, Jr. WiWem M BowlIn, oJ< • • Ctll'l'l1iII.W 01 ~.llle aI S8mIord Il'1O

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the district attorney withheld exculpatory or "Brady" material (I.e., that others were involved In the . . ictim's murdn). Eff_ct at Fourth DUI In Ex porte "'onnbg, 1"15, 11972151, 81271991 _ So.2d _ (Ala. 1999), the supreme court re. . islted its holding in Ex parle Parhr, No. 197001 (Ala., F'ebru:uy 26, 1999) that, in a felony prosecution under §32-5A- 191 (II) for a fourth OUI. the three prior convictloM are not elements of lhe offense charged and are properly to be considered only for the purpose of determIning whether upon con . . iction a defendant shall receive an enhanced sentence. The court re$tated ils earlier conclusions. First, "Parker held thaI a fourth or subsequent DUI conviction is ill fe lony con. . iction. rather than a mi~demeanor con. . iction." Therc(ore, jurisdiction O\l(r a fourth or subsequent QUI cllarge should be brought in circuit court IIr\d nol in district court. Second. "it is reversible error for a jury during the guilt phase of a IDUI] trial, to be pre· sentcd with e. . idence of the defendant's prior DUI convictions," e. . en though the Indidment should put the defendant on notice that he IS being charged with a . . iolation of a f~ l ony, L ....... lnclud.d Off.n.. parle N, ~y. , IMs. 1980 126, 9110199]

_ So,2d _ (Ala, 1999) 15 significant because it gives direction in determining what constitutes II lesser. included offense and because it deals with two very ~ popular" crimel-menacing and harassment. AJu. . enile entered a store and began pulling on the locked office door. She screruned and cursed when she could not get into the office, l.ater, she reentered tne store and belJlln shouting and cursing, slatlng that she was going to kill a whier, Under the facts presented, haraument is not a lesser included offense of menacing, The JU\I(nile court acquitted the juvenile of the challled offense of menacing but adjudicated her a delinquent lifter finding her guilty of harassment as a lesser included offense. On appeal, the juvenile argued that she was not given the notice required under constitutional due process, The court stated that the juvenile "re<:ei . . ed nolice that she was charged with the

criminal offense of harassment only if all the elements of that offense are included among the elements of menacing, lhat is. only if it would be impo5Si. ble to commit men.lcing without first ha . . ing commilted harassmenl. ~ Here. the only applicable definition of harass· ment was tlmt conllli ned in 13A-I I8(a)( 1) which required either proof of "abusive or obscene language" or proof of an "obscene gesture," Those elements are not among the elements of menac· ing. The court not(d that an element of menacing is ~ physi cal action," and stated: "IWlhtle a gesture might be considered 'physical action.' to prove one guilty of hal'Msment the State must establish that the gesturt amounted to 'fighting words,' an element not pruent in the offense of menacing. ~ H•• r •• V' In H.ar•• V' Adml ••lbl. In Some Clrcum.t.nc •• A .... ictim's statement 10 another that the accused had threatened her does not con~titute InadmiSSible hearsay upon hearsay. Ex parle DUIWIIKJII, IM~. 1980571. 8120/00] _ So.2d _ (Ala. 1999). At the sentenci ng phase of thi~ capital trial involving a double murder, three witnesses m re permitted to testify that the victim had stated H:VtI'l:lJ weeks before her murder that the de(endanl had threatened to kill both herself and the other . . ictim. The court found this testimony was relevant because it did tend to negate the mitigating circumstance which the defendant was attempting to prove-that he never contemplated killing anyone. The oourt further found the testimony admbsible because It fell within an exception to the hearsay rule, i.e .. a statement of the "declaran t's~ tlltn elCisting emotions or state of mind, Justice Lyons dissented on the ground that the witnesses could have testified that they pt;l1Onally heard the defendant make tile threats but that they should not have been ptrmltted to testify that the deceased told them that the defendant had threatened her. Thi5 is hearsay within heamy, H~ver, because the witnesses also personally heard the defendant threaten the victim and because there was other evidence of pre· meditation, the admission oflhis evi· dence was harmless. Justice Johnson also dissented to this holding of the court,

Recent Bankruptcy Decisions Fifth Circuit hold. It I. not required th.t .n ERISA pl.n b. qu.UfI.d to b_ .xclud.d trom debtor'. b.nkruptcV' ••tet_ fll ro Martha C. Si.!wcll, ISO ~::kI 707. B.C,I), 9'l8 (5111 Cir. July 27, 1999). l3olh the bankruptcy and District Court held that even though a plan had been disqual. ified because of certain acts of the employees of the debtor, the debtor's beneficial interest in the retirement plan, under §5ti I ((H2) of the ilankmptcy Code, W:t$ excluded as an asset of the estate. The Fifth Circuit affirmed the lower court's holdings. It said that it would be a per· verse result 10 hold that acts of the spon50r causing disqualificatiCll could similar· Iy cause II participant to be penalized. It relied upon Pa((efSOn 11. Shumate, 112 S.C\. 2242 (1992), where the Supreme Court decided that so long as there is a re5triction on transfer, in accordance with Bankruptcy Code §541(c)(2), such restric· lion is not dtpendent upon enforcement under 5tale law, but that it is sufficient if enforceable under federal law other than bankruptcy law, lIere, the tru5tee contended that the plrsn wouloJ not qualify under the mc. even though it had not been tested. This argumerlt was nude irl the Seventh Circuit case cJ Baker u. lASalle, 114 f:3d 636 (7th Cir, 1997), where the Seventh Circuit said that 1I1lhough Pallerson /J. Shlunate coined the ph m.~ in referring to the e~lusion of debtor's intere~t in an "EHlSA-Qualified pension plan," such tenn 'ERISA-quali-

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lied ~nsion pllln" i~ not in 15<\ l(c)(2), and that the Supreme Court, [n further commenting, had indiclltcd that "EIUSA· qUlllined" meant nothing more than that the plan contained the anli-alienation clause required in the [::RlSA law (§206(d)(1 )). The Filth Circuit concluded i15 opinion here by !talinQ "the (act that the plan 1$ not or I1\JY not be 'qualified' ror lax purposes does not preclude excludabi1ity.~ Thus. debtor's interest wa.5 deter· mined to be ucluded rrom the estate. Comment: Do not be totllily carried a....'a)' by the holding. The court lidded (ootnote 21 which seems to say lhllt if the debtor could law(ully withdraw funds (rom the ptan at the time o( the initiation of the bankruptcy proceedlnll, there might be II dirrerent result.

Antl.lnJunctlon Act did not b.r b.nkruptcy court from re· ex.mlnlng t.x ' ••ue, which ultlm.tely led to pen.lty. but debtor t.xp.yer neverthele•• won bee.u.e he rell.d on I.wye". b.d .dvle. ,,, riI

William Sta«ker, 179 F.3d 546,

(7th, Cir. June 2, 1999), -'1CI)__ The bankruptcy court nrst rejected Ule claim of the State of Illinois for lOme S900.000 in unpaid use tax. The District Court affirmed. The lax arose out of the purchase of an airplane by a corporation of which tht debtor was president. The state daimed debtor liable as a "responsi· ble officer." Under lhe illinois use tax law. Ulere is II provision lIS to Ule penalty assessed against a "rtsponslble officer": if any corporate officer with control. super· vision or responsibil ty of nling returns and making paymenl willfull), f3i ls to do so, such person beoomes personally liable for a penalty equal to the total unp,'lid lax. Here, an airpl3ne was purchased out of sl.ll'e by Ch,mdlcr Enterprises, Inc" " corporation of which the debtor, Stoecker. was president. After thc plane was brought Into Illinois, the ChIlndler corporation not only did not pay the t;u(. but failed to register the plane, a requirement of lliinoislllW, Several years later. aller the company was defunct, the slate issued a tax li"bility agaimt the company and a perolt)' agairut Stoecker. Stoecker nled chapter 7, The I)istrict Court held that the corporation ov.oed the tax, and th.lt since Stoecker in effect was a guarantor, he .....M liable for U'le perult)'. On appeal,

the Seventh Circuit opinion by Chief Judge PO!ner. first held the District Court In error for relying on the Thx Injunction Act (28 U.S.C. 1134 1) as b bar to re-exam· inlng the tax liability o( Chandler corpora· tion. This act. bal'$ the feileral COurts from enjoining the assessment or collection of slate laxes unless there is no adequate state remedy. Judge Posner said that the Court .....as not dealing wkh a lax, but a penalty which could not be enforced unless Ule tax Wa$ valid, and Ul.:It under 1505{a)( I) of the Bank~tcy Code, Ule bankruptcy court mIIy d(cide tax jssue~, After dealing with several argumenu, thf court then held the Chandler corporation liable (or the lax, and stated that the bur· den of proof .....as on Stoecker to show th.,t he was not It responsible party. To be a responsible party, j(lst as in correspondinp; federal law, the failure to p.ay must be willful. Howevt:r. the court then h~ld tlmt Chandler had an opinion letter from a reputable aHomey that r'() tax was due because thcrc was a $Ccurily I ntere~t in one of lhe title holder predecessors to Chandler and that Chandler'S relilU'lCe on a reputable lawyer's opinion negaled willfulness. Comment: The result in this case did not help the debtor; it was beneficial only to lhe trustee, and. ultimately. per· haps to un5ec1lred creditors unless only priority creditors would benefit. I do wonder whdher other circuits will follow the reil$Oning of Judge Posner. which seems to be a bootstrap opinion to hold Sto«ker liable, ~ nd thcn to tet him off. The rellder shollid examine Alabama law to determine if there is shnilarity in any of these features. such as holding a responsible person liable for payment of sales or use tues.

Eleventh Circuit .Imo.t rul •• for IRS In not toiling thre.· ye.r priority period by . . ylng th.t 1105(.) I•• ppllc.ble In re Jimmy aruJ Jam/I! Lgnl1f! Morgan .

182 ~:3d 775, 34 B.C.D. 973 (11th Clr. July 26. 1999). In January 1995. the f,10rgans, lIS husband and Wife, nled II successive chapter 13 petition. In August 1990, they had filed their first chapter 13. In the nul case. the IRS nled a priority claim (or 129.207 for unpaid income wes for 1987, 1988 and 1989. and the confirmed plan provided for full pa)'TTlent for all priority claims. The fil'$t cast .....as

dismi.S5t:d in October 1994 (or failure to make all required paymenl$, although some paymcntJ W\:re nl<Ide to the IRS. Thert.1ller, the IRS nled a priority dailll in the successive case under §507(a)(8)(A)(i), contending th.,t it was due to be paid in full. The debtors object. cd on the basis that the cited Bankruptcy Code section gTilnU priority only to claims under three years o( ~. The bankruptcy and district courts held that the statute was tolled during the period of the first case. TIle Eleventh Circuit slated that as II question of law was Involved. the review was de '1OlJO. The Morgans relied on the "plain llnguage of the sta lute~ arguing Ulilt the funning of the statute was stayed during the hank· nlptcy, for which reason the three-year priority period should be tolled. The court nrst relThlrked that every circuil. eXCel)t the I"illh, to whom the i5Slle was presented. ha.~ allowed tolling. A majority of the cour!.! have based their conclusions uP()f\ 1 I08(c), which extClld$ the statute of limitations for creditors, Slaling that taking § 108(c) in conjunction with IRC 16503(b), which susrends the limilailon period on a debtor. allows the tolling. Hov.'ever. as 1108(c) applies only to non·bankruptcy law and proceedin8$. the Eleventh Circuit would not accept § 1000c) as a basil. It then concluded that the general equity power under 1105(01) was sufficient to affirm the tol6ng. It mentioned th.,1 the Tenth Circuit in IT! rtI Richards. 994 P.2d 765 held Unt 1100(a) was sufficiently brood to sus~nd U\e 240day assessment period o( §507(a)(7)(A)(ii). and thIlt the rationale of that QSC should apply here. [t also cited prior Eleventh Circuit cases which held that as 1\ court of equity, II bankruptcy court has "the poVo'CT to adjust claims to avoid Injustice or unfairnU5." Followin" this reasoning, the Eleventh CiT(:uit. rather than rendering the result. rem.1nded In order th.,lthe bankruptcy court con5ider the i$Sue of tolling under l I05(a), which meant that U,e equilin involved should be the (aclor for consideration. Comment: AppJrenUy, there could be a set of (acu to militate against tolling, but I do not see how. The Eleventh Circuit looked at the matter d 1l1l01JO, and then told the bankruptcy court to decide on the facu, Would It not be iron:( if the bankruptcy court decided that the slatute should not be tolled? • .. ovu .. n~ , .... '

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0 1{ Ollr , 1.ITIGKI'ION StJl'l'OIlT a ll E~nwn:; PLANNING, r ou SI IOULO ,\LWAYS

liE "1I.~ l lm WITI I t\ IHlI,IAII L!1 nlJSIN~:o;;s VAI .UATI ON FOIl "O UIl CU tiNT .

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4,249 cases retrieved. 4J94 irrelevant. SI!MCH / P "POLIOI! OI'PICU" "LAW I!II1'ORCI!MI!1lT OJl'I':ICI!R" SKERI" DEPUTY LOOlll O!lSI!RVI

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Wasting too much time sifting through irrelevant cases? Add a Key Number to your Westlaw" word search for on-point results. For information about searching with Key Numbers. call 1-800-262-0620.

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