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TheAlabama Vol. ,';.9, No. .1

Nay /5.98

011 ,h, Ctn'f!r

Sunlott !)eM Onmf/illJeoch, AlalHlma , the ~I! e of the 1998 Alabama State 11M AnI1u,,1 r-Itl.!ting. The photog1'llph was taken Ius than one mile from tIM' Culf 01 MuI:O. _ Photo bV Paul Cwwford, JD, CLU

IN THIS ISSUE I'ROf'ILE: WADE HA>II'10N BAXLEY ............. ,., " " .138 ENJOYING THE ' PAY 0,,' FOR ALI. YOUR HARD WORKPERSONAL MONCY MA>AGE>tENT FOR lAWYERS •.•.•.••• .144 COMMUNITY PuNISHMENT AND CO!!!!ECTIONS Of' ADULTS IN ALAIlA>tA ........• , •...... .1 58

158

A COVE RN~l ENT Of' lAws AND Nor Of' M EN: JUDICIAL RESTRAINT AND THE Doer!!IN' OF SEI)ARATION OF POWERS. " , .. , ................. , . , , . , .166

RESPECTING THE RULES: USING AND MISUSING RULE

14 ........................ 173

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A 0 V ANT A G f

PRESIDENT'S PAGE By Day Rowe

R l!Ce11tl

y, Roberilluffuker. (he editor 01 The Alabama JAlI1f14!f. spokIJ with 1997-98 ASB Presi(ilml Dug Rowe (tOOllt his year ofserllice and Iha issues he has had to d{!(J{ with during his lerm,

Robert Huff.k.,: You are about three路fourths of the way through your tenure as bar President. Tell us about the general state of the bar,

DagRowe Reflects on His Tenure asASB President

D80 Rowe:

J chilracl~rize

the !lIllie

of lhe bar as being 'itT)' good. From a financia l standpoint. wt art ad~ua t ely funded and rolvent. I think the commission continues to be a good steward of

the bar's (unds and resources. We have wonderful facilities here In

pI/rlltH.

Montgomery. We have a modern. well. equipped bar headquarters with ade路 quate room (or ex~nslon. housing an

able and motivated sl<1((. The "dmis路 sions process Is also in good condition. [1'5 understandablystreued somewhat. (rom time to time, In terms of the worklo.ld l)el;au$t there Me $0 many ilpplicants now for admiuion to the bar. We have no law$uiu or thliltenges against our admiuion's process at this time, The disciplinary (unctions olthe State Bar are fun ctioning well. We have f:JCperienced allornf)'s, invntigators and other starr people, who have that process well in hand. The cIIses are handled efficiently, expeditiously and. we believe, fairly, There's not it grelll bncklog. Cenerally. )thlnk the b.1r is in excellent condition. That's not to $ay we havt no problern$ Of dl<llIenges. There's still plenty to be done, such as in imprOVing the ima,e of our profession. RH: What has been the focus o( your IldminiSlrlltion? DR: One imporl~nt theme Is to unify the b.n and minimi~e the trend toward polarization and factionalizalion. Another is the promotion of profusionalism and civi lity amOrlg our members.

114 M""V '!I!I~

AJublnIlQ SupMM Cour! Mila IlupIt f'f1HlOOx pN$i!Ilfsl)Qg Rww u.;lh Orwmr 7hIm IIPfXfCIu.lkitr

We're also encouraging our members 10 recognize and stite Ihe iml)()rtant OPI)()rlunities for service in the profession and in the community, RH: How have yo u accomplished your goal of reversing polarizillion in lhe bur? DR: Prom the day I wa~ inst.,Ued, we have strmed the importance of civility among lawyers and have discouraged the

"Itlmbo-Iypt" conducl Ihal lends to faetionali7.e and divide us. We've also encouraged a rtaliz.ltlon that the stale bar is the comrnon ground (Of 1111 groups of the profession: there is room at oo.lr "table" (or plaintiffs lawyers, de(ense lawyers, women IIIW)'C I'S, black lawyers. To further this unily theme. we've scheduled a dow-long program 011 Nay 14 al the bar that we ;Ire calling u "Summil on the ProfCMion." to f~ler communication and discu.\., IN;,b and i$5Ue5 of mutllo,1 il1terest. We have invited Ihe officers of the Alabama Trial Lawyers Auocialion. Ihe Alabama Infense Lawyers AMocialion, lhe Alabama Lawyers Association, the judges' lWOCia. tiOl1!. the Committee on Women in the Profession. the district attorneys. and the

Criminall)e(ense IJtwyel'$ The Kcond task force is AMociatioo. studying our entire discipliWe have also made a signifnary process. Of coorse, we kant effort to partner with continue 10 be concerned lhe local bar associations. about recidivism. consist en· cy and public I)CfCeption. whkh we ileUM ~re II great resource. For example. we The third task force 15 wanl to implement II studying mellns of providing statewide mentoring program additionnl funding (or Legal but to do that we need the Services within the state. help of the local b~rs. CM:r the lasl three or four Mentoring. by its natu re. is Y'!ars. fundinil nationwide inherently local. Th is cooper· for 1.eg.11 Services has been ation and coordination are reduced by alm06t a third. resulting in a slgniflCilnl III ready bearing some fru it: in l'k 1#1. ASIJ pntS/dmt-el«t. Dug kou'f!. aJld bur mmmlsUt:Jtwr IIlmd(1LM~ responu to the nood in Elba. at IJor 1.,fI.Idmh(p QIIWmx-. reduction in personnel and we had a succes5ful joint iniin the number of clients tiative with the r.1onlgomery seMd, While our Volunteer [....wyers Program is growing. in AIllbama County. Pike COUIlty and Coffee Count)' tlon that the atate bar is the exclusive bars to provide counseling and legal dOmllln of older, white males with a we sti ll need a viable Legnl Services. This i1SsisttlllCe on a pro bono basis to nood defense orientation. tn$k fOrce wi!! study aiternati'lt sources victims who hll\!(! 1 ~W11 questlons <lnd of fundinA, and. it is hoped, wilt formu problems arising out of Ihat disaster, RH: Did yoo appoint any tllSk forces late a practial strategy to tap one of such as landlord and tenant iSSUes, and that you want to highlight? IhO$e funding ~urces. homwwners' insurance questions. DR: Yes. three task force$ started RH: How do)'Ou feel the disciplinary RH: The bar's annual meeting, which this )'fllr. The first is II task force to proce$S is working, now that there are lay people on the p.1ne1a? is back at Oran~e Beach this ye;tr. study tht admissiOns proce$S. As I Indl· includes programs 5Ponsored by the cated btfore. the numbn of people Defense 1..1wyers l\ssQc:iat ion and the applying for the bar continues to swell DR: We've suffered none of Ihe probTtillll..:lwyers A:lsociat ion. Is this another and thllt ClluseS probl~ms with having lems that were of concern when that examiners who are exclusively practic. effort to addre$s th~ cOlfcerns "boul change was made, We found that the lay polariZlltion? iog lawyers, The admissions proccss is people make a valuable contribution so important th<it we think it's IlPl~ropri and help to dispel any notion thai this DR: Absolutely, In plluming for the ale (rom time to time to look close r at Ii a C07.y process by which lawyers "proannual meeting, a goal we set was to every aspect of it to see what changes or tecltheir own." In fact. the lay memprovide programming and activities bers often SIly that Ihe lawyers on the modifications need to be made in terms which would appeal to lind attract spepanels tend to he harder on those of test in" products, character and fit· charged than lht lay members. ness iUues, lind the I.mtimom structure cially bars and groups. They are for the board of bar examiners. designed to eliminate any misinformaRH: Has the state bar been involved in any legislative efforts this year? DR: Ves, we have two reaity imporlimt l e ~is lative efforts going on right now. One involvC5 increasing the hourly rllte fo r lawyers handling Ind gent de fe n~e ill criminal cases. The last time those fees were increased wa$ back In 1981 lind we feel they are now woefully inlidequllle. This le~islation would raise those fees to $55 per hour for in-court and out·court time, and would be funded by an increase in filing fees. We're opti mistic it can pass if we can get It up for a vote before Ihe session ends. (Colllillllt>d 011 IXIgB 170) o,.... v

'~ 10

EXECUTIVE DIRECTOR'S REPORT fJIJ K(lilh /J. Nonnan

very one remembers Pollyanna, the hopelessly optimistic main charac路 leT of Eleanor Porter's novel by the same name. I am sure most of you also

Storm Clouds Gathering on the Horizon for the Legal Profession

Ke ith B. Norma n

recall the $101')' of Chicken Litt le and

hi~

famous admonition, "the sky is falling," lI(ter being hil on the helld by /I (alHr\g

acorn. I find myself somewhere belv.'cen the optimism of Pollyanna and the panic of Chicken Unle about what I perceive to be ominous developments

lhal affect the legal profusion, In Oregon, there lIrc efforts by some to create II "J udjci~ 1 Council" on which no lawyer or judge would serve and would have the exclusive power and jurisdiction to tiCCIlS!! and regulate lawycr$ in that slale. This body would

be empowered not only to investigate and discipline law}'ets, but 10 MS(:$$ damages to he paid from the lawyers mall)ractice insurance, Under the terms of this propoSllI, a 路Special Grand Jul'}''' ~'Ould be authorized to hear Dny com路 plaints received about any judge or lawyer. Under a similar ~Judicial I~erorm路 initiative. Cclndidatu for judicial o((ice wO\lld be allowed to exp re~$ their views on mallen which would likely come before them. Incumbent judgeA would not be permitted to refer to themselves as incumbenu in conleslcd elections. A lawyer DI)I)()inled by the Governor of Oregon to fill a vacancy would not be allowed to run for that position in the next election. While the Oregon initiative5 are extreme, olher stllles, including ~' I o r idil and South CiroliN, have experienced attempts to place L,c le.g.ll profusion under tht 101111 control of non.judicilll IIgencies. Fortunatt ly. these proposals have nOI succeeded. But they are

appearing more often and, as in the case of Oregon, are becoming more extreme as well. Even on Ihe nalionlll level, Ihere have been ntws stoties ~bou t some members of Congress who advocate lhe impeachment of federal judges who have issued rulings with which they disagree. There are less obvious signs lhal the leg.ll profeS5ion and the judiciary are being singled out in such f:.shion in Alabama. During the 11l~ severallegislalive seuions, legi~ lation was introduced that would have chipped away 'llthe autonomy IIIld independence of the judiciary. Included IIniong these bills have been ones that ~'OIJld have amend. ed various rules of the Alabama Rules ofCiIJil Procedure. As fat as I am aware, these bills were introduced withoul any consultation with the Alab.1ma Supreme Court aboillthe ul t ima t ~ effect of the proJ)()sed changes. One bill would have even allowed parlies in clvillitiltation to uercise one "preemptory 5trike~ of the trial judge handl1ng Ihe Coasel The fllct thM none ofthese bills became law should 1101 lessen our concern. Although I may sound like Chicken Little proclaiming tlmt sky is falling when it's only a acorn. 1do believe we musl be vigilant and concerned about these types 0( incidents. In this regard, President Dag Rowe has called a ~Summi t on the ProfeS5ion" this month. Invited to attend are the chief justice and presiding judge5 of the intcrmcdillte appellate courts and prcJidents of the Circuit, District and Juwnile Judges a.uoclations. The following organiza. tions have been IIlikcd to participate in the summit as well: Alabama Lawyers As$OCiation: Women in the ProfeS5ion

Committee of the state bar: Alabama Trial uWYer5 Association: District AttorntyS Auociation: Alabtlma Offense Lawyers A.uocilltion: and the Alabama Criminal Defense Lawycn i\ssociatioll. Leadcu of the four largest local bar associations have llso been invited. Each representative attending the summit has been asked to list the most important issues facing the profusion lind Justice system. None o( problems are likely to be resolved in Ihis meeting. Instead, lhe rllO~t serious issues can be isolated /lrld II working relationship developed to guide Ihe profession in addreuing these issues in a positive manner, I)espite the storm clouds that may be gathering, l am optimistic. Whatever difficulties our profession has encountered or may experience in the future. we should view this <15 lin OPllOrtunlty to sct aside Ihe internecine disputes that have caUSed us to become II (lIc, tionalited profession. By uniting, we can strengthen the legal profe»ion and protect one of democracy's important bulwarks. •

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PHO FILl~ REAL ESTATE SETTLEMENT SYSTEM

Wade Hampton Baxley Pursuant /0 the Alabama St8/6 Bar's rules governmg the el&ctiol1 o( president-elect, /he following blograph{cal sketch Is provided of Wade H. Baxley Baxley was the sale qualifying cancJidate for the posllion of

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ade H. Baxley Wil5 born in Dothan, Alabama on November I. 1943. lie auended puhlk ~chools in OOLhan and received a B.S. in accountinl! from the Univer.lity or Al:lbama in 1965. Ht received his J.D, from the University of Alabama School or Law in 1968 and was admitted to the stale bar Ihal year. Baxley served as law clerk to Associale JudJle Aubrey M. Cales, Jr.. of the Alabama Court of Appeals (rom 1968·69 and he MS been in privllle pracHce in Dothan since fob)' 1969. l ie selVed as cily attorney for the City of Dothan from 1973·81 and Ius been retained counsel for the Dothan·Houston County Airport Authority since 1986. He is presently the len!or partner in the firm of Ramsey, 'tw.r lIoIl11/II()f18u.rltj/ Baxley & Md)ougle. BlIKley i~ a member of the Stille Bat nnd served as vice-president of Houston County Bar Associlltion lind the Alabnm,1State l1-.r in 1991-92. He served as its pr~siden t in 1978·79. He Is served as president of the AlahOlma a member of the American Bar Defen5e 1..IlW)'ers Association fo r Ihe Association and seMd as slate bar dele· 1996·97 Osc,,1 yeilr. lie is a m~mber of gate to Ihe ABA House of Deleg.11es Ihe Bo.1rd of Trustcts of the Farrah l.aw from 198910 1993. He has served as a Society and has been selected as a commissioner on the Alabama State nar ~'ellow of the American B!r A!sociation. Board or Bar Commissioners from 1982 BOIxlcy is a member of Ihe First to 1988 and since /99 1 from the 20'" United folethodi5t Church of Dothan, Judicial Circuit. While serving on the Alabama. He is married 10 the (ormer board of bar commhsioners. he has JOlIn Morris of Tuscaloosa. Alabama and been a member of the t>1CLE they ha\'e two sons. I-lamp, 26, a stuCommission. Disciplinary Commission, dent at the University of Alabama Character and Fitness Committee and School of Law, and Keener, 23, who the. Supreme Court Liaison Committee. works for Waddell &. Reed in Kansas Baxley currently serves as a member of City, Mioouri. • the Executive Council of the AlabamOl

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ABOUT MEMBERS, AMONG FIRMS About Member.

I', ~I ark Petro announcC5 the fo rmalion or ,>, ~I a rk Pelro. '>,C. Ilis off'lce is located at 1650 Financial Center. 505 N. 20th St reet, Birmingham, 35203.

Phone (205) 714-7434.

1'IIIIon J. Westry announces the open· ing of his office, The lTIo'l iling addre$$ i$ I~O. Box 230661, ,.lontgomery, 36123· 0661. Phone (334) 279·0783. Cenll n. Daniel. a llno u nce~ II change of addressio 951 GOVi!rn mCrlt Street, Suite 408. r.lobile. 3660", Phone (334)

438·1961. Kend.1l W. Maddox announces the relocation of his offi ce 10 300 Office

Park Drive. Suite 160, Birmingham. 35223. Phone (205) 879· 1718. Raymond C. Zicarelll ,,"1l0unces a change or address Lo 93 Paddock Drive. Fairhope. 36532. Phone (334) 990-94 12.

Robert E. )'attertOn announces the relocation of his office 10 100 Jdfeoon Slreel . l hm~v; llt. Phone (205) 539·8686. Jeny W. Ibuler announces the relocalion of his office to 165 E. Magnolia A~nue, Suite 229, 1'.0. Box 156. Auburn, 36831·0156. Phone (334) 821-7888. Andrew T. Mayfield announce5 the relocation of his oWce to 407 Lay Dam Road, Clanton, 35045. The mailing addreSli is P.O. BOK 1546,35046. Phone (205) 755-7878. Charlu CE nt~ rfi t lIarl announces the relocation of his oWce to 420 S, 4th Street, Gadsden, 35901. n is mailing address remains 1'. 0, IJOll: 26, 35902. Phone (205) 543·170 1. William R, Willard announces the relocat ion of his oWce to 420 S. 4th Street. Gadsden, 35901. Phone (205) 546· 1945. Lynnelce O li~-e Powtll announces the rcloc:.Uon of htr office to 20 15 lst Avenue, North, Birmingham, 35203. Phone (205) 458· 1100, ' 40

...... y 'OlIO

Thomas R, Boller announces a cil.1nllc of address to 150 Government Street, Suite 1001 , ~1obil e, 36602. Phone (334) 433·2133. C. Shant Coo(ler announces the opening of his office located at 25 S, Lafayttte Street, 1',0, Box 615. Lafayette. 36862. Phone (334) 864-0300. Edwan! B. Parker, II announces the opening or his offi ct located at 235 S. Court Street, Mont,omery, 36104. The mai ling address is 1',0 , flOK 4992, 36103·4992. I' hone (334) 832-9600. Susan G. Copeland announces a change of address to 285 1 Zelda Road, f,1 0ntgomery. 36106. Phone (334) 270-

0020. lIu old F, lierrlng announces the opening of his office located ~1 250 Payne Lane, Gurley. 35748. Phone (256) 776·1566. Thd 'I'lylor IInnounces a change of address to 114 E. Main Street Prattville. 36067. Phone (334)365-222 1. Lila Jo 11111 announCe5 the relocation ofhcr offi ce to 2107 5th Avenuc, North. Suitc 201, Bi rmlnghilm. 35203. Phone (205) 252·2783. Robcrl 8. lIl"ln. announces a change of address to 3214 Cliff Road 116. lJirmingham, 35205. Phone (205) 879-2556. Rlchu d O. Gru r lll1nOunccs ll chllnge of address to 600 Luckie ])rive. Suit e 412, Birminllham, 35223. Phone (205) 870-4990, Andrew T. Citrin, fonne rly a member of Cunningham, Bronds, Vance, Crowder & Brown. L.I..C.. announces the opening of his oWce at 1203 ])auphin Street. Mobile. 36604 . Phone (334) 432-5600. 81')'O n Todd Ford a nnounce~ the opening of his office at 11 0 Washington Street, Suite 207·208, I'ost Office Building. l.iving~tOl\, 35470. Phone (205) 652·9114.

H. Slanlt)' MbrtOW, ".C. announces the relocation of his offi ce to 517 Beacon Parkway, Wut, p, 0, Box 265 11, Birmingham, 35260. I'h(lIIe (205) 942· 1421.

Andrew M. Skier. formerly deputy district lltlorney (or the r ifteenth Judicial Circuit. annOUIlCe5 thllt he is entering private practice. His omce is located at 505 S. Perry Street, ~l on tgomery. 36104. The mailing address is 1',0. Bo~ 4100,36 103. Phone (334) 263·4 105. J. William Mayer, formerly chief deputy district attorney for the Fifteenth Judicial Circuit. announces that he is entering private practice. I-l is office is located at 3005 Jasmine Ro.ld. Montgomery. 36111 . Phone (334) 269· 051 1.

Among Firms

IJn nUey &. \\1Iket8on. P.C. announces that Amanda Cle\"land Carter has become an iIS5(lCiil\e. Officu are located at 405 S. Hull Sired. Montgomcr')l, 36104. Phone (334) 265-1500. fl ub U.rrlngton and Michael G. Gnrreo announce the formation of lIarrington &: c ...,rreo. Omce~ are located at 22 Invtrnes! Center Parkway. Sui l~ 160. Birmingham, 35242. Phone (205) 408-0048. H:1Trington and (205) 408·0101 . Craffeo. Brinkley &: Chu tnut announces that Charln I.. Brinkley has become an associate. Omce~ lire located at 307 R,tndolph Avenue, Hunt.Nille, 35801. Phont (205) 533-4534 . Con8lan,lly, Orookli &: Smith, L.L.C. announces thal Charlu A. I'owell, IV has become an associate. Offices are located ~t 1901 Sixth Avenue. North, Suite 14 10, Birmingham, 35203. Phone (205) 252·9321. The finn also maintains offices in Columbia, Sooth Carolina:

Nashville, Tcnnwee: Washingtoo, D,C.: and Winston Salem, North Cllrolina,

E. Peachtree St reet, Scottsboro. 35768. I'hone (205) 259-3929.

Feld, lIyde, l,yle, Wertheimer & Bryan t annOlJn<:e:;.thal J. Fred Klngren ha5 become il shareholder. Offi<:es are IOCllted lit 2000 SouthBridge Parkway. Suite 500. BlrminghOlm, 35209. Phone (205) 802-7575.

Fremlln & Kaou. L.1..C. lIIlnounces a change of address to 211 S. Cedar Street. Mobile. 36602. Phone (334) 432-2111.

Timmy C. Woolley, formerly with Cooper. Mitch, Crawford, Kuykendall & Whalley. has become associated with John O. S/lxon. I'.C. Officn are located at 1000 Fil\OInciOlI Center. 505 N. 20th Street. Birmingham. 35203. Phone (205) 324·0223. Jamu I). Moff~tt announces that Joann. Owing, Cole has joined his practice ill an associate. Offices are loc/lted at 213 S. J effer~on Street, Athens. 356 11. Phone (205) 23:1-5091. Valenllno D.n. ~l lIzzla announces he is no 101lger or CQ11lIMJI with Cunningham. Bounds. Y:mce, Crowder & iJrown. Ilis ne ..... address Is 120 E. 87th Slfeet. NP1 4D. New York, NY 10128-IIOI. I)hone (212) 427-1619. Nakamura & Quinn. 1••l .I'. announces Ihal ~lichae l E. llt\~ra and K. Kathy Brown have joined the firm as associates. Offices are located at 2100 First Avenue, North. Third Floor. Birmingham, 35203. Phone (205) 323·8504. II .E. Grierson and Jack T. Noe

8nnounce tlie formation of Grierson & NOI!. I'.C. Offices are localed at 1572 fo1onlgomery Highway. Suite 202, Hoover. 352 16. Phone (205) 823·0257 and (256) 287-0666. T\lrrl L. Hozeman. formerly law clerk to Justice Janie L. Shores, Judge William

E. Hobertson and Judge Samuel W. '!aylor, has been appointed 1>i5tricl Judge or lowndes County. The mailing address is 1'.0. Box 455, Ilayneville, 36040. Phone (3341548·259 1.

lIand Arendall . I.,I..C. :ulI)ounccs the opening of a lJaldwin County office located at 11 1 W. Laurel Allenue, Foley. 36535. C"'"o')' L. l.eatherbur')'. Jr, and David A. Ryan will be located in this office. Phone (334) 970-55 11 . Alec Urown & Associate., I'.C. announces that Kyla L Croff hilSjoined the finn and the reloc.;tion of offices to 217 Madi!lOTl Slr~t, Alexander City, 35010. Phone (256) 409·9001. Jimmy S. Calton. Sr. announces that Jimmy S. Calton, Jr. II now an associnle and the firm name is Caiton & Calton. Offices are located at 226 E. Broad Street. Euf'Hrla.36027. Phone 13341687-3563. W. lJu lty I'unon and Manley l . Cummins. III announce that ~I lch ell e M. tiart hM become a partner and the new firm name is " urson. C ummln ~ & Ibrt. Offices are located at 29000 Highway 98, Suile 101-C. The Summit. Daphne. 36526. The mailing address is I~O. Box 7980. Spllnish Fort. 36577. Phone (334) 626-2772. Donna II . Rainer, MUzll•. Sear~ and Judith C. Van Dyke announce Iheir assoclntlon as parl ne r~, under the fi rm name of Rainer. Sean &: Van Dyke, L.l.P.. and that Mitd Sean-Steuer has formally changed her nllme to Mitzi L. SU fi. Offices lire located at 2100 ~;xecutive I'ark Drille. OI)(!lika. 36801. Phone numbers for t1Ich remllin the ~me, Donna. (334) 742·0167. Judith. (334) 745-4373, and Mitzi. (334) 74 10809. Craig Olml tead annOJnces the formation of Olmstead & Olm. lead. OlTkts are located at 640 S. folcKenzie Slret\' ,.·olty, 36535. Phone (334) 9434000.

Randall K. Houman and A. Ted lJozeman, relired district judge of l.owndes County. announce the formation of lIozemlln & llozcmltn . O(llces are located al 10 I..lFayett e Streel, P.O BOll 337, Hayneville. 36040. Phone (334) 548-2244.

M. Krlstl Wallace al1l10UnCes she has joined the firm o( Drew. Eckl & ~'. mh a m . l .l .r, Her mailing addrC$5 i5 800 W. Pea<:htree Street, Atlanta. 30357. l'hone (404) 885- 1400.

Lackey, nrldgeman & Juhnson announces a name change to Lackey &. Urldgeman. O(fices are relocated at 126

Allen R. Stoner. fornlerly with McPhillips. Shinbaum. eill & Stoner, L.L.P.• announces his withdrawal from

the firm and that he has relocated his practice to Decatur, under the name of Summerrord &: Stoner. P.C. OUkes are loc.lted lit 701 2nd Avtnue. S.E.. Decatur. 35601. Phone (205) 350-8885. lIare. lIalr &: White announces that Alli n Sidney Jonn has joined the nrm. Offices arc located at 190 I Sillth Avenue. North. AmSouth/llarbert Plua. Suite 2800. Birmingham. 35203. I'hone (205) 322-3040. mchan! 1. Donnan. rorm~rly with McHight, Jllcksoll. [)ormlln. fo1yrick & foloore. has joined Cunningham, Uounds. Vance. Crowder & llrown. Offices are IOQted al 160 1 Dauphin Strett, Mobile. 36604. Phone (334) 47) ·6191. Theresa S. Jonu announces thai she is no longer associated with Sadler, Su llIvan. Slwp & Van Tassel. P.C. She is now employed with ~l ulu D.1 Au urance. Inc.. Suite 500. 100 Brookwood Place, Homewood, 35209. I'hone (205) 877-4400. Jame. WUllam lague, III annoulltes 1I",t he is 00 longer assoclattd wilh

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CrwHn. Slaten & O'Coonor and has joined the firm of Siniard. lamar &: ~l cl\lnney. Offici!5 are located at 125 Iiolme$ Avenue. I~O. Box 2767. l lunl$ville. 358()4. Phone (205) 536·0770. Jaffe. Strickland, B ea~I C)' &: J)~nnan . announces a relocation of offices to 2320 Arlington Avenue, Birmingh:J.m, 35205. Phont (205) 930·9800. I~ C.

Jel'l')' /\. 1\1cOowell: 1\1khael O. Kn i~ht, WlIllanl C. Noedder. Jr" Edward S. Sled"e. III: FOrNAl C. W1I80n, III: p, nunel 1\1),lu: Brilln P. I\tcCartl\y: Walter T, Climer. Jr.; and Archibllid T. Itee\'tA. IV. all former partners of Iland Arendall. announce the formation of McDowdl, Knight. Rotddtr &: Sledge. I.. I.. C. Fn!derlck C. IIdmslng. Jr.. Bndley S. Copenha\'tr and Benjllmln II . KUbom, Jr. have joined the nrm as a.uoci<ltes. Offices are Ioc.lted at 63 S. I~o)'al, Suite 500. Iliverview PIM.a, 1'-tobile. 36602. Phone (334) 432-5300. Lange Clark. I'.C. announces the relocation of it! omce to 903 New South Federal Savi n~ I]uilding, 215 21st

Street. North. Birmingham. 35203. Phone (205) 322· 1300.

Catherine Court. Suite 2·0. Auburn. 36830. Phone (334) 887·0884.

UerkDwil'l. Lef1w¥ill. born & KUllhner annOUnce! that Alane A. Phllllp8 and J~rn eA Dnvld IIIck! have become associates. Orficn /Ire located al 420 N. 20th Street, Suite WOO. SoulhTl'ust T~'er, Birmingham. 352035202. Phone (205) 328·0480.

Rushton. StakeJy. Johnslon &: Cllrrett. I).A. announces Ihllt Kirby It WlIIlam8, William 1. Elkridge and Edward C. 11 11(01'1 have become associ· ales. Offices are located al 184 Commerce Street, flt onl~mery, 36104. Phone (334) 206·3100.

C. l)ennts Nabol'll and Fnnklin A. Saliba announce the form.1tion of Nabon & Saliba. 1.. Le. omcts Me located lit 461 S. Court Street. Monlgomery. 36104. Phone (334) 263-09!i9.

T. Eric J'onder annout'lCes the reloca· tion of T. Eric Ponder &: ASiociatu, P.C. to The Fl<lIirOrl Building. Suite 402. &I Peacht ree Street. N.W" Atlanta. Ceorgi~ 30303. The new phone number Is (404) 581·0920. Of(i ces remain 311'.0. 11011 240471. 1'-lontgomery. 36124. Phone (334) 264-9679.

I\lcI'hllllp5. Shlnh um . &: Gill. L.L.I'. Iltlnounces that Kalhl)ln Dickey has become an lluocilltf. Offices are located at 516 S. Per!), Street. ~lont gom ery. 36104. I'hone (334) 262-1911 . COlletand, Frnnco, Screw. & Gill. P.A. announceslhat lIermDn D. Franco and [u...1A. Scn-ws. Jr. have become of coul/sc/. and fllitchelli. Boles. Albert D. Perldna. IV and Jamu David Martin hav'C become associates. (lffi cu are located at 444 S. Perry Street, Monlgomery. 36104. Phone (334) 834-1160, lIunton &: Wlllillms announces lhat T. Thomas Cottingham. III has joi ned the Charlolte omce as it partner. Offi c.es lire localed at One f'>ationsBank Plaza. Suite 2650. 101 S. Tryon Street. Charlotte. North Carolina 28280. IJhone (704) 378·4700.

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William 1\1. "ompey and Rrenda I\lonlgo",cl')' I'ompcy, formerly an admlniSlralive judge with the Equal Employment Opportunity Commiuion. announce the est.. bllshrnenl of Pom~)' &: Pompey. P.C. Offices are loc/lled at 11 7 I1r(),'ld Street, Camde'l. 36726. The mailing address is 1'.0. I30lC 189. Phone (334) 682·9032.

11111, 1/111. Carter. Franco, Cole & Black, I~ C. announces that JOllnll S. EIIJ •. formerly a partner in 11,11. Ball. fltatthews & Novak. PA.. has become a !KIrtner. Offite$ ;Ire locat(d at 425 S. I'erry St reet. 1'-tontgomery. 36104. Phone (334) 834-7600. Jame. A. IIam s, Jr. and James A. IIams. III . formerl y with lIarris & Brown. p.e .• announce the (ormalion of lI ~m. &; IIams. 1..1..1' and lhat Nane)' !lowell is an iI$.SOCiate. The new locallon is 2100A SouthBridge Park\.o.·ay, Suite 570, Birmingham. 35209 Phone (205) 871-5777.

I\laynllrd. Cuupn & Gille. !,.C. announces that Gregol)' S. Cumn has become a member and Carl S. BurkhDltt r: Sanh ,'atu larson: Thomas C. Cllrk. 111 : Chri,topher B, IIl1rmon; Jdfrey A. I.ee: Warren It l.lght(ool , Jr.; ilnd Robert W.1Rt15cotl. Jr.. formerly associates, have become members. ilnd John A. "~lImhllrd l : J. AIDn Bal),: Stephen Fo. ltr l1lack: 8 n nnon J. Iluck: Alexandtr J. j\lanhall. III: I\larcie E. P.duda; Jennifer N. Smith; ~nd lIardwlck C. Walthall hav ... become associates. The firm ha5 offices in Ilirmingham. (205) 254-1000, and Montgomery, (334) 262· 2001. The Montgomery office has relo· tllted to 20 1 Mon rot Street. Suile 1940. 36 104.

E),ller. Ke),. 1\rbb, Wnver &: Roth annountes that John R. Ba5lllette. Jr. has become a parlner. Offlce~ :!.re located at 402 E. 1'-1oulton St reet, Deelllur, 35601. Phone (205) 353·676 1.

Akridge &: llall!h, P.C. announcu that Robert It Cochran has become an associate. Offices tirt located at 1702

Joel 1\1. Folmar. Sr.. formerly district attorney of the 12th Judicial Circuit of Alabama. and Jon 1\1. Folmar. formerly

Waltllr A. Sleljllemnn. I'.A. annOWlees th:!.t Tlmoth)' M. Beule), has become an tt$sociate. Offices are located at 431 fib!)' Esthtr Cut·Off NW. Fort Walton Beach. Florida 32548. Phone (850) 244·5678,

ilssi5lanl attorne)' geneTli1 over the Consumer Affairs Division. announce the (ormation of Folmar &. "·olmar. P.C. and thlll J. ~I alt htw "'olmllr has ~come nn nuocilltc. Offices are located lit 510 S. Brundidge SireN, Troy. 36081, phone (334) 566-0451.:lnd:lt -1 02 Clenwood Avenue, Luvune, 36049. phone (334) 335-4809. Salch &. Hingham iIOnounces that Lulie M. Allen. J. Ru n Clmpbell, Cn!gory C, Cook, Marcell.. Oebruge. Lyle D. Lauon and l'hllIIll A. Nichol s have become partners. Offices are Ia<:at ed in Birmingham, lIunl$vllle. Montgomel)' and Washington. D.C. Watlon. lIamlon &. deCl'1Iffenried has changed its nlme to Wllhon, deCrllffenried &. Hulley, 1•.1.. 1'. Offices are located at 1651 McFarland Uoulevard, North, l\Jsellloosa. 354062212. Phone (2051345· 1577. Colquell &. Auoelatu ha5 changed its name to lIoUiday &. An oelalea. Oft'ices are IOCllled lit 2 Chil5e Corporate Center, Suite 120. Birminltham, 3524-1. Phone (205) 733-8598. Itobert M. r'eara and Ih glna Rose lIud.on have relocated their o(fice to 1116 23rd Street, Soulh, Birmingham. 35205, Phone (205) 320·0333. lloover &. E\'anl. P.C. announces Ihill Urilln D. Turner, Jr. has ~come a partner. The fi rm name has chnllged to 1I00vI:r, Evanl &. 'Turner, I'.C. Offices are Ia<:ated lit 5.108 Oporlo·Mlldrid Boulevard. BirmirghOlm, 352 10. Phone (205) 592-2626.

F. Uenry. lind Shannon L. n. mhill have become associates. Offices are located at 2900 AmSoutM-larberl Pla7.ll, 19{} 1 Sixth Awnue, North. Bi rmingham, 35203·2618. Phone (205) -158·9-1 00. Rltchle & Redikllr, L.L.C announces that l'l lncll OIak hal become a member. Offices are located at 312 N. 23rd Street. Birmingham. 35203. Phone (205) 25 1· 1288. Corham & Wald",p, I'.C. announces that Tlmolhy M. "·uhner. Donna I~ lch 8rook8 and Ki m Davidson have become associates. Offices are located lit 210 I 6th A~nue North, Suite 700, Ilirmingham, 35203, Phone (205) 2543216. Chambleu. ~I ath , MOOn! &. Drown. P.C. announces thlll E. 'fill'!)' Drown. previously with Copeland. I-'ranco, Screws & Cill. has ~come a partner. Offices are located al 5720 Carmichael no.,d, P.O. 230759. Monlgomel')', 361230759. Phone (334) 272·2230. Wal, ton. Well&, AndeTlon &. Ba[ns, L.L,I'. announces thai Julia lloazCooper has become a !»I Ttner and thai David Ullnnet Rlngeb teln II, Ntna Patrice Collemond. John David ,\1 00" and Erin O'Neill 8rookl have become associates. Offices are located at 500 f-'imndal Ccnler. 505 20th Sireet, North. I)Itrningh~m. 35203. I'hone (205) 25 1-9600. Sttwan C. Sprlng~r of Ci.mllbell & Springer announces a chrillge of addre$S to 2!53 l.tth Avenue. South. Oirmlngham. 35205. Phone (2()5) 933-6933.

Corley. l'Iloncul & Wllrd, I'.C. announces that F. Lane Finch. Jr. has become 11 shareho'der. Offices arc locat· ed at 400 Shadc5 Creek ParkwllY, Suite 100, Birmingham. 35209, Phone (205) 879-5959.

Vicken . Rill . Mumy &. Curn n, !.. L.C. announces that E,L. M cCaff~ rt)'. III hlls become iI member. Offices are IOCllted at the Hegions Bank Bulidi njJ, Eighth f-'Ioor. J06 SI. f rancis Street. Hobite, 36602. Phone i334) 432-9772.

lange, SlmPl on. Roblnlon &. Somerville, I" L.P. announces that L. Grlmn T)'ndall has become an associlite. Offices <Ire located at 417 20th St reet. North. Sil ite 1700. Lllrmingham. :15203·32 17. Phone (205) 250·5000,

Capell, lIoward, Knabe &. Cobbl , P.A. announces that C. Clay Torber1, III has become a member and Bryan Ji. 1,"50011. nlchard /I , MIen and me-hard II . Mark! h'lVe become associates. Offices are loe,lled at 57 Adams Avenue, fo-Iontgomel')', 36104. Phone (334) 24 1·8000.

Johnston, Ihrton , I'roclor & Powell. L.L.P. announceS that David M, lIunt lind Lee ~1. Pope have become partnet'i and Jilln!n M. ROIiJ, Randall D. NcClanahan. Urian R. U08t1ck, J.mes

Carrollton, Ceorgia 30 11 7. Phone (770) 830·9000. Wllli"n U. lIurrman, III, previously with Ilonrdman & 'lYra. I~C .. announces a change of IIddrH!I to the United Statu SecurlUn and E~ch a n ge Comm[u [on, at I~oom 8130. SlOp 8-7. -1 50 Fifth Street NW, Washington, D.C. 20549. Phone (202) 942-4625. l'IUman. lIoob, Dutton &. 1101111. P.C. nnnounces that Lelllh Ann King "·ou t.mlln has joined lhe firm. Myrll I), Sb ggl, of colillsel, Is 110 longer with the I1rm. O(fices are located at 1100 Park Place Tower, Birmingham. 35203. Phone (205) 322·8880. I~ ou n ,

Cook. Sledge, J)avl. , CalTOll

& Jonea. I'.A. announces that lIerbert

f;. Browd~ r hll5 become a ~harehold~r and lhllt Joseph K, Deach. W. llradrord "oane. Jr. and John T. Fisher. Jr. have joined the fi rm. New offices are locllted 111 2117 I~ive r Road. P,O. Box 2727. 1\Jscaloosa, 35401. Phone (205) 34-1· 5000. •

lowest Ad

In Monltg~ County

IndepCiident MOfIllt"'luy ~ NewJpaJ»tr ofR«of.d

c.nSIIe:(334) 213·7323

w.b _.I~ndentcom .-mall: t. . . . .lOInn.mlndlpllll9.00m

Price &: Pyles. P.C. ~nnounce5 that l>avtd L. SmUh has joined lhe firm. Of(ices ~re localed ill 120 Dixie Strut. ...... ,

I ~QOI143

the ~Pa)' Off' for Your Hard WorkPersonal Money Management for Lawyers By Jilrnes D, Cotte rman ersonal money management sounds ~ simple. Work hard, S/I\'e aggressively, spend frugally and don't outlive your historically projected life sp.ln. If it were just thtr.t simpl e, AI:ls, it Is just too easy to find rearon5 not to save for the future. The costs of living can be daunting. Tomorrow's plans too often succumb to to!ily's bills. But it doesn't have to be-and shouldn't be-that way. This article is intended to open your mind and engage you in some private reflection about the state of your own financial ilffalrs. Let's begin. We all know that saving should begin early, liq· uidlty preserved for emergencies and debt avoided except for acqui rir\g IlPllTcciating assel$. Our first step In an honest appraisal is to acknowledge rea lity. We do not save enough and debt is everywhere-a mortgage (or two) on a home larger than our needs; debt on automobiles (usually at least tWQ) that cost more than our parents spent on a home; credit cllrds to finance vaclllions, credit lines for the bo.ltS and summer (limps. In addition. there are private schools for the children and entertainrnent costs appropriate for our station in life. In short. too many of 115 have built a facade that all is well.

Determining where you .tend St~ 01le-Cather up your financial records: let's look at what \'If haw to work wilh. Create a balance sheet, which is nothing

llIore than II listing of wh.lt you own and what you owe as of a p.1rIicular date. It's a snapshot or where you are at that point in time. Now is a good time 10 catch up on reconciling I h~e bank statements. List wh.1t you own and note how those lU~cts are (M'ned (yours, your spouse, joint, etc.) If you have investment assets, lis\ what)'OO polid and when you acquirtd them. This will be a valuable lime SOlver when you $til the asset Next. list what )'Ou~, including notes (mortgages, auto loans. ereditrines), credil card debt, life insuTlIrlce lUlU pension loons. unpaid taxes (rcal estate and Income) lind tile like, Include separate balance shettl for IIny business interests (rarms, rental properties and other sole proprietorships), Ust your capital interest in any part· nerships Onclude invntment and business ventures), S{r!p 1ko- Next, assemble ,YOur financial retords to determine sources of income, and major categories of spendinil. Includ!! taxes (property md income). debt service, $helter, tr,msportlltlon. subsistence and discretional)' spending. This can quickly be determined from credit card summaries and checkbook ledgers. The purpose of this exereise is to realistically am" where we are SO that we can chart a relilistic path to the future , The "ideal " Is to rench rctlrcmentllge debt free and with 5u((jeient i n ve~trl\C r\ t Its5ttsthllt, when combined with Social Security and pension income, provide retirement earnings equal to 60-75 percent pre.relirement income, ,u .. n

,1m.

Historically, we relied on the "three.legged stoor to secure retirement income. The concept WilS that employtr.funded pensions. Social Security anr.l personal savings WQuld each roughly provide one·third of the requIred retirement income. Iligh· income walle earners quickly reach the Social Security nwimum benefit which is considerably short 0( one·third 0( pre· retirement earnings. f.1any young people are even questioning the viability of tht Social Security system for their own retirement. Changes In pension law, employer pension philosophy. employee mobility. and tax laws have combined to alter what pension5will likely provide, We are left with personal savinltS and the new (or Individual discipline to accumulate w(ficient assets for retir'fment. Today we better plan on providing one-half or more of the /Wet base noceS$ilry for retirement (n)ITI personal sowlngs. Unfortunately, per50nal savings in the United Stntu is low (4 percenl of disllOsablc income according to the Bureau of I::conomic Analysis) and hll! declined over the past 15 years. This is remarkable conSidering that the past 15 years brought vasUy lower income taxes lind some remarkable economic growth periods. In fa irne". the period 1I1~ brought about some severe disruptions to the economy as globo,1 markets had an impact on our lives. Computing wh.t you n ••d

The example on the next Pilge depicts the asstt base required to provide for an annual retlremtnt income of $75,000 (i n today's dollars) at ~ge 65, This Is tht target reti rement income for Individuals earning $100,000 to S125,000 today using the 60-75 percent (actors just mentioned. Social Security benefits will provide a portion o( the annual retirement income. Estimlltes used in this prOject are based on age. earnings arId Social Security Administration data. Ollerlpdon Slllg~ lump sum today to pr0vid6 /1efIBfrtl

AII,35

AII,45

AII,55

1406.000

$814,000

S927,1Dl

A~I COfIfllbufr(JnJ mQUlftKi

S32.ooo

"'.000

S12f1.1Dl

Amount of f"st cOfllnburion 1I1J,~u/JtiJd with COfItnWtlans IIs"'g IJt 3.5 {JtNCef1l IJMUBI/y

S22.1Dl

S43,C(()

SI09.1Dl

This indillldual expects to need income to aJle 95. This will provide a high degree of confidence that income will bf: allllilable during the retiree and spouse's lifet Ime. Pre- and postretirement innlltion will allerage 3.5 percent annually (~ llProx imates the modern long·term average). In order to maintain constant buying power. the retirement income required at age

=:C---------------------------------------------------

-''''~'''~h=m~."'...

65 is adjusted for innation, and the annual nlirement benefit is increased 3.5 percent per year, It is not important to provide a sizable estate; tnerefore, the principal will be liqllidllled by age 95, neal (innation adjusted) after-tax returns of <I perctnt on pre·retirement assets lire projected, A more conservative 2 percent real after·tax return is expected post.retirement, Now the really hard ,)art begiN, From S/('J] Olle and Step 7!JJO, we know what we own, ....'1\&1 we O'.\'C, sources. ilnd uses o( our hlcome lind tlebl ~rvice reqlliremenl~. From the ''what you need" computation. we know our retirement SIIving lIetds. For most of us, this oombirWltion leaves us facing a hard realit)'-too m.lny uses for our existing sources of income, The solution is simple-more financial disciplillt. Implementation 0( the solution is considerably more tlimcult. TI\IIt means 1m expensive homes :mtl C<lT1. les..~ of Ihe "goo(] life" today. Or we mU$t hustle that much lmrder 10 increase our earnings sufncienlly to cover the gap. 0_tt1ng the mo.t out of what you do •• ve

Now, let's turn to how we invest our retirement (unds (whether in our 401 (k) plans, lilA! or personal 3fter·tax accounts). The typical investment mix ha~ one·third of assets in e lCs lind money market llccounlJ. But over a Beneration, only stocks yield a positive return after the impact of innation and income t:lxes. Too many of us insist on hedging risk with usets that only lose purcha~ing power, Being risk :ldvem'! is going to hurt you In the long run, You cannot comfortably retire with almost one·third of your life remaining on fixed income, low·risk securities when Ihe cost o( living continues to increase at 3.5 percent a year. One of the great inventions of the mQdem world is tM mutual fund. It combines professiorWll rnanag~rnent, portfolio diversifi· c.ation, and purchMing pov.'er for inve~tors who often don't ha\'e the Cll.lli!.ll. t.llenl or time to manage an individual portfoHo, If )'Ou lack any of these, bet your rctiremerlt income on mutual (unds llrld reSCM your J)erwna) investing to a sm.111 percent 0( your :we1J, nle mutual fund industry has succeeded tremendously, Funds can be selcct~d (or their investment objtttlve, 5C(urity focus, risk tolerance. J{eographic scope, even environ· mentallpolitic,ll corrcClnc~~. ~ntl. althou.Ilh the vast number of fu nds in Ihe industry has complic.1ted the purchasing decision, mull.mt funds remain a fi"t·rate opportunity to build wealth. Ilowever. our oIJjedive Is to build wealth and beat innation over time. We already indicated that our after·tax return is Important. If mutual funds afe our investment vehicle of choice, then we musl also consider the impilCI 9f mutual fund fees and expcnsu on inve~lme nt return. Mutual funds COOlt in load and no-lood fonn, No-load funds do not ha\'e SIItes commissions. while load funds do, There is no indication that the presence or absence 0( a load Is indica!l\'C of fund perfomlllnce. HO'.\'eVC r, the author has a (undi!mentala\.'Crsion to paying sales commissions when there are 50 many fine no-load funds on the m:lrket. Lo,,1IU come in many (orms-(ronlend load (commission paid when fund is purc~). bock·end I().'K! (eommiS$ion paid when fund is sold), level load (commission paid over time), and declining back·end load (rto.\.·ards holding the fund (or longer periods of time). Some mullL1l funds now ofTer an array o( loads for each portfotio (so·called ABC sharu), The next cMegory of cost to mulual fu nd inve~tors is the fees and expenses charged by the fund manager which Include

costs to manage the portfolio and to 3nalyze current and potential Investments. 12b·1 (eel for advertising expenses, and olher operating cost5. Again, high or low costs do not necess;Jrily intlicate a certain level of performllllce, Finally, mulual fund managers actively manage their portfo· lios, This means the managers will buy and sellstcuritiu to achieve the fund's stated objectives, Turnover 0( a portfoliO is Innuenced by market conditions, fund objectives and invest· ment philosophy. The higher the turnover. the more cosls incurred by the fund, Also. turnover Increases thE realized gains that must be paid out to fund owners and. therefore. recognized as current income (not a problem whtn the fund is part o( an IRA or qualified pension plan). Loads and laxu are not considered in the promotional materi;,ls where fund s arc required to disclose thei r hi ~t orica l yicltls. When reviewing mutual fund 5, consider the returns after loads and taxes are considered, This tells you what you can Llke to the bank. That's lhe but way to anal)'ie any investment opportunity. Implementing a b •• tc .trate"y

Where do we go from here? The best advice is 10 accept the honest look at where we are and to commit to a r~Bimen of debt reduction and aS$et a((\lmulation, Begin Sllving Immediately and continue I\) s;Jvt year after year. Time is lhe grt:lt sllenl asset builder- let it WOrk for you, not against you, Think long term. even if you are approachi ng reti rement or arc already retired, Aecepl some risk antl stay wilh slocks, They hold the best and lhe only real long·term returns. Avoid over-reacting to short·ternl events, The rT\j\rket reacts largely to the news of the moment. Th ink rather of basic movtments ~nd trends, They Ciln be de"l-0graphlc, There are two age group bulges wo rkin ~ their way through the populiltion. Consider what that means to purchasing decisIon! and neetls. They can be lifestyles- how has technology changeJ our lives and what does tht past tell U5 about the future? Diversify your Investments and let professionals manage the portfolio, f.' utual funds give you all lllls and more, Consider them the foundatIon of yOur weallh accumulation plan. Alter )'(lur lifestyle so that you ca~ simul\anCfJusly SIIvt &nd reduce deb!. It is in your best interd\$ to enter relircmenl debl free and witll significant cash reSCM, for those IraroitionaJ I':Xjlenses, including taxes. Moo, keel'> a cMh emergi:1lC)' fund for such items M higher heallh ~ re cos~ tlmt could hit unexpectedly. This permits you to aVQid selling y?4r invcstment! in a p<1nic, Use profenlorl:!15 to a$list you, In\tfstmenl advisors, laW)'er~ .....110 specialize in e,t:.te planning, accountants, and Insurance professionals are gOOd $Ourc~s of hpertise and objectivity. They Coln counsel Qr play ·jdevil's advoc:.te" with your objectives and plan of attack. ~'inllll y, make sure that you act ,md do not put 0(( to tomor· row something you should ha\le done years ago, •

J • .".. D. Cott.nn.n CoIt.."*,,, IIC..-...d CII~!1t<I puIl4ic ICC<lUnt¥l!. ~. ptIrIe~1

.IWr'o6 0 ...... I~

AI\tI'Ie~

p_.

WOW rflll .•PKlsllllng In nII' fIIl ..1and DfQa"",UONI He ha an 00CItt\JI.uue.1t~ ..... 0I)Mt!1OnI mI~1 ,r'ICI an MBA., lIeOOUIIIing. boIh 110m SVlICUH ~I<IV HIt IMIbI, ~1I1! I..... )'MI" AnnulI """""0 ~.

MEMORIALS

Judge G. Ross Bell hCTeM. Judge C, no$S Bell "'M a member d the Birmingham llar A\$OClation and the Alabama Slllle l:klr al the lime of his de.1th on Februal)' 28, 1997, altheage of 75: and .

Whereas, Judge Hell was born In IJirmingham, Alabama; attended Birmingham public schools: "r"duat~d from mrmin"h~m Southtrn College In \941 : ilnd Itraduated from the UniVfrsily of Ali1bama School of Law in 1946: and, WhcreM, Judge IIe11 began to practice law in the Ensley section of Birmingh:lnl in 1948. He was appointed 10 Ihc Birmingham Municipal Court firsl as a part. timejudge in 1956 and then chief judge in 1963. In 1965 Judlte Hell moved to the Juvenile and Domestic l~e latlOns Court and was elected a circuit judltt In 1968 and assigned to pmide ow:r the ~'a mily Coort of Jdfersl)n COUIlty. Alabama where he ~ervcd until his retirement in 1982; and. Whereas. Judge Bell was dedicated to Improving juver-ile justice and $Crved on numerous committees to promote juvenile justice Among these were Ihe Alabama and National Council of Juvenile Court Judges.lhe Alabama Council on Family Relations. the Jefferson County AssociMion of Ment:,l Health, Alabama Youth Commitle~. Ju. . enile Correction Study Comrl'nttee, Stau: Ad .... isoty Committee fOf Ju ....enile Deilnquency Plannir-g, the Alabama Ad . . isoty CommiHee on Juvenile Justice and numerous others: and, Whereas, Judlle Bell was vety civic· minded. He served on the uecuU . . e

committee of the Birmingh,Ull Arca Council of the Uoy Scouts of America where he received the Vulcan Merit Award (BirminAham Area Council) and the SilV(!f Beaver Award (National Council). lie stNed his church as a leacher. superintendent of Sund..\)' School, trustee and deacon. He was past. pre5ident of the i<.:nsley Kiwanis Club. Ensley !tOtllr)' Club and the Ensley Chamber of Commerce and was a member of many other CIVic ilroup$: luld, Whereas, Judge Ben's strvice induded membership in lhe Birmingham Bar Association. lhe Alabama Slale Bllr. the Al'nericlln Bar Association. where he was a charter member 0( lhe Family Law 5«.liol1, and alleast nine other pro(e$' 5ionlll associations: ~nd. Whereas. Judge Bell's olher honors and awards lire 100 numerOU5 10 list bul exemplify his dedication and his ye:'LTI of service; ,md. Whertas. Judge Ilell is spoken of as a man of compassion when he .....as on the bench and was !lOtN for his service 10 the bench. lhe bar. the publ ic and most of an. children entrusted 10 his judg· ment: and. Whereas. we e)ipres:; our appredation for his person and his scrvice. and al$O our sympathy 10 his family. It is therdore. re50lved. thai this rts· olution be spreild upon Ihe minutes of this vreculiV(! committee and Ihat copies be sent to hi! wife. Johnnie H. !len. and olher members of his family. _ Stephen O. HenlngH Prnldent. Hlnn ln5lham Uar ASAocialion

Richard Allan Thompson, Jr. hereas. the 'tUscaloosa Co(mty U~r i\UOCialion wishu to honor the memory of Hichard Allan Thompson. Jr. a long.standing and distinguished mcmber of thi5 a55odation who died November 18. 1997. Riclurd AllIIn Thompson. Jr. known to all as "Dick." was born in Mobile. Alab~mll. He received his undcrgradullte degree (rom Ihe University of Alabama and his J.D. from the Uni\lusity of Alabama Law School in 1950. Dick sct\ed in the United States Navy 1I5 a fighter pilot and was on active d(lty d\lring World War 11 , the Korean War and the Cuban Hissile Crisis. I)ick also servctJ in the Judge Advocate Ceneral's Office 'n'hlle in the Navy. Dick came to Tuscaloosa in \96 \ and btgan his pri....ate pr~lice o( law which. (Wer the years, primarily involved the representation of defen· danl$ in criminal Cl!.ses. I)ick was always a lireless lind dedicated d ~fendc r of the rights of the accused. Dick ,",,'as survived by a lov;ng fnmi1y. consisting of his wife. Dorothy Thompson: his children. Richard A. Thompson, 111. Da.... id Thompson and ~lelanie Thompson Hasten: se . . en grandchildren: and his blOt hen. I~obert Thompson and William Thompson.

_ C. Slepht n WIJlltln. I'Tesldt nl. Tuscalol)slI Count)' Bar Auociation

John William Adams, Jr. ohn William Adams. J~.. 11 dist!n-, guished rnernl:)(!r of Ihl5 iU5OCIll\IQn, died on November 16. 1997. and the "tOOile Bar Associ~tion desires \0 rememooT his name and recognize his contributions both to our prorenion and to this comm~nit}': and.

John William Adams. Jr. was born in 1925 in Atlanta, Georgia and received his law degree (rom the University of Alnbal'na Imd pract ted law In Tuscaloosa for three yean. lIe then accepted a position in f.1obile in 1951. with the leg.11 dCpllrlmcnl of Ihe Culf Mobile and Ohio Railroad, and actively participated in lrill:' and hearings in regards to raIl' casu all over the United Siaies. After the merger of CM&O Rllilroad with the Illinois Central I~nilroad. John W. Adams, Jr. continued his active legal profession with the Illinois Central Railroad until his retire· ment in 1988. Thereafter, John W. Adams, Jr. actively wgllged in the prac-

lice of law In Mobile until his death in 1997; and, WhereM, John W. Adams, Jr.. in addition to the practice of his legal profes. sion, participated acti\ely in Ilklny church, civic, cultutlll Ilhotography, and gllrdening maUen, lind lImong his Inilny accomplishments, of which he WilS particularly proud, were; Being authorized to practice in numerous United States District courts. United Stiltes courts of appeal and the Supreme Court of the United States, as well as being an ilctlve member of the American, Alaballkl and Nobile bar asso· ciations lind the American Arbitration Association; lind, Being II member of 51. Paul's Episcopal Church for mlmy years and legal advisor to the Bishop and serving ilS chilncellor of the Episcopal Diocese of the Central Gulf Coast. and on the standing and finance committees of the Diocese of the Central Gul( Coast, and on the vestry of St. Paul's Episcopal Church; and. Servlns lIS pruidcnt of the Mobile Chamber t-1usic Society and as an enthusiutic participant in the ~1obile Opera Guild; and, Being a board memb~r of the Mobile Uotanical Garden. having attained the designation of master &ardner; and. Whereas, John William AtL1ms, Jr. "ccomplished many other thing.~ in hi5 life, and W1\5 ~n immensely ch ~rming gentlermm with a magnetic personality. gifted as a trial advoc.. te of his clients' position of any 5ubjt:(t matter and was noted (or his open.mindedness and ere· Iltivity in the handling Qf complicated Questions of Illw and (act lind was a rec· ognized upert in the fie ld of trans· portation law: and, Wherea5, John Willillm Adams, Jr. was survived by his wife of 48 years, HlIrgaret D. Adams and by his d.. ughter, Cynthia A. Tappan, and his son, John William Adams. III , and two grandchil. dren:

Now, therefore, be it resolved by the members of the Mobile l3ar Association that the association mournt the passing of John William Ad .. ms, Jr. ~nd does hereby hOnor the memory of our friend and fellow member who exemplified throughout his long career the hljlhest profeuionlll p r l ncip le~ to which the members of this a.uocilltion aspi re, - Stll\'a F. McFadden Pruldent. Mobile Sllr Auncinllon

Peter Vaughn Sintz hereas, the Hobite Bar Association honors the memory of Peter W Vaughn Sinh;. a distinguished member of this org.. nization, who died October 6, 1997. This association desi res to remember his rlanle Imd to recognize his contributions to this honorable profession and to this community, now therefore, be it remembered.

f'v/Ilf

I'wvhn SIn/:

MAY ,88, ,41

\\lhereas, Peter Vaughn Sinh: was born July 13, HMO in Detroit, f,1ichigarl nnd had resided in f,1obilc since 1967. Pete graduated from Indiana University in 1962. He earntd hi~ juris doctor fyom Emory University in 1967. \I/her~as. that same )'ear, Pete began the prllclice of I~w with tht firm of Brown, Hudgens. t' ulford. Sintz & I~ichardson of Mobile, He subsequent I)' formed the law partnership of Sinl1:, Pike & Campbell, which then evolved into the firm o(Sinl1., Campbell, Duke & Thylor. \\lhereas, Pete WiU a preeminent lawyer who quieti)" without great fan fare, gave of himS4:lf to his clients. A ~non of the highest integrity, his word w;u a promise, a bond. and his commitment to fairness and resolution. Whereas, Pete was devoted to his fam 路 ily who survives him, wife Jule, son Nick, daughter Sandy, mother Hoberta and brother Robert. \I/hereas. devotion and lovt for his family was followed by his commitm~nt to the practice of law, while his passion was athletic competition. Pete was a world-class swimmer while in college, and a gold medal recordholder in the free style relay at the I'nn American Carnes. I-/e continued his athletic excel. lence in the World Masten Games, again establishing records and winnin" gold medllb this lime althe ajl;e of 45 years, His athletic abilities also Included the game of polo and horsemanship where Pete again exr;:elled and was knOWrl for his ability as .. trainer of horses. A member of the Louislanll Thoroughbred Breeders Auociuion, and the Thoroughbred Breeder5 As~ociation he combined his love of horses nnd alhletic competition training polo ponies and playing the game as a member of the Poinl Clear Polo Club and the United States Polo Association. Pete's years of athletic excellence also included sharing his abilities with olh路 un MAY ,.0.

en In the form of cooch and mentor, teaching young swi mmers for the Skyline Country Club and the Chandler YMCA as well as paYlir;:ipating in the IIdministrHtion ofvari ou5 swi m mcct~ held in the area. He shared his C)Cctptlonalability 115 II IlIwyer, teaching clams for the University of SQuth Alllb:lIlla Paralegal studies programs, al'd was a willing par路 ticipmlt in the pro bono activities of the Mobile Bar Associatloll. I'ele served numerous area charities, belonged to m.any social organi~tions and was a member d 51. Paul 's t:piscopal Church. Now. therefore, be it resolved by tht f,10blle Bar Association tb.1t the association mou rns the passing of Peter Vaughn Sint~ lind dou hereby honor the memory of ou r fdelld and fellow member who exemplified throughout his long career the highest professional principles to which the members of this association aspire. - Cooper C. Thurber

Prealdent . Mobile Ihr Au ocJation

Albert Julian Tully, Sr. hereas, the Nobile Bar Association W honors the memory of Albert Julian Tully, Sr.," dist inguished member of thi5 o rgarli~a ti o n , who died on May 22, 1997, lind the association remembers his nllme and recognizes his contributions to our profeSSion and to this community: now. therefore, be il remembered, Albert Julian 1\ll1y .....a5 born in Laurel. f,lississippi and resided in f>lobi Ie since 1918. /II bcrlatt ended University f,li1itary School of r-lobi1e and graduated in 1935 from Ihe UniverSity of Alabama School d Law. In 1938 Albert joined the law firm of Su11ivan, 1I0lberg & Thl1y and subse路 quently practiced with llolberg, 1'ully &

IIodnetle and 1I011xrg. 'fully, 1I0iberg & I)anley. l'dor to his death he practiced with the nrm o('fully & Phillips, Albert was a former United States Attorney for Ihe Southern District of Alabama from 1943 10 1948, and Assistant United States Attorney from 1941 to 1943. In 1979 Albert served as president of the f,10bile Bar Association. Albert was an outstanding lawyer who faithfully and ably represented his clients. lie WU, atlhc same lime, a man of the highe~ t Integrity. whose word W3S his bOrld. who never s.l crificed his InteQrity fo r personal gain or unfair advantage. Albert spent 17 ~ar5 as attorney for the Hobile Count)' Personnel Board until retiring in 1957, He was a forrntr director of the Mobile Area Chamber of Commerce. and chairman of the Hobile County DCmOCrlllic f;xecutlve Committu from 1938 to 1940. Albert served on the advisory boud for the f,lobile S:ilvation Army and was past presIdent of the Boys Club of Mobile and the Hobile f,1ental Health Center.

Albert was a member of the Kiwanis Club slnct 19391nd was president of the f.1obile Kiwanis Club in 1945, gover· !w of the Alabama Districi in 1948 and president of Kiw~ nl s lntcrn:ltional from 1959 to 1960. [n 1996 he received lhe Hixon Diamond Level Award prucnted by the f.10bile Kiwanis Club. Albert was a tnfmber of Tl'inity Episcopal Church. He Wall a lay reader in Ihe Episcopal Diocese of the Centra.t Gulf Coo.sl, :l chancellor from 197 1 to 1980 and recipient of the (lr$1 Diocese Distinguished Service Award in 1975. He was n.lmoo cNu\cellor emeritus in 1985. Albert Thlly was", n'l3n with a strong devotion to his fami ly. and he was preceded in death b), his wife, Jane Si lverwood Wildman Thlly. Albert is sur· vived b), one daughter. Jane Silverwood '1\1I1y of Oauphin Island. Alabama ll!ld one son, Dr. Albert Thll)" Jr. of Bessemer. Alabama; five grandchildren and seven great·grandchildren; and other relative!. Now, therefore, be it resolved by the Moblle Bar A.~S()(:ialion that the associa· tion mourns the passing of Alberl Julian Th ll)" Sr. and dOe$ hereby honor the memory of our (rlend llnd fellow memo

ber who exe!'l'lplified throughout his long career Ihe highest professional principilis to which Iht members of this associntion aspi re. Pru ldent,

- Cooper C. Thurber nar Au oclaUon

~1obll e

John Young Christopher hereas. John YOImg Christopher, a longtime member of the Alabama W Slate Bar. passed away on Oclober 7. 1997: \\!hereas, John Young Christopher was born on July 2. 1922. reared In !lutler, Alabama and gradullted from Choctaw County /-ligh School in 1939; Whereas, John Young Christopher receIved a $cholar$hip to pia), collegiate football al Chattanooga College; he later transferred 10 lIoward. Colle~e in IJirmlngham, now Samford University and lettered on Ihe footballieam at Howard College: Whereas. John Young Chri5tol)hcr enlisted in the United States Navy and

served for three years as u ptaIn in the European theatre of war; WhereM, John Young Christopher attended law school lit the Unlver~ it y of Alllbama and received his lici!nst 10 practice law in 1949; Whereas, after V·E and V-J Da),. John Young Christopher conducted a suc· cessful practice for man), yelll'$; Whereas. John Young Christopher married the former Eleanor Means and hilS Ihree children, John Y. Christopher, Jr.. ram C. Ezell lind Bryan S. Christopher. \\!hereM. John Young Christopher was appointed di ~ tr ict judge in 197 1: he was reelected and served in that posi. tion for 18 ),ears: \\!hereas, John Young Christopher practiced law and served as judge with honor, integrity and a straightforward manner thai commanded respect. He possessed a good sense of humor and was lo),al to family and friends. Now. therefore the Alabama Slale Bar hereb)' respectfully. in memorial. honors its member John Young Christol)her.

John Willian! Adams, Jr. Mobile Admittq{l: 1949 /)led: NOI'4!mfNr 16. 1997

Ozmu8 Sigler Burke. Jr.

Roy l-ockhart Johnson

Ib rwy Jackson Wrig ht

Omll,91! ni~Kh

Admilled: 1965 Dit'(/: Mun.:11 4. 1998

Marion Admilll!d: 1979 Dicd: Filbruarg 11, 1998

Cun/rrSllilie Admitted: 1951 Dk>(}: N~mbt1r II. 1997

Carl Wayne Albright, Jr. Tuscaloos(1

!)lud: D(.'CembiJr II . 1997

Juu Allen Cook. Jr. Amlllillsill Mmilluti: 1.9.17 Died: Decembur 7, 1997

lI ugh Edward Roullt A/mOM Admilled: 1948 DiCll: M(lrch 2, 1998

Eugene M. Zeidman IJirmillghani Admitted: 1!J27 Diad: Februllry 17, 1998

John Thomat lJIack

Donald Cro nin, Jr.

Scoll~boro

GI'l'elll'iffe Mmillt'll: 19.'13

Richard Allan Thompson, Jr. Tuscaloosa Admilled: 1950 /)ied: NOI'I1moor 18. 1997

Admitted: Jufy 30, 1970

Admif(a/: 1949 Died: October 21, 1.997

Died: Februllry 21. 1.998

Un "'~nl ,~"

BUILDING ALABAMA'S COURTHOUSES IJ)! &amuel

A. Rumore, Jr.

Butle r County

reenville i5 the county seal of Butler County. II is IOCiltCtl in

south路central Alabama ~ppn)l(im lLle ly midway between the /!:lstcrn <Inti west-

ern boundaries of Ihe stllte. Ilo....路cver, the $tory of CrN:nvilie in Butler County could just as easily be the story or Butlsville in Fairfield County. Early set路 tiers I.',~me (rom both Georgia and

Butler County Established : 1619

The (ollowing continues (I hislOYy of Alabama's cOllnty courfhousesflwlr origins and some of the people who contributed 10 theit' growth. If you have (lny photographs of early or present co/,:rlhollses. please for. w(lrd II/em 10: Samuel A. Rumore, Jr., Migliol1ico& Numore, 1230

Brown Marx Tower, l)inningham, Alabam(13S2OJ, no

MAY tODO

South Carolina and each group wished to honor persons or places from their former stales. How this rivalry was resolved will be eKPbined later. but a peaceftd compromise. resulted in the names we know today. In contrast. the early history of Ihe fi rst American seltier!! in ~u lh Alan:l.lna with respecl to the lndilulS was IInything but peaceful. It was nmrked by the Creek lndi~n War. This war was a smalilliece in 11 ml.lch larger seo-politi<:'11 puzzle. Certainly the Amcric:ln settlers and Creek Indian~ cI~~hed altimes when they came Into contact, but some

histori:lnS believe that the British c,lused those clnshes to tllrn into a Wi.r. As early as 18111he Shawnee Indian Chief Tecumseh. encoura~cd by British all:ents. traveled from the Creat I...,ke~ region 10 Creek country in Alabama. lie sought 10 unite the Jr\dians lIgllinSllhe white settlers. Although his miuion to unify the Indians WIU not successful. he sowed the seeds for the war that soon followed. Since Britain was fighting a war with Napoleon fit this lime, and its forces were spread all over the globe. British leflders feilred that Cilnil~a could be vulnerable to;m American atl~ck if war came with the United Statu. Becau$t: (J( CQnnid$ over the Impre~sme nt of sailors on the high seas. together with

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served in the Alabamll militia. He and other economic issues. war between two companions were killed in the America and rlritain seemed Inevitable. In order to defend their ambU5h, Sam Dale located the bodies and burioo them near a place that Carnadian holdings. one theory is that the BriUsh decided 10 utah! a subsequently became known as Butler Spring$. Forty yeus later Ihe distracting disturbance: an Indian remains were m~d to the cemetery war on the American southern (ron· al Greenville, the count)' seat town of tier. IJritish agents promised wCilponsto the Indians for their Butler County. efforts. While il was not "o((1cial" By the end of 1818, the Indillns Brili$h policy to crellte an Indian wen: driven from the area and peaceful settlement began in earnest. Afew war. the Creeks d·d receive s~l pplies from the British O\J wdl as from Ihe familiu from Ceorgia came in 1818. In January of 1819, settlm in a Spanish in Pen!3colilo When war ended afier the BaUle of wagon train from South Carolirl(l iligIuN, mutltwr ""OW lit" ()/ flvl;.,r ,,~ OUlsiJI stopped. camped and Sia)'ed, This pioHorseshoe Bel'ld In 1814. much terri· (;1wrH'IIJ. on II~ 10 neering group con~istoo of eight (am;· tOry was opened (or settlemelll in the lies and other Single men They had land Ihllt would become Alabama. Senlers began to move into the futu re Butler County u early a~ 12 waltons and 52 horscs. They seilled near IlOlltan's Creek 1815. Indians stilllivt!d in Ihe area and clMhes continued for where they chose home sites and built cabins. Hore settlers the next few years as the Indians resisted the lou of their IlIlld ~. call1t later thilt year. The place became known as liuttsville, liy 18 1S. due to the threat posed by rovilli! b..1llds of warriors. being named for Samuel fJ~Jlts. Samuel BullS was born in South Carolina, but lived as an settlers buill three stockades for protection. These were forts Cary. I3ibb and Dale, all named (or 100,1 heroes, Thomas Cary adult In Ceorgla. III! served lIS a captain in Ceneral Floyd's W<lS Ml early scull... and nevolulionary War veteran, William Georgia troops. who came 10 Alab.1ma to fight in Ihe Creek Wyatt Bibb WM governor o( Ihe AJab.lma Territory. Sam Dale Indian War. ButlJ was kll1ed at tht Battle of Calabee Creek in 1814 in present·day "bcnn County. was a pioneer and hero of the Creek Indian War. On the evt!ningof ,,1rirch 13, 1818, Indil11ls attacked the The Alabama Territorial Legislature creattd sevtn count ies on December 13, 1819. These counties were Butler. Greene, home of William Ogly in the future Hutler County where the Ogly and £lias Stroud families were sheltered. Two adults and Henry, Jllckson, Jefferson, Perry, and Wilcox, All of these coun· ties claim to be older than the stale of Alabamll. That is a true five children were tomahawked and savagely killed. 'lWo ot her adults lUld one child managed to survive this incident thai ~tOl t ell1e n t , but just barely. The stale of Alabama came into becilme known as the Ogly Massilcre. beillil the ntxt day, December 14, 1819. The bill 1Il<,t created the new county that b«ame lilltler One week later, on March 20, 1818. CapUlin William BULler County was origin.,lly written to n.1me the county " Fllirfie ld.~ .lIld four companions were ilmbllshed as they traveled between Till! name COmtS (rom the district in South C.. roliN where Fort J3ibb :md Fort 1)'lle. Butler had been born in Virginia and movtd to Ct{)r~i" where he served in Ihe state legislature and many early selliers previously lived. Ik~en the time of the introduction of this bill until ili final p.:1UIlge, II controversy over Ihe militlll. He came to Alabama as a pioneer and likewise

.... w 'QQ,,

the name arrue. It wIIS finally rJcddcd that the county woulrJ be N1med Butler to honor Captain Butler who harJ been klllerJ by InrJians within the borrJers of the new county the previow year. When lhe counly was established. Fort Dale became the first county seat. Andrew Crenshaw, for whom Crenshaw County was named, was the first jurJge. Judge Crenshaw held court at ~'ort Dale outdoors under the oak treeJ. The jury sat on logs and adjourned to nearby woods In order to reach their verdicts. Buttsville was morc centrally located in the cOunty than Fort Dale. and it soon became the largest town in tht county. On December 24, 1821. the legislature chose Buttsville lIS the permanent cou,ty seat of Butler County. Port Dale continued 115 a small community until about the time of the Civil War. By the 18605 it ceased to exist. In 1822 a movement beg.1n to change the name of the new county seat. As more South Carolinians came into the area, sentiment ~rew to change the name Bultsville to Grcenville in honor of Crcenville. South Carolina. forme r home of many of the pioneers. They also resurfaced the name ~'airficld (or the county. At. often happens with political decisions. the factions compromised. On December 28. 1822. the leQislilture offidillly chanQerJ the town nnme of Bultsville to Greenville to Soltis(y the South Cnrollnians. The county retained the mlllle Buller in deference to the settlers from Ceorgia. The legislature nppointerJ five commissioners to purchase land and superinlenrJ the construction of a courthouse. The commissioners $elected a site in 1822, and laid off the town with four princip.l lstreet5 rarJillting from the courthouse site. They nalTH:!d the north·south street Conecuh Street. and the east·west street, which became the principal commercial artery, Commerce Street. All four Butler County courthouses have occupied the :lame localion. The first courthouse. described as a substantial frame buildinQ, was buill in lhe 18205 and served the county for more than 25 years. it was destroyed by II fire on April 12, 1853, All of the county records were lost. In 1-1ayof 1853. county officials called a meeting to consider bids for construction of the second courthouse. John K. Henry prepared the plans for the structure. Brockman W. Henderson became the contractor with his low birJ of 55,979. I-te was re(juiTed to post 1\ bond of 511 .958 and to complete the builrJing in a workmanlike !n.~ n ncr. The project, which wou ld result in another frame structure, Will subject to inspection by a five·membe r building committee comisting of l)avirJ C. Dunklin. William P. Routon. William ~: tlaTtley, John K. I ten!),. and William WriQht,

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fl103 C ....Mu .. '"

On June 12, J854. the committee made its report to the county officials on the completioo of the court· house. They noted numerous alterations in the project. They ....'Cre pmticularly concerned that the cement noor laid by the contractor would not last. Although they h,ld consenterJ to Ihe cil.lngcs. they rJid not release tht contractor from liability concerning the floor. 111)'n.·evtr. Ule floor proved 10 be sCTViccable anrJ caused no rcporterJ problems. The county continlied to grow and prosper, In 1855 community leaders petitioned for n railroad so thai produce could be sent to r-1ontgomery and Mobile and supplies returneJ from those places to Greenville. The uilroad ....'as finally comrleted in 1861. Unfortunately, the Civil Wu also com-

IIAY ' . . .

TIII~/~

Though Butler County was spared the devastation of war within its borders, iLS terrilory .....as reduced and its population declined between 1860 and 1870. A kty reiL$Ofl was the creation of Crerl,~h.lw County on NO\Ii:mber 24. 1866. Butler County gave up approxim<ltely 220 square miles of lar\d for the new county. I)y 187 1 the county needed to build its third courthouse. This time the COl.lnty b\Jilt its nut brick temple of jU5tice al a cost of $12,000. The two-stOry, red brick slrl.lclure had a front portico resting on a cUNed sl<lirway. Under the portico was a doorway to Ihe firsl noor. The pediment contained a round wheel window just below the apex of the gable. The court· house had six chimneys, This Ihltler County Courthou~e proved to be less than a '·temple o( justice," [t was the scene ofan incident in 1892 where citb:ens took the Illw into their own hands. 1Wo desper. adoes, John Hipp and Charley Kelley, were notorious killers in Butler County. They had murdered at least six people, including U\e tax collector. When they were apprehended. an anilry mob forcibly removed them from their jail cells. The two men wcre .umrnarily strung up from the columns of the courthouse portico. An early photo (on P<1ge 152) shows Ihe lynched men hanging from the courthouse. By the turn of the century. the third courthouse became inadequate (or the needs of Butler County. Probate Judge Zell Caston became the moving force for a new building. The 1871 structure was razed and" new courthouse with a distinctive central clock to\'.'er was built on the same site in 1903. The architect was O.LI. Smith of Montgomery. The contractors

were l>obson & Bynum, This courthouse crut S6O.0oo. Newspaper articles from 1903 provide some interesting insights inlO the courthouse project. The county commission issued bonds fOr the building of the courthouse. nle winnir\g nnn for the bonds WdS the nobinson, Humphrey Co, of Atlanla and the inlerest rate was 5 per cent. Another arlicle described prep..lrations for the laying of the cornerstone. Ceremonies ....'ere condl.lcted by the Father nyan Chapter of the United [);)ughters of the Confedel'ilC)', And a third article described a work itCcidenl at the cOO$lruction site. Mr. Archillus, foreman for the project and /I very heavy man, Willi walking on a wall under cOO$truction ",'hen some brick$ C<imc loose and he fell to the ground. lie 5uffered severe injuries which left him in serious condition.

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SERVICE. A FAM ILIA R W ORD W ITH FAM ILIAR FACES. you'~ looking;u three IX'Qplc

uniquely prep:m!d 10 handle ),ollr tide insl.lrnncc undefl.,.iting. Uniquc in experience. Unique in dedic:uiun. Unique in AI:tbama. T hey' re allorneys with 1Il0,'c th:m 60 years ofcolicCli\'c litle in<!usu'y knowlcdge and \(llent. No wonder then, t.lt:tt tht'Y're your ~1i"5isslppi V:tlleyTilie UI\(I~rwriting Counsel. And thcy' re ready ro hdp ),0(1. Just mil 1,800.g"3-1688 tod:!)'.

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The new courthouse wa.s completed by the end of 1903. An early photo shO'....s bl'l itnprusive building for a. smallsoulhern 10\\'1'1. Also. the presence of an electric street light and wires indicate thllt Glcenville had electricity in 1903. Another feature in the photo is the m.. nhole In fro nt of the courthouse which ]>olnts out thllt 1903 Creenville had .. sewer syst1;: m. The courthouse itself is a good example of a lute Victori;m structure with eclectic features. The building h.15 a hipped roof wilh t....,o front e.lslhat are CO\I'I:red by pedimenled glIble roofs, Comer quoins are (O\Ind thrQl,lghout the structure. The entrance to the courthouse contains a covered porch and Doric columns, The steeple is built of dt-COl1!tively-p.lIIerned brick with an arched window on the ~ond noor and two rectangular windows farther up. AIlov.! these windows is tile oourthowe clock. Continuing to climb. the to.....er soars to a IxItustraded platform. above which Is the belfry. On top of the belfry 1$ another platform on which rests a cupola topped by a formal finial. The cenlral courthouse section isl07 feel high. or almo.sl II stories by loda)t·S standarw. Fifty years after Ihe completion of the courthou~e. the county faced allOther dtcision. Oue to the need for additional space, the

s.mu. ' ... Aumo ... ,

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cith:ens would tither hllvt t.o build another new courthouse or remodel the existing structure. The county chose the: lalter course. New storage space was added on the nrst Ooor level which was enclosed by II modern $Il)ne block fa cade, The interior was rearranged. Ba.~em e nt sp.lce was exc.wated and lMw olCtlUrllrouu utilhtw. Other improve. ments included air·conditioninA. an iron fcnce around the outside, 11 widened siliev.'alk, and landscaping. The county comnlissiOrl had anticipated the need for these improwmenlS. setting aside surncient funds to pay for them without incurring any debt (or the county. In October 1995. winds and rain from Hurric.lne 0p.11 caused sillnificant damage to the Butler County Courthouse tower. It took the county almost two yean 10 complete the repairs. The old dome had to be taken down and replaced by a new or\e. AI~o much of the mortar between bricks had deteriorated, and a sub· stllntial amounl of brick work had to be complettd. Randall Nicholas I}uilder .....as the cont ractor for the approximately $250.000 project. John F. Daughtry o( Dlughtry I'rofe55ional Engineering designed the new dome with the idea 0( replacing tht mostly woodell old dome with a nearly identical copper.cowred structure. The dome took approximately seven .....eeks to build and was constructed by Slagley Architectural and Recreationll! Prooucts, Coker Brothers Const ruction. lind Kevin Ordoyne. An unpleaSllnt part of the clock tower project was the removal of many dec.ldes of accumulated pigeon droppings. Workers had to wear special respirator masks and tre.'t the droppings wit h a chemical mixhlre before they could be removed. Spores found in decompo5ing pigeon txcrement can cause hystoplasmosis. Workers safely removed almost a dump truck 10..1d of wilste matter (rom lilt towtr. The old dome was taken down from the courthouse on August 19, 1997, The IICW dome, approximately 17 feet wide ilnd 17 fee t hillh. was placed on top of the tower on September 30, 1997. A!. part of the project. the belfry opening5 were enclosed. thus hOI)Cfully eliminllli ng pigeon access and the accumulfllion of their excrement in the fu ture. The entire project was eompleled in October 1997. TIle author thanks the Creenville-Hutler CoUl\ly Public Library. author Madge Jackson. Birmingham aHorney Ron Boyd. a native of Creenville. ;md Mrs. Jerre 1\mlCr. Butlu County nud~et Clerk. for infOrmiltion or photos used in this article, • SOURCES: SuI.., CoI-'IIy In ",. ,.,....., c..n.q. Marilyn 0..... ...,. (MaUot JaCIIIOn). 1\171, HoJIOty oI8u1Jf/1 AI.ttIIIoN F""" 1815 1885. JoM 90ckntt 1.J!1t•

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Onry 1'911:

LEXIS LAW PUBLIS HI NG

Rohcrt L McCurley, Jr., l'l'nny A. I}.wis

Jl'm P. EVAI\~, HI • Appeals to the Eleventh Cirwit Mn n u~1

Lrury M. R01h. GeorgI' K, RnhdcrI • Alabama LiabililY II1~ urMIce

Handbook

Prllctice li nd Procedure, Second Ediliol1 I~ick Fe rn~mbucq,

• itl'al Estalc Hand book: L:md L~w. of Alabamll, Sixth Edhion

l~cmcdil.·5

Hugh Maddox • Family La", in Alabama:

800/562·1215

Law of Evidence Joserh A. Colqlliu

• AI~b~mll Property Riglm and

Second Edilion AlIcn WIndsor Howell

the most cOlnprehenJl\'c ,Ingle source (or Alabama AnnOllll ed UlUutcS, Slale

Form~.

<> AI~nama

Bibb Allen • AI ~b~ m~ Workcr5' Com~cn~~l ion Comm,Q" soon

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OPINIONS OF THE GENERAL COUNSEL Ily J. AII/hQIlY McLain. gt'lll!fal counsel

QUESTION :

am writing to request an opinion (rom the Alabama Slale Bar Association In reference to the application of Rule 4.2 which states: ~I

'In representing a client. a lawyer shall not communi Clltt abou t the

subject matter of the representation with II pJr!), the lawyer knows to be represented by another lawyer in the ,""tier, unless the lawyer has lhe consent of the other laW)'cr or is authorized by law to do so.'

RULE 4.2Plaintiff's Counsel Contacting Former Employees of Corporate Defendant

We are currently Plaintiffs counsel in lawsuit against X Motor Company in Anywhere. Alabama. The lawsuit Involves allegations that X "1010r Company has PQlluted a plant site ;md su rrounding land since 1960. The pilii'll has been closed for mMy yean. We propose to take the stattmen\J of several former X Hotor employeu whose testimony is factual in Iu.lure. We arc not sttking admissions from these employees which would effectively bind X. We are simply trying to ascertain the filcts from these former employees concerning what happened and what they saw or know. None of these individuals havt a current relationship with X. They were dismissed when the plant was closed In the mid-I980s. X's attorneys have advised me of their Inlenl lo invoke Ilule 4.2 of the Alabhmn Hulu of Professional Conduct and to seek SlInclions if we attempt to intclView th ue employees. I do not agree with X's position that this Rule should shield them from the consequences of their own wrongdoing and II

muule statements and di$Closures of fact from people who have not been employees of X l'>lolor for many yean. Nevertheless, I feel compclled to write the Bar Association rClwc!lng any potcntial impropriety of taking these statements and whether v,e will bt allowed 10 take them. We will, of couru. abide by any guidelines)'Qu sug. lie!! if ....'C are allowed to take state· ments." ANSWER :

Ilule 4.2, Alabama nulc! of Profcssional Conduct. does nol prohibit plaintiffs counsel from contacting for· mer employees of a corporalt defen· dant. DISCUSSION :

In nO-92-12.thc Disciplinary Commiu ion held thflt Rule 4.2 of the nules of Profe5sional Conduct prohibiu communication about the~ ubjec\ matter of the representation only with a "partyft known to be represented by other counsel. In RO-88-34. the Discipl inary Commission h..d held thM plHinl if(,s cO(lnsel in n 10rt claim action could contact and interview certain currenl corporate employees withoutlhe necessity of obLllining ptrmission from the defendant or lIivinll notice to the defendant's attorney. Plaintiffs counsel may not. without notice and pcrm i~· ~ion. illtelView current employeu who are In a l)()sition to bind the COT)()ratc defendant. However, ex parle contact with a fonner employee is not subject 10 the ~me $Cruliny applied to current employees of a corporate defendant, As the Commi~ion stated in RO·92· 12.

"... there is a strong argument that Rule 4.2 dots not even appl), to forrller rmplo)'ees at an)' level." The one qua1Hkalion might be, as dis(uued in Ihzard and Hodes in the treatise The 1'<1/1) of l.owl/er/ny, those employees who occupied a manageriallevel position and were involved in the underl)'i ng transaction and being privy to privileged informiltion, including a work product. which ....,ould prohibit plaintifrs counsel from accessiOilSilid inform/ltion without a valid waiver b), the organization antVor discovery and evidence rul c~. Ilowever, such an exception would be restricted to 5it uati on~ wllerein these (acts exist. The Instant holding o( the I)jsclplinary Commission Is supported b)' ABA Formal Opinion 91 -359 (1991), Therein, the ABA Committee on Elhics and Professional nesponsibili t)' determined that former employees of a corporation could be contacted b), plaintifrs cOun ~r:I without consulting with the corporate defendlnt'. counsel since the former employees wtre no longer in a position of authority, and. thus, could nol "bind- the corporation. • IRO-93-051

Order-Rule 1(a) Supreme Court of Alabama IllS oldered thai Rule 1(al. Alabama CiVil Court Mediation Rules, be amended to raoo as follows "!e) Mediation IS SIl9~traJlldicjal procedule fOf the resolUllon 01 drsputes SU{l{l9sted by Rule 161cXn Alabama Rules of CI~II Procedure, In some situations, 0 mediator can assist parties In leaChing a settlement 01 a dispute Mediation is a j)I'OCtss by -MliCh the pawes subrmt their dispute to an impallls pefSOllthe medlotOi The mediator may suggest wavs of lesolvlng till! dispute, but cannot impose a seWEtmOnt 00 the parties· It Is further orderad Ihal this amendment be effll(tlve imme-

dlotely Hooper, CJ . and Maddo•• Almon, Shofss, HOIJstOl'l, Cook. BullS, and See, JJ , concur

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COMMUNIlY PUNISHMENT AND CORRECTIONS OF ADULTS IN ALABAMA Pre,Hlred Ihrough the Alllbmna Slulil Oar DJmmiltee on Correctiollal hlStitlilions and Proci."lures. and drafled by Rober/a /" N,I/on, chair, /)lnll;lIgl/(llI/, w,~h Ihe help of tlw (allou.'liI9 commi/lt'e mf!mber.~: Cgn/Illa ;l{mOlld, TusC{//oosa; IViffiam Illanelll/rd, N Ollf!J()merg: Wl1Ilam IJroollw. Allnis/Ofl; Alit'll fYOW(tfS. Binllingham: /JIake Cf(I(!/1, DOlhun: Dm:ld l'hnn, flinn/nul/am: Mark lIIil,wI'${PI, MOI/If/omery; ~ /:./xhJs, OIIioo oflhe AlfOn/I!!I GL'uera/; Gff!!JOru Griffin. f}(!tIeml cou1tSl!1 of tho lVi/bama Board of PanlollS and Parok'S: Andrew Rer/d, IIt!rJefa/ COWlSel of the Alabama !NparlmL'I,1 of Correctiolls: and Judge John r:' lglatll/, of fha Si:rlh Judicial Circuif oIAlubama

ithin the past decade Alabama has enacted sc:verallllllutu which have increased criminal Hnlencing options and facili tated the implementation of sanctiom within the community. Acriminal defense: lawyer"thorough understanding of the sentencing possibilities In each particular case is esscnliallo the best representation or the d ient. and knowledge among all lawyers concerning currently developing: programs of community punishment and corrections is vital to the profenion's localleader~hip in lega l Justice matters.

B.ckground 0' Community Corrections During: the la!\ltwo decades prisons fill over the country have grown phenomenally, Alabama's among them. In 1980 the slate's adull prison population Wid al)proximately 5.000. Today, according 10 the figures of Ihe Alabama Department of Corrections. the number is in exce" of 22,000 and the cost of incarcerating Ihtse prisonen consumes nearly 17 percent of Ihe scarce resources of our stale's general fund budget. By tilt end of the 19805. many crimin,,1 justice practilioners and public policy commc n l~tors began to say thaI , for a variely of reasons, it was in the best Interest of the public to create for non-violent felony offcndcr5 $Ome additional fo rm of correcliol1s. which was ICS5 reslrictive and less expensive than Incarceration but more restriclive than tradiliOrlll1 probMlon with minimal reporting:. , ~.

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In a 1993 publication calledtlmerictITU Bl!hilld Ocn, The Edna t>1cConncll Clnrk Foundation quoted a number of $Ialement$ on the dilloildvanlaQcs of incarctrilting non-violent offenders. The follOWing Is among th~m: l)oes incarccrution P.W? It is eXlfemalU difricul\ to anathe soci'll COSU [Uld ~nefi ts of incarceralion.- The best studies now indicate that the net $OCial bmefits of Incarcerallng the typical offender are much. much smaller than earlier research maintained, Ins\elld, Il:cen\ sludles rallfy common sense: prison pays for more serious offenders. but not for tn.lt fraction of incarcerated IM!rsons whom research suggests could be Wfll supervised in the community without jeop.udizing public safety. 1)"l.c

John di lullo, Jr" professor of politics and public ~f(a irs at Princeton University find senior Fellow at the IJrookings InsUtute. Supra, III 28. nespected current studies continue to usert s milar conclusions. (See CRIMi'.- AND PUNISHMeNT IN AMERICA. by Elliott Currie: and SEWSIOU JUSTICE - A/lemu{iws /0 Prison, by David C. Andeuon. which d ies Birmingham's v.'O rk in community corrections. Hoth books wert reviewed in The New )'Qfk Times IJooK REVIEIY on March I. 1998.) Within the recent period of nlllionwide Increases in rates of incarceration. the following three statutes haw: importantly affected the developmenl in Alabama of community-based sanctions: "Split Senlence Act". Ac t~ 1976, no,754. p, 1038: Acts 1985, 2nd E:x. Sm" No. 85-905, p. 177, section I: Acts 1988, No. 88-16..1, p. 261, section 1: codified as amended al Ala. Code, seclion 15-18-8 (1975).

"Mandatory Treatment Act of 1990" (The BennettBreedlove Act). Acts 1990. No. 90-390. P. 537; codified al Code. section 12-23-1 (1975). and "AI"b"ma Community Punishment and Corrections Act of 1991. Acts 199 1. No.9 1-441 .p. 795. seclion I: codified at Code, section 15-18-170. The Split Sentence Act

The Split Sentence Act, as amended in 1988. gives a judge discn:tion to split a prison sentcrlCC of 15 years or less by ordering that the defendllnt serve a m.-udmum of three years In prison. that the rem.1inder of the sentence be suspended. lind th.lt the defen· dant be placed 011 probation for such period and upon such terms ;u the court deenu best. l1u:reafter ooly the senlencing jodJle (or II $UCCCS5(lr judge) has the poy.oer to shorten the period of incarceration. and the r:xact length 0( imprisonment ordered by the Judge may not be reduced by the "good time" rules of the Ot:partment of CorrectIOn5. The statute stipulates that the split sentence 15 not to he used to shorten mandatory incarceration periods If the conviction for which the offender is being sentenced. or any previous convictiOn. has been for any of the following violent o(fell5es: "murder, rape first degree, kidnapping first degree. sodolll)' fil'5t degree. enticing II child to enler vehicle, house, etc. (or Immoral purposes. or arSOIl first degree." Code. 15-18-8(a)(21. (This statute leave~ unaffected the result that an offender must be untencM to incarceration for the full minimum period if his or her sentence is for more than 15 ~·eal1. whether or not his offenses have been violent and even if Ihose offenses consist on ly of a serics of theft s with no physic.. 1lIm: .. t involved. ) The (ollowing is. in IXlrt . .. statenlcnt of sentencing principles contained in the Rule, of Criminal Procedure promulg."ltoo by the Alabama Supreme Court (or use beghlning in 1991: The sentence imposed in each cue should call fo r the least restrictive stlnctiOI1 that i$ consistent willI the protection of the public and the gravity of the crime.Judges $hould be sensitive to the impact their sentences have on all components of the criminlll justlce system and shou ld consider alternatives to long-term Institut iolllil confinement or incarceration in cases involving offenders whom the court deems to pose no seriO\IS dlmger to society. A.Jt C r im.l ~. Hule 26.8

Al though thl! "ltcrnatives presently availlible will vary to some degree. depending on the sentencing court's location. some alternatives indude Isplit sentencel. "reverse" split sentences, fines, cOurt cosls, restitution. drug and alcohol rehabilitation programs. boot camps, community service, work release. communit)' restitution centers, house arrest. and electronic monitoringl. (A "split selltence~ divides 1I sentence so as to order an offender to prison for Ihe tlrst portion and to order a non·prison sane· tlon for the remaining portion. A" r(.-vt r~(' ~plit sentence" orders a non-prison sanction for the fil'5t portion of the sentence and a period of incarceration (or the following portion, with the expectMion that if the! offender complies well with the first portion, the judge will sus~nd the order for incarceration.) Thus. Alabama courts wt!re encouraged ten)'eJrs ago to issue sentencing orders which created. in effect. a third tier of intermediate stlnctions bctwf:i!n incarceration and basic probation. hO\-'.'ever at the time no corre:;ponding personnel within AlabMJa communities were available to Implement those orders. Curret:tional omcel'5 of the Alabam:a Department of Correct ions could provide supervision only to imprisoned offenders, and proba.Uon omctrS within the communities wt!re already stretched thin by case loads of llrobalioncrs ar)d p.lrole~s several times the nationally recommended a\lt!rage. Cert.linly it would have been unreasonable to eJlipect these probation officers to further increase their loads by adding probatioocl'5 requiring mort detailed and intensive. supervision. The Edna McConnell Clark Foundation hellX!d in the carl)' development o( community correct ion ~ with ~cd fu nding gmnts, but workable meU\Ods o( bui lding strong and durable local programs have been evolving slowly. In all communities probation officers are involved to some extent in ensuring compliance WiUl altemative sentencing orders (because offenders sentenced to intermediille sanctions within the community are considered to be "on probation" with especially demanding terms o( probation), but if iI region has no network of local support other than probation services, it is unrealistic; to expect community corrections to succeed. Indeed, without such community correctioos support. orders for intermcd ate sanclioll5 Illay promote lax implementatioo and thus convey the destructive. impression that a court's orders n(-cd not be obcy~d. The term "community corrections program" ITllIy be used loosely to me"n (111)' entity providing support services to Implement criminal sentences carried out within tm community, . . ·heUler such services are for mi5demeananl5 or felons or both. Both the r-llIl\daIOr')' Tre..lment Act of 1990 and the Community Punishment and Correctloos Act 0( 1991 have helped to establish 5uch "rogr:uns.

The principle here is a

carrot-and-stick approach

to replace what formerly was only a stick.

The Committee Comments to Rule 26.8 stale: For appropriate defendants. judges are encouraged to fuhion sentences utilizing alternlltives other thlln basic probMion and Ions-term instit utional confinCmC rll.

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.kwtph Mah!JfWj/. dirw;/Qr. Q)mm~mrl, C<Im~Ii(»u ","/~.

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The M.ndetory Tre.tment Act of 1990

The Mandato!)! 'fyeatment Act spccificilily llddresses the problem of alcoholnnd drug abuse among criminlll offenders. Without question the category of greatest concern in community corrections is 5ubstance abuse: its control. puni5hment and cure or amelior~tl on . tl ls widely estimated that an astounding 75·80 percent of Alabama's crimin/ll o((endcr~ In both urban and rural areas, have some degree of alcohol or drug addiction. (See: Allen Thp[ty, Alabamo:S Criminal Justice System, Plannillg for the Fulufl!, TIle Sentencing Institute, 1994.) Constquently community corrections services of almost every kind are permeated and interrelated by concerns associated with the identifICation and treatment of aloohol and drug abuse, The 'fyealment Act states its legislative intent as follows: To u tablish a specialized court referral officer program to promote the evaluation. education and rehabilitation o( persons whose use or dependency on alcohol or drugs directly or indirectly contributed to the commission of an offense for which they were convicted in state or municipal courts and to establish 1Th1ndatory alcohol and drug abuse treatment programs to provide treatment ilnd rehabilitation for these Identified offenders." Code. section 12-23-2 This act establishes specific sentencing proced\Jr!).$ which ca ll for a new tier of corrections services which are admini$tered by the Administrative Office of Courts and which Me not the responsibilily of either the Department of Corrections or the Board of Pardons and Paroles. The act provides thilt the Administrative Director of Courts, with the advice of the presiding judge of the ci rcuit. shall appoint a ~court referral officer (C I~O) in every circuit. whose duty it shall be to assess. monitor and refer for suitable treatment offenders who are found to be substance abusers. The CRO reports to the court on an offender's drug status. and if upon conviction the court elects to fashion intennediate sanctions (or the de1endant, it Is able to do so on the bMis of informed analysis of any substance abuse problem. If lhe court chooses to incorporate into a sentence a provision for .substance abuse tltatment and no treatment is available in the M

lao MAY 1DOD

offender's home commtl11lty. the e HO is empowered 1(1 refer the offender to another Mea (or treatment in one of a statewide network of Inpatient treatment fadlltie$ bnd halfway houses. (Pllyment is a problem if ~n indiscnt patient is too ill to be employed and some w;liting periods c<ln be a problem, Additional resources are needed.) The Department of Corrections also offers substance abuse treatmClll in its cent ral prisons. under the direction of Or. r.1erle Friesen. and currently maintains approximately 1.500 beds for substance abuse treatment. mainly at its Ventress (acility. Even with a good treatment program, the extremely high rate of substance abuse problems among inmates ~ug guts that some abusers reach the end of their prison terms without treatment and then return to their old surroundings with no professional help. The obvioWi advantage olin-prison drug treatment is tllat it provides a secure environmtnt for those addicts ptrceiwd tiS too dangerous to remain ffloe. 1he obvious advant...ge of community treatment is that It can integrate treatment into the everyday life of a non-violent substance abuser while he or she is being monitored for drugs and is \\''Orking to pay (or treatment services and for the support of himself and his dependents. l!lcorporated within the f>1nndatory 'fyeatmenl Act. at Code section 12- 13-5. is the provision known as "d rug divenion" Qr "deferred prosecution" authorizing protedurc in which ll. QualIfying offender may, at the discretion of the district attorney, undergo drug treatment in lieu of prosecution. lind thus achieve "diversion (rom the criminal justice system." The principle here Is a carrot-and-5tick appr02.ch to replace what formerly was only a stick. The hope is lhat a perSOI) arrested for a relatively minor drug crime in the early stages of sub· stance abuse will have /I powctful incentive to stop using illegal drugs (and thus prevent a lifelong drug problem to himself and society) when he or she knows lImt in so doing he will escape being branded a criminal and will be helped to become drug(ree by the advice of experienced pI'Qfessionals. B,II the stick remains. in the imminent threat of prosecution if the defendant's unla""ul behavior doo not change. For some Ilppreciahle time before such II case is dismissed the defendant is continuously monitored by random drug screens at the defendant's

own CXpl:nse while becoming. or remaining, gainfully empIO~'ed IlIId Polyin" some costs of other required selVices if he is reasonably able to do so. The statute provide~ thlll the Office of Prosecution SelVices shall establish guide· lines. which shall be used by Ihe prosecutor in evaluating a request for diversion from the !)udd 'Tbt1mIu. UJS41;t/rl uirvclf)lf. criminal ju~lice system into Commllnrll ConwliolU Omlw. rehabilitation and also pro· ,md IIfVIt AlI""'tolltv SmI•...n.It/. vides that if a complaint, infor· ,Ihlblk mation or indictment h<lS been filed , the deferral mu~t be approved by the court. Ilesponse to this discretiomu'Y proyislon has been widely disp;lrale among the variotls Alabanm circuits. Mobile, Jefferson and Tuscaloosa counties have deyeloped large. firmly estab· lished drug diveuion and "drug court" programs, whereas some olher countin have never allowed a single such case. "Drug courts" in the cities mentioned above employ meth· ods simll:'Ir \0 thou of dc:fmed prosecution, but typically include non·violent offenders whose offenses or prior records are somewhat more serious thllll those of offen ders Qualified for deferred prosecution. Drug traffickers are excluded from both groups, In Ihese ~d r ug courU" the defendant must plcad Jtuilty (after being informed of his rights) before he or she is accepted into the program; but the judge delays sentenCing, intending to set i15ide the conviction if the defendant main· tains a long pattern of successfu l rehabilitatlon but to SllflC· tion the offender if he or she does not cooperate. Persons In the program arc periot/kally reviewed by lhe court. with individual approYlI1 or censure by the judge. During these review sessions there is a non·adversarial spirit of working togelher cooperatively towud lu:complishing an extremely difficult task. ,.1any participants succeed and m:IIlY do not: all are care· fully monitored and thost ..... ho cOlltinue in substance abuse cannot do so with impunity. In each of the three cities mentioned above, one loe,,1 judge preside5 for all such offende rs. Each community has its own individuall)oliciCS within the loIener;l1 procedllres described above. For example, J£ffe r~on County at present allows in its drug court only those offendc:rs whose alleged offense was specifi c.llly a drug offense; however, Hobile admits participants whose offense is belitved to be sec· ondary to a drug problem: for example. theft of money to buy drugs. Notes for II CLE program two ytan ago suggest the individuality of each community's policies: "The Jefferson County drug court is an evolving pro· gram, There hllVe been many meetings and planning sessions betwem law enforcement, lhe court. Ihe district allorney, the criminal defen se bar. ;lIld treatment providers to develop a comprehenslye drug couri pro· gram for Jerferson County, We will continue to evaluate the program ar.dmilke adjustment.s. rile Jeffl!rs(m

Judge 0, L. ··Ptlt" Johnson, Notes with oral presentation to B'ham Bar Ass'n, 12195.

COWII/I Drug Courl,

One Important diffnence among communities 15 that a few ci rcuits accellt felony pleas (after IIdvlce of counsel) at the district court level, often accelerating the start of drulll rclltment. b\lllllost circuits do not accept felony plea~ until aft er indictment. sometimes for the stated reason that court reporters are unavailable in those cOllrts althe district Ic:ycl. The Alabama Community Punl.hment and Correction. Act of 1991

The Atabilma Community Punishment and Conections Act of 1991 was passed with the following statement of legislative intent: To provide a community punishment and corrections prOJ,{ram lind procedures as an alternatiye punishment for eligible offenders: to provide for local community punishment and corrections planning boilrds in the judi. d;11ci rcuit or counties to Qualify for receipt of fund ing; to provide for the establishment of such alternatiye plans and programs whereby ~\.tJ.te funds may be granted or contracted with or through local govc:rnments. county or counties. established authorities and qualified oonprofit human service agencies and entities to provide plllnning. treatment, guidance, training or other rehabilitative ~ r vices and programs; to provide authoriJ:ation for the depllrtment of corrections to participate in the pl:lIl-. Acts 1991. No. 91··HI , p. 795. SelVices provided under the Mandatory Treatment Act are SIMc mllndated and state regulated, but the Community Corrections Act providl:$ spl:cifically that commun ty punish· ment and corrections programs for non·violent offenders be establ ished upon the initiativts of the counties themselve5. with the approval of the local county commission or, in the case of counties wishing to join together in formirg such a program, with the approval of lhe comrllission of each partici· pating county. "Community punishment and corrections pro~rams" in this forma l sense are those entitles which quallfy under the terlllS of the statute to receive certain benefits frolll the stnte by part icipating in qualified community punishment

Richard Wilson & Associates Registered Pro fessio nal Court Reporters 60<1 S, Perry Street Montgomery, Alabama 36 10<1

264-6433 ..u

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~nd corrections plans individually approved by the Department of Corrections, Under this act participation in such a program by each county is purely voluntary; once a county has elected to p.1rticipate it can, at any time. elect to withdraw attne end of its current grant year, The Act slates its Jloa t ~ in thi ~ way:

(I) To promote accountability of offenders to their local community by requiring direct financial restitution to be made to victims of crime and that community service be made to local governments nnd community agenciu representing the cOI11I11\lI1lly; (2) To provide a safe, cost effi cient. communit)' punish. ment and correctional program which provides punish. ments th rotl~h the development of a range of sanctions and community services aV<lililble for the jud;!e ilt sen· tencing: (3) To reduce the number of offenders committed to cor· rectional institutions and jails by punishing 5\Lch offend· ers in alternative punishment settings: (4) To provide opportunities for offenders demonstrating special needs to receive services that enhance their abill· ties to provide for their families and become contribut· ing members of their com munity: and (5) To encourage the involvement of local official s and leading dli1.trlS in their 10C<'l I purlishrmnl and corfectional system, Code section 15· 18-113 The following provision concerns the application of statuto· ry ranges of punishment for criminal offenses: Notwithstanding any provision to the contrary, lhe court is authorized to sentence an eligible offender as defined in this section directly to any appropriate community· Ihlsed alternative provided, either as a p~rt of or in con· junction with a split sentence as provided for in section 15· 18·8 of the Code of Alab.1ma 1975, or otherwise as an alternative to prison. In sentencing an eligible offender to any communitybllsed alternative to inCllrceration, the court shall pos· sess the authority to set the duration of the sentence for the offense committed to any period of time up to the malCimum sentence within the appropriate sentence ralllle for 1he particular offense. Code section l5. l8. 175(d)(2) The following provi~ions, here abridged Imd lire included irl the 111:1:

par~phrased.

An eligible offender is one who has committed a crimi· nal offense but has not commiUed any of the following specifi ed violent offe n~es: mu rder, kidnapping In the fi rst degree, ra ~ in the first degree, sodomy in the firsl

degree. arson in the fi rst ~e~ rce, scllinJi or lra(flcking in controlled substances, rohb1iry in the first d('Arc:e, fo rcible sex crimes. lewd and lascivious ac;u upon a child, or assault in the fir~t dt!l~ee if sald IIsi\aullielives the vicUm permllnentJy disfiRured or dis,lbled, Additionally, an offend er is excluded from community corrections pro;!rams if heor she is fOu nd by the court in any other respeclto "demonstrate a pil\tcm of violent behavior." With respect t the eligibility requirements lhe-Ad states that Ihey "shall be interpreted as guidelines for the henefil Of lhe C(ruft," (So, prHum~bly, the court has discretion to make rea· sonable exceptions.) The terms of an offender's community correctiqns sentence mlly require him to remain within certain limits of confine· ment (such as an order 10 remain in his hOllle with electronic monitoring) or to return at a certilin time to iI place of con· finement (such as to a residential work release center at the end of eilch work day), If iln offend er's senlence includ~$ such terms and the offender willf(L!ly rail~ to comply, that failure i~ deemed an escape (and as such is punishable a$ a felony, for which the cOurt mily commit him to a $ll1t(: prison), The Department of Corrections is given the responsibility of dt'Veloping "minimum $IImdards, policies, and administrlltive rules for the ~t lltewid(: implementation of this Act." Additionally, the Department is charged with monitoring the plans, conducting public education progr:lln5 concerning the purposes and goals of community corrections, reporting the effectiveness of the programs in diverting offenders from prisons and jails, providing technical assist(lnce to com munili ~s in developing IOC,ll plans, reviewing community plans and awarding contracts and grants, and conducting annu~l audits ~ nd evaluations of proilrarns receiving contract$ ~nd grllnt5. Community corrections prollrams may offer corrections $ervices with respect to both misdemeanants lind fd ons but the ~d c(m t i nu e~ $omt previously csl:!blished distinctions between misdemeanor corrections as a county J'\!sponsibility (for orfensH with maximum penalties of incarcmtion in county jails for one ),ear), and felony correct ions as a slate responsibility (for offenses with penalties of inC<lrceration in SllIle prison for more than one year). Within the act misdemeanants are referred to as "county inmates." and felons as "state inmates." The Department of Corrections is assigned the dut)' to promulgate rules ~ n d rc;!ul;,tions for p~rticipation by "state inmates," and the department is authorized to contract with community correction$ progrM'I~ to provide ser· vices in return for reimbursement of ~ome l:O~ ts of services with re~pect to "state inmates." The Act tSlilb1i s he~ rules for fUI'I dirlg lind fiscal acc()ullling, It also sets rules for offenders' labor, :1nd specifies that the state or counly or municipality may become employers of state or coun· ty inmates, When Inmates are so employed the)' must be paid at least the federally eSlablished minimum wage. but they are not entitled 10 certain specified benefits. Sugg~s ted types of such employment are, without limitation: road or bridi:!e work, garbage collection and public grounds maintenance.

When an offender is employed for compel\Slltion lIS a part of II sentence plan his Io'ages are to be p,lid direclly to the county aoo the proceeds are to be disbursed according to the approwd plan of each community corrections program. Among the acceptable disbursements nre restitution to the offender's victim, uscr fees to help defray the cost of correctlons services to Ihe offender. pay. ment of court CO~!J lind nlle~. ;'TIlC: remainder of the inm~te'5 wages may be credited to his account with Ihe county and may be paid out (or dependent care. $lIVings lind spending money. ~ If an offender's sentence includes terms of punishment in the form of community service. the offender must do that work without Compensation. The Act states that ~commun i t y punishment and corrections funds may be used to develop or expand the range o( community punishments and services at the local level" and suggesU. without limitation. various types o( services as examples of Hppropr i :lt ~ uSt of comm\JI1ity corrections funds. sllch as: Intensive supervision CO$t5. short-term or lonA-tcrm res;denlialprogrnms fo r treatment of alcohol or drug related problems or for other SI)ecial needs of offenders. outpatient treatment and counseling (or alcohol- or drug-related problems. costs of veriBcation of home confinementlcurfew provisions (including electronic monitoring). psychiatric counseling. (<lmily counseling. vocational coullRling and job training. educational progrilmsleading to CEO certificates. and transportation subsidies. The Act also provides that funds Illlly appropri~ t cly be upended to acquire. renovate and operate faciliti es in which to provide the above-suggested services. Current Community Corrections Actlvltle. In Alebama

As the ll00ve'Quoted Committee Comments to Rule 26.8 observed concerning an ellrHer yellr. alternativC$ available to a sentencing judge ltill vary greatly among Alabama communities. Obviously. the more extensive a community's support .services. the greater are the judges' options. It takes time and usually some trial and error to build sound local community support services sufficient to provide II viable substitute for incarceration of felons deemed too risky (or traditional probation. Alabama's laTilest urban areas have strongly established and interestingly varied cOmm\lOity corrections programs. but predictably lhe more thinly pOllulated ,lreilS in muny cases have few services to offer beyond basic probation. The Dep<lftment of Corrections estimates thallhroughout the state during the past year it has paid some contractual reimbursement funds with respect to nearly 1.000 convicted felons deemed under department criteria to lit ~rsons who would have been sent to central prisons but for the corrections programs in their own home communities. Although that number seems small compared with the more thiln 22.000 adults currently incarcerated in central prisons. the ngure docs not reflect the (ull impact on incarceration nUrll bers. l~o r one thing. the department (with Its own seriou$ problem$ of basic funding) has highly stringent rule~ for determining whether an offender is a true prison divertee and 15 thus

appropriately a financial obligation of the dep,lrtment. For anothtr. there is probably no .....ay to adequately estimate how many misdemcanal1u and Striou$ offenders have been prevenled from re-offending. or from offend ing more seriou5ly. by the community correc\lons pUfli~hrllen t and treatment programs in which lhey have parliclpllted. Up to the present the (ollowing coun\lcs nnd one three-COllflty circuit have organized community punishment and corrections programs. These counties are Calhoun. Cherokee, C~Lllman. l)ckalb. Etowah. Fayette. Houston. Jefferson. Lamar. t-1ddison. Marshall , l'>lobile. Montgomery. Pickens. Shelby, lhscaloosa. and Walker, and the three counties of the 17th Circuit: Greene, t-tMengo and Sumter. Programs in these areas hallt begun lind evolved in a \'ariety 0( ways. Some have expand. ed slowly and stelldily. some havt had periods of exp.1n5ion and ()f diminution. Il1ld other~. lifter good effort. have diminished. Communi ty corrections programs now ol>eratlng In V:lrious parts of Alab3ma Include services employed nt eveI')' stage of criminal cnses. from pre-trial release, in which needed jail space is freed up by supervision of selected arrestee, otherwise unable to make bail. to the completion of intensively supervised alt~r na!i\'e sentences. In a 1996 manual called COMt-1UNllY COI~· RECTIONS JlROCRAM DEVELOPt-1ENT. FIRST STEPS. the Alabama Associat ion of Comm\mity Correctioos. Inc. described a number 0( types of community corrections options by which Alabama judges might enlarge their range of available sanctions. Not all sections of the Sl<I.le h..vt adequate support services at present to mllke :Ill these options vi.. ble in Mry local court. The (ollowing terms and option;, which arc here IXlraphrased and abridged. ",,'ere discussed In thllt nmnu31. COHr.tUNITYSEIMCE- An order to work a 5p~ci fi cd rlumber of hours. wi thout plly. for a community or other nonprofit organization. Hequlrcs a knowledge of needtd work and ~nalysis of the of(ender's aptitudes. It may also require instruction in how to do the work. supervision of the work. ~nd verincation that the work has been done. " DAY~ FINES-An order to pay a fine bJsed on the gravity of Ihe offense and the offender's abilit)' to pay. (So-called because Ihe. amount is fl.1rtJy based on each offender's salary per day.) PAYMENT OF HESTITUl'lON TO VICTIH- An order to remunerate the offender's victim (or finnn cia lloss. DIme SCRI':ENING-An order to submit to random urinal· ysis to vtdfy that an offender who has been known to use ille· gal drugs is not currently using them. onuc AND ALCOUOL TREATt>lENT- Asentence prmision by whkh the offeooer agrees to submit to drug antVor alcohol treatment at the appropriate level: detoxification, crisis residen· tial. inten5ive outpatient, re~idential rehabilit.ltion, methadone treatment. (Heferrll15 for treatment available in other communities may be obtalntd through court referral officers.) ELECTnONIC t-10NITOIUNC-An order 10 submit to continuing \'trifiClllion Ihllt the offender iJ in a cert.1in place at a certain lime. usually thllt he or she Is ttl home on house arrest. or is either lit home or at work or en route. IleQuires monitoring devices (or conthlu-

ous signaling 01 ofI'ender's location or a phoning device which periodically verifies o(fender's presence, ADDITIONAl. EDUCATION- An order that the offender must improve his education, perhaps by acquiring a CEO or undertaking a course of lIOCatlonal education, CUlmENT E,\1I'1.On.1ENT- An order that the offender must become golinfully employed, RESIDENCE IN A HALf\YAY II OUS~An order !.hat the offender must change his present living arrangements and move to a "halfway house" which enforces mles providing a stable and structured envi ronment If s\lch a house is not available in Ihe offender's community, referral to another area may be available through the court referral officer. PAHTICWATION IN DAY nEPOHTlNG-An order thillthe offender must report as directed to a case manager at a corrections center for advice and supervision concerning a course of Ilcceptllble "ct ivit ies. INTENSIVE SUPEllVISION- An order th"t the offender must undergo Intensive supervision by corrections personnel. liequires more pCTSonnellh.m day reporting, (l$ il involves frequent face-to-face cont..cts and requires close surveillance to protect public &afety. PARTICIPATION IN A WOIIK HELEASE PROGIMM-An order to livt in a work release center where the offender will be confined except for release during work periods. These centetS are deslgntd to help with reintegrlltion inlO lhe COIM1Unity and lO promote the self-respect of offenders while they pursue additional education and voe.:Itional tr.. ining and work to pay restitution and (0 support themselves and their dependents. The disadvantage of work release centers is that they are ellpensive and require many services and other resources, Two fundamental services of community corrections programs are sentence planning and case management. SENTENCE PLANNING 15 the creation of an individualized sentence plM to be proposed to the sentencing courl as a workable plan for a particular offender in his or her particular community, based upon assessment of Ihe offender and knowl· edAe of av"l lable community resources. CASE MANAGEf.1 ENT is the implementation of 11 compre· hensive IlrogrllIn fo r organizing and supervising an orrender's compliance with the terms of his sentence. Such comprehensive milnaAemenl is probably the best hope fo r an offender's succeuful completion of court-ordered sanctions. Although $Orne of the above described options can be implemented and ",erined (airly simply, mosl require much local support for a successful outcome. t>1ost comml.lnities have $(Imt <lccessible services which have betn established independently of cometions d forts, fo r example GED programs or self-help programs luch u Alcoholics Anonymous and Narcotics Anonymous. Each community corrections progl'll!ll Ilu its own distinguishing characteristics. One interesting detail of !'10bile's corrections program is thaI. fol . lowing the example of a successful pilot program in

Portland, Oregon, it established the use of acuruncture as one treatment for drug addiction. w Ithal fact C<luse some to SU5pect thai the program is "fM out, ~ it should be said Ihat !,1obile's community corrections program has strong local support from bench, b.u and elccted officials of tht City of !'Iobile and Mobile County. Since fall of 1996, Mobile has hosted two community corrections conferences, one sponsored by a nMional cOllllllunity corrections organiIation and the other by lin organization including both American aoo Canadian members, ,.tlldison County has,lIt Huntsville, Ihe oldest community cor· rectioos program in the state-one which has 5eT\ltd as a model for others, r-1adison has always emphasized work release programs. There is one pr08ram called "Suspended Work I~elease," in which most of the offende rs are adju~ic.1ted misdemeananls, They do not live in a work release center bul maintain their jobs, lillf: at home, and report as dlrectl'tl to a sort of day reporting center. There is another progrllnl called "Active Work Ilclcase" which is II pa5t-ndjudiclllory program for fe lons. who live in a work rclc.ue cenler located in an IUltlCX of the coullty jail, make l)/lyIllCIl\$ for their own sUPIXlrl. and are released only 10 go to work. Currentiy lhe norlllal term of residence is 60 days to 18 months and the usual number of offenders pIIrticipating at one lime is about 80, with another 24 living at home on electronic monitoring. The !,1adison County program does not accept pay. ment (rom the Department of Corrections for its diverted felons. Madison also has os dmg diversion pr08ram. The community correctioN program in JeffefWn County is !.he ~ond olckst in Ihe state and operates under the n,une TA$C (Tre.ltment Alternatives to Street Crime). Allhoul#l TA$C operatcs a full range 0{ community corrtctions strvict$, it has alwayS emphasized sui)slllnce abUlie treatment programSllnd it continues to be 11 lellder in !hilI field, TASe is currently the recipient of .. large feder:l l grant to establish locally 11 program called '·Breaking the Cycle, now In its s«ood year in Je1er5Oll County. The program concentrates on breaking the drug-crime cycle by intervening with treatment and rehabilit.ltion 5eN;Ces at the earliest possible time after the offender's IITrest. Unlike "drug courl~, "Breaking the Cycle" is not directly tied to any Pilrticular court procedure, but operates cooperatively as one of JefferKln County's multiple stratellies within the overall crimln.ll justicc system, Montgomery is one of the few count ies which has experimented with volunteer SU!)I)Qrt per$()nnel. The Sentencing Institute i~ currentiy pioneering in the estllbli5hment o( II pilot program clilled the Montgomery County Certified !'1cnlor Program in which vol unteers are crimiml-record checked and trained to assist offenders in vllrious ways to comply with lhe terms of their senlences, Including finding employment, fi nding a residence, participating in substance abuse tlYOgl'llms, and attending CEO! vocational education classes. I::ach offender is, of course, to a professional probation officer to whom the volun· teer must report any problem with the offender's compliance with court orders: however, much time:consuming and hillh qUlllity assistance can be provide~ by the volunteer, The project sponso~ hope 10 be IIble ewnlually to Similarly assist paro~ees.

""'8""

[n January 199B, The Sentencing Institut e Degan to ht lp establish a similar mentoring program in Madison County, and it now has tentative plans to assist in starting IIdditional such programs in several smaller counties, The foregoing descriptions by no means cover all the strong community corrections progrllms in the s!.lte, A number of small and intermediate size counties are building community corrtctions programs in imaginative ways, although some have had di(ficult st ruggles. The three<ounly circuit of Milrengo. Greene and Sumter, for ex.amplt, organized a joint community corrections program some years ago, but had di(ficulty keeping enough local support to sustain a strong program. II serious impediment in that area is a lack of jobs of a type likely to be available to most offenders. It is especially di(ficull to restructure living habits while one is unemployed and is low on money and self-esteem, The area does have the asset of nn nctive mental health facility Il\:cessible throuJ!h the services of the local CHO, Conalderatlona In Propoalng Sentence Plana

In each Aillbama courlroom there are different practices for prol)Osing II sentence plan or asking Ihal a professional sentence planner create such a plnn, and all defense attorneys who do I\Ot know the practices in a p:!rticular court should ascertain that informlltion early in the t:lsc. The depth of a r~gion's community corrections services is, of course, a limiting factor in the court's sentencing options and in a defense attorney's sentencing proposals. In areas where there is no such supportive corrections personnel. defclm attorneys can sometimes fill the gap by knowing the offender's h"bits, abilities and hl5tOry of offenses as wtl1 as pQMible and then p ro~ing to the court $Orne locally available .sentencing measures which are fairly simply verifiable by a probation officer and which are conducive to the defendant's developing law-abiding practices. The details of greateM concern to the court are likely to pertain to the ability of the offender to SUI)porl hlm~elf or herself and to remain (ree of substance abuse. As to the latter concern, the court referral o(ficer is probllbly the best source of help, and lIS to emrlloyment in his home area the attorney will perhaps be able to susgest where help might De available. Locally available education or vocational training programs or self-help programs miJlht be useful. Sometimes a ca$e may p re~e nl ci rcumstances beyond the cont rol of the offender and Ihe defense attorney which make it difficult to a.ssure tht court Ih;lt ;my realiSlic senlencinj;! orders will prevent the offender from b~ing a threallo public Mfet)', even though th~ Individual offender may be perceived aJ personally less blameworthy than other offenders who are not sentenced to prison. If the defendant in such a case hopes to avoid incarceration the attorney can only use all ef(ortJ to propose the Dest available resources to ensure safety, Even in areas with It ronj;! community corrections programs there are a few potential problems to consider because of that very abundance. ~;~perienced corrections personnel have warned thai sentence plans which are too complex and

demand;n" rnay doom to failu re some offenders who would h"ve be(:n able to execute well a plan which was simpler yet su(ficienily d(:manding. Orlt de(enl\e attorney has pointed out the possibility of a connict of interest when an entity under contract to be. paid for treatment is the entity charged with advising how IQng that treatment should continue. No conscious wrong-doing is suggested. but lengthy, expensive proceedings probably ca11 for thoughtful evaluation. Some have mentioned the haUird of "net.wldening" by courts which might enthusiastic.llly order extensive correc· tions services for even those ddend.lnt$ to whom they would previously have felt free to "rant basic probation. Iu community corrections prOllrams become more "ccessible. and as such techniques 1\$ drull screening and electronic monitoring become mort effident, there Is a need to blliance the use of these impfovements wit h vigillmce in helping tt,) ensure that each sentence comllrehends the court's rule in ordering "the least restrictive sanction lilal is consistent with the protection of the public and the gravity of the crime." In mtermediate sanctions, as In all other are,u in which the law 15 empowered to limit individual freedoms. lawym should nelp increase public awareness of constitutional protections md help dispel the common mi~onception that in our democracy "ny 51 percent oflne people have a ri"ht to con· lrol a.1I the actions of Ihe other 49 percent. In a ul\eful series of articles in the llinningh(lm !Josl flcrolcl. in mid-November of 1997, a group of reporters pointed out that a disproportionate number of black offenders in IIlabaTTkl are feceiving sentences of actu." incarcerlltion rather than lesser Mnetions, and apparently for similar types d crime. Some obseMrs wtre quoted as saying the disparity is caused by conscious or unconscious discrimination on tht pari of the courts, and other observers said they beliew the figures are attributllble to causes arising from problems of poor neighbor· hoods in which blacks are disproportionately victimized by crime-causing facto rs, most notably the scourge of crack ~ddic t ion . The disp<1rity itself calls for careful scrutiny ("nd txtra hell) for early crime prevention). Obviously 11 Is Important (or every criminal defense lawyer 10 understand lhe CUerll's circumstances as thoroughly as possible and to consider what speCifi c, workable plans for the future might satisfy the court that that particular individual could safely be sanctioned without inc<lTceration. Prob.1bly much of the public today slill thinks that when a criminal offender is sentenced, the judge either sends him or her to prison or "letJ him off: As support services (or community corrections gradually build throughout the state, ilshould Ncome increa.~ingly apparent lhat for non-violent dfenders in Alabama there are allem.'Uve community $i1nctions which are demarlding, effcctivt and less expcnsivt; th.'n pri5OOJ. • This article is a prodUCI ofSd'(!f'(J/ yoors' study of community COfn!Clioru in Alaooma bllihe A/ooomo Slate IJCJr CommillL,(! on Correctionol Illstitulions "lid ProcetlureJ. Durillg this p0'iod commit/L'C chairs hull4! bI.m Mark WilA'crson, Abigail l~II Als/ylle 011(1 Roberta fMlon.

JUDICIAL RESTRAINT AND THE DOCTRINE OF SEPARATION OF POWERS l3y Associate Juslice J, Corman Houston, Jr.

he preamble to the Constitution of Alabama o( 1901 (" 190 1

Constitution") states: "We, the people of lhe Stilte of Alabama, in order to establish justice, insure domestic tranquillity, and secure lhe blts$ings of Ii~rty to ou r~ lW!s and our

pooleri!y. invoking Ihe favo r and guidance of Almighty God. do ordllin MId establish the following Constitution and (orm of

gO\lernment for the Slate of Alab.l ma:" In Section 35 of the 1901 Const itution.

the drafters of the Constitution simply

and yet eloquently defined the vcry object of government: "That the sale object and only legiti. mate end of government is 10 protect the citizen in the enjoyment of !ife. liberty, il ntl properly. and whe n the

gOIl-

erllrllCnl assumes other runclion~ it is us urpation and oppression," To nccomplish this objective of government in a nklnner that ....,ould aw>id the dangerous concentration of powers ill one man or institution, the people J , Qorm • ., Hou , ton . Jr. J GeMman ~ton.

Jr. hall

servOOa881l

OUistont juSI.e. on the Supreme Courl or AlabafTIII

8/1'1CG SOplomber 1965 He III a Ule Member or the FGIIOw8 of lhe

AmI;Irice.n Btlr Foundation and Cormlo$$iQn

member of I.ha AJaoams

on Unifor m51{l1' l.OW$

HouSlon has sorved 88 e Sl81e 08f oommos· sIonGr and bllr elUllT1lnar, and 88 a mambor

or lhG Dol's Oisc"lir'l()ry COr/V'rIlsslOl1 . lliM

I.\ii-",.

rM,vubumu/.JJU'wr

divided the powers of government among the legis l ~ti\'e. executive and judicial departments (190 1 Constitution. § 42), creating a delicate system of checks and balances. 'rhe people, acting through the dr<lft ers, entwsted \hejudid<ll department with two greal powe r~: (1) the power to determine the constituti(lr'lnlily of leglslllli\'e cnllctmenlJ nnd (2) the power to determine the proper meaning of legislative acts. The 1901 Constitution requi res the judicinl department of the State of Alabama to exercise rest raint when determining whether acts of the legislature are unconstitutional and when interpreting Or constwing lell:isl~t i ve acts. In Marbury Ii. /okldison, 5 U.S. (I Cranch) 131, 119-80 (l803), acMe decided 16 yC."lrS befor£: Alah;ulla became a st;lle. the United States Supreme Court rccQgllil,cd thM fed~rn l courtJ I)QSSCS$ the power to determine whether the acts of Congress are constitutional, This power hilS come to be known as the power of judicial review. In that same opinion. Chief Justice John f.1arshill1 cautioned the fede ral judiciary to exercise ext reme restraint in exercising the power of judicial rtvit'\.\' or. as more recent commentntors have termed it, "the playing of the constitutional truml) card:" "ITlhe framers of the constitution contemplated that instrument as a rule for the government of courts, a~ well a.~ of the legislature." Marbury II. Madisoll. 5 U,S. at 119-80. Seven yeiIT$ later, in Fletcher II. IJeck, 10 U.S. (6 Cranch) 81, 125 (1810). Chief Justice Marshall funher caut ioned Ihe judiciary:

"The question, whether n IlIw be void for its repugnancy to the constitution. is. at all times, a Question of much delicacy, which ought seldom, if ever. to be decided in the affi rmative in a doubtfu l casco The COllrt. when impelled by duty to render such a judgment, W{)uld be ullW(lrthy of its station. could it be unmindful of the solemn obliglil ions which (hili station impo~es. 13ut it is not on slight implication and vague corvecture lhat the legislature is to he pronounced 10 have transcended ilJ powers, and its acts to be considered as void. The opposition betv.'een the constitution and the law should be such that the judge feels a cleM and st rong conviction of their incompatibility with each ot her. ~ The judicial department of the St<l[c of Al<lbamOi h<ls alwOl~ posM:sM:d the t..'lme trump c.'lrd in interpreting the constltu· tion5 of AlnbMI:i alld nCIJ of lhe AJllbamn legislature that the judicial de partment of the United States possesses in interpret· ing lhe Constitution of the United States and ~cts of Congress. Ex JXlrfe Selma & GulfR,R, Co .• 45 Ala, 696.725-28 (1871). However, the use of this trump card by the Alab.lma judiciary hilS been restricted by the strong, exp re~s 5eparalion-of-p(lWer~ provi~ions that have Men included in all of Alabama's Constitutions. All previous Alnbama constitutiol1£ (beginning with the 1819 Constitution, which .....as ratified nine )leaTS after Hatchet IJ. IJed: was decided. and including the constitu· tions of 186 1.1865. 1868 and 1815) have had the followinll: $trQng ~p<l riltion-(lf powers provision: "No pcrson. Or cotlectiJ;lfl of pc r~ons, being of one of those de plrtments. shall

excrci5e any power properly belonging to either of the others, except in the InSl!IIlCCS hereinaftcr cxprcssly directed or permlttcd." The 1901 Constitution added an even more direct comm;md of thc separation of powers: "In the gQ\lfrnment of this state, except in the instllrlces in this Constitution hereinafter exp re~ly direct· ed or permitted. the legislative depart· ment 5h.111 never exercise the executive and judicial ~rs, or either of them: the executive shall neYer exercise the legislnlive and judicial powers, or either of them: the judicial sh:lll m.'Ver exercise the legislative /\lId executive powers, or either of them: to lhe end that it may be a gQ\lfrnment of laws and not of men." 1OO1 Constitution, Article III , § 43. To help it walk that fine line between proclaiming unconstitutional an act that violates the Constitution on one side and unconstitut ionally exercising legislative power on the other side, Ihe Supreme Court of Alab.lma has, over the years, established principles of law thai the Court must foll ow before declaring an Rct of the legislature ur](:onstitutional. The Supreme Courtal!oO ha$ well·e~tilb· lished ruin of statutory construction that it must follow in interpreting an act of the legislature, in order to make cer· tain thilt the act is interpreted to expre~ the will of the legi5lature, not the will of the judiciary. These principles and rules follow the 5pi ril. [(not the letter, of the prec.edlng "dmonishml:nt from Chief Juslice f.1 ar~hall in Fletcher II. A'Ck and of 1 43 of the 190 1Constitution.

Prlnclpl •• of L.w to Be Follow.d In Ruling on the Con_tltutlon.llty of .n Act of the Leul.l.ture It is the duty of courts to sustain a leg· isliltive act as constitutional unless it is clear beyond a reasonable doubt that it violates the Constitution. While II. Reyllol(ls Nelllls Cf) .. 558 So.2d 373 (Ala, 1989), wI. denied, 496 U.S. 912 (l990): Crosslin /1, City of Muscle Shoo/.~. 436 So.2d 862 (Ala, 1963): /Jrillain II.

Weatherly, 28 1 Ala. 683, 207 So.2d 667 (1968): Riley II. Bradley, 252 All', 282. 41 So.2d 64 1 (1948): Statl! ex rt1l. WilkillSOIl II. Nurphy, 237 Ala, 33Z, 186 So. 487

(1939). All presumptiOlls and intend· ments are indulged in favor of the validi· ty of an ilC.t (House II. '~/lIman COllllly. 593 So.2d 69 (Ala. 1992): Stut4J I ', Skeggs. 154 Ala. 249. 46 So, 268 (1903)); therefore, the pllrty who qucstioll5 the constitutionality of the ae.! has the bur· den of prOVing beyond a rca.\Onable doubt Ihllt the act viol2tes the Constitution. State ex rt11. Neyer II. (irootJl!, 154 Ala. 249, 46 So. 268 (1908). "I.lcyond iI reasonable doubt" mcan5 "fully satisfied, entirely convinced, satis· fied to a moral certainty: and Hhat) phrase is the equivalent of the words clear. precise and indubitable." IJ/ock's lAW Dictionary 161 (61h ed. 1990), Whel'\e\'er a litigant ch.1l1enges the coostitution"lity of an act of the Alaballlll legislature, "the Attorney General of the stllte Imustl ... be servtd with II copy of the proceeding lmd lis] entitled to be

heard. ~ Ala. Code 1975, 16·6·227. This is to ensure that the statute 15 properly defended. Il;Iill,Jre to notify the attorney general of 11 constitutionill ch1lllengl: dcpri\lu courl\ of juri!\diclion to resolve claims based on the cOTlstitutiorl<ll chal· lenge. and any order holdin~ the statute unconstitutional is void. Ex parle Northporl Health Servia!, /rIC.. 682 So.2d 52 (Ala. 1996). If the record of a IltWSUit does not show 5elVice on the allorney !lenera], then the absence of juri!\diction is ilpp<1renl on the (ace of the record, and an appellate courl must Illke notice or its own lack of jurl!\dictlon. Smith v. /../JflCUSier, 267 AI~ . 366, 102 So.2d I (1958). Pur~uant to § 6·6·227, the attor· ney general is entrusted with the duty of defending the constitutional propriety of legisL1tive enactments. In do ng.\O, the attorney general octJ on behalf of the leg· islature but does not vioillte the separa· tion of poY."eT5 provided for by the 190 1 Constitution. AllhOl.lgh the attorney gen· eral is part of the executive dep.;1rtmenl of government (Article V, f 112, 1OO1

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CIVIL COURT BONDS BY PHONE... BY TOMORROW I CURATORS . INJUNCTION. APPEAl. • ATTACHM ENT. DETINUE ADMINISTRATORS. GARNISHM ENT. l.ANDl.ORD· TE NANT CONSERVATORS . Al.l. OTHER FEDERAL & STATE COURT BONDS

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Constitution). § t37 of the t90 1 Constitution. as amended by Amendmenl Nu. II I, providcs lh,rt the ;rtlomey Rcner,,1 "$h,,11 perform such duties "s 1'I1"y be prescribed by la\\l." \.vhen" st"lute is chalienRed as unconslilulionlli and there are 111'0 pOS· sible interpretations of the statute, one of which would render the statute uncon st itution~la nd one of which would render the statute valid, courts should "dopt the const ruction thai would uphold the statute. Alabama Statejl-demti()I/ or 1,(lbQ, II. Motd(Jr.'I, 246 Ala. I. 10, 18 So.2d 810, 815 (19<1<1), cerl. disnlisscd. 325 U.S. 450 (1945). Furthermore, Alab.tunll 11Iw hM 10nR provided that constllutional prO\lisions desiRned for the preservation and securi· ty of the elemenl<"lry rights of life, libert)" and properly are construed liberally in fa\lOr of the citi7,en, Sadler I), I«mg/wm, 34 Ala. 31! (1 859). This very \).1sic con· cept is in accord with the genius of our institutions <lnd the traditions of the EnJ.llish common law. This concepl was of such great importance to the drafters of the 1901 Constitution Ihlll it not only wa~ engrafted into the 1901 Constitution but the corlcept WlI$ also 11Iken a further step conceptually. Article I. § 35. of Ihe 1901 Constitution, sets out a provision that did notapDtar in Aillbarnll's earlier Constitutions: "ITlhesoie objecl and Dilly legitimate lmd of govemmrml is to pro· tect the citi7.en in the enjoyment of life. liberty, and property, alld wht'll the govenllmmt (J$$uml!$ olher (unctions if i$ usurpafl'on alld oPIJrf!ssiol1." (Emphasis

added.) Therefore, to be constitutional. 1I1llegisiatlon must protect the eitizen's enjoyment of lift, liberty or property. The Court's Application of Principles of Judicial Review

Has the Supreme Court of Alabama maintained a level playing fie ld in determining the comtitutionality of l egi ~hr · live "cis? For example, Article I. 11, provides: "I Tllle right 10 trial by jut')' shllil remllin inviolate:· This Jeclion applies to bolh civil cases and criminal cases, See

" the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression." Gilbreath II . Wallace, 292 Ala. 267, 292

So.2d 651 (1974); see airo Atrol'ti /J. State, 170 Ala, 178,54 So. 213 (1910) (in which the dissenting opinion of Justice Mayfield , 170 Ala. at 183.220. 54 So. at 214·25, precedes the majority opinion of Justice Anderson, 170 Ala. al 220.225,54 So. at 225-27). In the criminal context, in which a ddendill1t's life, liberty, or property is at issue, Article 1, § 11. has been interpreted as en~uring ""the right of trilll by jury as litl existed OIl common law and Ihe lime of Alabama's first stoic constitution /.1819/." CI'OlW I), Stale, 485 So.2d 351, 364 (Ala.CrimApp. 1984), ri.'V·d on other grounds, 485 So,2d 373 (Ala, 1985), cert. denied, 477 U,S, 909 (1986) (emphasis added): Ex parle G'ill5. 632 So.2d 577. 580 (Ala, 19931. cert. denied, 512 U.S. 1213 (199"). In accord,1nce with that inlcll'retation, the Supreme Court held in Cill!.~ that the I/:gj~ I'llurt" s action in 1977 to remove II jury's sentencing lIuthority if\ criminal c:rSeSdid M t violate the Constitution, cve~ though juries had had the right to sentence in most crimi· nlll cases at the time of the rlltification of the 1901 Alaooma Coostitution, because juries did not have that right at the time of the adoption of the 1819 Constitution. However, as Ciles' counsel pointed oul. in the civil context '·Alabm".r's COMtilution effected ~ 'freezing' of Ihe right 10 jury Irial a.~ Ii 190 1." Gitlm.'llth II. liwltace. 292 AI". 267, 270, 292 So.2d 651. 553 (1974): Smith /J. Schulte, 67 1 So,2d 1334, 1342 (Alll, 1995). cert. denied, U,S.,

116 S.Ct. 18019 (1996). In Ex parte Gile~, 6.12 So.2d <It 580-81, Ihe Court stated, ""Giles relld~ too much into Gilbreath, To be ~ ure. Ihlll case did hold that § II preserved inviolate the right. which existed by statute in 190 I"" However, it reached this conclusion only after lin extensive analysis of the history of the claimed rilthl. .n Thus, a historkill review, althOUJ.lh it is not alwilYs dispositive. is the starting point in ~ny ~ 11 an;rlysis." In Smith II. Scl1I1Itt!, a CIvil plaintiff challenged the constitutionaHty of the $1,000,000 sta.tutory ell ll on pUllillve da.mages against health care prQ\liders in wrongful death actiMs, A\\Irongful death lIction is purely statutory and \\'as not recognized by the common law as being among its old and stilled proceed· ings. Alaooma·s wrongful death statute was enilcted aRer Alabama's fi rst consti· hltion, but before the r;rtific;rtion of the 190t Constitution. The issue in Smith II. Schlilte was simply whether the legisla· ture could limit the dam.,gc~ that punish and deter in Ihi$ statutory action. as it COuld abolish the jury's right 10 ]Iunish lind deter in the crimlnaliaw? In Smith IJ. Sellutft!. a majority of the Court IInswered this question in the negative, holding Ihe sta.tutory cap unconstitu· tional and st,lting that "lilt is well settled in AlabaJTh.l that § 11 governs (I) those (ilUseS of <lction arising under the com· mon law, (/Ild (2) those CelUsts of action afforded btl IJ"'-1.90/ statutes." 671 So.2d a\ 1342 (empha5is in the original). In it~ OIItcmpt to protect lhe Sta.tc's right to punish those convicted of criminnl offe nses, dId the Court. in ullholding AIIl. Code 1975, § 131\-5-2, ..... hich autho· rized the trial court. rather than a jury, to rentence, ful fill its duty to sustai n the oonstilutionalil), o( a legislative act unless it is clear beyond a reasonable doubt that it violates the Constilution? (ex IX1(/a Cill.!S, supra.) In its attempt to protect the ability ofa civil plaintiff toobillirithe full amount of punitive damag~s thnt a jury may a.....ard in a wrongful death medical malpractice CMe, did the Court, in striking down Ala. Code 1975. § 6·5·547, which was intended by the legislature to

I)rotecl health care providers, rul!'i!! itJ dUly? (Smith 11. Schufle, supra.)

Rul•• of Statutory Interpretation to be Followed In Interpreting a Legl.l.tlve Act n,e fundamental rule of statutory interpretation i~ for the courllO IlSCerlilin and give effect to H,e intellt of the legislalure In enacting the smlule. 101m Dt.'4!Tl! Co. 11. Camble. 523 So2d 95 (Ala. 1988); AtilJerliser Co. I'. NfJbbie, 474 So.2d 93 (AlII. 1985). If Pl»5ible, the intent of the legislature should be gathered (rom the lllngullge of the ~tLltute it$elf. Words used in the statute must be given their nalurOIl. plain, ordinary, ~11d commonly under· stood meaning: where plain language is uKd. a court is bound to Interprd U1.'\ langu.lge to mean (xactly what it says. If the languagf o( the statute is clear lind unambi"uou5. then there is no room fo r

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judicial construction and the clearly expressed intent or the legislilture must be given effect. Ex parle New biI/J1mw Mul. Ufe 111$. Co., 663 So.2d 952 (Ala. 1995): Slate lkp'l ofTra1lS11. 11. McI.efluml. 639 So.2d 1370 (Ala. 1994); 'nlscalOOS(l County Comlll h II, Deputy Shuriffs' .ilssil ofTusCilloosa COlll1ty. 589 So.2d 687 (Ala, 1991): Coaslal SIllIes Gos 'frq'u mlsslon Co. 1I. AltixJma Public r ""e Comm'n, 524 So.2d 357 tAla. "abama Farm Bun.VJu /IIut. Cos.

!tu·. . u. City of Hartselle. 460 So.2d 1219 (Ala. 1984), If a ~! llIute'5 m\:anin~ is ambiguous or uncertain. $0 Ihat a court may construe it. the covrt may consider condi· tions that might arise under Ihe proyi. sions or the sta!ute and may examine results that will flow (n,)m giving the language in question one particvlar meaning rather than another. Clark 1I.

ALAS provides Ihe following research services:

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Houslon County Comm 'lI. 507 So.2d 902,903·04 (Ala. 1987). In dedding betv.-een alternative mean· ings to be Ri\-en lo an ambiguouJ or uncertain statutory provision, a court not only will consider the resu l ~ thilt now from 1IS!ll:Inin" one meaning oyer another, but ali!O will pn:$ume that the legisla. ture intended 11 r&.liOI\il1 result, $ee St(lle 11. Ca/umel & Hec/a COIISoi. Colmer Co., 259 Ala, 225, 66 So.2d 726 (1953): Crou:ley v. Bass, 445 So.2d 902 (Ala. 1984) (dictum): 2i\ N. Singer. Sulherland Stlliutory Conslrucli()I/ § 45.12 (Sands Mh l'<l. 1984): that it intended II result thai adyances the legi51ative purpose in adopting the legislation. M'tl MobilIJ CWnly R{7Wblican e.x''ClIlilN Commillee 1I. MmwI!IJille, 363 So.2d 754 (Ala. 1978): tllat [t intentltd a result that is "wOrkable and rair.~ Jee Stale ". Co/u""1 & Ilec/(l Consol. Cop/Jer Co. , supra: Ex p(lrle

• • • • • • • • •

Preparation of Research Memos State & Federal Case Law Searches Stale & Federal Statute Searches State & Federal Regulation Searches WESTLAW Searches Leglslalive Histories Cite checkl n~sh~ardizing DIALOG/ME LIN Searches N ewspa~e r Searches Internet earches PhOiOCOPY Service

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Phon.: (205) 348·0300

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Fax : ~205) 348- 111 2 E·mal: ALRS @LAW.UA.EDU

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that it inlended .. result that is cOlt~ISlenl with related 5latutOT)' provisions. see 10111 II. 1t,(I.QU(J, 431 So.2d 1222, 1225 (Ala, 198.1) ("'[T)he Intention of the Legisillture may be determined by exam· ining the statute as a whole,'M) (Quoting the trilll cour!'J order with approval). Th. Court's Appllc.tlon of St.tutory Construction Aul •• lias the Supreme COurt maintllinetl a level plilying fitld in construing lids of the legislilturtl In 11Isca/()O,WI COIIIIIII CoIT/III'rl ll, Ikputll Sh/!riffs'Assil of 1'usCC/{oosa COUIIIII, supra, the Supreme Court con·

strued the (ollowing statutorylangUilge: "The compensation of all law enforce· ment officers in lhe sheriffs dep,~rtment in 1\lscaloosa County shall not be less than the coml)tns.ltion of a State Trooper,M The Court held that the $tMute was clear ilnd unambiguous. In Tuylor /J. Cox, [Hs. 1960578, rebruary 13, 1998) So.2d (Ala. 1993), a case that involved the construction of II law relating to ab.~entee bliliots. the stlltute 10 be con· strued was set out at the beginning of the opinion: "[ ~;)ach application shall be mtlnually signed by the applicant," The Court found the language to be elear anti ullllmbiguous and held that il meant "thatlhe allplicant for an ab~ntee bolllot must him~lf or herself sign the applica. tion for tht ab~n\(:e b.~llot form.MIn other wortls, "shall" meant "~hall."

President's Page (CQIl(iIlUC(/ from PQfp. 135)

The secontllegislative effort is our barratry statutt dealing with improper solicitlltion of legal work, The statute is designed to define what acts would con· stitute unlawful solicitation;md then provide some real teeth by imposing criminal penalties for offending I"wyers. as well as for non.l<lwyer$ who are '·run· ning" the caSCIo • 'DIoO ... y ......

In Stelte lkp'( Of1't-ollSP, /1, McLeff(md, supra, the Court interpreted 3 statute providing that "commissionersfl1us(. within 20 days from thei r nppolntment, make a report in writinJl," (Emphasis added.) In followinJl the rule of statutory construction that words mu~t be given their natural. plain. ordinary, and com· monly understood meaning, and th.lt where plain language is used, a court is bound to interpret that language to mean exactly what it SII~, the Supreme Court held that the probate court had correctly set aside the commissioner's report because it was untimely. In other words, "must" meant "must," Elcven months after Mc{,d{lIIul was decided, the Supreme Court decided lroe I'. Nob/11! Counlg A!J(IOilllfTWIlI &1" 676 So.2d 1206 (AI:.. 1995), Tll.tlt was an ab.wntff ballot case, The question certi· fied to lhe Alabama SUllreme Court from the United States Court of Appeals for the Eleventh Circuit was "[w[hether absentee ballolJ thOlt, on the accompanying am· d.wit envelope, fall to have two witnesses and blck proper notarbmtion ,., meet the requirements o( ." Seelion t7· 10·7. to be legal b.ll1ots." It was not unlll the 16th p,lge of the Supreme Court's opinion that the pertinent part of Ala. Code 1975, § 17· 10·7, was set out: "jT)he absentee voter's signature 'must be wil1lessetl by either: AnotaT)' public or olher officer authorized to acknowledge ooths or two witnesm 18 yeaI'! 0( age or older,'" 676 So.2d 8t 1222 (emph.lsisadded), In I?Q(I,

in declarinA th.lt absentet ballots did not require the signatures of a notary public or two witne~e$ In order to be counted as Icgal votes. the SUllreme Court tlid not merIt ion the rule of statutory construc· tion that ''where plain lal1tu.lIle is used a COlIrt is to interpret the language to Illean exactly whal It sa~," and it did nol refer to the /tfcl.e{{(llId case, decided II months earlier, in which "mliStM was interpreted as plilin lan"U.lge. Alabarn.l's judicial depmtment must be ever cognizant of the m.1nd.lte of § 43 of lhe 1901 Con5titution: "[T)hejudicial jdep;!rtrnent) shall nell(!r cxercise legisla· tive ... powers, ... : to the entl that II mlly be a government of laws IUld not or men," When the judicial dep;lrlment in oonstru· ing a statule imposes its (M'fl meaning upon Ihe statute rather than interpreting the st.atute as the legislature intended, Qr ~oflen the judicial dCJl.lrtrnent misplays the constitutional trump card by crouing the fine line be\'.o.'een proclaiming ur)C()nstitution.ll an ad that viobtc$ the ConstitutiOn on onc side and unconstilu· lionlllly exerci~irlg legislative power on the other side. the jutllcial department urlcorlstituUonally concentrates the leg. islative and judicial powers into one institution. Such a concentraton of ~r misshtlpes our govcmn"ICllt into a govem· ment of men and not ol laws-a result that the drafters of the 1901 COO$titulion, like the draften of the Unhed S\.ltes Constitution. never intended and made every effort to prevent. •

AH: I'll ask you Ule same Question I've asked each of your predecessors: I lave your servi~ as st<ltt bar president been as time.consuming as you expected?

my fi rm and my clients hav~ been supportive and patient. I think they realize that the law and this profeSSion have been good to me and that it's appropri. lite that I take the time "to put II little breatl back on the water," One 0( the things that makes the line and sacrifice worthwhile is the opportunity to work with 50 many tine IlIwym who are abo contributinll: their effort5, lloberl, in Ihat reJlard, 11hank you on behnlf of the bar for your 15 years of M!rvice M editor of The! Af(lOllm(l {AwII/!r. •

DR: t taving been a bar examinf:r for four years and then having served on Ule hoard of bar commi$sioners for three terms, [ was aware of what I hlld in store (or me, so I'm not too surprisetl. On the other hllnd, II dou take II lot of time. I'm still practicing law, at least some, every day, I am thankful that my f~mi ly.

11111

LEGISLATIVE WRAP-UP By Iloberll.. f>1cCurley. Jr. Legal Separation

he 1998 Sp?cilll Session came to a clOK in April. The

I-louse and Senate had over 1.500 bills to review, with the slate employees. teachers, county commissioners, proboltc j udges, sheriffs, Hcensi ng officials al l hllving bi 115 to raise their !..ll;ny. In addition. much of Lhe lime was sl>enl considering bond issues for highwilys. schools lind the state park system. With primary election day on June 2nd and the run·off on June 30th, much of the session \\'as posturing (or Ihest two days and the Nt;)vt'ml)er 3rd lIencral election. St.t. M.nda••• Senate IJiIl 233-The Lcgisilltu rc has proDQsed II constitu-

tional amendment to be voted on by the people which would prohi bit the state from passing unfunded legislation requiring citiu and count ies to expend money wi thou t the Legislature adopting the expenditure by 11 two-thirds vote or providing funds for these mandates. Exempted from this are minimum salary bills for public officials.

Acl98-I05- This bill. sponsored by Repre5entatlYe Marcel Black, neprcM!rltativ(: f.l ike R~ers and Senator Hodger Smitherman, wa~ one of the fi rst bills passed by the Legislature and wi ll become effcctive Janutlry I. 1999. This llC\\ law wi ll authorize II court to enter a decree of a leWllscp.1ration which will provide for the division 01 property, custody and support of Ihe children but doe5 oot termiT\llle Ihe marital status of the parties. This legal :;ep.lrnlioo can be modified or dissolved only by written consent of both pJrties and rlltified by the court or by the court alone upon proof of material change of circumstnnces. 11 does 1'101 bar a p.lrly from later instituting an lletion for di$.1olution of the marrialle. This replaces the current § :10Z·30 and -:U relating to divorce from bed and boord. Adoption of Mentally Retarded Adult

Act 98· 10 I-This act allows the adoption of an adult who is totally or permanently dis.lbled or determined to be mentally retarded, It does not defin e disability,

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Sport. Agent lIouse Bill 197-Covers bolh student athletes Imd Sp()rt agents. It requires agents to notiCy the colleges and universi· ties o( the signing o( a contract with an athlete and creates a civil action by colleges and universities (or actions against both the student and the agent. R •• t E.tat. Broker Lien

Act 9S· 160-The new law provides for a commercial real estate broker lien on real estate. The bill further provides when the lien may be made. the procedure for recording of lhe lien, and enforcement through the circuit CO\lrl.

Condominium Bylaw. Act 9B· I"9-.41a. Code § 35·8A·302 15 amended to prohibit a condominium unit ownCt association from adopting or enforcing a bylaw that restricts an owner fromlhe interior renovation or redecoration of their ul\it which does not alter the exterior apf)Carance of the condominium. \'/hen this arlicle went to press lhere were a number of pending bills ..... hich could be considered in the tlllfIl days of the session. Those are: A. Tort Rdom I. Arbitration-Senate Bill 393 would allow binding arbitra· tion. On Harch 5. 1998 the Department of Insurance issued "Guidelines for Approval of Arbitration Provisions in Insuranct 1'0licies. Acopy CIIn be obtained from the Insurance Department. Governor Fob James also issued H

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I<:xecutivc Order 42 to encourage state agencies to study. develop and implement appropriate procedures within their agencies to allow the use of mediatlon to resolve disputes amon~ parties whether they be state agencies. their employtes or third parties. 111;5 was d.,tet! March IS. 1998. 2. Punitive !)amagu-Serute Bill 305 providu an alUlre· gale cap of $175.000 for individuals and ~mall bU5inesse$ and $750,000 for large businusu. The 11mit would bt Ihrtt limes comptnsatory damages not to exceed the absolute limit. This also abolishes joint and several liable and the award of punitive dam.tlges. 3. Civil Fraud- Senate Bill 323 requires theaclion bt brought within two years after the act or within six months of discovery with an absolute slatule of limila· lions of four years. It also provides there must be some out.of-pocket d"mages ami codifies the reasonable reliance st and~ rds for consumer contracts. 4. Mental Anguish-Senale Bill 22 will cap mental anguish at $350,000 or $20.000 limes life expectancy in cases involving phySical injury and restricting other recovery to only actu~1 economic damages. 5. Criminnl Praud-Sel1Hle Bill 149 estnblishc5 the crime of criminal fraud which would make the perpetrator guilty of a Class C fclony and their superiors criminally liable if they authorized Ihe fraud . 6. CI<155 Actions-Senate Bill 392 WQuld provide a proce· dure to classify all class action suits. 7. Interest on Judgments-Sellllte Bill 309 would reduce the interest on judgments from 12 percent to 6 percent. B. Barrlltry-Ilo\lse Bill 50 prohibits unlawful practice by non-licensed attorney or those whose license has expired either by disb.lrment. non·payment of fee or otherwise. C. Fair Trial Fee-Senale Bill 387 will increaM docket fees. Increased (ees will fund an increase in the hourly rate appointed council may chMge and increase the maximum fee for defending crimes depending on degree of the felony. You may check the Alabama Law Institute home Pi\ge on the Internet at www.law.ua.edu/ali for bills which have received final p<1Ssage by the Legislature. These will also be T~po r t~d in the hlly edit ion of nlu Alabama Lawyer. ~'or mOTe information conc~rning the Institute. or ill pro· jects contllct Bob McCurley. director. Alabam~ Law Institute, P.O. Box 861 425, 1\1scalOOl:I. AlabaIll1l35486-0013. fax (205) 348·84 11 . phone (205) 348·74 I I. Institute Home Pagewww. law.ulI.eduiali •

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PECTING THE RULES:

By Jerome A. Ho((m,U1 hould our public be watchin}!, let me assure it ilt the outset Ihllt most Alabama lawyers and judllCJ know as well or bettcr than [ Ihe scope and limil s of I~ule 14, Furthermore. it may be that all Alnbamn lawyers lind judges apply Rule 14 correclly most of the lime. Nevertheicss, a few aberrations have appeared in lhe reports over lime. sUl/Itesling that a litlle impromptu review may not be Inapprollriale. !Jefore we look at Lhe hair. raising cases, leI's review briefly the purpose or Rule 14 and the limil$ of its reach. Rule 14(a) provides for third-party prlctice or what is commonly known as impleader. (Dislh/fluish "impleader - under Rule 14 from -jlltllrplcof/er- ull/I(~r Rule 22 and "intltTVtll/ion" under Rule 24. Distinguish il also fromjQinder 01 lin additkmal party undi.,. Rule 13(h).) Properly enlployed. third-party pra~t ice aV()ids dupliclltive litigation by adjudicating a defendant's claim for indemnity or contribution along with the underlying claim (or recovery asalnst the defendant. Thus, the practice saves both time and other expenSC$, allows for con$istenl results from similar or identical i!vldence, and ellminales the time Iilg betwÂŁi!1l a jlldltmcnt rendered aAaln$t an original defendant and a judgment rendered ag.,11l5t the p.1rty lI11ble !)ver to Ih(lt defendnnt under this or that theory of derivative liability. (See Ozll!j/II.

Glllhrie, 372 So. 2d 860, 861 (Ala. 1979): Campbell Col/st. ETlII'rs, Illc. /l. WI/ler Works & Sewer &/. of Ihe City of Prlehl/rtf /1, Marshall Durbill &

Co, of Nobile, Illc.. 52 Alii. App. 129, 138. 29OSo. 2d 194, 202(1974)

(d,'Cided under former..vA CODe til. 7.1259(2) (Recomp. 1958)). Rule 14 is procedural and doe! 1'101

pretend to alter 5ubsLlntivc rights. (S<.'C. e.g.. Nome fns. CO. II. Sfl/art-MtCQrkk, 11K.. 2.91 Ala. 601. 6'08. 285 So. 2d 468.473 (1973)). For e:<.ample. although nulf: 14 provldH the pl'O!!eduTOIl mechanism for asserting a claim for contribution against 1\ joi nt tortfearor. a claim for such oor1tributior1 wi ll not sUr'Viv(: /I Itule 12(b)(6) challenge under Alabama substllntive law. (Sec. e.g .. Quality Homes CO. II. Sears. Roebuck & Co.. 496 So. 2d I (Ala. 1986)). Hule 14(01) contains ten sentences. Sentences one and ten o:stilblish the entillement of "a defendinll: Pilrly" 10 asserl a thi rd-p.lrty claim. Under nule \4 (a). sentence one. a defendant mOlY assert a claim against a peuon !'lOt yet ~ party to tho: nctior'l who i ~ or mil)' be liable 10 him for 1111 or pu t of his I!ventual liabllit), 10 the originlll pillinll((. Sel1tenCeg two and three prescribe procedu ral limitations upon thlll entitlement. Sentences fou r. five and six specify what a thi rd-party defendant's response to illhird-PMty complaint musl or may contain. Sentences $even and eiaht specify the respon~ibililie~ 0( original plaintiffs and third-party defendants concerning claim~ by the fOnner agai n ~t the latter. Sentence nine p mvide~ the Rule's link to procedural devices by which the p/ltties /lnd the trilll court can keep the cumulative joinder aut ho r i~ed by Hule 14 from becoming unwieldy. The tenth and last sentence of I~ule 14(a) authori7.es a third-plltty defendil11t to assume lhe role of a "fourth-parlY" plaintiff by asserting a cI(lim fo r indell"'1I1ity or contributior'l aWlin~t a "fourth-party" defendant. {Ex pattlJ l?fl. e'lhrid!/(! & Assoc.. lnc., 191 So. 2d .51. ,liS & 11. (A/a. 1986)). in theory. at least, /I (ourth.p/lrty defend/ln t might then assume the role of a fifth .party pl/l!ntiff. and so forth . but ilS /I practical m!llter out-of-court relationships ate seldom compliCOlted enough to support such joinder (actua lly. (Ullt st'l11llcker M%r Co. v. f)Ulxmpor/. 396 So. 2d 101. /02 (ilia. Cil!. App. 1981): "Thinl, (ourth, fif/h 011(/ si.r th party defelldan/s w(!re udd,"" which individuals andlor (!,uities //JlJr/! alkyed to be (}redec:essor.~ to 'l il(;ker in the truck's chaill oftitle.")

Ur'llike l~ule 13(h), I~ule 14 'Ilithori7.es the addition of a new party by a claim assf:rted only aglllr1st thllt pllrty. A ddCr'ld~ nt may assert a claim against a person not yet II pllrty to the action who is or may be liable to him for all or parI of his eventu<illiability to the origimll pillinti(f. In doing so, II defendant assumes an additional role. i.e .. that o( /I third-party plaintiff. When .erved with process iI5 prescribed by the Hule 4 compleK, the person added becomes a third-party defendant.

."" ,.111-0

Under the second sentence of nule I3(g). a cross-claimant may allege that his co路defendant is or may be liable to him for all or !"lilrt ofl he clilim iI~~f:r t f:d aA~in~t hilli. Thus, thi~ sentence provides a procedural mechanism for asserting a claim for contribution or indcm l1ity again$t II perron Illrclldy a party, just as Itule 14 provides a procedu ral mechanism fo r asserti ng a claim (or contribution or indemnity against a per路 son not yet a party. When proceedi ng under it ule 13(g). a cross-claimant (or indemnity or contribution need not serve his c ros.s-de fend~ n t with process under the nuie 4 complex. but must serve him as prescribed by Ihlle 5. We come now to the distinction that a f(.ow IIIWYCrs and j\ldgcs hnve not ~Iways clearly remembered or u nder~ t ood. Although a third-pllrty dtfer'l dllnt wil l often, if Mt &Iway~. be directly \lable to the original plaintiff or the original defendlln\. itu le 14(a) docs not authorize the joinder of a person who is liable only Lo the original plaintiff or who. whether or not liable to the original plaintif(. is liable to the oritlinal dcfend,mt only on some theol)' other than indemnity. con路 tribution. or someth il1~ like them. (SIN!. e.g.. Opinion offhe Clerk. 31.5 So. 2d 1338, 1310 (Ala. 1977): "An imp/t>ader under Rule /4

requires thai the liability of a thirtl party be dU}H!lIc/mJt upon fhe Olltcome of the main cklim. - 5f!lJ generally 3 MOORe'S Ft.:Df_'RAf. lWAC7'lCe' ' 14.07/989)). In the

bad eKamples reviewed here. some lawyer or court forllOt this blackleller proposit ion ilud mis\lsed Ilule 14. The cases fa ll inio three clliellorics: (I ) cases in wh ich the Alab;imll Supreme Court cllught lind corrected the lll i~u nde r~t..1 nd ing of Rule 14. (2) cllses in which the Alabanlll Supreme Court did 110t catch the misunderstanding of nule 14. but the misundef$\anding did no apparent harm. and (3) cases in which the Alabama Supreme Court did not catch the misunderstanding. and the misunderstilnding did or may have done harm.

AI.b ....... Supreme Court caught .nd corrected mlsus. In Sidlllell II. ~~boten . 473 So. 2d 1036 (1985). an action by W(')()ter'l for brf:aCh of contract against Sidwo:lI . two rf:a llor~. not original parlie5, fil ed what was actually a cGmplaint in inteIVCntion. although they styled it a " th ird-~rty complaint." (ld. af 1037.) No original party objected to eithtr the intervention or the mislabelling of the pleadin,. and the real路 tors won a judgment. On appeal, but 011 its own motion. the Alabama Supreme COll rt addressed the question whether it

_'~rnc.o _",,= oo='c _ =:-------------------------------

should reverse the judgment for the realtors "betiluse they \\'ere ne\ICr properly made partiu plaintiff in the circuit court hailing filed II 'thlrd.party complaint' [Rule 14[lnstead of a motion to intervene [Rule 241.M (ld,j Already hailing properly assumed and Rrved its teaching funClion by spotlighting and correcting the misunderstanding, the court \\'ent on to show itself at its best, saying: "[T[he interests of justice will best be kl'lled by treating the realty companies' ·third·party com. plaint' as one of InteMmtion, because",! I! Sidwell had nolice o( the claims lin intervention 1and was afforded due process In the current litijJ/ltion, [21lnleilher Sidwell nor the circuit court. on ilJ own motion. raised any i~ue or argu· ment regarding whNher the reaity companies were proper parties, and [31 [tlo lIold the Judgment would not comply with the spirit of our procedurlll rules, which must be con· strued 'to secu re the just. siltedy and inexpensi\IC determination o( eve/')' action' on its merits, flule I(c)," (Jd. af 1038, ) [11 thi~ 'lise, perhap5 the ptlrties confused only Ilule numbert rather thlln the 5ubsl<1nce of Hules, In Tall/or I'. Of/ldlllin N(ln IJI/Ilk, 473 So. 2d 489 (Ala, 1985), the bank sued Thylor to recover on it promissory note. Taylor counterclaimed (or d'lmages for sl~nder o( lille in that Ihe bank had filed Ils p(!11(/(!I1S nOlices against Baldwin County properlies of Thylor as to which Ihe bank had no colorable claim. To his counterclaim agalll5t the bank, Thylor joined claims (or slander of tille against two Individual agents of the bank, These additional cllllms were properly joinable under Rule 13(h), although Taylor styled them "third.party com· plaintl~. (lei, of 489,j Although nothing but a commendable attention to diKlplined diKourse turned on it. the Alabamll Supreme Court observed that Th}'lor's claims againsllhe bank officer and b.1nk's attorney were "nottethnically third·party complainl!.- (ld. aI490·91, II. I.j In Cl!7llo11 £/ecfrollics,/Ilc. /I, /Jollar. 614 So. 2d 999 (Ala. 1993), AmSouth Bank sued llonar 10 recover cert;!!n drMts on Bonar's account Ihal had become OIIerdrafis when Centon stopped p;!yllleni on the IlIrge cheek to I30nllr that would halle cO\lCred Ihe dr/lfl!. l1onllr counterclaimed, "a11cging nCQIi gente and misappropriation or funds," (/d, at lOOI, j To his cOllllterdaim a~1j '1s1 AmSouth. Bonar joined a claim against Centon, "allellin!! breach or contraclllnd promissory fraud" for $toppinll the check. (IrI,) Thislldditional claim was proper. Iy Joinable under I~ul c 13(h), bullJonar ;!pparently styled ji ll "third-party co mpl~int." (ll/,) Pu rsuant 10 a written settle· mcnl agrW'1lCI11, AmSoulh di5miued its claim against Bonar, and Bonar dismissed his counterclaim against AmSoulh. Centon then contended, both in the trial couri and on appeal, that "AmSouth's dismissal of its claim asainst I30nar with prejudice precluded liabilily on Bonar's third.party complaint as a matter o( l aw,~ (ld. al 1002,) The Alabllllla Supreme Courl properly rejected Ihis contention, Only 110nar's mislabellinI! of his Hule 13(h) claim against Centon as a "third. party complainl Mg1l1e Centon even a cotorable ground for milking such a contention, Bonar's claim against Centon clearly was noi lltl'ird.pa rty claim. llonar did not suk indemnity or contribution (rom Centon, lie allcged Centon's

primary liability for "breach o( contract and promissory fraud." (!d, (II 1001. ) Once the cou rt saw that, il became, or should have. become. clear to aJi that Ihe dismissal of AmSouth's claim al!ainst Bonar and I3onar's counterclaim against AmSouth in no WOIY procedurally affected the penden. cy or Bonar's claim allainst Centon, DI~mlS$al of parts of a multiclaim aclion lealles other parts standing. with no (ormal necessity to in\lOke Hule 2 1. Alabama Sup ...me Court did not c.tch mlsus., but mlsus• • pp ....ntly did no harm In OzlcV /'. Guthrie, 372 So. 2d 860 (Ala, 1979), for example,

the Alaooma Supreme Court apPMcntly O\ICrlooked a mimse or !lule 14, allhol/Ah the court's silence was arguably not unjusti. fied. [n the previous action that controlled the result in Ozltv, Collins had sued Ozley to halle the boundary between their properties judicially delermined, Ozlcy had joined Culhrie, his prcdecessor in interc5t. 011 the ground Ihal Guthrie had mls· represented Ihe loclltlon o( the boundary. II would scem Ihal Guthrie's liability, If IIny, to Ozlcy did nol depend upon a determination that Ozley was liable to ColUns (or a recovery upon which Guthrie would then be liable oller to Ozley. ('""or (mil/{OIlS uslilfllhc customary (onnull/lion -/iability OI'tr~ or "Ho/)/e wer,· respcctill{!/y, S4!1! Mot/ort/og. 1/011108, IIIC, II. WooIdridgo, 55 AllI. App, 68, 70,31350, 2d 190, 191 (1975); V"fled Stolos

C LASS ACTION ADMINISTRATION

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Roefsity, 19 f:R.D. 355 (£'.D.I)a. 1956)). That is, Ozley'S "third-party" action against Cuthrie was not related in any rec· ognized way to 11 theory of indemnity or contribution, (Set! 3 MooRE'S Ph'Dt'RAI, PRAC'ncr: 114.07.). I( this point is well t;lken, then Guthrie was misjoined. and either Collins or Guthrie could have objected under ltule 21. Neither did, however. and the circuit court granted Cuthrie a di rected verdict on the merits ag.'inst Ozley. Ozley lhen commenced the action reported in OZ/IIY u. Gull/ria, l'tSserting the Mme grounds. The supreme court properly affirmed the ci rcuit court's determination by summary judgment that the judgment in the previous action was resjudicala against Ozley. Its silence on the misjoinder question should not be deemed a holding that Ozley's joinder of Cuthrie in the previo(IS ilclion WilS authorized by Hulc 14 or any other joinder Hule, but only thill the parties had wlliwd their objection to misjoinder. In Marl ill /J. Robhhu, 628 So. 2tl 614 (Ala. 1993), the rormer Mrs. Hobbins sued Robbins for relief, ptrhaps both clluilablc and legal, for alleged frlludulcnt misrcpresenliliions inducing her to relinquish title to certain real property to Elan, Inc .. in which Robbins had an interest. Robbins counterclaimed, alleging that f.lrs. Ilobbins and one Martin, the majority 8tockholder in Elan. Inc.. "had conspi red to deprive him of assets and property rights." (Jd. (11616',) To his counterclaim against Mrs, Hobbins. Taylor joined a claim against Martin. This addition~ 1 claim was properly joinable under I~ul e 13(h). bu t l~obbins $tylc:d i\ lI '·c ro~-clai m." (ld.) In a footnote, the court ol)served th"t Robbins'S claim against Martin was not properly styled a c ro~s-clllim, becil u~e "Marlin had not previously been a defendant in the case." (/ri.. II. 1.) The court went on 10 speculMe lhat "I tlhe tria! court app.1rently tre,lted this;u a cI"im brought by Mr. Robbins 118 a lhi rd-~rty plllir\tlff. purSuill1t to Itule 14." (/d.) From aught that amlears in the report, however. calling Hobbins'. pleading a third-party complaint would have been as wrong as calling it a cross·claim. nobbins's claim against Martin depended nolupon a theory of derivative liabili· ty, e.g., indemnity or contribution, but upon a theory or primary liability. Le., Martin had conspired with Mrs. Itobbins to deprive Itobbi n ~ of assels and property rillhls. The misunder· $Iandlng did notllffect the dj~posi t iQn of th ~ C<lse. [n Sloll!! II. GulfAmer. Pire & Ca.~. Co .. 554 So. 2d 346 (Ala. 1989), Hank Williams. Jr. and others sued Stone for "a declaration that Stone was barred from estllbllshing that she is the natu ral child of Hank Williams and from asserting any claim or entitlement to his estate or to any interest or royalties nowing therefrom ." (ld. (If 348.) Stone counterclaimed, apparently for a counter-declaration, To her counterclaim against Williams. Stone joined 3 cl3im ag3inst Gulf American and others, alleging "an intentional, willful, fraudulenl , and conspiratorial con· cealment from the CO\lrl of her identity and potential claim to the estate of Hal\k Wi ll i~JTI$ . " (/d.) Fr(lm aUllht that appe3rs in tile opinion. lhi! additional c l~im was properly joinable under nule 13(h), but Stone apparently $tyled ila "third-pMly c(lmp[aint." (Id.) The Alabama Supreme Court never challenged this mischaracterization. And a mischaracterization it almost cert3inly was. Only lhe possibility that something 110t rel)Qrted IJ.

''''

MAY , 3'0

ill the 01liniOl1 might hllve lurked h\ the rec(lrd (In appeal stands in the way of complete certainty, From aught that appears, Williams asked nolhing of Stone for which she could then dem.md reimbursement (yom other$. ThUs. the "thirdparty defend3nts" could not "be liable to (herl for all or part of IWiliiamsl's clai m against IherJ," (J?uiI114((I), SIJIII. I.) Notwithstanding WiUiams's opportunist attempt to capitalize on Stone's mistaken characte r i~1tion of her pl eadin~, (id. (II ,173). she did rIot a~k arId (for lIught that apPl!ar~ in the report) could not have asked (or indemnification by the parties she brought into the action. Her complaint $Ought punitive damages from them for "an Intentional. willful. frlludulen t. and conspi ratorial concealment (rom the court o( her Identlty and potential claim to the cstllte of Hank Williams." (Id. of 348.) Thai is. it sought to hold them Ilrhnarll), liable. not derivatively liable. The oversight did not af(eclthe disposition of the case. [n H·bod u. Tricoll /l1(I(a(s & Scruiccs, Inc" 548 So. 2d 138 (AlII. 1989). Wood (a shareholder of 1'\"icon) sued 'rricon and ferguson (~ nother sh,'reholder of Trioon) for a declaration voiding certain stock option agreements concocted by Jlerg\I,son and Hell (il now deceased shareholder of '[\'icon) \(1 dilute Wood's shareho ldinll.~. The AlabM1li Supreme Court affirmed the d rcuit court's S\lmmary judgment against Wood. rendered on the ground that Wood's claim was precluded by the determination o( an earlier acti(ln in which Wood could and should hllve asserted it. In that earlier action. Tricon had sued Wood and TranMm (Wood's own corporation) (or "a declaratory judgment and an il~unction restraining Wood and Transam from engaging in (urther competition with Tricon." (/d. aINO.) In response. WooJ had asserted a "third-party complaint ," in Tricon's action. ag3inst Ferguson <lnd Bell apPilrently for equilable relief against. the stock option ,Igreemcnts they had concocted. (frl.) The opinion does not say whether Wwt h<ld joined this claim with <l (ounterclaim ag.linst Tricon. If so. it fell within the authOriZOltion of Rule 13(h). Irnot, if it stood 1I10ne. rIO Ilrovi~iOll of the Alabam,1 nul~$ (If Civi l Procedure authorized it, unle~ It prayed indemnity. J( MI. or course. Rule 14 would have authorized it. From aLIght lhat aPllears in the report, Tricol) asked nothing of Wood for which he could Ihen demand reimbursement from Ferguson and I3eIl. Thus, Ferguson lind BeUcould not "be Hable to IWoodl for all or part of l1'ricon1'5 claim ag,l inst Ihiml." (Rule 14(1), sell/. 1.) Nevertheless. the Alab.l m.l Supreme Court did not dl.lllenge WOO<I'$ mi Sl;:h~ r~cteri1~1' ion of his reactive cl{lirn ~g,li n st Ferguson and Bdl. referring to it throughout tileopini(ln 3$ a "third-party complainl. The misunderst.lnding did not affect the court's disl~i t iol\ or the case. but a prQper understll1lding of Rule 14 might have saved Wood from complicating the flr~t action in II way that came back to hllunt him in tiu: secor\d. H

Alabama Supreme Court did not catch mlsus., and misuse did or may have done harm In Sllt'lId u. Cheelah &:xII Company. 585 So. 2d 809 (Ala.

1991), Mrs, Sneild brought i\ wronltful death aclion ag3inst the manufacturer (Cheatah llo.,t Comp<lny) and the seller (Hoger'$ Outdoor Sports. Inc.) o( the boolt from which her husband had beer\ thrown to hi~ de.... th. In response, Clreetllh b$$crtcd a crOss-

, 1.,......._

--~

claim 3gainsl co-defendant noger's Oliidoor that could h.lll't been nlllint:ained only upon Iht unsupportable theory 111.11 the ~l1e r would be liable 10 the manufacturer for any sum the 111<11'1' uraclurer might Imoe to p;1Y the plainliff. TIlis is the theory which, when applicable under subslmllillc principles, supports

Ihird"xlrty complaints under Ilule 14 and cross·cll1ims undcr Hule 13btl. sentence 2. For ought revealed by Iht OI)lnion. Chect,lh could not maintain a croM-ciaim under flult 13(g), sentence I, becau~ it hlld suffered no Independent injury by w!\alc:\ler nclt1igcnce of Rolter's Outdoor had caused Ihc wrong· ful death of Mrs. Snead's hus.band. And it [O\lld oolll\lliniain a erou-claim under Rule 13(g), sentence 2, 1xc.1Use it asserted no viable claim for inticmnity or contribution. (Cheetah IIWII have mismwcrsfood (he vro,1et sCtwe ofimkmllitv muler Ala/xJma slIbsr«lJIive low, rolher tholl Ihe l't'OfX" proa!tlltral use ofRule 14.) Therefore, UI)()n appropriate

motion by the pillinli(f, or even on its own motion, the circuit court should hlllle stricken the purported but. illusory "cross.claim." which WIlS, after all, only a disguised asscrtion of Cheetah's negative dc(ense (proper· Iy a$Strtnble by denial in its answer) that it was not negligenllll all, Iletaust no one challenged tile cross-claim, it went to trial along wilh Mrs. Sncad'$ origin.) linll claim. The jury returned Il V(!rdict for $100,000 for folrs. Snead against Cheetah and for $100,000 for Chttlah against Roger'$ Outdoor. The Alabama Supreme Courl revtNed and rem.lnded for a new trial, Ililreeing with folrs. Snead that the disappointingly small verdict for her was inconsistent with lhe vttdict for Cheetah :against nager's Outdoor. (/(1, at 81I. By ils decision, Iha coltrl a:mfimK'(llh(l1 (/ claim for im/ellmillJ did 1101 lie onlhes/! roc/s ,) With Cheetllh's spurious cross-claim out of the case, there would have bten no verdict upon it that could have been inoonsistcill with Ule jury's ~n"l l1 verdict for folrs. Snead against Cheetah, Thus, because the other Iwties ami the trial court did not save Cheetah from ils mi ~ta kcf'l usc of Hule 13(11), sentence 2 (Rule 14'$ twin provision). Cheftah subjtctcd il.$elf to the risk of a higher verdict at a second trial. In Shelbg Coi.mly Comm 'n f'. Bailcy, 545 So. 2d 743 (Ala. 1989), a wrongful death action, counsel for codefendant Shelby COllllt)' argued Umt blame for Ule fatalllccldeni fell upon one Farley, a truck driver who .....as not a l):Irty to the /letion. In response, plainlifl"s counsel argued that the county \lIould have brought F.. rlcy into the action, if it realiy thought him liable. The county assigned this jury argllment as a ground o( error, .U5crting Ih.. t no procedure allowed it to bring Farlcy into the action. il Wi!;.\ in response to this argument that the Alabama Supreme Court sec.tn$ acti~ly to have espoused error, ~ying: "Using the third' p,nty practice procedure of Rule 14, Ala.R.Clv.P., represcnt.'ltive$ of the estate of l.ouis Cosby could Mv(! filed a wrongful death action against farley Iwrong!]: Shelby Counly couiJ haV(! filed an action against Farley for any economic 105SCS it suffered in the IIccidenl Iwrongll." (/d. ul 748), Of COlI(5e, either of the court's cK<lmplc5 could have been asserted as an independent action, but neither could properly have been asserted ilS a third.party cl!lim in the C:lse Ilt b.1r. beclluse neither depended upon 11 theory of indemnity or contri· bullon. The court hlf(/ the plaintiffs jury argument nonprejudi-

cia) at least partly upon the mistaken premlst 111.11 the county oould have brought ~'brley into the :action. In tYhiSl1um tJ. II/abama Power Co .. 512 So. 2d 78 (Ala. 1987), Whisman sued Alabanl.' I'ower to rtroVer damages for the loss o( IlOOds destroyed in a warehouse fire. The Alabama Sup~e me COurt affirmed the circuit court's summary judlllllcnt against Whisman, rendered on the ground thaI Whisman's claim was precluded by the dctennhl<ltion of an earlier action t() which Whisman W<U:I party. In that earlier action. Cull' lroo & Metal, inc. had su<.'(1 Alabafl'l:l Pw.'Cr tl) rC«J\ltr d.llT13ges for the 10M of its warehouse destroyed in the same fire 1I\o,t destroyed Whis!Tl<ln's goods. In response, Alnba!Tl<l Power had MSCrted a "third.party complaint~ againsl Whis!Tl<ln and others. alleging that "their negligfnce caused the fire and resulting property dam· ~ge to IAlab.llThl Powed's substation.~ Vd. oIBO.) ~'r<m aught that am>ears in the report, Alabama Power did not seek indcfllnily or contribution from Whisman and the others. Without a prayer restinll on a theory of dcrivative liilbility, Alabamlll'QI.\·er invoked Hule 1<1 without juslific.ltion. Nevertheless, the Alabanm Supreme Court did not ch.lllenge AI;LlJ<)lThl Power's mischarac· teril'..ltion of its rcnctive claim a.g.linst Whisnloln and the olhel'$, referring to it throughout the opinion as a "thlrd·party com· plain!." The opinion does not My whether Alabama rod joined its claim ag.'linst Whis!Tl<ln :loIld the oU~rs wilh a counterclaim 3g3inst Culp. If so. it (ell within the authorization of Rule 13(h). If not, if it stood alone, no provision of the Alabmn., Rules of Civill'rocedure authorized it. since it did not, for aught that appco1TS, pray indemnity, Ir this is true, \Vhisman lost needlessly to re.fjudicala in lhe second action, because he had bilcd to dlilllcflge Alab.llllll PQI.\'er·s claim against him on an available procedurnl i!round in the first action. Hule 14 affo rd~ defendants a convenient, modern procedurII device for joining the old common law "action over~ with Ihe action giving rise to it. PI.lintiff$' counsel who know their procedure will not permit defendants to invoke I~ule 14 as an all-purpose license to clutter their IIctions with collateral claims unjoinable under IIn)l oUler nule. Not cvtryonc nlay agree thai the Alabama Rules of Civil Procedure afiord grippinll I>cdtime readinl!:, I'crhaps, however, this sloryllbout mis· adventures with Aule 14 can persuade us allthal reildlng and re~pt:ctinll l he flules can contribute to our success and pro· !ec! U$ aij.1in$! profession,,1 emb<lrraSsmellt. •

Je rome A, HoHme" ProlelllQt Honman received hit A 8 dogr" In 1962 ,rod his JOin 1965 r!Om tI\8 UM'Grllt~ 01 NebrMl\l, wt1Vf1I ~ ",adutll<1 Oroor 0I1hu CQI. BOd I4INId Ill! 1d.IQI'·in-<:hIctI 1hO NoOtIf#1f Llfw R6VNIW He was in rxivale practice In CahlQ1'n1B !rom 1965-68, Ifnd lin o$$lstant p«>Ieuor 01 law al me Ui'lNefalty or New MeXICO lrom t968·1 1 Pl'Q'IIIiIacM' Hoflman came 10 100 Unlwra,ty 01 Alabama SChOOl or Low al an asaoc:lalf pro!esacM' n 1971 and was II prole8!i01 or law at lhe university or MI'8Ovrl. Columbia during lho rail lemeller 01 1983·8<\ He leaohel ctv ll piacadl.lra and O...!doncl. /lnd It Itle Elton 0 Stephani Pl'ote&lOr 01 Law

The Local Bar Award ot A~hl9V1lm9nt racOQMIllIs local bar a~SOCraliOMs 10f their ouisianding ,onlrlbulions 10 til9lr communities Awards are presenled IInnually at Ihe Alabama Sial!! Bar's Annual Meellng LOCal bar associ allons (ompQle IOf Ihese awards based on Iheir sl~e Tho three calegones Bre large bar associelions, medium bar associluion!. small bar IIssocielllnl The foll()Wirog ,rilsrill willl,le used to j~ IIlI! conlosl(lnlS lor ellth C<Ilegory: The oogree ot participation by Ihelndl~idual bar In ftdo/anclng progrtmS 10 benclil ihe ,ommun1ly, TIIa ~Dhty and eXlant oillie impacl ollhe bar's participation on Ihe cilizan~ 1'1 Ihal community; and Tho degroo of enhancement to IIIe bar's image in the community Memba" ollhe 61i1111 har's Cammillell on Local 8m Ac ll~i l ill! and Servico, SlIfVtl as judges IOf the awards.

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To b6 conslderod 101 Ihls award. I()(OI b3r assOCiations rlMt Con'lplOt9 and lubmit an ~wafd opplication by June I, 1998. An awa rd applicatio n may be obtai ned by calling or writing Ed P~ l1 er.on, dl reclor 01prOllrams IlAd IIcllvllles 81the stftte bar, 1-800-354-61504, P,O, Bo,ll; 6'11. Montl/omory,

A l ft b~ m ~

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'Ih

Medium 6'h 11h 61h 11th 16th 201h 2Jfd 201h Bessemer Cut-off (diVIsion of 10th Cirevitl

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Attorney Calendar Conflict Resolution Order 8el;ause of questions rllisod 8mOlllllhe bench ~nd bar regordlng Ihe AIlQlney Celendilr Conflict Resolution Order, the chief justice appolnled a committoo to study t'16 order ar.d mD~6 recommendations. Afler comnillee discussion, It was initially delermined thai an Information elfon wes necessDry to ensu re thel1111 allornevs were fllml ii,r with Ihe ardor and lISrequ lromenls The Anorney Celendar Canillet Aesolu\lon ardEll' was ent ered 8S an edmi1istr8tiVil orller 01 1118 Alabama Supreme Court efiectlVil October 22, 1990, Ills nOI a rula TM ordor requiros IIIDI allorneys lake soVillal510ps bafore a COlli Is Informed of II canillel, and Ilia required slaps ara, as follows; The ardor places Ihe tlurden upon an allorooy \0 Hl1!l1OOielely oote wOOloor he or slla hils any conflicts With hoarlfl{ls or ula ls ImrnedlDlely upon OO\lng a conflict. an al1ornoy shall 11) AI1Qmp 10 make ~tk!qua lu A l rflilyemu lIl~ lOr n!prilsentatlon of each clienl'l Intarest by ~ubSlllullon 01counsel; or 121 SNiIi 01r.crW1S8 &1I0ffl1>110 rosolvOlhl con/het by consultll'lg With coons!1 rej)rOS0IlllIl\Ill1ll IIdWISO pIlrlleS In COf'l lhctlflll C8S6S to r8solvOlhe conlliel, Or (3) If I~ ame Sleps feil, the a 1l0r~ sMBpromptlv ellemplto resolve tilt! confliCI by filing an elJ!)lOOllllle mOllOn wl1h one 01more oflhe courlS

involved: or (4) It slep] il riOt successful, tile 8110rney shall consult with Ille judgos IIlvolvl/d in lilt! ~onll icting casas and nol lfy Ihem of 1110 01l01111'18t he or slK!

has mOOo to resolve thO contllcl and at tho fact Ihal lheso efforts Mw b6en unsuccesslul WOOn an 8Ilorn(!y is aware 01 a trial conflict Wijll prior to trial, It mDy ba Ihat closer to Ilial tOO con/l lct Will resolve tlv saulernenl or disposllive ru llrlllS, 91 cmer~ Th~ CDnSllns uSDillie commltlllB IS IMt upon IQarnlng 01a Iriol ccnll iel it is tJdvl!ltbllllO IIlllrl lllo COurlSof thl! potential CO~tl iCI, howoVllr, as lime passes and a conflict tleeOffles mor8 certein, 1119 8norney IS re'poo$lbl~ lor lekln\ltho steps reQYIle(/ tlv the order Pillaso !lOll Ihal whon you !lOlify 11\0 courl 01a conlhct under Slep 4, you are reqUired 10 toillho court the elforts made and slllps leken 10 reso lVil the confilel Allhough 1M pIlress 路certlfy 10 the court" is flOl used, Ihls is essen'rally a ce rt lflcalion reqUllomenl tlna lly. please !lOla thai tile OfdBr 000' nol pr(r.'ide IMI whan Ihare nra Iriijl eon/liet" tile oitiesl CilS8 Shall be Illed lir$t !Mule Ihls may baa common sonso epproach 10 mDlly conlliclS, thtlre sro clrcumslances whon IllS noilher lIdvisablo /\Of nocesS8ry to try the oldest case first. The commi'tee is conti nuing to review the Ofder aoo comments alii illVlted t't'"JIlhe beneh and bar on lhe manner in whith the Ollie! i, W!lr~ing and whelhel the OIdc! s!'oOtld be DmendOO. Plnn 10rwMd MV comment, to Judlle William Gordoll, P,O, 8011 1667, Montgomory, Alab~ma 36102路1661,

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RECENT DECISIONS BV Wilbm C. Silbermall (I/l{II>tll'ili IJ. Ilymc, Jr.

United States Supreme Court-Criminal Bruton stili vl.bl. Grull /J. (tI1I",/ollli. No. 96路8653 _ U.S. _ (Marth 9, 1998) , The United States Supreme Court held, five to four,

that 11 wriUen confeu;on of a co-defendant (Bell) in which he impliCIIled the

other defendant (Gray). whose name W;I~ redilcled in open courl by substituting the word "delelc" or "deletion" fo r Gray's name, (all$ within the protective rule of 11m/oil II. United Sltlles. 391 U.S. 123 (1968), Anthony Bell confu~d to the police that he, Gray and another mlln P'lrticlp.lted in the bellting thai cOIused Williams' death. After the thi rd man

died, /I Maryland grand Jury Indicted Btll

and Gray (or murder. and the State of ~l al')'land

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trial judge permitted tht Slate 10 introduce a redacted ver$ion of Hell's confession. Ihe detective who read the confession to thc jury said ~deleted" or "deletion ~ whenewr the name of Gray or thc third participant appeared. Immediately aner readirlg the confession. the prosecutor asked the detective on the witness stand the follOWing: "After Bel! gave)lOu that Information, yOu subsequ~nlly were able to arrest GroW; is thlt cOrri~cl ?" The State also introduced a written COpy of Ihe confession with Ihe two names omitted. leavinJ! in their pillce bl:mks ~pa 颅 rated by commas. The jl>dge instructed the Jury that the confession could be u!ed as evidence only against Bell, not

Alabama Bill' Jn~lltule for CQntl nu lna

Gray. The ju!')' predictably corwiclcd bolh defendants. M,IIj'liind's intermediate a~ella t e court held that Bruton I'. United Stlltes prohibited the use of the con1ession and set aside Gray's conviction. The Maryland Supreme Court diSigreed and reinstated the conviction. The Brulon case involved two defendants tried jointly for the SlIme crime. with the confession of one of them incriminating hath himself lind the other defendant. The SUllreme Court in IJrulQI1 held thai "despite a limiting instruction thai Ihe jury should consider the confcuion ilS evidence only against the confc$$ing co-defendilnt, Ihe introduction of such a confession at a joint trial violates the noncoofessing defendant's Sixth Amendment riS,hl to

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cross-exllmine witnesses." The Court explained lhat this situation. in which powerfully incriminating extrajudicial statements of a defendant ilre deliberately spread before the jury in a joint lrial. 15 Qnc of the contexts in which the risk thllt the jury will not. or cannot, follow limilinl! i11structiolls is so grcat and the consequences of failure so devastating to thedefendllnt. that the introduction of the evidence cannol be allowed. See 391 U.S. at 135-36. However. Bru/Qlls scope was limited by Richurdso" v. Marsh, 481 U.S. 200. 211 (1987). in which the Cou rt held thai the confrontation clause i ~ not violated by the admission of a nonte~tify ing co-defe ndant '~ (or1fe$sion with a proller limiting instruction when the confession is redacled and eliminates not only th111 defendant's name, but any reference to hi~ or her existence. The case slIbjlldice reasoned that "". Unlike Hichardson's redacted confession. the confession refers di rectly to Gray's ·existence'. Hedaclions thai sim-

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Illy replace a name with an obvious blank space, or a word such as 'deleted'. or a symbol or other si milarly Qbvious indications leave statements that, considered as a class. 50 closely resemble Brulon'~ unred"cte" ~ta t ~mt:n t~ 11~ to wllrrant the same legal results. Feder,,1 bribery I"w CaIn "pplV to 10c,,1 corruption

Sall"as II. UnltcJ Statu , No. 96-738 _ U.S. _ (Decenlber 2. 1997). The Supreme Court ruled that persons can be convicted under a federal bribery law. 18 U.S.C. §666, even when lhe transaction did not involve or have;my demonstrated effect on feder<ll funds. The high court's ummimous deci$ion upheld the bribery conviction of a fo rmer Texas jai ler who accepted payments for giving all inmote special privileges. The Court also ruled. again unanimously, lhat a conspiracy conviction under lhe Ilacketecr Influenced and CorruPt Organi7.ations Act (lUCO) can be valid even if the conspi r~tor never agreed to commit two of the p r ~dicate acl5 IIiCO forb ids. Justice AnthOrlY M. Kennedy, writing for the Court. said that the bribery law "does not require the government to prove the bribe in question hlld finy PIITticular influence on fede ral funds." The law is aimed at barring briDes to stale and local o{ficia ls employed by agencies receiving federal money. As to the I{ICO provision, Justice I\ennedy relied on a line of Supreme Court t1.Ilin~ that held that a compiracy may exist even if ,1coCOllSflirtlt or dot:s n(lt 'L!lree to commit or facilitate each atld every Ilart of the substanl ive offense. No-Knock right applle. whether there I. property damage or not

U" itt!tl Stotes ~'. R(lmlre.:-, No. 96101 69 _ U.S. _ (!'Iareh 4, 1998). Police with search warrants do not need t~t m jlL~tifi cation to enler ~ home without knocking first. even if the entry results In properly damtlge. The SU)lreme Courl. in two previous rulings. held that the so-called "no· knock" entries by pol ice tire justified when officers have ~ reasonable suspicion that announcing their presence wovld be dangerolJs or inhibit Ihe effective investigation of a crime.

Chief Justice I! e hnqui ~t, writing for the Court. critically noted. "Neither of these cases explicitly addressed the question whether the IJwfulness of a no-knock entry depends on whether property is damllged in the cou r.~e of the entry. It is obvious from their holding~. however. IhM it dotS not." In an interesting side note, the Chief Justice acknowledged that "excessive or unnecessary destruction of property ill the cou rse of a search may violate the Fourth Amendment. even though the entry itself is lawful and lhe fruit s the search are nol subjecl to a suppression." But he ::'1id nl) violation I)Ccurrcd in this case.

Bankruptcy Confirmed plan lI.tlng debtor'. tax at zero doe. not b"r IRS from collectIng I,.ter (liead thl8 cau to tell you what to do.) IRS II. DfI(/ley 1)(//11$ Th.'1{vr. (5th Ci r.),

132 1~3d 256 (Jan. 6, 1998). Tht confirmed chapter II plan fIXed the debtor's lillbllity for a tliX penliity M zero. The bankruptcy and district courts held that the ms was barred from collecting the pen!llty ttlX against a corporate officer for failure to remit trust fund, Social Security and withholding taxes. The debtor's chapter I I plan, as well as his disclosu re statement. provid. ed that there was no deb. due for ta~es or penalties. 'rhe inS filed proof of claim fo r unp<lid personal income taxes. lhi! debtor objected. and aftH an audit. the IHS withdrew its claim. The inS did not appear at the confitn'l atlon hearing. nor did it appe.,llhe confi rmation. Subsequent thereto. the illS began collection procedures ror the penalty or some $96.000. The debtor wenl back to the bankruptcy court with <I declaratory judj:lmenl proceedinj:l in which on summary judj:lmcnt. the court barred the illS from proceedinj:l. The di$t rict COurt affirmed. but not the Pinh Circuli. The Fifth Circuit fi rst reviewed cOl,nicting cases in its circuit as to whether a confirmed pl:1Il acted as resjlldt'cata to later efforts to collect, and in so dQing distinguished the prior cases. First, it held that Congre.o;s in sections 502 and 506 provided thal a Si!Cl,Jred creditor cO\Jld prc.'lCl'\IC its Hen without p.lrticip.lting in

the bankruptcy process, and that once a proof of d"im is filed, it is considered allowed unles.\ objtClion i5 made. It then referred to Simmon.f II. Swell, 765 "~2d 547 (5th Cir. 1985) which held thilt a plan could not substitute for an objection to a secured claim. and that the Mme policies hold for a 16672 tax penalty, as the inS may preseM such without filing a claim in cll<lpter II. This is bec.1use of the lli'O\lislon in §11 41(d)(2) and 1523 of the Bankruptcy Code Ihal debts excepted from dlM:hnrge by 1523 include taxes described in §507(~)(8), reg.1rdless of a claim being filed or allowI.'d. The court then instructed thilt the oormal procedure for determination of a lax debt is for lhe debtor or IRS 10 file a motion fo r determination by the court under 1505 of the Bankruptcy Code, which ~u\horizes the bankruptcy courllO determine the amount or legality even though previously aueued. Such determination will be a contested proceeding under Bllrlkrulltcy Rule 90 14. and instituted by a motion which st"tcs with pilrticu· IMity lhe grounds and relief requested.

an altematiw, the debtor may filt a proof of claim for the IRS. and then contest it. In this case as the debtor did neither, the IRS was n[lt barred. A$

CmIMENT: The debtor also contend· ed thnt the IRS should be bom~d for withdrawing Its income tax d.,im, or that the ms should be estopped because the debtor relied on the (ailure of the IRS to file a claim. The court sumnlllril)' disposed of both stating they were not valid arJ:luments. As stated. this case fUTnishes II primer fOT efforl5 of a debtor 10 di.uolvt II tax claim.

U.S. Supreme Court holds Judicially determined mal· practice claim a.alnst doctor Is dlscharueable /((lIlJ(l(Ihali IJ. Ceigar, 1998

WI..85302(U.S.). _ S.CI._ f.1arch 3, 1998 (GinsberA, I.). Kawaahau (",'tient) sued Geiger for malpractice In (lIusing her leg to be amput.1t~ . which suit resulltd in a $355.000 judgment. Geiger was uninsured, and upon wages being garnished. filed a chilPtcr 7 petition. The

patient claimed under 1523la)(6) that her claim was not discharge.lble. The cited statule provides that art individual debtor cannot obtain a discllllrge on a debt arl~ing "for willful and malicious injury." The bankruptcy and district courts agretd. but the ~:illhth Circuil reversed on the ground tho,t non·dis· chargeability is rc-stricted totkbl$ for "an intentional tort .~ and tlul a malpractice debt oormally is dischargeable being bolsed upon negligent or reckless conduct. The Supreme Court u(firmed. Justice Ginsberg fi rst notfd that the debtor cla im~d he h.ld given Ius than the standOlrd procedure because the patient dttiberately et«:ted '1e55 than 5umdard treatmcnt~ becaUSE of a desire to reduce expen.sc. The patient claimed this to be willfu l and malicious. 1'he courllhen inquired as to whether this intentional ftct causing injuty Is non·dis· ch.lrA~able, or only if dischargeability rdates only to acts done with IK:tual intent to cause injury. Justice Ginsberg defined "'willful~ as ~deliberate or intentional." and as "willful" moMies "injury" in the /let. then to be non-dischargeable

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it must be intentional or deliberate, She flJrnished eKllmplCs of an unintended res ul t if the plainUfrs view held. She fur· ther said that $l.I ch a vil.'W WOuld make $u pe rfl u ou~ §523(1lj(9), which provides fo r non.dischargeability when substance abuse white ol>erllting 11 mOlor vehicle leads to an accident. Justice Gi nsberg distinguished the prior Supreme Court case of 1'; '/}.w IJ. Co/weN, .1 93 U.S. 473, 24 S.Ct. 505 (1904) by stating that its holding was solidly within the traditionnl intentional tort cilte"ory, ilnd is not in conOid with the court's ruling th"t the judgment debt must be "'for wi llfulllT\d malicious injuries." She disposed of the plaintiffs cont('T)tion that as a l)Olicy mlltter, malllrllctice judgments, when no insurance is carried, should be non·dis· chllrgeable as being a matter for Congress. not for the courts. COj\lMENT: Is this decision goinp: to coUlse more professionills to "naked"? I doubt it, as b.l nknlptt)' 51ill is not h,mpy illtern"tive. Howcvcr. lht dedsion docs clcilr the conflict in the cin.:uil!!.

Recent Decisions from the Alabama Supreme Court-Criminal DNA: Alabfllma "dopt. the Daube" .tanderd 1'1Irl/l1r tI. State, 32 Aim 123 1 (Ala"

1998). This is ~n imf)OTt.m! opinion authored by Justice See which every Alabama rJractitioncr should Te"d. Thi~ C"St c()r\C€rrlS th ~ lId m is~lblli ty of DNAevidence under §36· 18.30, Code of IIlul)(,,;/(/ (1975), The Irilll court held lhnt DNA evidence was admissible to show Andrew Dwight Turner was con· nected to the murder scene. The jury convicted him of two counts of capital mu rder, The court of criminal appeals J l\ llUil r)'

reversed the conviction, TumeT 1.1. Slale. IMs.

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So.2d _ (Ala.Crim.App. 1996), holding Ihllt lhe Stllte hlld failed to sat isfy the standard set (orth in Ex parte HtrTY, 586 So.2d 242 (Ala, 199 1). fo r the admissibility of its DNA evidence. The supreme court granted certiorari to determine whether §36· 18·20 et seq .. which were added to the Code in 1994, supersede the Perry st,mdOlrd. The Sl'preme cou rt held \h1ll the Perry ~l.a.n· dard no longer applied lind employed instead the 1)(/lIbl!rlliT\aly~ i s. In the 199 1 Perry decision. the supreme court addressed the admissibi l· ity of DNA evidence as fo llows: In AI"bama, whether novel scientific ellidence is admissible is determined normally by using the test established in Frye /J. United Slalt!s, 293 ~: 1013 (D.C.Cir. 1923). [n Perry, the supreme court embraced the frye-plus standilTd. that is. general nccepllll'U;(: of the type of the· ory lind technique reiied UI){)n plus an examinatioT\ of the performance of the techniques in the p~ rli cu l ar caSt. In 1993. two years after the supreme court's decision in l'erry, the United Sllites Supreme Court overruled the "austere" frye standard for the admissi· bility of expert scieTltific evidence in federal trials. St'l! Om/bert II. Mem'" Dow Pharmaceuticals. 11K.. 509 U.S. 579 (1993). The reliability prong of the Daubert admi$sibility t c~ t re(lu i rc~ the I)/ITty prof· rering the sci~ nli fic {"\Ii d~nct 10 estllblish Ihat the evidence constit utes "scientific knowledge." [Jaubert. 509 U,S. al 590. The evidence need not represent immutable scientific fact. but rather, it must be derived by use of Ihe "scientific method." "The I r i~1 court should focus its inquiry on the e~pe rt's principles ilnd methodology, not on the conclusions that they generate." kI. at 595. Thus. the

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relilLbi lity inquiry shou ld IIddrus the sci· entlfic vllildily of the principle asserted, that is. whether the principle supports what it pUrl){)rls to show. The relevance prong orthe Dauber! "dmissibility test req uires Ihe pMty prof· rering the scientific evidence to cstabli$h that the evidence nssist5 the trier of fact to ll1lder$\lL11d the (:Vident~ or 10 deter· mine a fact in issue. /Jauhi!rt. 509 U.S. at 591. Thu~ , the tria! COl.l~t should focus on the connection between the proffered sci· entific evidence and the f2ctual issues, and in addition to the relevance inquiry, shou ld address the "fit" between what the scientific principles and methods are sup· posed to show and what musl be shown to resolve th~ factual dispute at trial. In 1994, the Alabmna Legislature specifically addressed the ~drn is~i bility of DNA evidence when it est~blished n state DNAdntl! bank. §36· 18·20(d). (e) and (0, Code ofAlabama (1975). fhe l..egisll1ture chose the morc flexible admissibility standard establl~hed in IJdlliNrf (flexible reliability and relevance). Justice See obseT\led tl1allhe I.egislature's choice was pu rposeful and effective. Most importantly, Justice See critically noted: We hold th<ll if Ihe admissibility of DNA evidence is contested. the trial court must hold a hearing, outside the presence of the jury, and pursuant to §36·18·30, deter· mine whet ht r the proponcl\t Qf the evidence sufficiently establish· es affirmat ive lillswer$to these two Q u c~ tions: Are the thl'Ory and the technique (i.e" the principle and Ihe method· ology), on which the proffered DNA evidence is based 'reliable'? and Are the theory and the technique (Le., U\e principlt ~nd the method· ology), on which the proffered DNA evidence is based 'relevant' to

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the evidence or to dettrmining a fact In iMue? ... In milking Ihll ll$$eUm ~ nt , the couru should ~mp l oy the following (actors: (I) testing: (2) peer r~view : (3) rate of error: llrld (4) general acceptance. Trial courts shadd make the 'relevance' assessment by addressing the 'fit' bet....-een wh.1t the scientific the· Ory and technique are supposed to ~how and what must be shown to urlde r~ tand ing

resolve the {actual dispute at trilii. This is II case of fi u t imllrusion regarding the proper lest for IIdfniuibitity under 136· 18·30, Ho.....ever. the supreme courl iimits, to somt extent, thb holdinll with the (ollowing words: ___ Only with this opiflion have we est., blished methods for the admission of DNAevidence under 136· 18·30. n le record is unclear as to whether Ihis standard was met with respect to the DNA populaliOfl fre-

queocy statistical evidence. And, the potential impact o(Thrntr's C:Ist is dramatic. Therefore, ....'e remand this case for the Court of Criminal Appeals to remnnd it (or the trial court to conduct an evidentiary hearing to delenl'ine the admissibil ity o( the DNApopulation frequency statistical evidence. If the trial court determines UlIll tM evidence was not admissible, II should order II new trial. •

is a Reality O nce again, the Alabama State Bar has taken action to provide legal assistance to indigent persons in Alabama. The Committee on Access to Legal Services, chaired by Pam Buey 01 Tuscaloosa, has pulled together a VLP Dream Team of 12 outstanding Alabama lawyers who will serve as Continuing Legal Education speakers in designated areas of the state. The goal of the VLP Dream Team is to increase the number of lawyers serving in the Volunteer Lawyers Prog ra m, which provides legal assistance to qualified persons who cannot afford to pay for such selvices. Special one-hour CLE plOgrams will be held, before which a speaker will explain t he VLP program and encourage attorneys to join. A special Hkick-off ' ceremony was held at the state bar on February 13. The 12 Dream Team members and their county presentation locations include: The Hon. Harold Albritton, Montgomery; former Governor Albert P. Brewer, Jefferson; Charles Gamble, Datlas; Nat Hansford, Houston; Dawn Wiggins Hare, Dale; Hon, Champ Lyons, Baldwin; Gene Marsh, Etowah/Calhoun: Dag Rowe, Tuscaloosa; Ken Simon. Lee; Alyce Spruell, Madison; Cleo Thomas, Jr. , Morgan; and former Chief Justice C.C. Torbert, Jr" Tallapoosa .

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DISCIPLINARY N OTICE def<lull judllmenl set aside. [ASB No. 95-2161

Notice • Jent Eldridge lI ull, whose whcrcnbQuts lite unkr\owI\,

must answer the Alabama State Bar's formal disciplinary chMges within 28 days of March IS, 1998 or, thercllfter, the charges contained therein shall be deemed lldmitted lind appropriate discipline shall be imposed against him in ASS Nos. 92·505, 92·530, 93·22, 93·422 and 94·20 before the Disciplinary Board of the Alabama Stale Oar. Reinstatement

• By order of the DisciplinllTY Board of the Aillblima State Bar J~m e& Wllllhall Mimi. Jr. was reinstated to the active prac·

lice of law on February 5, 1998. Mims was interimly suspended on September 26,1997, IHuJe 20(a): Pet. No. 97-121 Suspensions

• On f.larch 13, 1998, the Disciplinary Commission of the Alabama Slate Bar interiml), suspended Birmingham law),er Whitmer A. Thomu from the practice of law. IHuie 20(a): Pet. No. 98.0041

• Mobile attorne), John Thoma ~ Kroutter was Interirnly sus· pelldcd from the I)ractlce of Itlw b), order of lhe Disciplinary Commission, c{fective March 13. 1998. [Pet. No. 98.03) Public Reprimands

• Ilartselle attorney John LewilJ Sims, Jr. received a public repriln;lI\d \\ith general publicOiliOil on February 13, 1998. 11\ MOlYof 1997 Sims plead guilty In the circuit court of f>lorgall COUl'lty, Altlbama to lhe crimintll misdemeanor offel'lse of failure to limely file state income tax returns fo r tax years 1987·1990 in violation of Section 40·29·11 2, Code of Alabama 1975, Sims was sentenced to 18 months in the cou nty jail. however, this sentence was suspended and he was pl(lced on supervised probation for a period of three years, Sims was also required to pay a fine in the amount of $15,000 plus costs and asse5~mc nts. Sims has al$() written a leller of apology to the AI<lI).~ma Statc~ Bar which wa.~ published in The Alabama UJwyer. [ASB No. 97·0241 • Opelika attorney James Edwin Cox received a public repri· mand without general publiClltion on February 13, 1998. Cox was empJoy(!d by II client to provide represenl"tion in connection with a petition by the client's ex-wife to incre<lsc child suppOrt. Cox f<liled to fill: II reSpOllM to the. pNition with the result that a default judgment was entered. Thereafter, Cox represented to the client that he would file II motiOrl to set Ille def~ult Judgment Mlde, however, he failed or refused to do so. Over the next several months Cox made comments to the client which lead the client to believe tlmt lhe motion to set aside default had been flied and was awaiting consideration by the court when in fact it had never been flied. Eventually the client empIO)'ed other CQunsel who after di:scovery of Cox'~ failure to file the necessary motion was successful in having the ,on

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• Phenix City attorney Grego!), Kelly received II public reprimand with general publication on February 13, 1998, I{elly was employed to obtain ;111 uncontested divorce on behalf of a client. The client paid Kelly in advance. Aner having been so employed. Kelly failed or refused to file divorce proceedings on behalf of the client or to provide him with other lell(ll servicC5. Kelly also fililed Or rcfu~ed to respond 10 the clienl's letters or telephone call~ or to otherwise communit.l1e with the client concl:rni ng the status of the case. After the cliell1 filed II complaint IIgllinst Kelly with lhe Alabama State BlIr, Kelly failed or refused to respond for requests (or information or to othcr'Wlse cooperate with the investigation of lhe client's complaint. IASB No. 97. 173) • Clld$den attorm.-y Kenneth Paul RoberiAon. Jr. received a public reprim.1nd without general publiGltion on 11ebruary 13. 1998 for flliling to \like reasonflble Illeasures to ensure thtlt his subordinate non.lawyer employees complied with the professional obligations imposed by the Alabama Hules of Professionll.1Conduct and (or assisting a non-lawyer employee in the unauthorized pr;}ctice of law in violation of Ilules 5.3 and 5,5, Alabama Hules of I'rofessional Condu~t, Hobertson hired a legal assistant who, at. the lime of his employment with Hobertson. had previously surrendered his licerlSe to pr<lctice I<lw in the State of Alabilffi<l. During the lim/: th;It this 1'101'1lawyer employ(!e was employ(!d by Robertson. Robertson n...,in· t"ined offi ces in C"t\sden and Mobile. Although there were timc:s where the non-lawyer employee worked under Ille direct supervision of Robertson. there were other times when the 1I000-lawyer employee worked in one or both of Hoberl:;on's office.! without direct slIpeTVision by Hobcrtson or any other licensed attorney associated with the firm, At times,lhe nonlawyer employee .....as allowed 10 be Ihe exclusive contact between Robert$()n's firm and some of its c1ielts. Additionally, I~obertson allowed the non-lawyer employee to negotiate retainer agreements and attorney's fees with potential clients and to negotiate with other lawyers and non-lawyers reg,lrding Ihe ~ttlement of claims in C<IS($. The non-llIwyer'~ conduct In his relationship with Hobcrtson's finn \\'<lS such that there were clients of the firm that considerell the non-I<lwyer employee to be their IlIwycr when, in filet, he was not licensed to practice law in the State of Alabama. The Disciplinary Commission of the Alabamll State Bar found that. under the circumstances of lhis case, Hobcrtson (ailed to lake reasonable measures to ensure that his non·lawyer employee complied with the professional obligations imposed by the AI<lb.1ma Rules o( Profession.11 Conduct. and th,1t his failure to act provided opportunitie5 for the non-lawyer employee to engJ,ge in the Un.1uthorized prllctice of law. [ASB No. 97-95(Al[ •

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IndMduallreOlmefll In Institutional and community IMng I18ttiogs related 10 risk management and compliance with 8I81e and lederal regutalions. W~1i8m A, Lybarger, Ph.D., (lI6) 221-6415. COUNSELING : carey Bennett McRaD, J.D.. M.S.. CCA, lawyer, mental health

counselor, and domestic ralallOfls medlalor, oUers counseling ~rvk:es lor adults experlenctng depression, anxiety, stress, YOCl\tionallasues, grief and J'Elt<r,ttonshlp concerns, Certil~ counsalof associate 01Judith Harrington, Ph.D., LPC, in BIrmingham, Weekend, evoanIng appointmenls available. Phone (205) 930·9006. No repr&SBntatlorlls fIllJde fIl8l ll'1S QUIllty 01 the IefJ8I ~s 10 bB porlormed Is (}f'fI8ler than thB quaNty of kJgal SfIfvices performed by other 18*)'61'S.

HANDWAmNG EXPERT/FORENSIC DOCUMENT EXAMINER: ABFDE certI· fled ; pasl pre&idenl, Southeastern AssocIation of Forensl:: Documenl examiners: AmerIcan Academy 01 Forensic Sclence$1eI1Ow, Federal court qualified, Nlnaloon years' experience. eMI and criminal, Hardwrillng comporl· 1500, Iorgery c\et(lCllon, dalecllon 01 altered medical records and olher docu· menls. L ~h Nelson. Slone Mountain, Georgia. Phone (770) S79-7224. SKIPTRACIN(l.LOCATOR: Need to locale someone? W~llDCale!he person or no charvetno minimJm lee tor bRsIc search. 87% success rate. Na1ionw1de.

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MEDICOLEGAL SUPPORT: Registered nurse and atlomey. Tamara Story will put experience 10 WOfk lor youl Tamara A. Story. Phone (334) 867-0710. Fax (334) 86700720. No represent8tion Is mBdtl I/1s/ /fiB Qutllily

of the legal SflfVlc6s 10 be pet10rmtld Is fireR /fir than th9 quality ollegnl S9r·

vices performed by a/her lawyers. LEGAL RESEAR CH AND WRITING: Research and wriling servlcel, Inctud· Ing brlels, trial memoranda. and other doc:um8flts. Prompl deadline service. ExPEtrienced researcher and writer. LJcansed Alabama attorney and member 01the Alabama Stal e Bar since 1979. Katherine S. Weed. P.O. Box

ASB Volunteers and Staff Help Elba Flood Victims Alabama atlorneys recently mel wllh state bar staff to set up a helpline, providing free legal advice and InformallOtl 10 victims of the recent Elba flood. An Elba Flood Victims Legal Helpline was organized to aid the residents 01 the counUes declared disaster areas by both lederal and state authorities. The help/ine will provide free legal Information ; please call the state bar at 1-800-354-6154 for more Information_

590104, Birmingham, Alabama 35259. Phona (205) 941-1496, No ropresenlll· lion Is made IIltJI tile qunllly o/the lognlsofYlces to be performed Is ~r611t6r thlln /he qUlI!/ly 0' le~lIl 56r·

vices performed by othef lawyers. WORKERS' COMPENSATION PREMI· UM DISPUTES: Contact J, Layne Smith !or consultation and represenlatlan 01 employers In workers' compensation premium dispute, Involving ~yrotl', cItl"lfi· caHans, experience ratings, audits, dis· tinguishlng Independenl conlractors from tlmployett$, and .9.ssai;smanl$. J. LaynQ Smith has owr 11,000 hours axperlence litigating suen disputaS. IOr.9.nd against the Il"ISUrance Industry. J. l8yne Smith, Walkor & Smlfl, P.A" 1330 Thomasville Rood, Thlloha$S8e, FiOtkla 32303. Phone (904)

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6080. STRUCTUR ED SEnl.EMENTS AND 1.0nERIES: Inform your cllants) Top dollar paid lor Insurance seltlomonts, structured selliement annultlos, busl· ness notes and periodic payment con tracts. Help cMents explore their options. COIli lodoy. no oblige lion. Your client will rOC(llve straightforward, rell· able service. Heartland Capital Funding, Inc. (800) 897·9825. ·Professlonal Annuity Funding for you Md your client" Broehures available.

POSITIONS OFFERED AnORNEY JOBS: Harvard Law Schoot calls our publication, "PrObably the most comprehensive source of nallonwlde and International Job openIngs received by oor olflce and should be the starting point of {lny Job search by la~rs looking to change jobs." Each monthly Issue contains 500-600 current (public/private sector) jobs. $45-3 months. $75-6 months. Contact: Legal Employment Report, 1010 Vermont Avenue NW. Sulto 408·AB. Washlnglon, DC 20005. (800) 296· 9611). Visa/MCIAMEX. Website: www.8/tomeyjo/;)s.com L.EGAI. ADVOCATE: Salary $25,000, Accradlted Jurls doetorate with a cur· rent license In the State of Alabama, to ' 0' MAY '0"'"

provide legal advocacy to victims of domestic violence and or soxual assaull, and logal representation to The House 01 Ruth, Inc., In matters concerning client confidentiality and confidentlaillyof agency locetlons. Excellent benefits package. Interviews to be held In Dolran. Alabama. No phone calls plaasa; send resuma to The House Of Ruth, Inc., P.O. Box 968. Dothan, Alabama 38302. ASSOCIATE POSITION : Small, aggressive plaintiff's firm seeks assoCiate In Birmingham olllcR. Strong communication akills and a commit· mentto excellence a mus\. Competitive salary end benefits com· mensurate wllh e~perlence , Sond resume and salary history to Managing Member, 1506 Leighton Avenue, Suite B. Anniston. Alabama 36207. ASSOCIATE POSITION: Assoclato wanted, Calhoun County, general 1111· gatlon, criminal, domestic relations and eSlates. EKce'lent loeatlon, resources and suppor\. Experience not necesssry. Direct sll Inql,llrles to Ollice Manager, 1500 W,lmer Avenue, Anniston. Alabama 36201 , Phone (205) 238·8353. Fax (205) 237·2777. ASSOCIATE PO~TI ON : Small Birmingham InsufMC8 defense IIrm seekli an e$$OCltlte wlth one to two yeers' expe6enoe. Admission to bar required. Please toward resume 10 Hiring Partnar, 2204 lakeshOre Drive, Suite 215, 8lrmlngham. Alabama 35209. AnORNEY POSITION: Hunlsville IIrm with establlsh!lo tax practice Is seeking an attorney with an Ll.M. In laxation to join jls a6t81e planning and tax practice. Firm /liso has an astabIIshed palent. tredemark and copyright practice and Is soeklng a regls tor&d patant allornay or agent with at least two years' experience In electrical, computer or software patent applica· tlon preparation and prosecution. Please send resume to Firm Administrator, P.O. Box 527, HunlevlJle, Alabama 35804. AnORNEY POSITION: Georgetown attorney seeks attorney III position wllh state agency or prlv81e, Band I on register. motivated, self starter with

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FOR SALE LAWBOOKS: William S. Heln & Co., Inc., serving ths legal oommunlty for more than 70 years, Is atlll your num· bor ona source for buying/seiling lawbooks, Save 50 to 70 rwcent on single volumes, major sets, lederal & Btate. foraigntlnternatlonal law, rate/antlquarl· an law. Appmlsal services available. Call (800) 496-4348: fe~ (716) 8835595. Webslle lawllb. wuacc.edulheln/helnused.hlm LAWBOOKS: Savo 50 porcont on your iawbooks, Call National Law Rosource, Americll's largestlawbOOkS OOalor. Hugo Inventories. Lowest prices. Excellent qut;llity. $tIlisf$C11on gusrsn1oed. Q{l.1I us 10 sell your unneeded books. Need shaMng7 We sell new. brand name. staal and wood shelving at discount prices. Free quot9!l. (800) 88&1800. National LlIw Resource.

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