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AS B Pre l ldent Sam Rumore and (.mll), - The Rumores afe Sllr'ldina before Arlington, built in 1842, owned by the City of BIrmingham and 8Irmin~m's lUI remaining Creek Revival a.ntebellum home. The ICene il appropriate since Mr. R\HllOrc served" chlir of the Jcffc rilOn County ltil\orical Commi"ion lor man)' years. From Ie.ft 10 rtll"\ are iOn SIImuel Rumore. 17, II kolor at John enroll Catholic High School: wife Pal Ilumore, allO a member of the Alabama Siale Bar; Mr. Rumore: da~htc r Claire Ru more, 21, I senior at Auburn Unive rsity, and d~ullh · teT Theresa Rumo re, 19, a sophomore al the Univtnity or i\1~bama. - Photograph bv Joe II/oill. mm ling/lU/7/
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PRESIDENT'S PAGE By SamulIl A. Rumore, Jr.
ne year ago learned that you had O selected me to be your presidentelect. What tremendous newsl The emoI
tions-excitement, j o)" elation. After
Wow! It Happened An Open Letter to the Members of the Alabama State Bar July 15, 2000
Samuel A. RumoN, Jr.
aBO IH Pl n UElell :l'OOO
receiving the call. [ hugged my wife, Pat. and the first ....ords I remember saying were: "Wow! It h"ppened. ~ So here it is, one year later, and J can take thi5 opportunity to say to you members of Ihe Alabama State Bur "thank )'(lU" (or making it happen. I was honored to serve as your presldent·elect last year, and I am honored to serve now as your president for the 2{H){l·2oo l term. It was exactly ten years ago that I became a bar commissioner. J still remember the words of my law parlner and mentor in the law (or morc than 25 years. Nlnl MI j{Uon ico. Miss Nina said 10 me: ~Al a commissioner. you will mut somt: of the best lawyers in the SUite of Alabama. And )IOU know. the bar presidents come from Ihe commission." Well. I have nlet some of the Dest lawyers. and I can calilhem my friends. Also, I can truly say Ihllt our bar commission is a thoughtful. dedicated, hard-working association. Thank you. commissioner$, for your service to and interest in )'Our profession. r.1ost of y(lu knl)W that besides my 10Vt! for the law I also have a love of history. This letter reneets that. In the first paragraph. I looked back one yelir. In the second paragraph. [ looked back ten years. Now I am going baek 100 years. Both of my grandfathers were immigranl$ to this country. I never knew my
father's father. but he lived a challengIng life and took advantage of the opportunities offered in America. He died in the 19305. My mlther's father also emigrated a5 a young man. I knew him as a boy. He was a great provider and raised a large family. I-Ie died in the 1960$. Both orthue men came to this country from Ita!y In 1900, exactly 100 yea r~ ago this year. I hope that they would be proud that their grandson became a member of th t Alabama leg:.1 profusion and is now its president. In conclusion. what does the future hold? lam the 124th president 01 this association. I am the first to take office in the 21st Century. I am possibly the first Alabama State Bar president to be marricd to a member of the AlabatThl StOlte nar. Our association conUnuC$ to evelvt and chanllt' as tht times c1,,'nge. We tulle a diverse membtrship. There are more women and black lawyel'$ in our associa· tion than ever before. Our leader~hip needs to reflect this diversity. [ am hopefull n the not too distant future that the Alabama Stale Bar .....iII elect a ....,oman lawyer lIS president and a black lawyer as president We need to get these historic firsu behind us. My wish for the fu ture is that any lawyer who ....,orb hard in this profeuion and for this profession can be selected to lead this profUsion. I hope lhal one day lhatlawyer C<ln say as I did. "Wowllt happened." • Si ncerely y(lurs. Samuel A. Humore, Jr.
Cumberland School of Law Continuing Legal Education Fall 2000 Seminars September
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Dt'I'c!0PIllCIlIS :l.1lclTrcnd~ In J Icallh Ca l'e UtI'.' 2000 Practlce and PrOC'1!dUfC in /\ I.. bal11:1'. Municipal and District Courts Collection Law 11 Ih Ann ual Bankru ptcy Law Seminar I'robale Pra(1.kc ami E~ l a l c Planning l;und a mc n t.l r~ Com pute r~. Lil ig.ltion, and E\ ldcnce E COIl1IJ1Cft'C 14 lh Annual \Vor kc r~' Compensation S<: m l n ~r Hcprc~e tl! ing A l~b;'lm~ nmi nc~~l!~ The KC)'8 lo EIl'ccti n,! TrlJ ) Acll-ocacy with James W. McElhancy
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For seminar delails, visit our Web site: hUp :licu mbe rland.sam lord.ed u or call 1-800-888-7454 (in Birmingham, call 726-2391 ). Brochures are mailed approximately six weeks prior to seminar date. $ImI\lflI ~ II III fllUll OIIOOnUflily InIII1wlioll 10M wotICOIIItIlIl/IIIUIIOo. lOr .....,""'" a"Id tIMIIioNIIIIOQ"'" """ II Ird楼IdueII '. . . . . 10 rta COIOf. .... "~, . ' or nIbonIilll origin
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umberla nd School of Low
Samford. Universi~
Bi rmingham, Ab bama
EXECUTIVE DIRECTOR'S REPORT By Keith B. NomlOn
awyers often ~y they wish that they could serve on a jury and find out what goes on the jury room. They are
L
routinely called but uldom $tNt
because they art struck. Last spring, I was called for jury duty. Naturally, I imagined that I would spend the week
being assigned to different cascs only to get struck. Miracle of miracles, however, I did nol gel struck. I got the chance to UM U II juror in II criminal trial. The trial la.sted a day and a half, The judge did an excellent job of conducting the trial and Wil$ most $olicitOU3 of the jurors. The assistant district attorney did
A Juror's Modest Proposal
Keith 8 . Norm.n
onB UPTCMO!R 2000
a good job of proseeuting the cast and defense counsel vigorously represented his client. At the conclusion of the trial, the judge charged the jury and Yn retired to Ihe jury room 10 deliberate. Our firsl ilem of business was 10 select a foreman to preside ~r the deliberations. To my surprise I was elecled fore· man. During ou r deliberations I was impressed with how serious the memo bers of the jury were about thei r responsibility in reachirlg a verdict. They all understood, as I did, thai the Jury's decision could result in another citizen's lruing his freedom, I believe this burden weighed he<lvily upon each of us as we studied the physiCtll evidence admitted during the trial and reClllled the testimony of the witne!5es. Our deliberations resulted in finding the defendant guilty on all counts. Mer serving as • juror, I believe there are at least a couple of simple ways that we can improve the delibera. tion process of Alabama juries. ~'or eMample. serving as II juror and being a lawyer. I had II better understanding of the court's instructions and the elemenu of the crimes with which the defendant wu charged than Ihe lay members of the Jury, I believe that not
allowing Ihe jury 10 ha~e a copy of the court's instructions in the jury room impedes its effectiveness in applying the law to the facl$. I think this is true for both criminal and civil cases. Although I am 001oactly sure of tht rallonale for not giving juries a 'Mitten COpy of the court's instructions, , do nol think doing 50 would interfe re with the province of the jury as the finde r of fact or infringe on the role of the court as interpreter of the law. Can we really oped a jury to justly apply the law when It has been read to them by the court in a long-winded monologue which they then mu!t remember, word (or word. and apply to f~cts gle:lIled (rom the trial? I think jurors would -welcome haYing a copy of the court's in5l.ructions to review during Iheir deliberations. I also think jurors would appreciate assislance in determining how to organize thei r dl5cu$$ions in the Jury room. Jurors arc given liute In the way of guidance of what to do or cJlped once the jury room door is closed. The American Judicature Society (AJS) hM studie:lthis problem and deyeloped '"A Guide for Jury Deliberation," This guide is a pamphlet designed in a questiorH nd·answer (ormal for jurors. According to Ihe AJS. research indiCilleslhat jurors often are uncert.,in aboul hOw 10 best select a presiding jUror. resolve disputes, clear up confusion about testimony or eyidence. or interpret the court's instruc· tions. This guide could be adapted with little difficulty for use in Alabama and distributed during juror orientation. TcnnU5ee has siudiedjury reform (or the last two years. The Jury Reform Commis.sion of the 'Tennessee !Jar Association recently relrased the final draft of its report which will be present· ed to Ihe Tenneuee Supreme Court for
3ction. The proposed changes include treatment and selection of jurors, opening statemenu. expert testimony, jury instructions. and the number and unanimity of jurors. Olher states are studying jury reform as well . The AJS offers guida nce in the area of jury reform with ils guide. uEnhancing the Jury Systern- A Guidebook (or Jury Ifefo rm." Unquestionably, the jury plays a pillotal role In the American and Alabama legal systems. Sitting in the Jury box made me appreciate this fact tlli!n more. Perhaps we ca.n take a cue from the Volunteer State, the AJS and other stales by at least adopting some baJic rn tasures to help impl"Olle jury deliberations. By doing 50, we can help reassure the public of impartial lIerdicts rendered by peers, thereby irnprOlling public confi dence in Alabama's judicial system. •
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BAR BRIEFS
AS1J f'rfrIidml-tt!IICIIk$IJ/TIII/1l LafTj/ W. Norris, I'rIMldmlWo!lolIl,lJa;tlfJl I1tIIl P"I'JI"'-~,/,rlO'C/ $amwl A. Rum()'" III /h;i II1m(JII1 ltIl1l!/iflJI Q! '''~ N<fIlOIwl Cotlf<l1'l.'l!ClI 01 &r f'twIdt.'It/~ I/!/J txW JulJl III N.'W l'orA<
• lIerman J, Ru u omanno. II graduate of Cumberllnd School or Law, Samford University, and a member of the Alabama Stale Bar since 1976, recently became president of The Ploridll Bar, HUS50manno practices in Miami with the firm of Russom,mno &
Borrelio, P.A. • Joel L. Williams of Troy rece ntl y
took over as governor of the Alabama DIstrict of Kiwanis Inlcrnll.tiOnllL
• Jeny C. 0 1dshue, Jr. of the 1\.Jsc..1100sa nrm of Aosen, Cook, Sledge, [)avis, Cade &: Shattuck, PA has been admiltl':d to membership in the
Commercial Law League of America. The eLI.. founded in 1895, Is North America's premier organl~ation of ballkruplcy and
commercial law professionals.
• The Alabama Criminal Defense .hJ4l1 t.. WllllomJ l..awyers Assotiation has elected new officers fo r 2000-200 J. They are: John A. lA! ntine, president; Ken Nixon. presidenl·elecl; ChrhUne Frdmll.n , vlce·p re~idc l'll; Richard Keith, secretary; and Uru te Gardner, treasurer.
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205-333-2477 P. 0 , Box 1403, Nor lh l)Orl, AL 35416
• Sammye Oden Kok of Dominick. Fletcher. Veilding, Wood & Lloyd, P.A, of Birmingham ha~ been r'lamed presi. dcnt·clcct of the American Academy of Matrimonllli LaW)'ers, • Peyton 1.aC)'. Jr, of the Birmingham office of Oglet ree, Deakin$, Na.~h, Smoak & Stewart. I~C. has been selected a Pellow of the College of L..lbor and Employment Lawyers. • Alabam<l State BM E1fecutive Oirector Kellh n. Nonnan has been clect'ed State Bar I)i rector for lhe 20002002 National A~~ociation of Bar Executives Board of Directors. • George M, Walker, a partner in the Mobile firm of Hand. Arendall, L.L.e .. has been admitted as a member of the Product Uilbility Advirory Council. • Alabama Attomey General Bill Pryor has bet:n elected to become a member of the American Law Institute, a select ilroup of only 3,500 le~1 scholars (rom lhroughout the world, whO$\! mi~jon is to improve the law and its administralion, Pryor Is the first attorney general of Alabama ever elected to the Institute. Organized in 1923, the Institute's pur· pose is "to promote the clarifiC<ltion and simplification of the law and 115 beller adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and ~cic nlific legal W(lrk."
I<tllh /J. NO" "OII
Bill Prvor
• The Montgomery Chapter of the Federal Bar Association again will sponsor a full·day, six·hour seminar on the funda · mentals of federal pr~ctlce, on ~'ridily, December I , 2000, ilt the Montgomery Civic Center. rhi~ year, the se m i n~ r will focus on the fundar'r'lental$ of fcderbl criminal practice, federal cmpli)Yment law practice, and fede ral evidentiary i.uues, Speakers wHi include federal judges and experienced litigator5. Registralion fo rms lire available at 1IJ1IJ1IJ.fcdbar.org or by writing the Federal Bar Association, 1'.0. Box 1643, Montgomery 36101 -1643. •
Cumberland School of Law Continuing Legal Education The Cumberland School of low 01 Somford University is indebted to Ihe many Alabama attorneys cnd judges who
contributed their lime cnd expertise to planning cnd speaking 01 our educational seminars during the 1999路2000 tl4::odemic; yeor. We gratefully acknowledge the contributions of the following individuals to Ihe $UC;'8U of our CLE
programs .
lomes R. Ac:cordi Jomes P. Alexander Orrin K. ~SkipN Ames, III, '69 Joseph P.H. Bob nglon
Dovid R. Boker Lesli. R. Borin_OJ, '85 Roben R. Bovgh Sleven A, Senefi,ld Judge Thomas e, Sennell Thomas C. Berg Andy D. Birchfield, Jr. Brad Bisho p, '71 Judge ShQfon l oY,lo,. Blackburn, '77 Judge Michael F. Bolin, '73 Jole8 H . Bollinger. '95 Richard J. Brockman, '86 Toby D. Brown
Jennifer M. Busby, '90 Judge Jock Caddell Valerie S. Comp, '9 3 lynn Campisi Judge Edward Carnes Charles F. Carr Judge John l. Carroll, '74 Philip J. Carroll, III Thomos N. Carruthe,. Clinton C. Corter, '94 Fronk M. Cauthen, Jr. John S. Civils, Jr. Judge U. W. Clemon Pamela F. Colbert, '89 Lynne R, Connery, '96 J. Thomas Corbett DeoM K. Corliss. '89 D. Sims Crawford, '95 Judge John B. Crowley Richa rd Eldon Devis, '89 Marcel L. DebruQ8 Annesley H. DeGeris, '88
Tommy l. Dobbs Susan D. Daughton Russell J. Drake Ann Z. ElliaH Les Sturdivan t Ennis, '92 Gregg B. EvereH George W. Finkbahner, III Lynda L. Flynt Frederick l. Fahrell Steven W. Ford Judge Patricio Y. Fuhrmeisler John Marlin Golese, '71 Jomes G. Gonn, til, '77 William F. Gardner Woller T. Gilmer, Jr. R. Ma rcus Givhan, '86 Mac B. Greaves W. McCollum Holcomb, '82 Joel R. Hamner, '95 Judge Don L. Hordemon, '79 Alicia K. Hoynes, '87 Stephen D. Heninger, '77 Deloc;o C. Hester Edwin E. Humphreys, '80 David M. Hunt David G. Hymer Judge Inge P. Johnson Fronk Steele Jones Robin Windham Jones, '9 41 Roy F. King, '85 John T. Kirk Ro bert W. Lea, Jr., '78 John A. Lentine, '87 Bruce M. Lieberman, '86 Curli. 0, Liles, III David W. Long-Daniels Judge John L. Madison, Jr., '76 Thomas 1. Mahoney, Jr.
Koren L. Mastin J. Anthony McLoin, '77 Sleven T. McMeekin Judge Vontetlo Penn McPherson R. Boyd Miller T. Kurt Miller Anne W. Mitchell, '7 8 Judge Tomaro O. Mitchell Judge Roger M. Monroe, '72 Patricio N. Moore Allan l. Morlan Amy K. Myers Russel Myles, '86 G.M. "Jock" Neal ,'77 Coral Sue Nel.on, '77 Judge Edwin l. Nelson, '69 Steven L. Nicholas Rolph R. - Reyn" Norman, Ill, '82 Thomol l. Oliver II, ' 89 Judge John E. 011, '81 lewis W. Page, Jr. lenora W. Pate, '85 Adorn K. P8(k John M. Peek Mark B. Polson, '7 4 Denise J. Pomeroy, '89 Charles A. Powell, IV Polricio J. Pritchett, '90 Caryl P. Privett R. David Proctor Judge T. Michael Putnam C. Michael Quinn, '75 Bruce A. Rawls, '79 Donald R. Rhea Daniel M. Roberts Jomes E. Robertson, Jr. Bruc. F. Roge,. J. William Ros., Jr,
, Th. yllor foJlowing some nomes ddnoles olumni of Cumberland School of Low
Samford B Uru\trSity
Judge Williom R. Sowyer John D. SOMon Assoc. Justic. Ha rold
F. See Borb.r "Bob" Sherling, Jr" '75 Wilbur O. Silberman Do"id C. Skinner Judge James S Sledge Dionne Smitherman, '93 E. Berton Spene. Tommy Spino, '78 William 8. Steworl, '90 Anno R. Strickland, '92 Henry C. Strick!ond Joseph W. Strickland Sidney C. Summey, Jr., '77 Will Hill Tonkoflley, Jr. Wendy N. Thornton, '96 Jill Lolley Vincent Judge J. Scott Vowell Charlie D. Waldrep, '76 James F. Walsh, '76 Howa rd P. Woltholl A. Bro nd Wolton John D. Wotson, III Jeffrey H, Wertheim 1. Mark White, '74 John P. Whittington, '72 Brion T, Williams, '79 James C. Wilson, Jr. Judge Thomas A, Woodoll Rolph H, Veilding Lee H, Zell
ABOUT MEMBERS, AMONG FIRMS
Du. to Ihtl hugtl Increase ill "ollees for WAbout Melt/ben, "mon9 Plrms,"
The Alabama /JJwver wlll flO
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publish uddf'f1s:Jllil and te/ephtm e num-
berll unleu Ih' onnauncemllnt ~/otu to lh' 0!HII/,,# of II new finn or solo pructiCtl. PIN" corlUnue to stllld I" 1I1f110UIICillmmis
amUor oddNl!ls
ChlillUBS 10 the Alabama Stole Bor Hlllnbe"hl" IJiportment, 01 (334) 261·6310 (foX) or P.O. Box 611 , ~lolltgomf1rIl36JOI.
208, Phenix City, 36867. Phone (334) <148-0302.
Alabama Avenue, Southwest. Fort Payne, 35968. Phone (256) 845·2423.
John W. Wattrt, Jr. announces the opening of his office ,,1214 N. I' rairie Street, Union Springs, 36039. Phone (334) 738-5505.
Among Firma
Stxlon, Cullen & Jon", P.C. announces that Byron W. Phillip, has
II. Marlt Thigpen announces tht opening of her .solo practice at 422 S. Court Street. Montgomery. 36104. Phone (334) 832·4445.
been made a shareholder in the fi rm. Taylor & Smith, P,C, announcu that Tommy C. Riller, Jr. has become asso· ciated with the fi rm.
About Member.
C. Warren Laird, Jr. has Joined Chicago Tille Insurance Company and Ticor Title Insurance Company as Wi5' lanl area counsel.
nna Siamps annoul'lcu the optning of her o((lct al1206 Broad Street, Suite
Robert K. Jordan announcu the opening of his new omce at 202
John M. l..aney, Jr. and Roger C. Fosler l)nnounce the fo rrnlltion of Laney & Fo.ler, I'.C. Omces are locllted ill 1\0.00 Perimeter Park. South, Suite 404, Ealt, Birmingham. 35243. Phone (205) 298·8440.
Free Report Shows Lawyers How to Get More Clients Clli r._ Wh)' do lo me Iawyffl &el rl:h \Oohile Olliei'll Itr\I&lIe 10 PI)' lhclr billl1 TIle answn. acwroing 10 'lIomt)', o.vid M. Wild, haJ nolllini (0 do wilh \llenL. educalion. IwL.r;J \00'00:, or c~tn luck. " The law)'cfII who make lhe bill mOllc~ ~re nOI 11C(:~5S8ril)'
Brt: unprcdie .. ble. You may ICI ncwelienlJ Ihb monlh, )'O\I may Il0l,'' he MY'. A n:tCTT1li $ystem, Ward tIIy" tlltl brinl in I 5tt1d~ JI<fI"" or new diem", monlh aller monlll, ~ar aller yelr. " It ft(lls fI.Il:ll 10 !;Orne 10 IIwI office ~.cry dmy kn<owina lhe phone will IhLIL and new ~ner luwye"'- he n~s, "The~ bU51ncn will be on the line." W.rd hpJ "ulllLt hi , referral have Ilmpl~ 1c:arned how 10 nlalkcl lhclr klviCClo," J)'~(cm 10 o_cr 2.~00 law~e~ 1\ l uecenrul so le worldwide. Md hi! wrinen I ",.elitioMr ",00 Ollce slrug&icd new rcpon. " 110'" To Gtt to ' "1ToCt c1ic,u, W,rd c~its More Clltnts In 1\ Monlh his tumaround 10 • rt:fcnai 1'hln YOII Now Gel All mlttclinl J)'lIcm he dcvclop:d \ 'nr!" "'hicll rt:VCII$ how any Itlwycr can IIS1:! Ihi, s)'Item 10 li"')'C. . . ., ~I wenl from «til broke .nd IlC't ~ dien" and InerclSe llro"'nln. In debt 10 eamlnl thel, Inwme. $300.000 I )ftI', prKlieall~ AI.bama 1'",>'1:11 un let I FRU; COIl)' of Ihi, rt:pI.lI1 by ovenll"'I." ~ "~J. MOliI iaWYCIl Ikptnd on ~allina 1 -800·~ ! ·"627, • 24. rc:fcmIlJ, he m,le:t, bill nol Olle hour frt:C recOrded me~sa8t. or In 100 11#1 ~ ~remll)'£ltm. vllillnll W~ld 'l wcb lile. " Wlthoul I '~Jlem, referrals hllll:/1..·",,," .dlvlll ..·• rll .com
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Watson, Jimmenon, Givhan &. Martin, P.C. announces that laTuha A. Meadow. has become associated with the linn,
Durr &: Fornlan L.L.P. announces their merger with Veal &. Allodatn. L.L.C.
Nisen &: Elliott announcu that Elena A, I..ovoy has become an associate of the firm.
Thoma. A. King, Attorney. IJ.C. announces that Donna F. McCurley has become a partrU:r in the firm and that the firm name has chlnged to King &: McCurley. AttoTTley. , ".C.
Gllber. &. Kleman announces thaI 8arT)' W, Walker has joined the firm as an associate in the firm's WMhington, D,C,oroce, Lit tman, Siegal &. PlI,)'ne, I).C, announces that Suzanne D, I)aul.on has joined the finn as a shareholdu. Janecky Newtll, ",C, announcu Ihllt lIarT)' V. Satluwhlte has been named a partner in the firm. Splln &. GI IIl"R, L.I.. C. announces that Walter F. McArdle has become a member of the finn and that Jon M. lIughu, Frances II , Jacbon and J. Cllnton IJlttman have become associated with the firm. Intel1nph Corporation announces that David Vance Luca. hILS joined the compa· ny as vice·president and gerleral counsel. Jamll.ll W. Killion and Edward I'. Rowan announce the formlltion of KlIIion &. Howan, I'.C. QUices are located at 169 Dauphin Street, Hobile, 36633. Phone (~) 432-4600. Crumpton &: Auociatn, L.L.C. announces that C. Hal Walker. Jr. has joined the firm as an a.uociate. Thigpen &. Tipper announces that Charlotte C. Chrb lian hu joined the firm. nOllan &. IhrtlGn, L.L.I>. !lnnou n cr::~ that T. Hobert Rehm, Jr. has joined the firm . Offices are located in Mclean, Vi rginia. The University or Alabama announces that Gtorge 8 , Cordon hu been named university counsel. Wills &. Simon lnnoum.:es that Elizabeth S. Will. has become an 1\550date of the firm, Cladden &: Sinor, I',C. announces that Roland H. Heuon has become associated with the firm.
Christopher P. Turner. P.C. announces that Grtgory L. Watt has become associated with the firm,
EVIJl..YTIIi N C Y ( l U NIT.I)
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JM ..·. mll}l Enterpri.ll8. Inr;. llIlnounces the recent promotion of L. Taylor Howard, 111 , Howard has been named vice·president hnd general counsel for Southeast ToyOCa.
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Wilmer, Cain, Fo h ~ 1l &. Kelley. P.A. announcu that Shannon S. Slmp.on hll5 become a shareholder in the firm.
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lIart, Wynn. Newell & Newton, L.L. I·. announce~ that Michael O. Ermer!. Nolan E. Awbrey and Donald P. McKenna have become partners of Ihe firm.
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8erkowlh:, Ldko\llb, h om &: Kushner, P.C. announces that James H, White, IVhas joined the firm as an auociate. Con, tang)', Brooks II Smith. L.L.C. announces that Minda R. Campbell has become associated with the fi rm. Thom.. Fnnklln Campbell and C. Richard Ihker announce the fonnat ion of Campbell &. Baker, L.L.I·. Officu lire located at 150 Financial Center, 505 N. 20th Street, Birmingham, 35203. Phone (205) 278·6650. Ferguson, Frost &. Dodson. L.L.I'. announces Ihlt! Champ I..)'onl , III . James R. Buckner, Jr. lind William Bradford Kittrell have Joined the firm as associates. Rogen, Youn" Wollileln, Jackson &: Whittington. L.L,C. announces that George D. Uobln.on hu joined the finn as partner and that Polly E. RUllell has become. a partner. •
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MEMORIALS Judge Richard L. Holmes hen Judge Richard I.. Holmes W died on Mil)' 2, 2000. Alab.llTla losl a unique individual who pos.
swed am.uing blenlS. Over the course 01 his carttr he shared those unique gifts with a.1l three bmnche.s 0{ statt g<)Yemment. He served as director of the Alabama Department or Industrial Relations and as the legal lldvisor to Governor Albert r. Brewer. [.Iller, he served as (I reading clerk (or the Alabama Sena\e. lM I~icha rd Holmes is probably best known ror his service as judge on lhe Alab.lma Court of Civil Appeals from 1912 until his "!il'$l" judicial retirement in 1989. Ht retumed to l1eU\t status in October 1993 althe request of the
judges of U)t court and remail\ed active until January 1999. He ucelled in his Olbilit)' to understand and :w:hieve reJull5 in
all three bmnchu of government. He enjoyed his roles of leader and statesman ll1ld achieved resull5 through both compromise and power but never misused either. remaining focused on the objective of achieving a result thai was correct and re5ponsible. Many poople we consider important and Il()Wi:rful in this st.lte were a litt le more intelligent after seeking Judge Iioimes' counseL When Richard Holme$ $[Xlke, yOu listened. He w...~ never guilty of btlng too subtle. One did not have to wllSte time wondering what he really Meant when he spoke on an luue, Born in Blnnlngham, A1abaJl\!l on January I. 1937. Judge Holmes was raised in Mobile. He atlended Rhodes College and received his SA. (rom the University of Alabama and his L.L.B. (rom the Univenity of AlabaJl\!l School o( Law, He served in var. ious teaching capacities at the University o( Alabama School of l..aw. Huntingdon College. Jone5 School of l..lW and Auburn University of fol{lltgomery. Judge Holmes served in the Judge Advocate Ceneral Corp$ of the United Sl,ltu Army prior to entering the p ratlic~ OfiOlW. He loved his Cod, his family, lhe
IUh, Jo!Pph I'on Nuys. Cu/i(omio
State of Alllb.lma and iu c.itizeru. and the law. in that order, Even on tho$t occasions when duty compromlK'd his ability to be with his family, his prioriUes remained conSilii'll. No person who stood with him in any bailie cwr had to WOTT)' about his loyalty or courage, Those 0( us who had the privilege to sland beside him in time of conflict or struggle must recoA:nlze that our courage can never rise to the level exhibited by his wire. Jackie, and his daughters, Ashton and Leigh. as togctm-r they stood with him and fought the final battlc. Judllc Holmes's commitment to ethics was unconditional. He served u.s chief judge of the Court of the JudklOlr)l from 1987 to 1989. I-Ie served as chairman of the Judicial Inquiry Conwniuion. and scMd on the Advisory Commission to the canons of Judicial Ethics. Recently, he served !U vice.chairm.ln of the first Judicial Oversight Committee. His serlice on the Oversight Committee was recognized in July 1999 when he was presented the Commissioner's Award by the Alam,ma State Bar. Judge IJolmu WM dedicated to any task he undertook. He allowed nothing, not even cancer. to prevent him from continuing his work iU a member of the Board o( Trustees of the University of AI"bllma. He attended the meetings regardless o( how he fel t or what anyone said. "I've got a few things [ promised to do," wa~ his typical response if al\~one was bold cilough to suggest that he compromise his schedule. Judge Holmes possessed an uncanny ability to make people agree to do something whether they wanted to or not. Shortly before he was informed o( his medical diagnosis he told me: 路White. there will be no hand-wringing aboutl'TK and this brain thing and you must promise me that you will see to that. ~ Then. we set about to accomplish keeping our relationship the same up to our liUt visit three days before his duth. We continued our typical rude dialogue In trying to accomplish tht "sc h emes~ he considered [mpollan!. [t is always difficult when we have to deal with the fi nal journey of a (riend. Holmes made it easy and we traveled fi rst cll\S5.
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u op" Mlflorri UrTIfJIa
HoolI,on, Uiffnchllrri G.. Jr.
B/oulIlsloum, J.'L
Died: JU'1ff g, 2000
/J4Iu{d Johnson
Mmitted: 1938 DIed: Hav 20()()
DIed: N04.路~mlH:r /999
Corroll/on Admi/l''I1: /946 l)kd: .kmuorv " 1999
8'"1/. HoIHrlllllt n Monlf/Om'''11 Admilted: Nuy 5, 2000 Died: July 16.20(}()
IIfflmon, ChfJrill II. Mobilfl Mm/lled: Seplember 28, 1990 DIed: JuW 7. 20{)()
Striclt/Ilnd, JfJmtl T)Jlu Mobllfl Admilll!d; /952 Dlfld; April 5, 20{)()
Wh,,/t ll, U"roId Et'Oft' Birmirlglrom Admilll!d; $qJlem/wr 25. /98/ Dit'l1: /ltuy 2'1. 2000
t'lIfHfI. Jru~1t l.6wertl Nonl[Jomlfril Alfmlll~'I1; 1935
N/,, ", JUmfll 8nllllon, Jr, IJcssclIlQr
Thrffl. ThomllS ,,; . I1irmtllghllm Al/mill(f(/: 1937 Died: JU/!l30. 1999
Wifson , Jim IAJI, r Godsdm Admlllllfl: SU/II/un/x:r 4. /969 Died: June 7, 2000
1)1('11: Jllne 26, 2()()()
Mmiltf!d: 1942
Adm/I/~'(/: SCIJlcm/x:r
7. 1966
l)Ied: )lIlv 9. 2000
flimlinvhum Adm(It~:
/95/
He Ignored pain in an effort to make others ful better. He would not approw 0{ these observations. l'le accepted criticism much easier than he accepted pr.lise. Yet, I think he would appreciate the ma.~im by Mark Twain: "~'ew thing.! are Iwder to put up with than the lIflnoy;lnce ofa Jlood example." In dying, Judge Holmes showed all of us how to live with courage. with fearlessness and with consideration for one's neighbor.
He enjoyed laughter as much a5 anyone I havt ever met. We can best preserve his memory by never forgetting those many things he did that made us laugh or made us better humamonen tiley were the same. We (,lIfllllso honor him by supporting the nichard L. Holmes Brain Thmor Treatment and Hesearch Center at the University of Alabama in Birmingham. - J. Mark White, BlmJ/lIgham
George W. Cameron, Jr. eorge W. Ca.meron, Jr. died on May 3, 2000. at his hOIl'l1! in f.lontgomcry. He is sUNlved by his wife of 49 years. Rosemary Oliver Cameron, and two Sor'lS, John Oliver Cameron and Jostph I)avid Cameron. A third son, Ceorge W. Cameron, III predtctased him, having died May 11 . 1995. I-Ie graduated from I lurt School 1944, entered the army on June 6. 1944 and Jerved in the £uro~an Theater of OperatioO$ as an infantryman with Ihe Rail Splitter Division. Upon his return from seNici:, Ceorge attended Iluntlngdon College for two years. He entertd the University of Alabama in the summer of 1948 and grllduated with an L.L.B. degree in August 1950. He opened his law practice in Montgomery the Jame year and practiced continuously until the lime of his death except for the time he served as trustee of debtor CMes with the
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United States District Court of Alabama, Northern Division, f.1iddle District. He WM an astute lawyer. dedicattd to the pro· fessi on and quick to share knowledge with the younger memo bers of the bar. George was a devoted husband and father, He 5j)tnt his II>llre lime in Snowdoun. hitting golf bilils. Some would say he was eccentric. particularly members of his family, in that he never carried his wallet. He would park his Volkswagen on an incline so he could jump start it in case the b.lltery was dead, which it usually .....M. He would ride home (rom Thscaloosa the morning of the football game when everyone else was going to the game. Montgomery County lost one of its best lawyer!, and he will be sorely missed by all who knew him. - Jamell W. Camrron, HQlltgome'll
Huey Dwight McInish he Alabama State Bar lost one of iu prominent members T with the pauing of Huey Dwight Mclnish on November 20, 1999.
Hue)' Dwight Mclnlsh was born in Houston Cwnty, Alabama. on l>ecember II , 1923, the son of D.H. Mc.lni.m and Willa Daughety Mclnish, Mer grllduating from Houston County High School, Mr. Mclnish entered the UniverSity of Alabama and two )'till'S later he enlisted in lhe United SillIes Army at the height of World War II. ro1r. Mclnish was a member of the 406lh Regiment of the 10200 Infantry Division and SolW extensive action during the thm: years he served in the European Theater of Operlltions. Following till: conclusion o( his militllry urvice, Mr. ro1clnish returned to the Unillt!Tsily of Alabama, where he concluded his education and recei!I'Cd his law degree In 1949. rolr. Mclnish was admitted to the Alabama Sillte l}ar in 1949. ilnd returned to his hometown of Dothan to enter into private practice of law with the firm that would become, and to th i~ day remaim. Lee & Mclnish. Mr. Mclnish was married to the former Clara Jean Wise of Samson. Alabama. He is sUNived by his beloved wilt, Clara Jean, and by his son. Peter A. Mclnish. who is a partner in hi$ law firm, daughter Ruth M. Williamson , a career law clerk for the Honorable Joel ~~ Oubina, and five grandchildren, Mr. f.lc1nish was tirelc.~~ in hi$ devotion to his profession, and continued throughout hi.~ carC(!r 10 be Ilcti!I'Cly involvcd in vari· ous leadership roles includirtg service a5 president 01 the I-Iou~ton County Bar Association in 1959 III"Id as president of the Alabama
Dc(ense Lawyers Association from 1982 to 1983. In addition 10 his membership in the Alabama St.lle Bar, the Houston County Bar Association. the American Bar Aoociation and the Alabama Defense Lawyers As5ociation, Mr. MclniSll held disti~uished mCrllbtrthip$ in the International Aoocia.tion or Derense Counsel and the Inlem.1tional Society of Barristers. Mr. 1>1c1nish was also /I ~'ellow of the Americ.,n College of Trl,!! L.w.')I(lrs. II!. an active member of the First Baptlst Church in Dothan, rolr. Hclnish served his church tireleuly in committee work, In individual ministry and in leadership roles M tru!t«, Sunday School teacher and deacon. Mr. Mclnlsh was equall) giving of his time and Illlenu within the Wiregrass community. As a mentor to young attorne)'$, rolr. f.lclnish prO\llded a ser· ~ice to his profession and to hi$ community that can not be OYeTStated. Many II young lawyer, whether co-counstl or adver~I')', has turned to Dwight Mclnish for advice and guidance in a quiet, confident and unassuming manner that can ooly be ~pprecillted by th05e who hlld the privUege of receiving it. The Houston County Bar Association extends its heartfelt ,ympathies to Clara Jean, Pete. Ruth. and the grandchildren. The members of the Houston Count)' Bar Assodal1on also upressto the famil),. and to Mr. ro1clnish's law partners, their heartfelt grief over their 1055 of ou r brother. mentor and fritnd. He was, to mnny of us. our moral compll55. May Cod grant uS tht wisdom to find our way without him. - William C. Cam , III, pr-.,ldMnl lIoul ton Co unty Bar A$Soclal/on
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ARBITRATION AGREEMENTS The Consumer's Perspective Advantages and disadvantages to the consumer of mandatory binding arbitration, including the definition of arbitration and an arbitration agreement, the costs involved, what to expect in an arbitration and what consume,s need to know in today's marketplace
ARBlTRATION AQREEMENT§.
The •
s Perspectlve
Consum~r
ALABAMA STATE BAR
Publications Order Form The Alabama Stale Bat Is pleased to mnke available co individual al1omeys, firms and local bar asso. (lallons, OIl cost only, a SCfIes of brochures on a v;)riety of legallopia of inlercsl to the general public, Below Is a currenllisling of public Inf0fID3lion brochures available from the " lab.1m" Stall! Bar for dlSlrioolion by local b.1t assoclalloos, under esli'lblislled guidelines.
Brochures To Serve tile Public
C::==-_
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Qly. _ _ $ _ _ __
... deta lls of bar IlUblic service progt(lOl S high lighted in ll1e TO SERVE TNE PUBLlCvl dco presen tation
1..1W As A C.lreer ... 0PI)()rtunIlICS and challenges of
OJ
$10.00 per tOO
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$10,00 per 100
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raw cilreer today
Lawyers and Legal Fees
... a summary of \}.lsic information on common legal quesllons and procedures for the general I)ublk
Last Will & Test.lment
$10.00 per 100
Q I)'. _ _ $ _ _ __
••• covers aspects o f cstilte planning and the importance of having a will
Legal Aspects of Divorce
$10.00 pe r 100
QI),. _
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...offers options and choices involved in divorce
Consumer Finance or '"Buying on Time lt
... o utllnCS iml)()rl 3nt considerill ions and provides advice on nnand.,1 mailers <lffcding the individual or family
Medi.ltion". Another Method for Resolving Disputes
$10,0{} per 100
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Agreements $10,00 per 100 ... an swers questions o n ilrbil riltion from the consumer's perspec tive
QI),. _ _ S _ _ _ __
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QI)'. _
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... indlvldual stand imllrimcd with individual, firm or Olle stand per brochure is recommended.
$ -,--_ _ __
bar il s~ia t ion name for usc at d istribution points
-======:: ,
Name 10 imprint on stand: _ _ _ _ _ _
SuOlot.l1
S
Mailing Address Shipping & H.,ndllng S 5.00 TOTAL Plca~c rem it
S
CHECK OR MONEY ORDER MADE PAYABLE TO TNE ALABAMA STATE BAR for th e amount listed on the TOTAL lin" and forward it with thi s order form 10: Sus.ln Andres, Director of Communications, Alabama Sta te Bar, P.O. Box 67 1, Montgorncry, Al 3610 1
:roo ItPftuoU >000
Professionalism Requirements for New Admittees Change to Rule 9.A In Ihe Supreme Court 01 Alabama August 23, 2000 Order It is ordered that Rule 9,A .â&#x20AC;˘ Alabama State Bar Mandatory Continuing legal Education Rules and Regulations, is amended to read as fcHows: "A. Within twelve (12) months of being admitted to the Bar. or within twelve (12) months of being licensed to practice law in Alabama, whichever shall last occur, each lawyer shall complete a six- (6. ) hour course in professionalism; provided, however, that la'vVYers woo are exempt from these Rules pursuant to Rules 2.e,1. shall also be exempt from the provisions of this Rule 9A while they are so exempt. Once a lawyer's exemption under Rule 2.C.l . ends, the lawyer must complete tile course in professionalism during the calendar year following the year in which the exempt statlls ends," It is further ordered that this amendment is effective immediately, It is further ordered that the following note from the reporter of decisions be added to follow Rule 9: "Note from the reporter of decisions: The order amending Rule 9A, effective August 23, 2000, is pub¡ lished in that volume of Alabama Reporterthat contains Alabama cases from __ So, 2d." Hooper, C.J., and Maddox. Houston, Cook, See, lyons, Brown, Johnstone, and England, JJ"concur,
Certification of Lawyer-Change to Rule 7.1(d) In the Supreme Court of Alabama August 23, 2000 Order It is ordered that Rule 7.1Id), Alabama Rules of Professional Conduct, be amended to read as follows: "Id) communicated the certification of the la""Yer by a certifying organization, except as provided in Rule 7,4," It is further ordered that this amendment be effective immediate ly, It is further ordered that the following note from the reporter of decisions be added to follow Rule 7.1: "Note from the reporter of decisions: The order amending Rule 7.1. effective immediately. is published in that volume of Alabama Reporter that contains Alabama cases from _ So.2d." Hooper, C.J., and Maddox, Houston, Cook, See, lyons, Brown, Johnstone, and England, JJ., concur.
~UU':lOOO
I 2111
Be Prepared The Alabama State Bar wants to help you be ready for the unexpected. The ASS endorses five insurance programs through its administrator, Insurance Specialists, Inc. Coverage areas include Major Medical, Disability Income. Hospital Indemnity. Business Overhead. and life and are available to ASS members. their spouses, children and employees. Conlact Insurance Specialists. Inc. for details at 1·800·241 ·7753. Attorneys Insurance Mutual of Alabama. Inc. IAIMJ was established by lhe ASS to provide a more stable professional liability market for its members, For information. call 1·800·526·1246. Two long·term care insurance plans through WRT Financiall.l.C. and PFL Insurance Company provide financialjl"otection for care in·home. and in assisted living and skilled nursing facilities. Call 1·800-278-1262 for information.
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......... ALABAMA SlATE BAR To Serve the Profession
11111
LEGISLATIVE WRAP-UP l1y nobert L. fo1cCl,lrley, Jr.
Institute's Annual Meeting he AlabalT\l law Institute held its annual meeting during the Alabama Slate Bar's Annual Neeting in Orange Beach in july. The follOWing were elected orl'icers: President: Jamu /'II. Campbell, Anniston Vice·President: RepruenlaUve !loward lIawk, Arab Vice-President : Senator Roger Bedford, Huuel1yi11e Secretary: Hob ~ cCu rle)l, 'fuS(alooSll EKeculive committee members include: Dlvld Boyd, Montgomery ReprUtnlatiVil Mark 1... Caln n. Birm ingham Rlc.hard S. Manlcy, DemOPOlis Repruenlatlve Demetriu. C. Newton , Birmingham Oakley W, Mehon, Jr., f.1onlgomery Yena C. Samford. Jr.. Opelika Senator Rodger M. Smitherman, Birmingham Lt. G<Wfmor Sieve Windom. Mobile
T
The Institute prOPQ$ed, and the legislature passed, three bills during the 2()()() Regular $ession: Merge,. end Con.olldetlon 0' Bu.lne .. Entltle __Act No. zooo,211
Efreclivt dille: October I, 2()()() The sponsors were .en. tors ROAer Bedrord, SlEW French
and ) ,T, Waggoner and ReprUfntalh'f oJ\l Fuller. Unlfo ...... Prlnclpel end Income Act- Act No. 2000-875
Effective. date: January 1, 200 I The .sponsors were 8en. lon Rodger Smllh ilnn~n and Zeb Little and RepreuntaUve Mlkt Rogen. Uniform Determlnetlon 0' D•• th Act- Act No. 2000·710
Effective dale: July 1,2000, The sponsors were n nators Ted Lillie, Lan')' Dixon and Ceorge Clay and repreun tl tlvu Mark Catnu and Bill Fuller. It was announced lhal the Institute was looking toward pre. senting several major revisions in the 200 1 LeAisl~lllre. (Continued 0/1 page 3(0)
NEW 2000 Edition ALABAMA LAW OFFICE PRACTICE DESKBOOK, NINTH EDITION by Robert McCu rt ey. Jr. This book has boon a popular lawyer's handbook with attorneys since 1982, The new edition includes updated chapters on child cuslody, Corporations, Partnerships, LLCs, LLPs, and the new laws throu9h the 2000 Regular Session of the Alabama LegiSlature.
This hardbound edition 0161 6 pages Is convenlentlv organiZed In 43 chapters for quick reference. Chapters on Real Estate, Adoption, Conservations, Commercial Transactions and Estates online Ihe general law and are accompanied wl!h the latest forms,
Included also are Chapters on Divorce, Commitments, Collections, Alabama Administrative Procedure Act, OSHA, Palents, Social Security, Workman's Compensation, Medicaid, Bankruptcy, and other areas of Alabama law,
--------------------------------------------------LAWYERS EDUCATIONAL PRESS Post Olflce Sol( 861287 TUscaloosa, AL 35486
• AU orders must be PREPAID. Make checks payable to LAWYERS EDUCATIONAL PRESS. II nol satlslled you may relUrn the book with· In 10 days 10( a full relund.
NAME ____________________ AOORESS ______________________________ Please send me __ copies of ALABAMA LAW OFFICE PRACTICE DESKBOOK, Ninth Edlllon, 2000 at $83.00 each ($75.00 plus $8.00 tax, postage and handling). Please send me __ copies 01 ALABAMA DIVORC E, ALIMONY AND CHILD CUSTODY HORNBOOK, Third Edition with current Pocket Part, at $99,00 plus $9.40 tax, postage and handUng). 2000 Pocket Pari alone $33.00. InPTC"olfl """" I . . ~
Revl.ed UCC Article 8
Already adopted in 25 states. ther/! is a targel date (or adoption in all st.,tes by July 1.2001. The bi!! m.'1ke~ exten~lvl: changes In the current Article 9. One change will require filing of UCC slatemenis to follow the borrower's residence, not where the property is located, This will mean that UCC nlings for individuals living in Alabama will continue to be nled in Alabama. For tho~ living o\Jl$ide o( Alabama, such as a business entities formed in another state, the filing will Ix in the state of the domicile of Ille borrower, not Alabama. Further, the revision will provide that all mings in Alllbama will be with the Secrel~ry of State's Office, rather than some filings being in the local pro· bate office. and bl.lsines.s filings in the Secretary of State's Office. This committee is chaired by Birminghilm "ttomey Larry Vinson and is expected to complete its work this (nil, with drafts available (or review in December 2000. CongreS5 has enacted the "Electronic Sigrmtures in Global and National Commerce Act." Presidenl Clinton signed Senate bill 161 i[lto law June 10,2000, with the $Cetion on electronic signill\Jres effective October I, 2000 and electronic
recor<b provbion fff~ctive March I, 200 I. The hlS\llute Is now beginning its $tudy of the "Uniform Electronic Transactions Act" to complement the Act. This study is expected to be completed also in time for the 2001 negular Session of the legisla. h.Jre. Upon C(lmpil.:tiQn it is expected thftl the committee will then look at the Computer In((Innation Trllnsactions Act. HB·82 (Act 2000-677)
Thi$ DUt bill Wil$ ch:mged after the July 2000 article went to press. The new I)UI law, as signed by the Govemor, amcn<b section 32·5A-191 IlJ1d provide~ that each person convicted for the first time must complete a DUI cour:IC; on second conviction serve a mandatory minimum of five days in jail or 30 ~ of community service; third conviction, it minim\lm of 60 days in jail; and upon a fourth conviction, the offense oocome$ a class C (elony with a minimum manci:Jtory jail sentence of ten days. Further, two convictions withIn a five-year period will C!iuse the susptNiOll of the offender's motor vehicle registration during the driver's license suspension, Leglsl.tlve Interns
The inslitute is again accepting appli. cations for interns to work in the
Governor's, I.t. Governor's, and Speaker o( the ['Iouse o( Hcpresentative's Office during the 200 I Legisliltive Se$$ion, which will begin February 6, 2001. Those wishing for Jt'lQre illformatlon concerning this intern program may contact ['enny Davis, associate director of the Institute. [~or more informatio[l concerning the I n~titute (lr any (If it~ pr(ljects contact Bob Mc.Curley, director. Alabama Law Institute, by mail al r. O. Box 861425. Tuscaloosa, 35486·00 13, by fnx (205) 348.8411, by phone (205)348·74 11. or through the Institute's home page, www./aw.ua.cdulo/i. •
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Rob.rl L. MQCur'.y, Jr.
MlC .. Iey, J, II If'e d~Klor OII~ Ailb,.."..LIrw If'II111u1. III h i
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BUILDING ALABAMA's COURTHOUSES By Samuel A. Rumore. Jr.
I:nlllrprin C(mrlhfJUfll ciffo 1986 (photo bV Som Hull/Qft)
â&#x20AC;˘ CoHee Countv Established : 1841
The following continues a history of Afahamas county courlhouses-
their or~qins and som e of the people
who contributed to their growth. If you have any photographs of early
or present courthouses, please for. ward them to: Samuel A. I~umore, Jr., Miglionico & Rumore, 1230
Brown Marx 1bwer, Birmingham, Alabama 35203. 302
lI~pn .. D." ~oo
Coffeo County. Part II
~ s Coffee County C(ln tinu~'d to grvw. nanother community Degan to rival E:lba. Originally known as Drtlke Eyt, it was approximately 18 miles souUle...~ t of Elba and had Deen settled Defore the Civil War. Three local fam ilies, the C.lrmichaels. ~;dwards and Bnmers, dOJl.:ltcd the land to Establish the town, One account claims that the name was changed from Drake Eye to P.nterprise in IBM at the suggeuion (If R~~ rend W. J. Hatcher, a Baptist minister and postmaster who considered this settlement an enterprising venture, AnoUler account for the name claims that it wa.s actually the name or the post office in the area and that the post office had moved to at least fOur diffmnt Ioc.ltions, This ~rsion of the ~lory stales that the n.lme was selected by Congressman William Calvin Oates (rom Ii list of three that Wll$ submitted by Reverend !-Iatcher. \\lhen the "Enlerpri$e" post office was finally moved to the
Carmichael Store, th.ll pla~e became known as Enterprise, In any Mnt, no matter which Vt!t'5ion is correct, the town of Enterpri$(! was incorpOrated in 1896. According to the cr:nsus of 1900, Elb<l
had a population of 635 lUld remained the largest town in corfet County. But upstart Enterprise WI\.!! close behind
with a population of 610, The next decade saw Enterprise bypass Elba significantlY in population, The 1910 cenS\lS showed Enterprise more than doubling Elba, 2,322 to 1,079. The gap between the two towns wo\lld grow even wider over the ensuing yean. Today Enterprise has more than five times the population of Elba, As Enterprise grew in significance, it! citizens wanted the courthouse for their town. However, II provision in the 1901 Alabama Constitution stated that no c(lunty seat location could be changed within 20 years after the erection of a
new cou rthOU$C building. The last Elba courthouse had becn built In 1882. ShorUy after the adoption of the 1901 Constitution, comtruction began on a new courthouse at Elba. effectively sti · fling consideration of 11. new county seat localion. This may have been the real rcason (or the timing on building the new and elaborate courthouse at Elba completed in 1903. In respon~, the citizens of Enterprise fell that if they cO\lld not get the court· hou.se, they would setlle for acourlhouse. As early lIS 1903, a local iKt was passed that authoriud a branch courthouse for Enterprise. Other counties had established branch courthouses for the convenience of their citizens. Ilowever, for such an effort to bt successful, the convenience factor had to outweigh the expense issue 0{ lTlJintaining two facili· ties. This effort failed when the 1903 Act was declared unconstitutional. A new local [lIw W;l$ passed in 1907 through the efforu of locallegislMor llnd attorney 1~l c hard I lenry Arrin.llton. This time Coffee County was divided into two separate jurisdictional divisions which would hold two separate terms of court. One would be at Elba and the other would be at Enterprise. Each dlvl5ion would keep its own records IItld have its own probate office. The Ilct crelltinll the new divisional county !cat did not provide for the funding of the courthouse building. The citlzens of Enterprise had to pay for the courthouse at their expense. They raised the money to build a large frame structure at the intersection of Edwatds
Street and College Street. The building had a long front porch. where county business was sometimes conducted outdoors. The structure strwd as the cour· thouse at Enterprise until it burned in a 1915 fire. A local act passed soon thereafter pr()vided for the construction of another suitable building at Enterprise to SCM a5 the courthouse. f unding was again a problem. The (irst courthouse at Enterprise had been bulli on town· owned property. The town offered this rcal estate to the county if it would pay for and build a new cOl,lrlhouH. The deed also had a reverter clause. The courthouse would have to be buill within D year and if the property ceased to serve as the site of the courthouse, the land would be returned to Enterprise. The counl)' refused that arrangement. After much discussion and delay, the town proposed a fee simple deed to lhe county if Ihe courthouse was built within two years. Tht mayor of Enterprise, W. B. Glenn, signed this deed on December 13. 1919. In the meantime, courts and county omees in Enterprise had been housed in rented facilities fOr a period of five )'tars btginning in 1915. ,,'inal1y, in 1920, the county completed II new courthouse at the cost of approximately $27,000, a brick building that the county hot>cd was fireproof. Unfortunately. like its predecessors, this courthouse wu totally destroyed by (ire on January 23. 1924, after only four years of use. Fire insurance money was used to build a new brick and concrete court·
house, a two-story structlJre with a b:uement, con51ructed to be liS fi reproof as possible. Safety storage ..... ults housed the permanent county records. This courthouse was completed In 1925 al a cost of approximately $35,000. No story about this period in Enterprise's history would be complete without a discussion of the economy. Much of Ihe farmland in Ihe area WllS planted in colton. The boll weevillnfesl· ed this area In 1915 with th ~ loss of 60 percent of the colton crop. Devastat ion was even grealtr the next )'tar. In 1917 this problem forced farmers to diversify their crops and peanuts bec~mt the major cash commodity. Over a million bushels were harvested that year. Ncar the courthouse sile. at the Intersection of rotain and College streets, the citizens of t:nterprise erected a memori· al. The !loll Weevil Monument stands OYtr ten feet tall and appean to be a classical Creek goddess holding a bu.ll above her head. Thi~ is the only known monument In lhe world that glorifies an insect pest. It WM unveiled on December 11 . 1919 as a symbol of the !pirit of the community in overcoming agricultural adversity. The inscription on the monu· mtnt reads: "In profound appreciation o( the boll Wi!evil and what it has done as the herald of prO$pcrity this monument was erected by the dtii:ens rJ Enterprise. Coffee County, Alabama. In addition to the devastation caused by the boll weevil. Coffee County has also suffered a number of other natural di5aslen. Most pronounced of these is the ncoding that has plagued Elba over H
UPTtUDIR 2000 I 303
the yean. It was previously mentionc:d that Elba was named for an island. in part beclluse it was surrounded by the Pea I~ive r. Whitewater Creek and Beaver Dam Creek. The courthouse square is located near the I'ea Hiver. According to the Bible. Noah persevered through (Inc great nood. But lhe people of 1~ l ba have had to endure at [east seven. Minor flooding took p[llce in 1888, 1938, 1960 and 1975. Devastating nooding occu rred in March 1929, March 1990 and March 1998. During the 19291100ding which submerged the to'o'on. many people in Elba were trapped on the second 1100rs o( buildings for two days, without food or wllter. lind two perSQns are reported to have died. After this dis.1..~ter. the probate judge. J. A. Carn[cy. appea[cd to federal lind slI1te lIuLhoritics seeking /lS搂i~tllllCC. He wrote: "In behalf of our people, I am urging the demands for relief. and I trust Ihat)lOu can devise means of help by the 5trong arms of our fede ral government. The strong arlm should help the weak. protect. preserve. and prosper them "gain. We shaH be gralefu[ to )IOu." Later that year Judge Carn ley wrOh!. an artld e dcstribing the su((ningthat he witnu~ed III Elba. In part he slated: "It was distressing to see the people as the boats would land them. No photographer can picture. no ])Cn can portray. and no artist can paint the distress which I saw in the faces of the people. People were rescued from trees. shilken and (aUi n.ll buildings." The response to the plight o( the people came from Ihe Army Corps o( Engineer$.ln the 19:105.lhe Corps bui [1 a 3.2 mile levee th ~ t illmost comp[etely encircled the town of Elba. The levee held during the l100ds of 1938. 1960 and 1975. The town was not so fo rtu路 nate in the 19905. Sixteen inches of rain fell in 36 hours on March 15-16, 1990. At IIpproxim.1lely 6:30 p.m. on 5..1turday. March 17, the [cwe eil$1 of Elba broke and \Vhitewater Creek poured into the town. The down路 towr'\ areillics in wh:tl CIIn be describtd II! a bll!in. [t Oiled up like a bathtub. 111e 1100d waters damaged 737 homes. 130 businesses. 86 mobile homes. and eight churches. The high water mark reached the ti rst floor ceiling at the courthouse. Once the flood wilters receded, courthouse WQrkcrs found th"t circuit and dis-
/Joll W<'<!IIill'ftJIlu1Iwll (p.'ralo bj Sh~IIf// fJr/gmon)
trlCl court fi1e~. probate records, and county commission documents had all been under water. In order to save these important papers. a company (rom ~'ort Worth. Texas. which does disaster salvage work. wtlS ClIlied in. !..arge refrigerated trucks c.l me to E[ba. Soon coffee was not the only freeze-dried item in Coffee County. A[[ of the county records were placed In re(rignatcd trucks and freeze dried. 'l'hey were takw to tht company in Texas and p[ilced in tanks where a vacuum was created. The vacuum caused the wilter in the records to cvaporate. Once completely dried. they were cleaned and restored. [t was a tedious process but the county records were preserved. A[most ei.llht years later to the day. l.~:lba suffered ,mother dl,:vast.lIIin.ll flood. The levee held whert it had been repaired in 1990. Thi~ time a break occurred on Ule western part o( the levee along Beaver Dam Creek when up to ten inches of rain fell by Harch 8. 1998. The 1990 flood was basically re-created in the town. Again the waters inundated the town square and courthouse. Though the flood waters were not as hi.llh as in 1990, one resident putlhe situation in perspective when she said that a llille water is just as dev<l.ltating as a lot. E[ba residellts onct ~in cleaned up their town. Pumps h~d ~en insta[[ed after the 1990 nood and a minor nooding in 1994. These helped the water to recede. A proposal was made to relocate the town in order to avoid (uture flooding. However. life in Elba returned to normal and the effort to move the town flli led.
There have been campaigns over the years to either relocate or consolidate the two Coffee County cDurthouses. One aspect of the county seat issue revolved around the location of the CO(l11ty jail. The jail was located at I~lba. but by the 19705 it was in a run-down conditlo" . further, the citizens of Enterprise contended that the law of A[~bama passed in 1907 concerning a second court.house required ~:nterprise to have its own county jail because circuit courts were held there. A lawsuit was filed to fo rce Coffee County to build a county jail at Enlerprise, The county commission was cited (or contempt o( court and given 90 days to purge itself by making pliln$ to build il new jail. The county commission was saved from contempt in 1982 when the legislature passed II bi!l providing (or the erection of a new jail in New Brockton. halfway between Elba and I~nterpri se. However. once Ihe pressure of contempt was lifted. the county still did nothing about a new jilil. In 1989 an inmate filed another lawsuit protesting the conditions at the e~i$t i"g E[bajai1. Thi~ motivated the county to take ~ction and a new jail was built at New Brockton. The Jail colltroversy somewhat clouded the issue of courthouse location Imd divided the interest of the citizens in Coffee County. Any action on the cou rthouse would cost more money. However. several petition drives were started. One called (or the erection of a new county courthouse at E[ba. Another pctiti()n drive was for II New Brockton site. Still another l>etition sought a single courthouse at Enterprise. All of the petitions failed to get the necessary 50 percent pl us one of registered voters required (or the governor to ca[[ il county seat election. Coffee County relilined its two路courthouse system. The conditions at the ~: nte rprise courthouse deteriorated from terrible to deplorable. On two QCCIl$ion~. the tower floo r was flooded with sewage. calling attention to the inadequate and ouldated plumbing in the building. A[so. the facility only contained one large courtroom. Over the years Ihe judicial circuil grew from one to lhree circuit judlles. In 1984. Probate Judge Marion Brun5Qn had the large courtroom divided 50 that at [east t.wo judges (ou[d hold court lit the same time.
date the county into one courthouse was not successful. Finall),. on June 9, 1997, the Coffee County Public Building Authority approved a four million dollar contract (or the construction of a new courthouse at Enterprise. The architec· tural firm WM Donofro & A.uociatt!5 of Dothan, who al$O designed the Houston Count)' Courthouse, Saliba Construction Company of l}(lthan was the contractor. The old courthouse constructed in 1925 was demolished and a new struc· ture was built on the same site. The new courthouse is a combination of modem and classicAl design which should serve the citizens of Coffee County for many decades. The new Coffee County Courthouse, t:nterprlse Diyision. was dedic.lted on Sunday, June?:T, 1999. •
I.·/bd COl.trlhf)UH Jurl~V 1998 nooJ (photo Ct/Urln V c/'1'h.t Ootllln t:agleJ
In 1985 the Enterprise courthouse was remodeled. The front porch was enclosed to provide orlice space and courtrooms were renovated. ImprOVtmenu wtr~ made throughout the building, and a town clock was placed in the building's clock tower. Further imprOvtmenls took place In succeeding )'ears with the cnclosing of windows in 1987, replacement o( the roof in 1988, and beautification of the courthouse grounds in 1989. The district attorney hold previousl), moved his office from the crowded court· house. renting space in lown for his staff.
In 1988 construction btgan on a new office building for the district attome)'. Unfortunately the county did not entirely own tm site whert work had start~d for construction of the new building. The project had to be haltre! and rmarttd at a new location on the bMk portion of the courthouse parking lot. This office ....'M full), completed and fiNl1y dedicated on April 14, 1991 , and ....'all named in memory of the lale circuit judge, Ens Paul, and the late district attorney, Leoo.oey Stephens. The need for an adequate courthouse at Enterprise continued thrOU!lh the 1980$ and 19905. The dfort to consoli·
The author thanks Enterprise all OT' ne)'! Oall1 Marsh lind llIalne King for their h ~lp in obtAining research materi· als lind photogrllphs for use In this arti· cle. Photographs of Enterprise court· houses And the 13011 Weeyll Monument were provided through the courles)' of Shelley Brigmlln. Enterprise, Alabama. SOURCES:b'arlv flis/ory of Coffee Cou,I/g. J, D. Smith. Elba, A1aooma. no
date; CoffceCrounds: A lIis/o'1l ofCoffL'e Coun/g, A/u/xJmu, 1841- 1970. Pred S. Wal$On, 1970; Pea Ri~ Rl!fl«lions, Marion Bailey Brunson. 1975; Do/cline: EnlL'rprise, Roy Shoffller, 1997; Elbo Hood... March 17, 1990, a publication of the Elba Chamber of Commerct, 1990; f;"'erprise, The firs/110 )wrs 18821992, A Historv of This t:n/l!rPrising
A/alx/rna City , Roy Shoffner, 1996; Articlu, The BIrmingham Nf!W$, March 1990 and "1arch 1998. . .mu. I .... Aumol'e, J,. Samuel A Rumorl, J r ~. gtlOOllto of tilt l.InHer.q. 01 NoIre
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OPINIONS OF THE GENERAL COUNSEL By J. Allthol/g MclAin. general counJ('{
Quasllon: ~ I am serving a$ an appointed guardill.n ad litem in II juvenile.
cue. I
have nol attended any fornlal training or other courses l>erlaining \0 1m attorney's responsibilities II! a guardian ad
litem. however, I have read the guardi.. n ad litem mi.lnual prepared for lhe
Ex Parte Communications Between the Court and a Guardian Ad Litem
Children's Justice Task Force. I have become awClrc from other sources that certain Ju risdi ctions con~ i der it app ropriate for a guardian ad litem to com. municate directly lIrid ex parte with lhe court. "This ;5 II request for a formal opinion on the following question: Under tht Alabama Rules of Professional Conduct. may a gUilrdian ad litum communicate ex parle with the cou rt?'"
Anewen An attorney who has been appointed guatdian ad litem is ethiCillly prohibited from communicating u purla with the trial judge concernbg any substanlivt issue before the court. DI.c.... lon:
J. Anthony McLain
The arAument has been adv.1nced thllt guardians ad litem. rather than being advOCllte$ fOr their wards. are more approllrinteiy considered adv iso r~ to the court, and. therefore. should be permitted to have IJX parle communiciltion with the judge. However. thi5 is not the case in Alabama. The Court of Civil Appeals of the Stolte of Alabama has conclusively held that guardiiln5 ad Ii/em are advocates for their wards and Ihe role of the guardian ad litem in the adjudicatory process is not different from that of any other advocate. ~The gU/lrdian ad litem .. . is an officer of the court and 15 entitled to argue his client's case as any
other attorney involved in the case." S./). a. R.D., 628 So.2d 81 7. 818 (Ala. Civ.App. 1993) Additionally. the statutory provision which governs the appointment and payment of guardians ad litem in juvenile cases cKprculy statu that it is the duty of the guardian ad lilem to act as advocate fo r the ward. Code of Alulxtmu. 1975, 搂 15-12-21(b) & (c), provides lI.S follows: (b) If It appears to the trial court In II delinquency C3se, need of supervision eMe. or olhu judicial proceeding in which a juvenile is a party, that the juvenile ;5 enlitled to counsel and that the juven Ie is not able financia lly or otherwise to obtain the assistance of coun路 sel or that appointed counsel i. otherwise required by taw, the court shall appoint counsel to represent and assist the juvenile or IIcl in the capacily of guardian ad litenl for the juvenile. It shull be the duly of (he Ilppoill/I.>d counsel, as on omcer of the courl and as a II//!II/ber of the b(lr. to repre-
sent alld us:;;slthejuIXmile 10 the best of hi:; or her ability. (c) If it appears to the trial court that the parents. guardian or custodian of is luvtnUe who is a party in a judicial proceed路 lng, lire entitled to counsel and the partin are unable to afford counsel. upon request. the court shall appoint counsel to represent and assist the pMents, guardian or custodi o an. /I shall be Ihe dulV of the
appointed counsel, os an offi路
cer of the court (md as a
member of the bar, to repros.mt and ossist the parti(M to the best 01 his or her aMitJj. (emphasis supplied) It is, therefore, Ine opinion of lne I)isciplinary Commis~ ion tnal altorn cy~ who aTe appointoo guardians ad litem are advocates for their w.. rds just lIS, and in the same manner as, retained .. ttorneys .. re advocates fo r their clients. Accordingly. guardians ad lifem are subject to the same prohibition against ex parle communication with the court as ilre all olher lawyers involved in the adj udicatory pr()(ilSS. The prohibition applicable to allorn ey~ is codified in nule 3.5 of the Rules of Profeulonal Conduct which provides as follows: "I{ule 3.5 Imptlrtiality and Decorum of the Tribunal A lawyer shall nol: (a) Seek to infl uence a judge, juror, prospective ju ror or ot her o{f1cial by means prohibited by law:
(b) Communicate ex parte with such a person except as permitted by law: .... ~ Asi milar prohibition applicable to j\ldges is found in thE Canons of Judicial Ethics. Canon 3(A).(4) of the Canons of Judicial Ethics provides as follows: "A judge should accord 10 evcry person who b legally interested in " proceeding. or his Illwyer. full right to be heard according to law, and, except as lIutllorized by law, neither initiate nor consider ex parte com· munications concerning II pending or impending proceeding," While Alabama lIppellate courts have never specifically addressed the issue of ex parle communication with the court by a .!Iuardian ad Il/em. other jurisdictiOn$ nllve \:xpressly ruled on this issue and nllve held such U J)arlc communication to ~ ethically prohibited. See. e.g.. MoorE v. Moore, B09 P.2d 26 1 (Wyo. 1991); Veazey IJ. Veazey, 560 P.2d 382 (Alaska 1977); RilfJY V. Erie !Ack{l/vmma R. Company, 119 Misc. 2d
619, 463 N.Y.S.2d 986 (1983): De Los Sanlos V. Superior Court of Los Angeles Counlg, 27 cal. 3d 677, 613 1'.2d 233
(1980). The Question of ex parte communica· tion by a guardian ad litem ha~ also been addressed in a Ireatist on the role of the guardian ad litem . "The guardians arc usually afforded the same rights liS the pllrties' attorneys (e.g., of making opening statements and closing arguments). Guardians cannot be called as witnesses. Guardians ad litem may not h:lVe ex pMle communications with the judge." I>odell, The Ra/eofthe GuardiUIi Ad !.item, 25 fr ial 31, 34 (April 1989). Por the reasons ciled above, it is the opinion of the Disciplinary Commission of the Alab;lma Stale Bar that an attorney who scrves as a guardian od litem mlly not hllve ex p(lrle COJl1municlllions WiUl the trial judge regarding any sub· stantive issue before the court. • (RO·OO·021
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The
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VLP Case By Professor Pamela N. Bucy
"0
xygen in Use. No Sparks. No Open Flamt:s," warned the cardboa rd sign on the fronl door of the Sl'I1bJ1 white house. Above the door were Christmas decorations (in March). The ancient iurnilure on the tiny porch was well.kept, just as eve!')' inch of
the house proved to be. When I rang the doorbell, Mrs. Branson' slowly came to door, welcomed me wilh a smile, and invited me in. Limping, she led me to a room dorniniltcd by a large bed. 1'0 the side of the bed was an oxygen lank. She let herself down 01110 in the bcd, gasped for air, and .smiled <Ig.l.in. Book$, csptcial. ly Bibles, were evel')"."here.
Soon after she settled into pillet. Mrs. Branson's face Iii up. "Hi, Rllby," she said as her husband of 39 years shuffled in.
Mr. Branson, age 84, and stooped over, was dresscd church-neal in a bright orange Shirt. His smile WM brighter than his shirt. Mr. Branson ShOOk my hand firmly, welcomed me to their home, and silently backed out of the room M Mil. Branson told me tileir story, between her smiles and gasps for air, Several years ago Mr. and Mrs. Branson bought a new furnace fo r their home. In the summer of 1999, they bought an air.c:onditioning unit. 80th
were installed in the crawl space under the house. When fall came and the weather turned cool, they turned on their furnace, but there was no heat. They called the company that had installed the heating unit, for which there was a current warranty on the unit. Acompllny repai r man came. crawled under the house and came oui declaring that someone had "Intentionally sabotaged" the unit by cutting "wire. He stated that such damage was outside the warranty, and he wasn't going to fix it. The IJransons called the compilny that had put in the air conditi onin~ unit. A repai r man from that company came out, crawled under Ihe house. and dectllrtd that hi$ comp;lny didn't cui the wire on the heating unit, wouldn't do such II thing and wasn't responsible for fiKing it. About this time Mrs. Branson, who Is in her late sixties, had been hos pitllli~ed and released. She came home to a {reez路 in~ house. Her doctor exnlained in a leIter addressed "To Whom it Mily Concern: Mrs. Branson IhitS) ...emphysema, heart dl$(:Mt lind diabetes landl is in dire need of hrlVing her heat turned on as the weather has suddenly turned cool. Her medical conditions will be
adyersely affected by (ailure to turn her hcal on or haying her (urnllcc repaired as soon as possible," The I3ransons were running oul of options. Because she had "heard talk about how much good they do:' ~trs, Branson tailed Legal Services. They inyiled her down, folTS, Branson was 100 HI 10 go so Mr. Branson went. The Bran$Ons liye entirely on their Socilll Securily benefits, so they Qualined financially (or l.cgal Strvkes. Sinte they also presented II meritorious and non-complex case, Legal Services rdcrred them to the Volunteer La~rs Program.' Within two week$, Brad Cornett, an attorney in priYllte practice who had aAreed to han· die VI,I' tliStS, met with the Bransons at his law o(fice. "He was just beautiful." Flash Qf smile. That is how Mrs. BranS(ln described Cornett. She glowtd as she described their visit to Cornett's law o(fice: ~ I can't go upstairs. He came to me, downstai rs. We took him all the papers." Cornell graduated (rom the University o( North Carolina School o( Law in 1995 and has been practicing in Gadsden ever since. I\j r heard him beAin to describe the Bransons' case, it became dear that he is One good lawyer. ~ lJecause it was already cold when they came in. we had to get some action
quick. So, [ told them we wQuld file In smilll dilims tourt for whatever it cost to hire someone to tome out and repair the (urnac:e riJtht now. Then we would sue both the heating company and the air conditioning tompany and let them fight it out. We knew one of them was to bl3me. It's a cinch neither "1r, nor ~lrs. Branson had been crawling around under their house since IMt winter. I told the Bransons to look UII a heating rcpairperson in the phone book and ask lhat person to come out and give a (ree estimate of what it would take to fix the (urnace. I told them to tell the repair. ptrS(ln we would hire him to do the job when we won in court." "Well." continued Mr. Cornett, with a big grin, "the Bransons called back in a day or so lind said, 'It's all fixedl' The repairman crawled under the house and came out saying, 'It's no big dtal. I fixed it." Would the IJransons have called a repairman if a lawyer hadn't eJlplained a way they CQuld pay fo r the rCPlIir and been willing to pursue their legal rights to obtain such payment? Probably nol. ~ Mrs. Branson explained, "We didn't have any money to get anything fixed. My medicine took it all. ~ ~ this case showed, sometimes representinA a dient simply involves explaining their
options. The VLP gives poor people some options. Brad Cornett has been a Yl.P Mtorney for about three years, he guesses, and the Bransons were his thinl VLP refer· ral. "The VLP tases tcrlainly are not a burden,." explains Cornett. ''They never come close to 20 houre \\o1ly did he enroll in the VLP? His words: "If you're a professional, you howe privilCIICS. You should give something back. Thert is a satisfaction in doing good, It's di((mnl than your paying cases. You can't do thtSt cases (or anything but doing good. It's satisfying to know you helped some· one just betause you c:ared. H
•
MUrlY Ihunks 10 Linda LlnJd, Wylhe Nolt and "specially 10 Brull Comelle.
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600 DexTER Av拢NUI!, ll OOM N-I04 MONTGOMERY, Al.MAMA 36130
OI:FICE OF TI-II; GoVERNOK
DoN SIEGEl.MAN GOVERNOR
STATE
or A LA BAMA
(334) 242-7 100 FA"; (334) 242-0937
September I, 2000
Dear Fellow Alabama State 8M Member: Lawyers have been althe heart of every major refonn movement in our state and in our nation and, in addition, Alabama lawyers give of their time and their talent everyday in their own communities_ To furth er this involvement I am writing in support of the Volunteer Lawyers Program C"VLP") and its e fforts to encourage pro bono and chari table legal work within the State of Alabama_ As Governor, and as a lawyer, I know how important it is to provide legal assistance to those who can not afford it, and those in need. I ask that you join this effort to help the people who need it most by signing up for the VLP. As of February 1,2000, Alabama had approximately 10,800 li censed attorneys. Of these 10,800 licensed attorneys, 24% are pcrfonni ng pro bono work through the slUte' s recogni zed volunteer programs. To the lawyers who are already signed up, I say thank you. My guess is that your experiences on these cases have been among the most rewarding of your professional life. To the lawyers who are not yet pnrt of VlP, I say help your fell ow Alabamians through the VLP. Alabama is II great state, but we can make it even better. To sign up, or ror morc infonnalion, call Linda Lund, the Director of the VolLlnteer Lawyer's Program at 269路 15 15.
Mil H.iNU'''U1F!
i'.
77tflolo~"", I.IJWIH
It yo u 'r e n ot In s u red w i t h th e Attorn eys' Ad vo.ntngo P I'Ofeaaiol1al Liab1llty [USUI'lulce PI'ogr um ", yo u 8h ould obJoct to your OW'1'on t insu r e r on th e (allowin g g r ounds :
1. You lllay be paying too much UabiUty cove rag e.
rOI'
your
2 . You llla y
not have the broad cover age you r eally neod.
ttorneylf' Advantago Prof(l(!.8\onal Liability ]n8U.I'o.noo orroI'l:l hrend OQ\'ert~go ", up to $10 million III llinllM, Program benct118 Include:
A
• Fl ul. Dollar De re ll.e
• Cl .... lm. E xp e nse In Addition t o Lt ....bllity LhnUs
• Ris k Manage mont Provam • FilII Prior Aot ll COVerni'e AVIlIlu,hhl i3oI!t or all, It'/:I underwritten by TIO II18UI'(U'IOI') ConlplUl,Y. A ,M . Best. mWd "A H (ExoeUllnt), XI.
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INSU RANCE.
•
STATISTICS
OF
INTEREST
NUlnbcr sitting for exam .......... , . , . , , , , . , . , .. , , , . , .... , . , ........ ..... . 343 Number certified to Supreme Court of Alabama .. , , , , . , , , . .. . •• • , , . • .. • . • ...... 140 40.8 percent Certil'ication ratc'" ... . .................... , .. , , . , . , • , . , .• , , . , .....•.... . Certifica tion P erce nta g • • :
University of Alabama School of Law .........••... • .... . . . . .• . ... .... ........ Bi rmingham School of Law , • , •.. , , .......•••... • •.•• • • . • • ••. , •• ..• • • . .•... Cumberland School of Law , . , . , .. , , .. , .... •. . . . • .... • . . ..•. ..... . ..•...... Jones School of Law .• , , .• , • , , .. , , , , . , ................. . Miles College of Law , , , , • , • , •... , , , ...... ... ........ .. . *'nc/udes DIlly those successfully passing bar exam 011(/ MPRE
63.9 23.6 42.4 49.0 7.1
percent percent percent percent percent
Alabama State Bar Spring 2000 Admittees Algood. Tonny Harold
Crenlhlw, Kevin
Kinll, Gltn I)avid
AI ' adonnl, Anlhorll Jouph
Cronler, GeTI Ilene
Kirby, Nnncy
And ....nn. Nancy Ellen
Growt, Paul Vinson
Lace)'. Nancy Maddlne Barne$
R~td, ~:dwin
~l l l ock,
Inn,on, Jonna Miller
LI. ler, Nkhola,s Charlu
Robertlon , John
Ikweu, Jennifer Theresa
Lelfol'd, William Donald
ROil, Katrina
HaUty, Clyde Temple III
I}unaway. lRonis Christopher
lzwI., Katharine ~'olsom
MolcolMrI)'. Jeffrey Clcnn
8 akrr, George Richard
Oykn, lowdl Morgan Jr.
?hrtln, Alice Kay
Rucke r, ,,'eredlth Olwn
Uattl.-lIod,t.lunklint
Edmondf(ln, Rodney lIavon
/IIulm. Kevin Allen
SllIe, Carl Robe r.
Hunl, David William
FlmIW, Benjamin lienry
/IIuwell, Ccr3hJ
S.ioom, Joseph Michael
Uurt, Claude Hee\'u
~·Ih:-G.nld .
NdJrlde. Valeri Jean
Saller. Chri ltopher Donald
lIehtl. Jennifer I.ynn l'loil
Fowler. Stephen Duane
NcC.,t)'. William I.orlnllill
Suborn. I..my ShMe
lJeneneld. Karen L(lUise Schwab
f.' rtderlck. Patricia Arm f'inocchio
McCu rle),. Donna Jelln Flippo
Sellen.
Benton. WIIII~m Brian
t'rler. Richard Chnrlu
McGhn. 8111y Shautl
Sf.kiano•. Constantine Pete
III")'. Robert IIlIen
Fulford. Otie lA>e
Melille. Krist! ClIrolyn
Bradford. Robby Je nt Jr.
Fuller. WlIlIlIm lienl)' Jr.
McHenry. Michael Bumis
Sideriut. CllToline Mary
BradIC)l. Gary MOTn50n Jr.
Clnl. Kelll Kennedy
Mt.lvtr. Let Allison
SmUh. Anthony Ryan
Hrockmln. Bobby Cerald
Clrdner. Freda Darlene
McI,un·'hylor. Katherint Maric
Smith, [)awn Celute
C.,tlln, Robert Aaron
McN.lly. !Aura
SmUh, N~than Wherler Barwick
Rrowtr, Nnncy English
Cel•. Oaniel Jerome
MeN.me.. Kevin Alullnder
Sitpher.... elll)' l...IInt
Urower, William Scott
Gilbert. Lelltha KDY
Mere.,. Hobert McCay ~arinll
SlImiC. Sarah
Urown. Chad Hobt! rt
Gonuln. ThoJ1Uls
Miller, Christy Michelle
Strong. Christine Muie Ruci nski
Iluckntr. James Randy Jr.
Cny, IIrel Michael
MUehell. IIlIen Kenneth
'O.ylor. Jon Ca rlt on
!luxton, Rebecu White Price
Culllory, Michael Stewn
Morgan. Ktith Andfr$On
Thomu. MeUU/I Ann
UyenoShelly \.ynn
lIarmon, Randlllll.ylt
Mom •• Kreg layton
Thomu. Robert Juon
MOlehu. l'hl1lp John
Thruh, Adam I:Ouwrtun
Moulll)'. Peter James
Turner, Thonw Ewrcll
Obndovle. Virginia Michelle
Tyler. Philip Olen
Odom. Kristi Miller
Wid •• ~: mil ~ !lawn
lI'II'ey,
Ilryan Fnderi ck
Mar~Tct
I<:liubeth
llronner. Raymond
l.ou i~
Michael Sean
~'rcd erlc
Uyme·Crutchneld. 'laT)' Eliulxth lIarnl.on. GrtllOry Dllvid
Pred.. , Jennifer SIf).tn
l>nt. l, Iluth Ona Miller
M~rle
~-eldman
~;lIubtlh
Loui s
IInllel~
~'Oltet
Christ ine
Shaw, T:lmmy Lynn
l .oul~e
Campbtll. Robert hilles
lIam • • Jequcllc
Carllon. Mark Ilowlrd
lIallon, Sanford Dewey Jr.
Clrtee. ~:ri c Scoll
lIemrner. Sandra
Chrl lllill. Charloltt Co ker
lIIeh. Michae l IJriRn
Oilletne, Powell C. Jr.
Wilker. Stc plmn~ Ilene
Chrldle. Susanne H,ltes
lIteh. Shannon Nicole
Onrden. Hnll l SuleYlnlln
WalTt n. rye Handall
Cllrk. David Richa rd
Hocutt. Joseph Neil II
I'Jdgeti. John Mark
Watklnl, Juon Robe rl
Clark, Ronald Linwood 1r.
lIoliand, Ch rbtophtr 1113n
"uk, Uza finn
Witkin •. John Michael
CllYlon. Philip Warner
floward, 1.1mb Lou
f'IIrkcnon . Ch rb tophe r IJatu
Wllwr. Ambtr ltar
Comb" Brian Kei th
II~ I I.
Plllenon, Tommy WRyne
Will •. ~ tlUlbcth Stuart
Conl«lI. Joseph ThomAS III
!lullhn. Wandil Gall
Paulk. [)ebra Jean
Wn w n, James I'hllll, Jr.
Cooner. [)oulll3J Howa rd
Jlckilm, I'erry Carnett
t'ern , JoAnn
Cooptr, Ronald Wh)r1c
Johndrow. Stephanie Northcutt
I'oe , [)enlse Blue
Woodlnan. Ilaroid Edward
Craddock. l'ntrick C~rr
John.on. Dell()na Lynn
I'oole. Dtb ra Lorraine Haynes
Wyatt. J~mu IIlullnder III
~:dnlon~n
M ~rle
Sybil Corley
~1ari t
Windom. Mary t:dnR Uecker
in
Slfllhur'/11 Nar/llmll (2()()()) lind
JmlleJ N. Ill/c/m;!r, Jr. (2000) lind
W<tIJ<or Nur/hell!1 (I,Y86) admlll.'!! 111111 broth ...
Alm~
('llfi:llV /If. {lfll/," (2(.00) mid
WIlliam St:oIIIJI"/)j'~'" (3()()0) a"d
G;m~
admllllVl und fOlher
1I'I1I1(1m J. {l1'QWj'f (1985) ac/mill.... und 101"(7'
Marv ""{(lob.JlI! BJlnlL~Crolfhn~/d (2{)(J()) nru! JU'//Ifl Or~dl~JI f;,
A'&abo!tll S. WilIl (2000) IJlld HolHr/ A, Wills, Sr. (IOU)
By""" (1.979) odmillo!tl ulld Ullcit
(/(fmi/lec 11M falh~r
~'4
11'. MIIIN (UJ9S)
SÂŁPT ...,aCn;tOOo
f'und...,burk Buclm<!f (/999) I1Ifmilll'" amI w/fl/
KlJlhj'T/'n~
(;hrIJIQ(Jh~r
Rulh Mill,.,. Pr/"II (3000) "III/ MlchlU'l Pri~Jt (/9.99)
'lI1Il/~M. /lfcl.4'W1 (983)
IIdmlllftllllUl hllsbll/td
admllll!1/ aM falntr
!>feU'ill 7bVlor (2OQ())
J04tpll 1: Corm",l/, //I (2()(}()). ,kM'1!h Th"m(JS Ccrm",lI. Jr. (1976,. Joh" C. Buller, Jr. (1983) and lIeurllJull~r flfdJulIll'1 (1977) oo",llIl'f'. fa/hn rmel, ami Ulml
Svbll Corll'/llIom-1i (fI(}(J()) IIl1d CI,71n ClllIlfin (J!JIfJ) ,,"millN! m.d bml"""ill law
Mro IIUJ1l1/u Poo/p (2()()()) and Jos~'TIh
N. PooIr.1If (916) admil/"" alld hUJbu"d
/J,.,I N. Gra, (20()()) (;l1J Krrmrlh F: Crag. Jr. (1998) Qdmillov um! IJroIIwr
1I'I/I1om OriUrl &11011 (2000), /Jill &1,101, Sr. (f96()) alld 11111, IlnIIOlI, Jr. (/979) uJmlll,<r.I/flmdfulhrr and fatM
,1Iot'1llrindom (2()()(J), 1,1, (;or\""1QI" Stl'l'il 1I'il1<klm (1914), W;"!dom (J9IJ6) a'll/ Rtmnllr;lII'iJrdo:m (1995)
NiA~
.,..",·/=
adm/liN, hwbund. tmJiMr-",·/nw und 14'•
Attorneys: Buy Extras for Your StaM
rn3£~
2000
CWo ~
are herel - Get your extra copies now.
Members: $25 each 1 TO 5 COPIES $20 each 6 OR MORE COPIES Non-members: $60 each ORDERS MUST BE PRE-PAID
Notice of New Business Hours for the Office of the Clerk, United States Bankruptcy Court, Middle District of Alabama Effectlvo October 1, 2000, the Bankruptcy Court Clerk's Office at One Court Square. Montgomery, Suite 127. will
be open to the public from 8:30 am. to 4'30 pm on all business work days. An after-hours repositolY box will be available to accommodate Ihe filing of documeflls outside
of the normal business hours. Documents placed in Ihe after-hours reiXIsitory will be rotrieved at 8:30 a.m. Bach business day. and tile stamped as of tho previous business
day. Anyone who has an emergency Wing after hours can
contact tho duty clerk al pager number (3341 516·2547.
How
Can You
Be in
Two
Places at One Time'
This stole-ol'-lhe-alt facility, IOalled on Ule third floor of Ihe state bar building, Is awllilble to all stilte ror menter's b' VIdeo-<onfer'e! meetings and ~klOns. (Vldeo<onferend 1$ a c:onfen!ro: call where ~ not ooty tw the person or people )W art talking 10, buI "'" '" _ ""'l Some _ ...... ""' ...
. -"""'""."'"-
oost_ """-"'
Ume. ... _ _ Vil_ilPPlaItIo1s """''''''''''
-blgs. - sen*'<lrsllralnlng. -. aod ....... "'""'& '""'" """" slUms, dlsalvery, <OOIlrulng ~~ ,
For more Information about rates and scheduling. contac:t Laura Calloway or Sandra Clements at the Alabama State Bar, (3341 2ft!H 515. ''0 . . PT~uDIII >000
Hel,," JoMson Alford. Esq
Thomas 8
HorI 01111161 8 Banks. Jr Kaye M Barbaree. MS. LPC. John B Baugll. £aq RlCllllld W 8&11, Est! Wi lham ~ Bell. Esq HOII. CIyOO AI~n Blanklll'lmip loo W Bordon. Esq Howard f BI'/8n.llI, Esq Hoo Jelry l Buns Malcolm N C4rm!dlael, Esq Stephen E. Clements. E$CI louiS C Colley. Esq Robert A Coth'on. Esq Samuel N CtosIlV. Esq Gregory S Cl/SIITI8IlO, ESQ Josoph W. DlMlIlport. Jr.• Esq Hon, John W, Dnvls HtIfXIOO e DeBl'ay, E$Q Charlos l Deoaburg. Esq BI'&nda S Dollllr, Ph.D Kometh F, Dooham. £SoQ Mlcheel F Ford. Esq
Hon Stuan lMCh Edwin K lMngstOll. Esq Rillph P loYeleu. EIQ John R Matthews. Jr, Esq
Edv.ra!d M Georgo, Est!
\\1111 Ule Alabama State Bars vlde<><onfe.."dng fudlltyl
......,-
The Alabama Center for Dispute Resolution thanks the following mediators who perfonned pro bono mediations in /999.
Laura S Glb$Oll, Esq Bl'oc:k B GonIon. Esq Staven P Gregory, [sq Hoo Rogor lIoltomb Gwendolyn D IiOIllS, ESQ D. Petrick Harris, Esq Clolf1l SUlDnnII Ilolland. Ell! Qw'ltopher Hughe$, &It Han Kenneth R IngI&m Ame B Isbell, Esq, lion Wilham 0 Jolton Hon John Maxwell Korrll OO\JgIDS l. Kay. Esq Dr K811 Kirklond
~hMllr,
[sq
RoOOev A Max. Est! Dooglos McEtvoy. E~Q Tllomu, McPIl/II Son, Jr EdwlJrd P MllyOr$Ol\ E$Q Charles P Miller, Jr, Esq Pamela E. Nail. Esq Hon, CIIIud D, Nmlson frllllk L NeI$Oll. Est! Han J RIChmond PwIon AIm A Powoll. lB. fsq
I\obeft F 1'owaf1. [Ill Hon Daniel J Reynolds. Jr. Nicholas BRoth. ESQ Ad ler Rothschild, £sq James H Sandlin, Esq EmesufIII S Saw, EIII Sandra H Seo&II. MA.l PC Han ~enneth 0 SitTon Donna Wesson Sma ley, £$11 Hon, John 0 Snodgrass Alyea Manley ~utli. Esq Charles A StllWlln. It EIQ Aobiru r ThetlDfd, Esq Hon H Randall ThorIas WItfM P Tumer. Esq MIChael E Upchurch. Esq Glen G W8!kIe1i. Esq
Robert C Ward. Jf. [sq KOI1h WBtkm, EIq PalllCrfI 0 WarnBf. EJq Martha E Wrillams, E$Q DaVid B Zimmerman, [$II,
WAR
STORIES
Recently, The Alabama Lawyer asked our readers to contribute "war stories" to be published in upcoming issues of the magazine. We were looking for humorous tales
and anecdotes about Alabama lawyers and judges. Here are a few contributions: The ~ry instant the word 'witchcraft' was mentioned, the IighlS in the courtroom suddenly flickered off and a loud clap of thunder shook the entire building, ~The courtroom fell silent as I glanced over at the jury and then saw the judge's facial exprcHion, It waJ at this point that the trial judge called counsel to a side bar conference and we were alm051 unable to maintain a professional demeanor in the presence of the jury. At tome point, r informed the judAe that he could be confident in his decision to sustai n my objection beclluse it w..s clear Ihat my objection had been sustained by a higher Judge. The 'witchcraft spell' defense did not work- the defendant was convicted." - Crego'1l S, Comh. Mobile
"D
Lady C.th.,lne urln!!: 1985, [was an assistant district attorney in Baldwin County and was responsible for prosecuting an individual charged with it sexual 0((en5e, In rcading the investigative reports, I noticed thatlhe defendant slated that 'he was under a spell of witchcraft' at the time orille offense. He, thus, appeared to be invoking the 'devil made me do it' defenu. ;'On the dOl)' of Ihe trial, construction work on the courthouse ....ou in progress and the trilll was conducted in an interior room with no windows. I noticed a stately woman silling on the fron l row, ~arinll a turban or head.wrap and who dremd in attire that reminded me of a psychic or ~lm reader, The prosecutor informed me Ihat this was 'Lady Catherine' who W1\$1\ witness fo r the defen se, Lady Cillherine had apparently removed Ihe sp~ 1l of witchcraft from the defendant and was there to testify in his behalf thai on the night of the offense he was, in fact, under a spel l of witchcraft. "During the course of the trial, I was Sitting on the edge of my seat reMly to object the moment the defense of 'witchcraft spell' was interjected into the case. When the defense began Iheir ca5e, unknown to me and everyone else in the courtroom, an afternoon thunderstorm, common to south Alabama, has started outside, When defense counsel called Lady Catherine to the stand, I stood and objected to ner testimony on the basis that being under a 'sJ)C1I of witchcraft' was not a valid defenu In Alabilma.
" When I was in private practice I was often appointed as gUilrdian ad litem for individuals whost f~m足 Illes W(!re seeking to ha~ them commItted to a mental hospital due to their havJng a mental illness, One of those individuals was fascinated with electricity and had wired a car to his house to shock cats and dogs and. sometimes, relatives who may happen 10 louch his c.. r. ~AI Iht commitment hearing, despite my advice that he should not testify, my client wanted 10 take the stand to 'defend' hl5 actions, After I let him have his say, which clearly showed his need for commitment, the atlorney for his family started his cross examination, He asked my client if he ever heard voices and he said that he did. Opposing counsel then a5ked what the voic.u said. I immediately rose 10 my (eet and ohjecttd on tht grounds of hears.1Y, t>1uch 10 my amazement, the judge, with II grin, sustained my objection." - RotHrt K . U1llg, Moultoll
Montgomery's First Lady Combines Role with Judicial Duties By Elizabeth Via Brown
ynn Clardy Bright went to law school because her said about their family, Neat, 17, Lisa, 14, and Katherine, II, (ather said the knowledge would help her in any encou raged their father to run for mayor and appellred in career she chose. his campaign advertisements. In 1983, while working (or the late attorney Combining her new duties as a tirst lady Richard Piel. she W<lS appointed :u a with her well·established career as /I judge f.1ontgomery County Dblrict Judge by has taken skilled organizillion. After a bus)' then·Gov. Ceorilt Wallnce to fill the start, when she agreed to too man)' Ptlb· unexpired term cl Hark Kennedy, who lie appearances, she has reached a bal· became a circuit judge. ance between the courtroom, city In November 1999, Judge Bright funclions and the activities of her became the First Lady of chilliren. Hontgomery when her husband, Upon completing Kennedy', Bobby Bright, was the victor in a term, she won a full six-year heated mayoral rllce with term in 1984 and was re·elected Emory Folmar, \\ho had held In 1990 and 1996. When her the office for more than 20 current term is up in two years. Now, after a morning years, she plans II) run again, presiding in court, she might which means that if her hus· spend her lunch hour cuttinA band choosu to run for a sec· ribbons at lhe o~njng of a ond term u mayor, they will new business. Back in the be conducting political cam· courtroom (or the afternoon. paigns at about the stlme she may have to dash off to time, pour tea at a meeting of any AJ the 13th of 14 chi1· of the community organiza. dren, Hayor Bright grew up tions which have deluged her on a f<lrm in Dale County and wilh inviL'tions &ince her was taught by hi$ parents that hU5band took offICe. serving the public in a politi"I just covered my face with cal office is an honor. Also an my hands III\d shook my head," attorney, he has been <IS supsaid Judge Brlght, of the day porlive o( his wife's career as her husband told her he planned she has been of his. to run for mayor, "I (eel like I followed a cour$t Il would be tOllgh to compett chartered by my father," said against such a d01,inanl mayor as Judge Bright, eKplaining that Leon Folmar. but. said her husband. he Clardy, now deceased, encouraged had a vision for positive change. Judge both his daughters, Lynn and Janice, Bright agreed. "Uobby wants to do to attend law school. what's right,H she said. In 1973, Judge Bright, the class saluta. When lhtir partnu talked to them about toriM, receiwd an Auociate of Arts degree their fathe r running for such a high·pro(jJe from Alabama Christian College. now Faulkner office, the Brighu' three children also agreed. University. Also an honor student at Auburn F.ven after being warned that Uniwrsity at fo10ntgomery, she M4p ~ /IrivIIt mill AIIWe' £¥nn ct.Jrq Hri,ghl fNT;u: 1111" ~ SlIIhI negatiw comments could be earned a Bachelor o( Science
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degree, then attended Jones School of groups. On the facuity of the National Law, where she received a Juris Judicial College and the Alabama Doctorate In 1978. Judicial College, she trains new district Her judicial rCSPOnsibilitit$ include judges. She also serves on the small claims and civil cases up to r.1ontgomery County Domestic Violence $10.000, Driving while intoxicated, Task ~·o rce. drugs, misdemeanors and preliminary The Brights are active nt First Baptist and bond h earin~s in felony cases con· Church. where Judge Bright is chairman slltute the criminal cases she hears, of Community Ministries and Mayor She began It Domestic Violence Bright is a deacon. In 1989, the IJrighls Docket requiring cO\lnseling and alterwere named Family of the Year by the native sentences for defendan!$. Mollfgomery AdverliserlNabama Jounlul. Convicted DUI offenders must confront For her contributions to Alabama's victims of traffic .Iccidenls involving Court Referral Program, Judlle Bri"ht alcohol in her Victims Impact Panel, a Juds.o-Iklght 00 tM bnlCh m'- courtrOOIn In tIN received lhe Uowelll·lenin Awnrd In program she required her son to attend H()n/~ CounlN CourlhIIuH 1996 and was also honored with the when he got his driver's license. Justice for Victims Award by the Family The Brights' daughters will have to Sun$hine Center. Named the Public do the lame when they get their licenses, and as Citizen of the Year for the Montgomery Unit of the National Montgomery's new t'irst l..ady, Judge Bright plans to open the Association of Social Workers, she was also inducted into the program to local 5<:hool students. Robert E. I,ee High School Hall of Fame in 1995 and has "In prison attire and with gllards, the Inmates make a big been the recipient of numerous oUler awards. impression on high $Chool students," said Jud"e Bright. A new member of the board of the r.10ntgomery Ballet, E:1i:ufxl(h l'iu IJmlJt1, a columnisl (or (hI! Montgomery Judge Bright is also a member of the boord of the Alabama Advertiser, is (I lreelam:e writer living in Mo"tgomery. Shakespeare Festval. as well as of othtr civic and cultural
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HOTO IGHLIGHTS
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The Alabama Department of Environmental Management A. e,..tlon .nd Purpo•• In 1982, the Alt bnnua Le.:lslliture enacted thc Alnbnma Environmenutl Manogemcnl Act (Act) which, among other thing.'!, created the Alabrun/l DcI)llJ'\J1lCnt of Environmental Management. Set: 1982 1IIt/. l'lm. No. 82·6 12 (now codified at 1'1111. Cotlt If 22·22A· I, el seq , (1997». The purpose of lhe Act willS to c:slBbli5h ". comprehensive and coordinated progrum of environmentnl mmuagemcnt." A/(I. Code 1 22-22A·2. 1'he Legi~lature charged ADEM with primal')' responsibility for ooministering envi'onmcntallcgislmiOtl, implementing the State's environlllental progrnms, and developing a unified environmental rtgUl;llory permil Jyslem. A/a. Code § 22·22A·2(1). 11\ doing itO, the Legislature ertflled nn executive bmnch agency Ihm woold Imume the responsibilities of the former Air 1\1lIulion COlllrol Commission, lhe Wmer ImproveIT1ent Commission, the Alal).'1l11l1 Water Well St:IIl(IInIS Boord, Imd some of the functions of the State Health Depanmcnl, "'(I, Code I 22-22A-4. ADEM also wns dcsignmed ItS the dcplltlmern responsible for implementing and enforcing federnlly approved 01' fI.xlcrnlly dclegutcd environmental progriUIl!. AI", COllI! §§ 22-22A-4(n) nnd 22.22A .~(4).
B. St.tutory Authority AI)EM's SHuutOry powcrs nrc enumemtcd in AlII. Cmle § 2222A·5. In nddition to its numerous spccifk grunts of aut hority including ~tuffing, w llce\lon of fees and rulellluking, perhaps ADEM 's most signiliculIIlIluhorlty for lawye rs represcnti ng a client is its power 10 issue pemlits lind to enforce the Statc's environmental laws und reguilltions by IlSSCSS1ttg IKhnini ~lrnti\'c civ illlCnnlti~ lind rt(luiring 5pecific Ilctions. See Ma. Code n 22·22A·5( 12), (1 7). (IS) and ( 19). This aUlhority glvC5AOEM brQlld discretion IlIld II po ....·erful mechanism for compelli ns eompliance with the Stll te'~ environmentnl laws nnd reguilltions against your client, Belir In mind thlt the vast majority of ADeM's pennining decision5 and enforcement actions IU'C tllken 115 "udm i n i~Irnt ive" ACilons ~nd not IhlOugh civil litigation. Thus, the forum in
which these actions must be eonleSlcd is ordinarily before AI)EM (Iuformnlly) nnd then before the EMC (f~LI\erl y), nOl in a circuit eoul'!. PC1'haps ADBM" mOst potent enforcement mnl:ority is 10 nssess on It(]ll\illlstrotive pennlty against you r client . The Act aUlhori7.csAOEM to "SileSS penuhics of up \0 $25.000 per violution, IIJ1d I\l ~o spccifies that each duy II violation occurs e(lnstitules a ~epllmte viollllion, Thus, a failure to comply with a penni! condition over two days could result in administrutive penalty uf $~O.OOO. or course, the Act also provides for II minilI\um penllllYof $100 per violation, lind ADEM Is empowtred to choose the amount of the penalty from within rnis I'1I.ngc, HowevCf, ADEM '~ discretion rtllllrdin8 the amount of a civil penalty Is not unbridled, In (k:tcrmining the amount or any civll penalty, the Act requires the department to consider the followin; factors in proposing nn adrnlnistrntlve penalty: (I) The. seriousness of the viQIaOon, iJICludina any im:parable hnnn to the environment or threat 10 public u fety or hc.llth: (11) The standllrd of care munibted by the viol:uor, (III) The economic benefit , If lIJ1y. gained from Ihc deillyed complillnce: (iV)The natu re, extent and dearl~e of success of the viola· tor's efforts to mInimize or mitigate Ihe eITects of the violution uJlOn lhe environment: (V) The respondenl's hi ~ tury or previous violmiolls: IIml (VI)"t!: viOlator', ability lu pny snch penalty. ADEM is rcqulred by Ihe Act to consider these faclol'8. Aifl. COtlf! § 22·22A·I S(c). In tum, any discussions with ADEM staff about II civil penalty, und cenninly any chnllcngc of a penalty before. the I!MC, should address these factors as well. ADEM'8 aUloority to ISsue civil penulties or iJisligate civil1iti· gUlion is not unfcllered. According to the environmental Management ACI, the department may not impoiC an administrn· tive civil penalty in exeess of $250,000. Alfl, Code t 22·22A· ~(IS)(e) (-Any civil penalty assessed 01' recovered .. . mall not be less th:m $ 100.00 or exeeed $25,000 for ellCh violation, pr0vided however, tlutt the total penalty assessed In an order Issued by the dep.1nmenl , . , shalt not exceed 5250,000."). Moreover. UPffMDUI< " ..'" I ~2~
ADEM docs not have the "uthonty to IISsesS punitive damages, Su: AIl/lxWIn Dt:pt, 0/ Em. Mmlllg/!/IIclI/. ~ Wriglrt Bro!, COrlSt, Co.. hre" 604 So. 2<1 429, 433 (Ala, Clv, App. 1992), l11e dep....tInent n!:ly seek civil penalties gremcr than S2S0,000 only thf'()l.lgh 1I1]8mion in court, !ke AlII. C()(/I! § 22·22A-5(18)(c) (limiting alllount asSdSCd in nn "order" issued by department). Under the: prillCiplc~ or IIlImini~tmtive IIIW your client is not enti, tied to a jury ror IIo(lministnltivc IICtiQn5, but if ADEM seeks un cnfon:ement action in circuit court, you nmy demand ajury trial, Set! Aillixmlli IJrpt, o/f.;'m MllIIltgt:mt:'lt, \\ Wriglrt Brw, ClItlSt, Co" lire.. 604 So, 2d 429, 433-34 (Ala. Civ, App, 1992) (constitu, tional right to jUly Irialll04 IIPlllicnblc to adrniniSlmtive proceedings) (citing 7111/ 1\ U.S" 481 U,S, <11 2, 107 S, Ct. 1831 (1987» . As you might imagine, ADEM typiClllly Pllrslle.~ its cnforcement !\Ction~ using its Jdrninistmtive enfon:cmem mechanisms mther thlm by initiming litigation in circuit court, The stlllute of limitations (or !!$~~s inil 0 civilllCnlllty or fml1g u civilllCtiol1 is two yean. from the dme or tile violution, Altl. Codt! § 22-22A-S(18)(c),
(1987) (ADBM 8totement5 interprtting its regulati(H1s 1101 appeallJble): KimlJu/y-Clflrk Corp, ~. AIJI-;M, EMC Dk!. No. 89· 19 (1989) (A[)EM dc:clnmtOty rulinSJ IlOl appe!!lable). l1\e Aetli mits IKhninistrntivc nAlCuls to only those enforcement mechanisms falling within the definition of "administrative action(s)," 10 witness and Exhibit List: tilt issuance, mooifichtion, repeal or deniol of IUlYpennit. license, cenifi· clition, or vnrilUlce, or the .srune actions with rupcctto uny order, nOlice of violotion, citation, nile or regulation i5sued by ADEM , § 22·22A·3(8), Other "lesser" aclions cal100t be challcnged using the: administrative uppeul proce.~5 eontained in the: Act Even 50, recipients should respond to these "lesser" act i on ~ in writing. n.e response should provide enough detail 10 refute AD I!M '~ position or to dcmomtrllle that tile rocili ty has remedied lilt pen..-eived violation. In addition, the !!llcged violmor should request an ollJlOrtunity to meet with ADEM infonnolly to discuss the situll.tion,
C. ADEM Entorc.ment M.eh.nl.m*
A NOVHM IlEH. is JJ morc ronnni type of enfOrtcment 11lCChlmism, und should be viewed ttS JI sign of luore things to come fro m ADEM , It typicuJ1y signnls the reclpienl lhm an udminlslnltive order is forthcoming ubsent immediate action to remedy the !'I:fercnced viollllion, A NOVEM R1~R often requires the submission of on engineering repon and iml'leiUentntiOll schedule lIClling fOl1h the re sl'ondr:m'.~ plan for addressing the alleged vioilltion, Such report.i frequently must be submitted in lin expedited f!L~hion , nnd elln be e::~pensive. On the OIher IUUld. NOVEMBERs 111Dy be oJlllCuled to the Environment!!1MlLlllJgcmenl Commission (II procedure which is discus)C(! IlIler in this nrticle). Su .... h Cod~ § 22·22A·7(e) und A/n. CO(/~ § 22-22A-3(8). The ~i pi ent of 11 NOVEM· ORR should nJwlly$ tcquest II mtcting with ADEM to disc\lss the ~it llmion in nn effort to ovoid further oomirislmtive action_ Given the very short time II rtCipiel1l hilS to cill'.1lenge n NOVEM8ER in nn Ildmini ~trative lllll>elll, tilt fiT$t !!ml immediate Step should he: to cri tically evalullle the merits of tilt NOVEM8ER with your clicllllOdetennine ir an lldministmII\'e appeal is mcrited. Of course, givca the very short time:: period the Act ullows ftlr filing lln ooministrntive IIl'llCtLl (only IS duys in the ense of direcl notke to your client) it may be wise to file un appcnl us !! mailer of prtM:rvlng your client'S rightNIUld 10 ullow funher negoti~lions with ADEM,
ADEM C111 plOYS 0 "gmdllnlcd" cnforcemelll str:ueSY lI~ing both formul nnd informul mlministfutlve procedures. ADEM's SrnclullLed enforceme nt options consist of the ro llowing: (I) Site in s ~el i on : (11) Warning leller: ([I[)Notice of Violmion or " NOVEMBER": (IV)Administntt[ve Order/Conscm Order (with or without penulty): olltl (V) Litigation in circuit court,
1. Informa' Enforcem.nt M.thod. A telephone CUll, waming letter or site inspection should be takcl1 o;criol.lsly. They often indicate thnt ADEM
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received 11complaint or tip from some M)uree concerning tilt focility, ADeM's fielt! personnel will olmost always follow· up widl 111Ier conhlCt. Significulltly, there is no right to "appenl" II 11OSition la1.en by ADEM in II warning leller or during II telephone call or sile visit. Your client's rights 10 nn administnllive llPllCal of lUI ADEM enforce me III action arc limited to only those cnforcenlcllI methods which full within the ~l nttJl ory Jiefinition of '"ndministrntive lIC1ions," Set! A/fl. Cod., § 22-22A-3(8): ,~,... 111.\'0 Solill WlISlf' IJi.rp(JSll / AII/1licm;oll of IJImml C Ol/lilY IJ/.r/HISfII. lire.. f'I Ill, I', ADEM,
EMC I)kt. Ntl. 93- 17 (1993) (wumlng leiters not uppeuluble): I¥. j , IJullock, /Ire, 1\ A Db'M, EMC Ok!. No, 878· 14
CLE Opportunities The Alabame MllrdalOly ClE Commission continually evailJ81es 8nd BPprOYeS in-st8to, 8S well 8S nationwide, programs which 81e mairtained in a computOI database All alB idetltllied by sponsor, location. dalo and specialty area, For a complete IIS\' Ing of curlent Q.E opportunities or a calendar, contact the MCl E Convnluion office al (3341269·1515, extansion 117. 156 Of 158. Of you may \'low a compIeto listIng of current programs at the state bar's Web sito. w.vw.alsbal.org
2. Notle. 0' Violation
3 , Admlnlstr.tlv. Orders
l bc 1u:lnt i ni.~l nll ive LIlec1muiM LIl ADt::M ha.~ for iL~sing civUllCtmllies is through lUI oornlnlslrntive order. Ilowever, slIfeguunJs in the Act often 111uke this lldmini Ntnllive pl'OCedlll\: SOl11ewtml more mlUtageable. Oy ~Ullute, ADEM must provide the intended rti..'ipielll of 1111 oolllinistmtive order with nn OPPOl1ulIity to meet infonnally with Ihe department before the order Is issued, AI(J, Codt § 22-22A·S(18)(nX<l) ("An order shall IlOl be issued , , . untilthc person subjcct lhcrcto ha.i hc:cn afforded on oppol1unity for nn infQl111a1 confrrcnce ... eOllcerning the alleged vioilltion and the penalty a.~sessn1Cnt."), ru a result. ADEM will issue II. "pro]lO!'Cd" or "dmft" udrninistnltive order to tlle alleged violl1.lor with II cover Ic:ter infornling the re~pondcnt of ilS right 10 have 0 t·onferelK."C with ADEM. If the recipient CJCer\' i 'iC.~ the Mmutory right to requesl nil infonnlll COl1fe!'l:I'ICC, the final ooministrtLti ve order will not he: issued
untilnfter the meeting. The fact thm an ndmjuistmtive order hns been proposed is (.'ornmunly II mixed ble.~sing. 11 represents It seriOllSsitllll[iun because ADEM nonnaUy only prol)()Ses an ndminlstrflliw: order when it finds conditions tllllt il believes are serious in meriting llO! only com.'Clivc: nelion but Il.too !ldministilltive pen:lhies, On the other Imnd, the statutory right to confer with the c1cpMtmem before an ildminisu'mivc order is issued in finnl ronn provides an opponu nity to discuss aU lL~pccl~ of Ille situution wi th ADEM officials in a face-tofnee meeting. In tum. this oftcn IClLvc:~ the opportunity to lIc:gotiate regnrdillg the tenlls of any order even if ADBM offici;lls Ciln llOtl>e persuaded 10 withdruw the proposed rntlc:r nhogether lind either tnkc some lesser enforcement IlCtion or no IICtion whm.soever. A[)EM is often willing 10 modify the proposed order before linnl iSSU/Ulte based on facts presented at the illfommlmC(.'ting. If the violator does not request rut iuromlltl conference wi thin the allolled lime, the II(hniniSlmtive order will be i ssued!l.~ proposed. Most (I(tmittistmtivc: orders inehldc the 1L~~sment of II civil penlilly. 4 . Con.ent Orde,.. Another enforcement option is the iSSuftnCe of II consent onter, which results from negotimiolls between ADEM ruld the rc.~po lldent. A cQllsent order Illfty or Illay not include a penulty, nnd t}picnlly requires the re~ponde nt to tllke ccnnin lIetiun~ (usuuliy It(luiring e ~penditurcs) 10 eOlne into oolilplianee with the regullilitllls. Consent orders ore not uuilateral c:nforcement mechanisms. By their nlilure. the respondent IIlUSt (Igl'l:e to the tenus. It is now fairly eOllllllon for ADEM to propose a consent order in Its inititll conHuunicmion with !1 client. bill Ihey iU'C 11180 frequently the product of negotin. tions between ADEM and thc J'CSI)olldent afler Il. NOVEM· BER or proposed administr.uive order has been issued. 5_ Criminal Referral. One OIhcr enforcemellt Opti un nOt Ii ~ tcd above is refemll of 1l1ll111ler 10 the ~lIonley gencml's omce for criminal proseeutioll. Although discussion of such criminal prosecutions is beyond the scope of lhis p.I]>C.f, it is iml)OrtllJ\t for the comp[r· ny attorney to I'CCQgni1.t thm his or her eliem's employees lind llmnagemcnt personnel nmy be subjC(;t 10 crirnilllll con· viction. fines nnd inenrcemtion for violating ccrtnin envirollrnenhll bws. PT'O set:ution ofellvimnmell1al crimes typielllly are li~!IOChiloo only with repeuted. wllnton lind knowing violators, As a result. in pllniculnrly egregious SitunLions which lll11y give rise to erilliinol prosccutions. it is iruportunt to recognize thm connicts of imcl'l:st IIllly ellisl in rcpre.'ie nting the corpomle entity and individual targets at the same time.
Dealing With ADEM A. ae Proactive Perhaps Ihe single biggc.~t mistake rmrde by mcmbers of the regulmcd comll1unity is to ignore ADEM's initiul ctTorts to cQmpel compli;lllce, II is I';u'c thul an ottomey receives a cull froll1l1 client nflef thl! clielU has received n wurning letter ur even It site visit from ADEM . Frequentl y. clil!nts do not inform !lleir allomeys ev~n liner they have received ;m NOV, TIlis is unfortlln.'lle bc:cnu!;C it i.~ ~ gTnve 1lli st~ke I10t to r'c~polld imme-
Alabama Mediation and Arbitration Training (Approved for CLE credit and Alabama Center for Dispute Resolution ros ter registration) In-State September 11·13, Mobile. Mediarion Process & rhe Skrlls of Conllie/ Resolurion. litigation Alternatives. Inc" (Troy Smith), (600) ADA-FIRM or (6661 ADR·ClE3. ClE: 20 hours September 21·23, Birminllham, Medlerlon Process & /ho Skills of Canflict Resolurian, litigation Alternativos, loc.. (Troy Smilh).(600) ADR-FIAM or (8881 ADA·ClE3. ClE: 20 hours September 21 -25, BIrmIngham, DiVOfC8 MoeJia/ion, Atlanta Divorce Mndiators (Kathy Marth for Betty Manley), (BCD) 862·1425, ClE: 40 hours October 12. 13 & 16. Mobile. General CIVIl Medill/ion. ADRi. Inc" (Joe Davenport). (334) 470-866a. elE; 20 hourS October 19·21. Huntsville, Mediation Process & tits Skills of Conflict ReSolution. LltigiitiOn Alternatives, Inc .. (Troy Smith). (8001 ADR·FIAM or (8881 ADA·ClE3, ClE: 20 hours November 6·8, Montgomery, Medi8lion Process & rhe Skills of Conflict Resolullon, litigation Alternatives, Inc., (Troy Smith). (BOO) ADR-FIAM or 1888) ADA·ClE3. ClE: 20 hours November 16·18, Dothan, Mediation Procoss & (he Skills of Conflict Roso/utian, litigation AltornativlIs, Inc .• (Troy Smithl, 18001 ADA,FlAM or (SS8) ADA·ClE3. ClE: 20 hours Decemoor 4-6, Mobile. Mediation Procoss & tho Skills of Conflict Rosolurion, litigation Alternatives, Inc., (Troy Smith),
IBOO) ADA·FIAM or (SS81 ADA·ClE3, ClE: 20 ItOurs December 7·9, BIrmIngham. Mediation Process & rho Skills of Conflict RosOlution, Litigation Alternatives. Inc., (Troy Smith). (800) AQA-FIAM or (888) ADA-ClE3, ClE; 20 hours Note: To date, all courses except those no ted have been approved by the Center. Please check the Interim Medtator Standards and Registration Procedures to make sure course hours listed will satisfy the registration requirements. For addi tional out-of-state tmining, including courses in Atlanta, Georgia, call the Alabama Cenw for Dispute Resolution at (334) 269-0409,
dimcly lind in writing .o lilly COnHIC! Inltilltcd by ADeM. Nevcr declinc fin opponunlty to meet with AOEM officill i. for on infomu\1 ~onfcrence conccrning 1\ aclull1 or percdved vioJlltiOll. Although U wll'lling leltcr lind notice of vioilltioo do not COntain civil pcraities. they do signallUllIre lICuon or inspection by ADEM. Therefore, it is imponllnt to respond meaningfully and, if IIppropriate, to con· test the allegAtions made by ADEM. By doing this, the respondent may be able to IIvoid fu ture action by ADEM, which likely would include a civil pcnnhy, Actioos tllken by ADEM are documented in the depmtment'5 oomplinnce fil es A$ II result, If II problelll develops with a partic. ulor facility agoin in thc fUl\II'C, IllISI actions will be used IIgninst the fllcility to eslllbl i~h it :IS a rellc:l1 viollllOr, hllving the effe<:t of increasing fulUrc civil pena lt lc~, If ADEM's allcgations !il'i: not contested 01 .hc lime Ihey urc mude, or If (.'Ompli:mce is not dClllolIstnlled nfi1nllutivd y for thc file, it will be (liffieuh to clnd· IcnllC the ullegntions lhter or 10 prove Ihul Ihe faci lily camc into compliance immedintcly nlier receiving notice from AI)EM,
B. B. Prep.red ADEM is a profc.\~ion al organi1,mion coneenl('''' with subWhen responding In writing to a wMling 1ener, not..ice of violation or propo>scd udministrutive order, it is critical thaI the response be foctunl nnd deloiled. The response should be signed by the regt1lated entity or it! environmental consultnnt, If your client receives a NOVEM BER or II ~ administrative order, you should Immediotely ~uest a meeting with ADEM even if, with I'1:gnm to u NOVEMBER, on OOministrJtive Ilppeal hll~ been IiIcd to proteclthe client's due process righls, Again, it is critical to be preparro 011 II 5UbSlUmive and l«:hnicalle~1 for the.~ informal conferences, The cliclIl or ilS environmental consultant should be preplImllO di!.Cus$ the lIaturc ond I'CaSOIiS for .he violll· tiOns (if they occum:d), pnSI effons of the respondellIlO n\/Oid suclt viollllions, mid Ihe rcspOlKlelll'5 currelll plnn .o achieve comIIllomcy should be prcp!lrcd to discuss the respOli' pliance, dent's lellrd pOSition, IilCk of economic benelllnchieved by the viollllor if llpplieable. 1:lek of nbility lu Illly if applicable, li nd the rcspoudem's past hiStory with Ihe depllrtlllent. If lack of nbililY to pny n civil penalty is lin iss lie, thc responOcnl must be prepnred 10 prove it.~ fi rlIIncial stili us, ADEM will r~'quest lftx relums lind IIChctlulc.~ for otlcaSl lhe IllOst rccclll lhree-yellr ])triod, It is sometimes helpful to discuss Ihe money II client hilS spent, or will spend, In nl1Cll1 ptlng to ac hieve complinnce, such as Ihe purchliSC of new C(luiprncnl. in nellOlinlinH a reduccd pelllthy amount. Sill/ice,
" IC
C. B. R•••on.bl. Above all, be reasonable with ADEM, ADBM's technical 510ft' ond allomey' primarily are concemed with DChieving eomplilIDCC liS quickly and efficienlly IU possible. Threats of litigation or u§e of political innumce arc unavailing. Besl results often come from presenting ADUM with a comprehensive p1911 pt'Cscmcd by on engineer to bnng the focility into compliance under a reason. able time fmme, Keep in mind thu.t the decision · make~ III ADEM arc engineers and scientistS by training and they re..~poncI 32.
nPT~"'IfiIl_
bcSl lO thorough nnd reaSO!\cd technical presentations.
D. Document th. FII. Document the tile concerning all diM:ussions with ADEM. If a proposed plcm of flClion i~ discussed III the informal confercnee , bring lKIequate copies to pro\lide to ADEM's I«:hnical slnff and a c1eon copy for their pemiarc nt fi le. Although ADEM ', senior technical staft' and allomeystend to have longevilYwi th the dep;Inmenl, you should anticipale Ihat you may be dealing with A different engineer, inlpeelor OT nltorney the neKt time you appear at the dcpllrtmenl. If the tile is not properly docu mented. yO\lr post efforti may be lost.
Appealing Agency Adions to the Environmental Management Commission A. Th. Comml .. lon Whe n informol effon! \0 reach an ngrcemenl wi th ADEM fa il. IIny "Dgt;rieved" pM y may opply to the Alabama Environmental Management Commission (EMC) or "Commission" for 0 conte5ted heari ng. ADEM WId the !!Me W'C two di~linct cntities. The EMC is the governing oversight body for ADEM . Like ADEM, the conunis· sion was established by the Legislotul'C through tnc Environmental Management Act. St!t! A./u, Codt! f 22·22A·6, The EMC is comprised of seven Ol'point~ mc:mhel'1i frum varying backgrounds as rcquin::d by i talute. &t! A/iI, Coot! f 22-22A.6(b) (requiring mcmbership of a llhysicilm, engillC('r, ortomey, ehemi$r or veterinarian, member certified by the NlllionaJ Wliter Well Associalion cenifiealiol1 program, biologist or ecologisl, Ilnd one lIl.htrae mcmber being a residenl of the s\tlle for III le:.51 1I0I0 yelll'!l). Membcl'll arc appointed to silt.year lemls by the gov· emor, ··with the ndvice nnd consent of Ihe Scn~lc ," The ten ns are st:Iggen::d 10 ensure Ihot a single governor wil l nOl mnke 911 of the OI)])()intlllelllS, StU! A/a, COlle § 22-22A-6{b) and (c). The Commission's dutic.~ ure to: ( I ) Select the direclor of AI) EM ; (2) Estublish rules. regulotions or environmenlal standards for ADEM ; (3) Develop environme ntal policy for the StOIC; lind (4) Hellr nnd determine 9ppenls of ndmlnist['(dive IIClions. A/tt, C(X/to t 22.22A.6(a)( I)-(4). 11Ic EMC WD!l gnllucd the !Iuthority to prurnulgute its own rules of procedure for heari ng oppenls. A/n. Code f 22-22A· 7(aXI). The "Rules ofl''I'oecdurc'' enn be found in Diviswn 2 of ADEM's Administrntive Code, They are ciled as tl.DF.M A(lmi ,,;slroli(JII, Code R, 33'·2·1, til seq, The E i C is exempted from the con'Q ted cmle provi5ion5 contained in lhe Alabama Administrative Procedures Act (A/tt, COlle If 41 -22· 12), ulthough the AdminiStrative I'roccdU1'C5 Act provi~ionJ rcgarding,judicial
review of linal oKcnc), decisions are applicable 10 the eXlern they not inromiSlenl wilh Section 22.22A-7(c)(6) of the Environmental Mllflagement Act. See AI" . C()(le f 41 -22·27(0. The Commission', jurisdiction is limited to consideration of ADEM's "3(lininistrative IIctions" IlS defined b)' Ihe Environmental Management Act. Ala. Code f 22-22A-)(8). However, once jurlsdictiollallach(s. the EMC'. review is plenary. [n Other words, EMC hearings arc: lie 1U1~'O. See limts MOItl, Illc. I'. A/(I/Hml(l Em';r, Mm/llgtmellt. Comm 'n" .596 So, 2d 924 (A[a. ely. App. 1991). TIlUS, in enrorcemem IlCtions. the EMC assesse.~ the correctness or ADEM 's IICtions in light of the evidence ~semed "t the hearin& (and nOi based on the evi· dence ADEM had 111 the lime it made the decision). Set M cRiglrt. t!t III. I'. AI)EM, EMC Dkl. No. 92·30 (1992). [n hearings to contest permit decisions. Ihe merits of the pennit ore at issue. and 110\ whether ADEM's deci~ ion on the pennit was arbilrnry or cnl)ridou~. Sce Clliulls for (I lIelter EIII'imulIIl'1II I'. AI)£M, EMC Okt, No. 96·08 (1996). IIfC
B. Filing. Reque.' for H•• rlng Before the Comml •• lon 1 . St.ndlng The I~MC rulcs or procedure and Ihe Environmental Management Ael eflCh provide Ihm 1111)' l)Coon "aggricved" by nil "udmininrntive fICtion" of the departmcnt Slrll/l be enti· tied to a hciuing befOfC the EMC or its designated hearing officer. &e AOEM A(lm;"istmt;t!/l. C()(it N. 335-2-1·.03: A/(l. C(}(le t 22-22A-7. Under Ihe regulations. "aggrievcd'" is defi,)e(J as ''hfwing 5utrered a thrcnlelll..-d or actual injury in f!tet ." ADEM Alimillislmt;tHl. CQlle N. 33.5-2-1-.02(b). ""dlni nisttfulvc II(:tiou" means ''the isswmce. modification. repeal. or denial or M)' IICnllit, license. certificlltion. or vari ance, or the i~uance. modifielltion Or' repeal of an)' order. notice of violation, citation, rule. Or' regulmion by thc l:>cp.mlllenl." M)EM A(lmill;strtlti(Jn , C()(/(l R. 33.5·2-1·,02(&). The Aluhaw.1I appcllll1e couns have not scrutinized the meaning or "uagrieved," al though the AI~bllma Supreme Court has held Ihol "nlflttell of environnlentlll protc:ction or rtgulntion arc or great ~isn ificance ... land] 0 eiti1.cn·s stmlllory righllo uppcalllll ADEM decisiol1 should be inler1 NiI'u Prolt!Clil't! A u·ll.. 572 prelcd broadly." Gren'tlS 1\ So. 2d 446 (Ala. 1990). A significant volume of federa l easclnw does exist :.s 10 Ihe standing requircrnenl.'l under el:rtnin fedcrnl etWironllllltUul Inws. Scc, t!.8.. Uljlll1 I'. l)a/l'IIi1ers a/ lV/illll/t. 504 U.S, SSS (1992) (plaintiff must show individlul. eonc/'l;tc hnrlllio hll ve standing); l..IIjlm I '. NIII/(}/Ul/ Wi/III'lfe " c(lu(I{/oIJ, 497 U.S. 871 (1990) (plai n. till's faill:d to show spedfie nl:lUal iIUury): SCRAP I', U,S" 4 12 U.S. 669 (1973) (low slUdenl5 demonSITIIled standing by shOwing th ~)' used the forc~ts ond streHms in spccifil: area); Slum Cillb I: Morum, 40.5 U.S. 727 (1992) (seminal "injury.in-faet" case). The EMC liCems 10 have adopted the fundnmental clements of standing re(luired under the Luj(lll I'. D~e/llllffs if WI/ll/I/e ease, rc<julring an iodividuillized injury in fael. cnusnl connection between the challenged administrntivl: nl:tion Imd Ihe Ihrtntelted or actual injury, lind redrcMllbility. See Fritllds 0/ 8(11/ P1a1 Bas;" I '. ADEM. EMC Okl. No 97- 13 ( 1997).
'·0. . .
The overull ~tUlutory scheme teqUirc:5 IhUilln ngsrieved perpursue the cst:lblished oorninislrnlivc remedie5 btforc resorting 10 lhe courts. Failure to do so has resulted in the di~ mi.wll of a plaintiff's civil llCtion for ICICIt of standing. SI'I! Islami &1'1 u,m,lcs. I,IC. II AIIIIHmll1 Dtpt. 0/ £"I';r, M ml/Igtllltlll.. .587 So. 2d 1210 (AID. Civ. App. 1991): blll u e l)('K'SOtI v. Colt, 48.5 So. 2d 1164 (Ala, Clv. App, 1986) (dis, l:us.~iI1S exttpliOll~ to exhaustioo of remedies fl:quiremenl). S()11
2 . Tlm.Une •• TI\C AClaoo the EMC rules or procedure prtlvide three scl)llJ'lltc tin\C peri()(h~ for filing rcq~ts for helrin~ (oommortl)' rererred to 115 appeals). These time periods ,"onespond 10 Ihe t)'pe actiOn being chJlllenged and the n\clhod or nOlice of slIch IlCtion givcn by ADEM. These tm\C limitations !lfe eXIrc:mcl)' itnl>Ortant becmlsc Ihc)' arc stricti), enforced ond Ime filing will result in dismissal of the appeal. As ~lIeh. clients should be ndvi5cd 10 contact/heir altome),' imrnedintd y with regard II) nn)' ac tion Inkl:n by ADI; M. The Act and the rules or pmcedure provide thnt Iidminis· trntive fiCtious. OIher tlulll the issuance of an)' rule, regulalion or emergcnc)' order. nllIst be IIPI)l':llled b)' fiI ing II request for hcnring within 1.5 (8)'8 liner notiCe to the aggrieved P;lrt)' of such Ilction b)' the depllrtment. A/(I. Code § 22-22A-7(cX I); ADEM A(/milliS/r(ulolt , C(}(II! R, 335.2. 1•. 04( I). If no notice t(lthe llgaMcved I'~u')' is given or requirt.-d, a f'C(JUCSI for hclll'ing must be filed within 30 dll),s of sueh tlCtioli. Ill. The issuance. mo(\ifil:mioo or 1'C1)Cnl of an)' Aile or regulalion b)' lhe department mo)' be "1)JlCa1ed b)' filing a request ror hearing within 4.5 days of the lKk>ption of the rule or regulalion b), the fMC. AI(I. ClHlt t 22·22A-7(c)(2): ADEM At/milliJtmlilHl. C(}(le N. 335.2- 1•.04(2). An e!lll:IJcnc), ordcr by the department should be appeoled immcdia:el), 10 the EMC, bul no Ifller thun IS doy5 from the date 5uch order is issued, ADEM At/mil,islmlioll. COOf! R. 33.5-2-1-.04(3). 11lCSC time limits Il/'e absolute. 1bc EMC hM held thut a requesl for hearing filed lifter the Slatutory lime li mb muSt be dismissed for Illck or jurisdlclion. Su HI' Ht:lllt)' 1'. AI)6M. EMC Okl. No. 92-32 (1992): C;lj~IJ.f For Tlte Em'iff)llllItllll'. ADEM, P.MC Dkl. No. 94-0.5 (1994), 3. Content .nd Filing of Requ •• t for H••rlng In YCllr8 pIlSI. a request for hcaring could be gcncrul in nature. TItis is no longer Ihe case. Under Ihe I1Jlcs of IIr<K:edure, Ihe rCClucst for henr'ing rtlU~t be In wrltlrtB und JII(III conlail1, among Olher inrorntOlion. a short lind plain slmc-
FORENSIC SCIENCES CONSULTANT Lonny Harden • Fin:llrm5 • Crime Scene R«onstructlon • Gun powder Re81dues
• Tool Mllrks • UillIIstJa • Cour1 Tt'St.imony
I)hone: (256) 234·0205 1071 Thrlle N«k I{oild, A le lUl nd ~r City, AI. 35010 E-mIlU : Irhllrdep @,,'cbsboppg,Of l
mC1II idcntlfylng the following: the administrative action of the depart ment being contested, the threlltcned or lIelulll injury suffered by the person making the request (to demonstmte swnding), the ulleged error made by the dePlU1ment in the administmli ve action, nnd the tern's and conditions which the penon making the requcst proposes thllt the eonullission should inelude in 1111 order modifying or disupproving the department'. IIdminl~tl'lltive IIClion. ADEM MmlnistratiOtI. Ctx/e H. 335.2. 1·.04(4)(a)·(8} A request for hearing must be filt(! directly with the EMC either by prtvllIe express delivery, lTUIiI or penonaJ fil ing. Req uests may !lot be filed by facsimile, ADEM AI/min{strat{on, C()(/e N, 2. 1.Q4(5), 1bt: reqUCSt is ~med filed on the: date of mailing if sent by certified, registered or eXJ>n:5s mail. ADEM Af{",III{j'/rtl/lon . Code R, 335·2- 1-,04(5), A copy of the 1"t'que.~1 fOf hearing must be served upon the deptU1i11ent. ;\/)EM Arl",{,,/.rlrallm,. ()(/" R, 335·2· 1'.05. 4. P.rtl •• TIle person filing a requeSl for hearing 18, of course, II purty to thlltlletinn, (commonly referre(lto liS the I>clitioncr). '!lIe Comll1in~ion'$ niles ulso mnke ADEM II purty (commonly referred to as Respondent). ADHM Al{milllxlrtllilm . COI{r N. 335.2. 1•. 06(1)&(2). Most hearings proceed with Ihi! conligurutlon. However. this enn chnnge, and oflen does, with respect to appeuls of ADeM's permit decislolls. II hns been common for the Inst $Cvernl yeUr5 to lind ADEM', pemdt decisions being contested by third PI1f·
Lega l Research and Brief Writing State and Federal Courts
Trial and Appellate Levels
Over 20 Years Experience Firm Fee Quotes Given fot Most Work
ties, not the penllillce, Thus, with respe(:t to u I)(:rrnil ded510n, you r client mlly lind Ihm Ihe tenns of a pemlitissued to it by ADEM ure perfectly IICCCptable only 10 see thaI pcr· mit uppeaJed by lin aggrieved third party. In ~uc h s itLialion~, the EMC's ruJ e~ gmnt to the pennil ~cipicnl an absolute right to intervenc Qnd participate fLilly liS II 1'1rt y to the hcaring, ADEM Admflt{slrllllon. Ctxle N, 3l~.2.J •.06(3). 11 is normally in a perminec's best interest 10 p1rtitipale full y in such proceedings in ordcr to assure Ihlll sufficient evi· dence is presented 10 thc UMC which demonstrates Ihat the penni! M issued complies with all applienble regul!ltOl)' rcquirementJ and that. con5Cqucntl y, lhe pennince is entilied 10 the pemtil. J>Unicipnlion by the penniltec also nll(lws the pemlinee 10 Ilppealliny adverse decision \0 cireuit court. ADEM is precluded from tukina such un nppeal becnuse the Act provides tlmt the decision of the cormnls· sion shill I become the finol oction of the deplrtment. Afll. Cm/': § 22.22/\.1(6). 5 . S.lectlon of the He.,lng Offlc., .nd Pre-
hee,lng ProceduN Once a 1't(luest for heuring is flied, the commi ssion typi· cally selects n henting officer 10 Itllndle pretrial mtlUel"$ tlud conduct the hearing, Such hearing officer~ must be II110r· neys licensed to rntctice Inw In the Stllte of AtnbllllUl, ADEMAlimillij.lrtIfIOlI . Cmle N. 335·2· 1·.21(1). /\ hearing officer may heor all mnllers other than chllilengcs 10 an emergency order or ~quest~ to slny lin admillistrotive action, AD1:.' /II AdmilliJtrtlliOlI. Code. R. 335·2· 1·.21(2). The hearing officer i8 required \0 hold at Icast onc pre. heAring conferenee with the pllrtie$, which in (unction lind form rcscmbld prelrial conferences in circuit court. Su ADEMAIlmlnblmtiOlI. CUI{e R. 3lS·2·1 ·. IO, Discovery is limited except as pemtiued by the helll'ing officer u l~der ,..D8M "'lm/nls/mtIOlI. Code R. 31S·2· 1·. II , See Ex parle A/(l/xJmll Dc,}I, 0/8111'1" Miml/semelll" 621 So, 2d 921, 930 (Ala. 1993) (hQlding thm panics to ooministmtive proceed· ina have no nbsolUie riah t 10 take deposition5). However, I!MC rules require Ihal ADEM's Iiles 011 nn oominiSlrative aClion be nlode avuilnb1c immediotely to the pnnie5. M}£M Alimillixlrtlfilm . CIN/e N. 335.2·1 · .10( I). I~ eari n g offieen; have subpoenn power, und such subpoen us IIrt $Crvcd in accordance with the Alubmnu Rules of Civil Procedure, /rl. m335·2· 1· .12,
I. The H•• ,lng The I!MC
rul c~
of procedu re provide tim! a heuring will
be cOlldueted withill 45 dnys of the filing of i request (or
Easy Appeilis 535 Jilek Warner Park wily NE Building F, Suite Two Tuscilloosa, AL l.S404
Phone: 205·462· 1505 Fall: 205·452·1203 Email: Info@casyappcals.com
'%10
1t1>T~"DtA
2000
heari ng, Illthough thc plU1les to the proceeding nmy agree to waive the 45.dny time period, M)EM Adminis/m/rOlI. C(}(/e N. 335.2· 1•. 14(1)·(2), Nonetheless, because this Is lin administmtive ronlnl, you should cxpectlhe evidentiary henrina to be conducted within a relatively short time tlftet Ihc ~qucSt for henring is Iile. The hcnring i8 conducted much like a non·jury proceeding In elreuit court where tes· timony is tnken under OlIth lind recorded by n court reponer. /rl, ot 335·2· 1·, 14(4). The rule.~ of evidence utilized by the COUrtS are 1101 applied in I!MC IIdministl1ltive hearings. In fact, the EMC rules of procedure provide thaI the heAring offiecr "shull admit III evidence Ihal is not irrelevant,
imnllllerial. unduly repetitious, (.'o lilidentilll. pri ... l. le,cd or otherwise unreliable or of little probmi...e ... ulue, except that offers of oompromise ure not odmissible," Id. 111 33~ ·2· 1-, 14(5), The commlu lon may consider hearsay evi· dence, although 11 cannO( base its d«ision solely on such e ... idencc Sierm Club
1',
ADEM , EMC
ma. Nos, 92-
16, tI/ st!q, (1992).
The henring; Is conducted :15 II de 1101'0 proceeding, Id, al 335.2. 1•. 14(6). TIll: burden of proof I, on Ihe pany mp king the req uest fOr heuri nH. /d. The petitioner must estnblish by /I prepondc.ran~e of the evidence thnl ADBM '~ Dction should be dlsnpproved or modifi ed. AOI!'/I1 At/millis/mt /on. COlle R. 335·2· 1·.27(5): Pour St!(/SOl'S Cumlumi"ium Au'll. ~, ADEM . EMC Dkl, No, 94-15 (1994),
C. Fln.1 Ag.nclf Action The En... lron ment!!1 Mllnuge l11enl Act provides th nt the f!MC sho ll issue nn approjlrilllt: order modifyi ng, nppro ... ing or disllp' pro ... ing Ihe depnrtlllelll'S odmlnistmlive action within 30 days
of the hearing, AIn, Code I 22-22A.7(e)(3), As It pmclicul malter, at the close of Ihe e ... idence the hellring officer generally will order Ih ut the "hcurina" remai n open for mldilional evidentiary su bl11 is~ lons for some period of tinlC. At the close. of this ti me, lhe henri ng officer witllu ue his or h<:r fi nd ing~ of nlC!, c(lncluslons of Inw, lind recommendatiOll! to the Commission, At thai point, the Commission has 30 day, in which to accept, reject or modify IIIe herni ng officer's recommendations. Sttl ADEM Allmini.1trc.t;oll . COlle R, 335·2· 1·, 17. The ru les provide that the hellling officer', "recommendation shall be gl ...en due weight but is nO( binding on the Commission." 1tI, at 335·2· 1· .17(4). The hcari na officer doc! not ha...e co-equjll Stlitu tOr')' Duthori ty with the commission, and the commission may reject the heari ng officer's findings even though not clenrl y erroncous, if the "other'" evidence provide$ sufficient support for it! decision. AIt,IxIll,a E"" lmllme.lllnl M (1II118tl lU':/11 CommISS;OIl ~. Fisher 11Il11I.rtr;o/ Strn 'ictl. I"e" 586 So. 2<1 9011, 9 10 (Ala. ei . .. App, 199 1), 111Ccommissioil'S ,'ules nllow pnrties to lile objcx;tions to a hearing offi cer's rccom mc nd~l ion s . AOEM Atimi,til'lrliliOlt. C()dlJ R. 335.2· 1·.28( 1). Objeclions mllSt be filed whhin len dlly~ lifter service of the hearing officer's ftconnuc ndotion lind must set forth ultcmlllive proposed findinas and conclusions ulong with a proposcd order for the commission', coasiderJ' tion. Ill. Responscli to objections lire also permissible if fil ed wi thin 8peclfied time periods. ADEM Atilllillistmljoll. Code. R, 335.2. 1•. 28(2). D. Judlcl.' Re..,l.w 01 EMC Decisions Final orders of the BMC constitute a "fi nlilagency ac tion'" of Ihe depanrneru and lire IIppcullible directly to the Montgomery County Circuit Coun Of' 10 the circuit coun in which the appel. lan t does business or resides, Atll. COliti f 22-22A.7(e)(6). An appeal to circuit coun must be filed within 30 days after issuance of the fi nal order of the EMC. and such judicial
re ... iew shall be had on the IIdrninistrntive record. ld. Judicial review i! said to be pUfli uant to cen ioruri, all hough the SlIIJKlard i$ the sunle IIJ pro ... ided for in the AI;Lbama Admi nistrati...e Procedures Act. Se.e Fisher IIlduSlflol, S86 So. 2d at 910, 1bc standard of teview i5 as follow!: '~I'he circuil court should affi rm the dcci5ion of the Icom· lIl is~ ion ] unless its fi nding' lind conc lu~ions lire comrnry 10 the unconlrudicled evidence or It hus improperly applied those find ings viewed in D legal scn.'IC. lr there is any e... idence to sustuin the (co!mni~ ~ion'51 decision. Ihlel court mUM !lffinn. II IIllly nOI 1lS 5CS S the Inuhrulneu of eonnicting tcslimony or substitute its Judgment for Ihat of the Icommlssion]," Fisher 11U11ISlrllll, 586 So, 2d III 910 (quotiug 1'I101II1ISUlI I', A10btlllw Dt'/J(jrlmclI l o/Mcllwl /'Icillth, 477 So, 2tl 427 (A lII, Cl..., App. 1985) . This "lIny evIdence" Sll1 ndMd obviously places ,. tre mendous burden on any pliny chlillenging II decl~ion of the EMC in cireuil CQurt.
Conclusion Most anomey!, e...en those withoot e~ tcn.~i ...e experience in envi· ronlllental matters, can represent their clicnl5 well in many types of ADEM OOministl'lllivc fICtions pro ... ided lhey know the fu ndan-.emals set forth he~l n und the EMC Rule! 0{ Proct:dw-c. •
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PERMITS, BEST MANAGEMENT PRACTICES, AND CONSTRUCTION SITES:
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Johns/on and Richard Eldon DlWis ,
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he geological proceu o( erGo by wind and water has been a m.'ljor force shaping our landscilpe; how· ever, when erosion i~ caused by stormwa· ter in conjunction with man·induced activitiu a$5OCiated with construction, the pr0ct55 i~ accelerated, Erosion and the resulting sedimentation are major contributing pollutants to our waters and water quality. The Envi ronmental Protection Agency (EPA) retognized that: Even II smallllmount of tonstruc· tion may have a sIgni ficant nega· tive impact on willer quality in localized areas. ~r II short peri. od of time, construction sites can contribute more sediment to streams than previously deposited ovcr $cver(ll dC(ldcs. 55 ~·ed. Reg. 47990, 47992 (No~ mber ~ion c..'Iu~d
16, 1990),
The preparation o( a comtruction site typically includes land clearing, bul1do.!':· ing ground cover, and grading operations th"t strip away protective ~getlltion and root systems HUll otherwise would help hold sollllr\d ~d imen l.5 in place. As rain falls against the exposed ground, the impact dislodges soil particlu allowing Ihe runo« to sUJpeOd the loose sediment particlu and transport them offsite to nearby waterways. Erosion controls must be properly used and put in place to keep the s!ormwater and wil onsite.
What, Generally, Are Best Management Practices? lies! managemert practices, or B1>11's, are defined by the Alabama Department o( Environmenllli Man.1l1ement (ADEM) 3.lI: thost methods, structures and non· structural proceduru designed to avoid, minimize or control poilu. tion from a corutruction site from getting into stonnwater and into st-1le and federal wllters,
General Permit, Part 11 1.),4; ADE1>1 Admin. Code. R. 335·6-6·.02(e); $(I(! a/so 40 C.E lt 1122.2. in other words, BM l's are the erosion find sediment control procedures required to COntrol stormwiI· ter discharge on construction sites.
What law Mandates the Use of BMPs? Thc 1987 amendmenls to the Clean Water Act (Water Quality Act of 1987 or CWA) rcc~nized, in part, the need to I'fquire National PoUutanl l)ischarge ElimiJl:llion System (N PO~.:s) pennits to discharge stormwater from construction sites. and Congrw required the EPA to promulgate regulations (or ccrt.,in cate· gories o( stOmlwater di!-(hllrlle~ in two ph:.ses. 33 U.S.C. § 1342(p). Phase [ regu· lation!, issued in 1990,locused. in part, on discharges from construction activities which disturbed fIVe acres or more. In Ule phased approach, the EPA granted a mora· torlum for cerUlin indu~trial activities, including construction sites sm.111er than nIX! acres. Hughey v. JNS /)e,,,!/opnu.'1Jt Corp" 78 F.3d 1523. 1525 (1 1th Cir. (996), 111e final rule. is,!i\.H!d I)(cember 8,1999, (or Phase II was efl'ective as of February 7, 2000 and applies to construction sitts greater than one acre but leu than five acres, ADEM is C()Il5idering how the rules will be administered at \his time, Soli t ran~po rted during the erosion proceu (mud, sa.nd and silt) Is II pollutant (33 U,S,C.1131 1;Ala. Cede t 22·22· I(3)), and the oonslruction site is a point $OOrte (33 U.S.C, 1 1342). See $k'ITQ Club /1. AbstOtI Construction Co., /11(. , 620 ~'.2d 41, 43 (5th Cir, 1980): Molokai Cham'*' ofComnu.>ree /1. Kukui fMoIokai) 1m:.. 891
F. Supp. 1389, 1<101 (0. Haw, .1995), No pollution may be discharged (rom a point source without a valid permit. 33 U.S.C, § 131I(a); t 1342. Stormwa!er can be dis· charged only when aJlO'Wtd by and in compliance with all cooJitions of a permit issued pursuant to the National Pollutant
Discharge ElimiJl:llion S)-1tem (NPI)ES) program under the CWA, 33 U,S,C. 0 1342, Adischarge permit 15 required before any construction site activity such as land clearing. bul1do~ing, grading, Or other land disturbance that will discharge stol'ftlY.'ater i5 conducted. 40 C.~~ lt t t 122.26(.)( II. I22161b)(I4)("'. Under Phase I, ilny person propo5ing to clear II construction site of five acru or more in size, or smaller if the site is actually a part of a larger common plan of development or ule, <10 C. ~~R.' 122.26( 14)(1l), must first have authoriza· tion from EPA or the state a6ency authorized to administer the NPDES stormwa· ttr program pursuant to 33 U,S.C. t 1342(b)-in Alabama, ADEM. Ageneral. group, or individual NI'DES permit, see -10 C.F.n. § 122.26 (el( I), may be granted allowing cert.'lin stormwalcr discharges so long Il5 the requirements o( the per· mit are met and maintained in (ull com· pliance. Ageneral permit Is essentially II regulation that covers II broad classification o( discharges that do not typically require individualized permits. ADEM has adopted a general NI'DES permit (General Permit) (ALC610000) Ihat reg· ulates storm water and wastt water disch.ugcs from cl)nStruction aetivitiu, excavation, reclamation, land clearing. and other land disturbance activities.
The General Permit Alabama's General Permit for con· struction activities is designated ALG6Ioooo, was first iuued by ADE1>1 in 1992. and generally follows the EPA's permit formal . The General Permit was issued (or a five.year period which automatically expired in 1997 when it was reiuued by Mt:;r.1 (or an additional five yellu, The current Cenerall'crmlt will ell.pire In 2002. Any party authorized to operate prior to August 1991 should have received notice of upiTation requiring resubmiuion of a permit fee and in(ormation (or cove rag~ under the .,PUII .. on 2BBQ I J"
relS5u«i permiL Failure to do so (and there are some situ continuing to optrate under expired permits) is a violation that may result in substantial penalties. No one can operate under the Ceneral Permit without fully complying with iu terms, including: (a) first filing a notice of intent (NOI) to use and be c~red by the Gentral Pennit and (b) filing all required information Including a comprehensivt Bf.ll' plan addressing erosion and sedinlent control measures for stormwater diKharges. Alabama's Ceneral Permit applies to discharges from all construction sites regardless of the size of the project. Cenerall'ermit, Part II A.3. The federal regulntions. however. refer I() situ flve acre~ or larger, unless a smaller site is part of a larger common development greater than five acres. i!:ven though ADEM's permit recites its appli(ation to all sites. in practice ADEM requires permits only for those discharges of stormwater from construction sites that meet the federal five-acre thresh()ld unless the discharges from smaller situ advel'Sf:ly affect water quality of st.,te waten and require an indi\idual permit. The General Permit is a legal document based on federal and state laws and regulations that impose numerous legal duties on II deflned class of persons and activities. ~-or a clear under· standing of the requiremen15. duties and liabilities imposed, the Cener,,1 Permit should be thoroughly reviewed in i15 entirety. Some of the highlighl$ and details arc described below.
Notice of Intent INOII Unlike the federal permit. 40 C.~~ H . § 122. and procedures In some states such as New York, discharges from a construction project in Alabama will not be covered by the General Permit untillhe owner or discharger has properly completed a Notice of Intent (NOI) to be covered. the complete NOI has been submitted to AOEM. Am:M has reviewed and appr(Md the NOI, and the diKharger has actually received an acknowledgment from ADEM. 40 C.~:R. 122.28(b)(2)(iv) and AI.C6 10000. Part II. A. I. The ADEM-approved NOI form 33~
UPYfl .. Ofill:rooo
must be completed by the person seeking coverage under the Ceneral Permit. The NOI must specify the construction activity, the 1000tion of the site. describe and include a BMP plan prepared and certifled by a qualified credentialed professional (QCP), idel\tify past violations. describe the schedule of activity. describe III\d locate rectiving waters, and Include a certificate by the respon· sible person or official seeking coverage.
The Stormwater Pollution Prevention Plan and BMPs According to lhe EPA, the best way to mana!:!e stormwater pollution is by use of a stormwater pollution prevention plan (SPPP) l):L~d on the use of BMI's. 55 Fed. I~eg. 47990. 48034 (Nov. 16. 1990); No/akai, 891 P. Supp. at 1393. The 51'1'1' is required as a part of the EPA general permit IIPplicable in states without approved NPDeS programs. In AJab.1ma, the sppr oounterpart is called the "BMP pliln." which ilbo focu$t$ primarily on planning and management of stormwater omite b). using erosion and $Cdiment control procedutCs. Although the Generall'ermit contains other requirements which must be met, BM I's are the most cri tical and the most visible elements necessary for protecting adjacent waters from stormwater discharlle and preventing violations of the permit conditions. BMl's dQ not rn.ve to be the "best" in e<lch instllnce. but they are requi red to be appropriate fo r the specific site and based 011 good engineering practices. Ceneral Permit. Part 11 , a.2(b). BMPs are designed to be dynamic practices that must be cont inWilly mai ntained and modified to address the progressive changu in the construction site and to reSpOnd to variable weather conditions. Although the Ceneral Permit contains rtquircmcn15 that must be met-!uch :u deW!lopment of a comprehensive plan, implementation, mllinten.mce and modifica· tion of the practices where and when necessary-it is ap~rent that the Ceneral Permit requires minimum standards based on subjective engineering practices, profeSlional judgment and common sense ' that is necusaril)'
required in any complex project driven by the vagaries of weather. tOpOgraphy,
topology, soil condition. and the unforeseen or unforeseeable construction contingencies." CilV of New York v. Ang/ebrook I.td. Purtmmhip, 891 ~~ Supp. 908. 924 (S.D. N.Y. 1995). Storm evenlJ are unpredictable. Due to the nature of construction activities and the potential for the release of pol. lutants. ADEM relies hea\·ity on permit requirements using St-1Ps designed on a site-specific basis by a QCP hired by the permittee. The Cenerill Permit requi res a permittee at all times properly to operate and maintain all erosion and sedimer\l control procedures. Proper operation and maintenance includes effective performance, adequate fun ding, adcQuate operator staffing and training, and adequate quality assurance procedures. Permit requiremenl5 in every aspect specifically focus on BMPs. The most important part of the NOI is the BMP plan. The 1lt-1P plan submitted with the NO! provides the description of the conditions of the COnjlruction site and the project by identifying sources of pollution in stormwater discharges as well as the appropriate mlnagement and control procedures that will reduce or prevent pollutants in stormwilter dischuges. According to ADEt-I, each BMP plan: • must be prepared by a QCP; • must be comprehensive and describe structural and non-structural pr"ctices to prevent and minimize discharges of all types; • must be updated and modified as necuSllry to ,Iddre$$ any ch1lllgcs In deficlcncle~; and • must addrus pre·construction activilies to divtrt up-slope waler around the site, to Umlt the exposure of disturbed IlrtlU to precipitation to the shortest amount of time, to minimize the amount of surface lTea disturbed by phasing. to correct any deficiencies in Bt-1P implementation and maintenance, to remove sediment, nutrients. and other pollutan15 from stormwollcr before they leave the site. and to properly and promptl)' remediate sediment deposited offsite.
Any revisions or additions to the 8r-W pilln must include updated maps, a history or the location and description of the flr-Ws implemented, an analysis of ddiciencies, and f)eriodic inspection reports. Updates and amendments will be considered a part of the Ceneral Permit. AI !\ mi nimum.lhe IlMP plan must address Illlplement.lItion and maintenance of effective, applicable Or-IPs util izing good engineering practices according to at least two specific reference materials: (I) the Alabama Non-/'o;IIt Source Management Ilrogram , 1989. adopt. ed by Am;M Dnd approved by EPA (even thou"h const ruction sites are reco"nized as point sources), I and (2) the S/ormwa/flr {llanagcmclll for COIlS/ruction Ac/iIJifie$- /)uIJClopillg Pol/lltion Prevention PlallS and Best MWJ(Jgellll.mtl'ructices adopted by
EPA. In addition. any other appropriate 8MP manuals or documentJ submitted by the permittee (or qUill. ified credentialed professional) as part of the 8MI' plan that lire approved by ADEr-1 will become part of the Cenerall'ermit. However, any additional material referenced in the NOI and approW!d by ADEM ~comes pout of the permit requirements and must bt: utilized. The Or-IPs are the most vi.sible part of the control procedures and the mO$t critical elements necessary for protecting adjacent waters from stormwater discharges,
Other Requirements The Cenerall'ermlt and the NOI contain other important requirements and duties that must be met in order to maintain compliance. Inl pectlon I nd MonitQring-The importance of 8MPs is noted in other permit requirements such as requi red inspections. monitoring and reports. The applicant is required to have a QCP make periodic inspections of the site and Ijr-Ws to prove that the OMPs were properly dC5i"ned and installed and lhat tht)' are continually maintained. Maintenance may include repairing or
replacing damaged strutturt5. lIS well as modifying BMPs to acdrus project site conditions and t hanges in weather conditions, Inspections must be made regularly once a month and within 72 hours of any rain event of 314 of an inch or more In any 24-hour pu iod. An Am;M Inspection Certification neport form must ~ used tl) providc an annual report to ADEM summarizing the perlodit inspections. Monitoring and sam· pUng are not required if the QCP determines and tertifies on reports that sam· piing of dis<:harges is unnetessary to prOW! that the OMI>s are effective, A rain JtauJte onsite or nearby should be erect· ed and monitored. Sampling of discharJle5 is not required if the Qcr determines ,lnd certirll:5 on rCPQrts thaI such sampling is unnecessary to prove that the BMPs are effecllve. Any noncompliance mun be identified and reported using forms adopted by ADEM within five days of an)' dis<:harge that is unpermitted, threatens water quality. contains a hazardous substance, exceeds permit conditions, or results (rom fail Ing to comply with IlMP requirements. Since dischargers are required to pro· vide periodic reports to A DI~ M , compliance Issues can be raised after the fact by a review of the re\XIrts or if the discharger fails to submit required Information, Spill Pmoention Control and Countermeasures plan (SI>CC)- If fuel, chemical or pollution storage tanks are to be used and located onsite, a SPCC plan musl be included and implemcrltcd tt) prcvtnt spi ll5 and e~pe dite cleanup of any that may occur. General Permit, Part II , 8, 3, Other Du Uel l nd ResponslblllllClThe General Permit is riddled wi th affirmative duties imposed on the permittee and others, (or example: (a) a duty to comply with all requirements of Ihe Ceneral l'ermit, the NOI, and any supporting documents: (b) a duty 10 display a facility idenlifitali(ln containing 5uffit ient information to clearly id ~ nllfy the permittee, A[)EH authorization number and other required information: (c) a duty to miligate adverse impacts that result from any discharge of non·com· pl1ance; (d) a duty to allow A[)gH access
Elevent h Circuit lawyers' Advisory Committee The Eleventh Circuit lo ....,vors· Advisory Committee writes to inform or remmd Alabama law;ers 01its exrs· tence aM purpose By statute, thero is. lor each fedoral cirCUit, a "law;ers' AdYrSOlY Committee· The chief Judge of each fedeml district in the CirCUit40V9flng Florida, Alllbarrnl and Goorgia-nomi. nates to the chiof judge 01 the Eleventh Circuit ana laWj'er to represent the district on the committee. and the chief judge of the circuit appoints tho committee, neorly alw<r{S 'rom all thOse nominated The Alabama representall\l9S on tho commIttee are Carol Sue Nl tH n for the Northem Oisolc! of Alabama. Richerd Cohl n lor the Middle District 01 Alobama. aM Dlvid Begwell lor lhe Southern District 01 Alabama (additionally, 01coursa, oach disUict In Ftoflda and Georgia has a representative). Tho lOWj'ors' Advisory Committea and tile Rules Committee of Ihe United Stales Court of Alllleals hlwe worked Iogtl:thor on sovoral pro· posals IOf amelldments to the rules The committee mootS oo:e Of tWICII a year. and o\horwr$ll COffIl!pondS by lI·mait or post Tho Job of tOO commit· tee is to selVa as a l8Wy1lrs' sounding board for rules or procedural proposals by the court and also to maie sugges· lions and pass on ideas Iron the bar to the berlCh Most recently, Itl! committee was heavily involvod in proposals respec!lOg the handling of motions lOr eXllmsions of limo aOO relotod maners. If yoo hava suggestions or ideas about EIOY{lfl\h CirCUit civil or crimiMI practice, foollrae to pass them on to YOUI representatives NaturaUy, the commillee can't lIelp you With tile result of partJculor cases, but If you ha~e a 90neral suggostiOn, Ne OXiSl to consider 11and ptlSS It on II it IS good. Devid A, Bagwoll, chair P.O. BOil 290, Mobile AL 36601
to inspect the property and records: (e) a duty to rep()rt and correct any upset condition; (0 a duty 10 comply with all other stMutes wId regulations: (g) a duty to notify ADEM of commencement and tennination ofactivity; (h) a duly to have reporu and fonns properly compitted and signed; and (i) a duty to maintain recor~s for a minimum of three years unlus the permit is subject to litigation or enforcement action.
Who Applies For and Who Is Responsible For Permit Compliance? These Questions have several answers according to the provisions of the Ceneral Permit. If all terms of the General Permit Wfre defined. we would certainly have a better idea of the liability exposure to parties at the conslruc· tion site. No one, no person, may discharge stormwater without a permit. 33 U.S.C. § 1342. "Person," "owner," "operator:' and "permittee" arc allterffis u$Cd in the Ceneral l'ermit. However, "per· $On" is the only term defined by stMute and regulation. The definition deJCribes a broad collection of parties, including Individuals, corporations. partnerships. government entIties, limited liability companies, etc. Ala. Code § 22·22· 1(b)(7); ADEM Admin. Code neg. 335·6· 6.02(ii), Persons who will or who desire to discharge stormwater from a COn· struction site art required to have an NPI)ES permit. General Permit Part II. A.(I ). A person meeting signatory requirements of the water quality regu· lations must sign all documents (Ceneral Permit Part II, A.2.(d){ I)), and any person tampering with equipment or falsifying records will be subject to civil and criminal liability. Once the NOI is filed and accepted by ADEM, ADEM will gr.mt authorization to Dnamed Pilrty, the permittee. The permittee has the ultimate resl)Qnsibility for compliance with the law and the permit conditions, although other persons, including indivitkJals, will be exposed to liability if oompli~nce i, oot maintained, The permittee must rn.lke sure all other persons Dre continually In compliance
onsite. Any violations by any contractor, subcontractor or employee will be deemed violations by the permittee. Ceneral Permit. I'art II, £. 1.(e). The per· mittee must sign tilt NOI. certifying thereby that the NOI, the BMP plan, and all attachments were prep3red /lithe permittee's direction by a QC!', that inspec. tions will be made. and th.lt the BMl's implemented will be maintilined. The BMP pl.tlrt ,an only be prepared by a OCP- who must certify on the NO! that a comprehensive 8M!> plan was pre· pared under the OCP's direction and that the permittee Ius bet n advi$Cd of the plan contents and requirements. It is the permittee's r~ponsi bi1i ty to see that the plan is put into effect and main· l4lined. The ocr is defined by the General Permit to incl ude professional engineers or certified professionals in erosion and $Cdimtnt control as well as others that may be approved by ADEM. It is interesting to note that several categories of "certified erosion control perMlI1SH may be allowed to oper,lIe onsitc. The QCI' who prep;lred by BMP plan call (and should), if hired by the permittee, conduct the monthly and periodic ilUpections as well as the final inspection onsite. Owners, developers or other per$Ons who would not normally qualify as QCPs may I4lke cert.,ln state-spon· $Ored erosion control short courses to obtain a "certificaUon" that will allow them to make the mon thly and rain(all inspections but which will not allow them to prepare a BtoI P plan. l1\llke modifications or conduct final inspections. Any report or monitoring data must be signed by the pennittee. a desiJ{nated agent of the ])CnnittCf. or a responsible official of the permittee. ADEMAdmin. Code R. 335·6·6-.09. The infOrtTlJtion must be certified to be accurate and to have been gathered at the signatory's direction with the awareness that the submis.sion of any false iriormMion would be: $ubjl'Ct to civil and criminal penalties. ADEM Admin. Code R. 335·6·6-,09,
Enforcement and liability Permittees and thost who should, but do not. have pennits must be concemed about alleged regulatory violations and
claims based in the common law, Potential regulatory violations include making prohibited discharges without a pennit. the violatlon of or omis.sion to comply with any permit term or condition, and the knowing making of any false statement. represent.'ltion, or certi· fication by a QCp or respoosible official. or tampering with any monitoring device or method requin:d by the permit. Potential common law claims include negligence. nuisance and tresp.'W.
Regulatory Violations Pursuant to AI)EM 's regulations, an explicit duty to comply is imposed: The permittee must comply with all conditiQns of the permit. Any permit noncompliance constitutes a violation of the AWPCA and the FWPCA and Is grounds for enforcement action. fot permit termination, revocation and rtissuance. suspension, modifiCllllon; or denial of a permit renewal application. ADEH Admin. Code R, 335·6·6· .12(a)( 1J:.we Ceneral Permit. I'art II, E. I.a. The regulations provide that k[II.Jny person who violatu a permit condilion is subject to a c,vil penalty as authorized by Code of Ala. 1975, § 22· 22A.S(18) (1987 Cum. Supp.) and/or a criminal penalt}' as authorized by the AWPCA [Alabama Water Pollution Control Actl .~ ADEfot Admin. Code R. 335-6·6·.12(a)(3). The permittee also has a duty to mitillilte permit violations or any adverse impact from violMions, ADEM Admin. Code It 335·6-6·.12(d); see Gerleral Permit, Part II, C.1. Enforcement may be directed against "[alny person required to have a NPOES permit pursuant to this Chapter and who discharges pollutants without said permit, who violates the conditions of said permit, who dischargu pollutants in a manner not authorized by Ihe per· mit, or who violates this Chapter or applicnble orders of the Department or any applicable rule or standard under this Division." ADEfo1 Admin. Code R. 335.6·6·.18(2). Primary enforcement authority (or regulatory violations liu within the administrative agency
charged with responsibility for administering the statute Ii again. in our state. ADEM. (EPA. howeVfr, will always maintain llmt it has reserved iu own, independent. enforcement authority. See, 6.f/ .. 33 U.S,C. § 1319(a)( I), (2),) Enforcement action may take the form of an administrative order MreQuiring abatement, compliance, mitigation, cessation of discharge. clean·up. and/or penaltiesHj an action (or damalles: an action for injunctive relief: or an aclion (or penalties. ADEM Admin. Code R.
335·6.6•. 1812)(,Hd). f.l aking prohibited discharges without a pennil is, essentially, self·explanatory, thus meriting no lengthy discussion, and is, in any event, well illust rated by the Wrighll1rolh(trs (lnd IJrollJn cases discum:d below. Ex..lmples of violations of permit conditions Include, but (Ire not limited 10, thf following: • discharges in yiolation of Ihe state's water quality criteria as set forth in ADEf-t Admin. Code R. 335·6·10-.01 et seq. • failure to design, implement and I1l2ilntain effective and appropriate Bf.Ws • failure to conduci monthty inspeclions and makt periodic reports • failure to maintain facility identifi· cation and • failure to retah and produce records. The AWPCA prescribes the (ollowing penalty fo r such violalions: Any person who wili(ully or with IIross neAliAence violates any pro· vision of the ch)ptcr, or rule, reA' ulation or $Illndard adopted under this chapler, or any condition or IimlLltion In a permit issued under this chapter shall be pun· ished by 11 fine of not less than $2,500,00 nor more than $25,000.00 per day o( violation or by imprisonment for not more than one )'tar, or by both. [f the conviction is for a violation com· mitted afiH a first conviction of such person under this subsection. punishment shall be by a fine of not less than $5,000.00 nor more
thim 550,000.00 per day o( vio[atiON or by imprisonment for not leu than one year and one day nor more than two years, or by both.
Ala. Code § 22·22·14(a). Note that the statute is somewhat more liberal lhan the General Permit itself. The Ceneral Permit recognizes only two defenses to liability for permit vioi ations-~bypaS5ri and Mupset." Ceneral Permit, Part II, 1),1 and 2, Also impliCit In the statute are the defenses that the defendant's act or omission was not willful nor WIU it grossly negligent. II "bypass" is "the intentional diversion o( waste streams from any portion o( ~ trc,ltmen! facility. " Ceneral ilermit, Part [1[, J.3: s,-e <10 C, ~~R. § 122.<1 I(m){ I). A bYPMS 15 permissible (1) if no discharge limitation is exceeded. and the bypass is necessary (or "essential maintenance" for ~ef(jcient operalion" of D. treatment or control racility or system. Ceneral Permit, Parl ll.D.l.b,; or (2) if it "is unavoidable to preVfnt loss of life. personal injury, or sevtTe property damage," no feasible alternatives exist, and Am:Mapproves a written request lIuthorizing the bypass ten days prior (if pouible). Ceneral Permit, !lut U, I).!.c. An Mupset" is "an exceptional incident in which there is an uninlentional and temporary noncompliance ~- in the construction context. an extraordinary rain eVfnt- but an upset does not inciude "noncompliance caused by operational error, . , lack of preventive maintenance, or ca rel~ss or improper operation." General Permit. Part Ill , J.2<1: see -10 c. ~: n . ' 122.-1I(n). To have the benefit of the "uput" defense, the pumlttee must orally report the "occurrenee and circumstances of the upset" to ADEMwithin 24 hours, and, no more than (jVf dbYS later, furnish ADgM with evidence, including operat· ing logs, that: (1) an upset occurred: (ii) the per·
mittee can identify the specific cause(s) of the upset; (iii) the permittee's facility was being operated properly at the time o( the upset; and (iv) the permittee promptly took all reasonable steps to miniml!.e any adverse impact
on human health or the environ· ment resulting (rom the upset. General Permit, Ilart 1I.0.2.a. TN: permittee has the burden of proof regarding both bypass and upset. Generall'ermit, Part 11.0, I.d.; II.D.2.b.: S'->e 40 C.ER. § 122.41(n)(4). The AWPCA also pl'tYllides (or a civil action, in the name of the state or the Attorney Ceneral, "(or damages for po1tutioo of water of the state, ~ including both compensatory and punitive damages and "all rcuonable cO$I$" of the department thM InvestiSlltes Ole pollution. Ala. Code I 22·22·9(m), If the vlolallons result in a fish kill or the death o( other wildlife. the violator will be responsible, in addition to other penllities, for lXlying the stale to restock the waters and replenish the wildlife. Ala. Code § 22·22· 9(n). Finally, injunctive relief is available. &>eAJu. Code 122·22-9(1)(4): ADEM Admin. Code R. 3.15·6·6·.18(2)(c); Ceneral Permit. Part III, A.3.b.(3). If enforcement is undertaken by EPA pursuant to the CWA. administrative
ALABAMA FORENSIC DATA SERVICES, INC. PMB 424 2467 Highway' 50 • Suite 401 Hoover, AL 35244-3538 205·613·6725
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IACIS Certtrled Foren. lc: Computer Exami ner Trai ning Include. NT! , Sea rc:h and IACIS
Data Recovery and Consultations in Civil and Criminal Cases.
penalties of up 10 $125.000 may be imposed. 33 U.S.C. § 1319(g). or, in a judicial procecd'ng, a civil penalty not to exceed $25.000 per day for each violation. 33 U.S.C, 1 1319(d), as well a! injunctive relief, 33 U.S.C. , 1319(b). The CWA 01150 qUillines when crimil\al penaltiu may be Mse$Sed (or negligent violations, 33 U.S.C, , 1319(c)(1). (or knowing viola· tions, 33 U.S.C. f 1319(c)(2), and know· ing endangcnncnt, 33 U.S.C. , 1319(c)(3). \\'hile it setfll$ unlikely that the knowing endangennent (placing "another person in danger of death or serious bodily injury") would come into play in conjunction with BM Ps and con· ~t ruction sites. negligent and knowi ng violiltions are certainly implicated, Criminal penaltics fo r negligent viola· tlons are "a fi ne of not less than $2,500 nor more lhan $25,000 per day of viola· tion. or by impnsonment for nOt more lhan one year, Of by both. 33 U.S.C. ' 13.19(c)( I). Cnminal penalties for knowing violations are ~a fine of nollw than $5.000 nor more than $50,000 per day of violation. or by imprisonment for not more than three years, or both." 3J U.S.C. § 1319(c)(2), If the person in viola· tlon haJj a prior corlViction under lhe statute, each of the5e penalties can be doubled. See 33 U.S.C. f 1319(c)( l) - (2), Cood faith is al~ not, in and of iuelf, a defense to Clean Water Act violations. SL'I! Atlantic Stales (.egal Fouru/alion /I, '/VSOtI fbods. Inc., 897 F.2d 11 28, 11 41 (11th Cir, 1990) (pursuant to 33 U,S.C. , 1319(d), I«>Od faith should be a factor considered in iWming a penalty but it cannot be the only ("ctor). False certification embraces all reports and fo rms required to be sub· mi tted under the Central Permit, including. but not limited to. the NOI and any inspection and monitoring reports. Uoth the NO! (orm and the Ceneral Permit form require the signll· tures of the QCP and the UPermittee Responsible Official" as certification "under penalty of law." The specific penalty of law is not specified, although presumably. Ala. God¥! § 22·22· 14{b) Is intended: Any person who knowingly makes any (alse statement, representa· tion or certifICation in any allpli. R
cation, record, report, plan or other document filed, or required to be maintained, under this chapter or who falsifies. t;Jmpers with or knowi ngly renders Innccu· rate any monitoring device or method requi red to be mllintained under this chapler $hilll, llpon conviction, be punished by a fine of not more than $10,000.00 or by imprisonmtllt for not more than silt months. or b~' both. If prosecuted by the EPA, the same conduct "shall upon convlc tion~ be punished by a fine o( not more than $10,000, or by imprl$Onment for not more than 2 years, or both." 33 U.S,C. D1319{c){4). The penul ty may be dou· bled If there is iI prior conyiction. 33 U.S.C. § 1319(c)(4). Under cerUlln circumstances, citizens too can ptay an enforcement role, Aciti· zen suit may be brought pursuant to 33 U,S.C, I 1365! Except in cerUin inslances, citizen suits c.mnot be filed prior to 60 days after notice hll$ been lIiven per 33 U.S.C. t 1365(b)(I)(A) (to Ihe Administrator, the State, and the alleged violator) or (b)(2i (to the Administrator). An action may not be commenced ;'if the Adml nlstriltor or State haJj commenced and is diligently pursuing a civil or criminal nction . , . but the citizen may intervene in any such action as a matter of right." 33 U,S.C, § 1365(b){I)(B), Citizen suiu do not preempt or restrict other sUtutory or common law causes of action. 33 U.S.C. § 1365(c). The COllrt may. in its discretion, award litigation coslS, including attorney and eKperl witness fees, to any substantially prevailinlt party. 33 U.S.C. , 1365(d).
Common Law Causes of Action Apart from the statutory enforcement mechanisfll$, state common law causes of action can addreu damage caused by erosion, siltation and sedimenl,' Negllgence-Por a negligence cause of action, the plaintiff must establish ( I) that the defendant owed a duty to the plaintiff: (2) that thedcfendlml breilched thilt duty: (3) that the plaIntiff suffered loss or injury: and (4) that the
defendant's negligence wa.s lhe actual and proximate cause of the plaintifrs loss or injury. See, fI.g., f'ord MotaI' Co. /I. BurdeshCllII, 661 So. 2d 236. 238 (Ala. 1995) (citing wllar /I. Poe, 622 So, 2d 902 (Ala. 1993)). The duty may be breac.hed by fallure 10 exucise due care, which is relative and depends on the fact$ of ellch particular cue. See. e.g., Cox /I. Millil'f, 361 So. 2d 1044, 1048 (Ala. 1978) (citing TJ/lcr t'. Drt!llllel1, 51 So, 2d 516 (Ala. 195 1)). Whether an act or omission to act is negligent will be judged by what a rCilsonlilly prudent person would have done under the same or similar circumstances. SIre f'ord Mol ar Co.• 66 1 So. 2d at 238 (citing Elba Wood Producls, frlc.
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356 So. 2d 119 (Ala, 1978)). Thu$. the failure to use appropriate best rllarlagement practices for a giVfn site In accor· dance with good engineering practices could be a breach of the duty, So long M the elements of cilusation and dam· age were proltimalely established, a cause of action for neltligence could be mainuined. For the element of cauSlltlon to be established, there must bt a reasonable connection between the aet or omissior\ of the defendant and the plalntifrs inj~r ry. &f, 4I.g., Wassmlm /I. Mobile Co, Commission.s Disl., 665 So. 2d 941 , 945 (Ala, 1995) (quoting Prosser and Keeton on The Law of Torts. § 41a1263 (5th ed, 1984)). That is, the fai lure to use good engineering practices mUll be lhe proxi· mate cause of the subsequent pollution of the water, In IIddition to other ....'CtIestablished defenses to a negligence cause of iletion, II defendaot in the con· struction context should look (or inter· yening and superseding causes of any pollution. siltation or Jedimentation. To be effective in defense, "lain intervening cause must be unforeseeilble and musl have been suffielent to have been lhe 'sole cause in bct' of the injury." LurrC(', fllC, /I. Ramanauskas, 73 1 So. 2d 1204, 1210 (Ala. 1999). It is not. however, sufficient (or the defendant simply to point to the existence of other possible causes. Su Springer II. Jefferson Co.• 595 So, 2d 1381, 1383·84 (Ala. 1992). Additionally, violation of D stalute may be negligence per se, or negligence
M a matter of law, if the statute or ordi · nance was enacteJ for the protection of the persons injured, See Klffl/oll v. Fayette County, 558 So. 2d 884, 887 (Ala, 1989), Thus, a plaintiff could argue that a violation of a permit require. menl-including. but not limited to, the failure to follow a BMP plan- was negligence per se. The defendant should counter with the argument that the sthlule was adopted to protect the inter· ests of the general pubUc-for example, ~sce ni c, recreatioMI, and other environ· mental values." Sa Alabama Power Co. v, Dunaway, 502 So, 2d 726, 730 (Ala. 1987) (violation is not su(ficient to impose liability upon defendanllf pur· PO$C of sti1tute or reguilltion is to secure 10 individual enjoyment of ri~hts and privileges to which citizens are ent itled only as members of the general public), Nullance-A caU5C of action might lie for nuisance. See Ala, Code' I 6·5· 120· 127. The law of nuisance rests upon lhe common law principle Mthal every man must SO use his property u not to injure that of his neighbor." Acker v, Protectiw Ufe Insurance Co.. 353 So. 2d I ISO, 1152 (Ala. 1977) (citing F(lr;ss v. Dudley, 78 Ala. 124. 127 (1884)). The law of nuis:ance applin. in the traditional sense. where there Is Interference with the use and tnjoyment of one's property. lkJrland v. Sanders l.ead Co., 369 So, 2d 523. 529·30 (Ala, 1979), To t$Ulblish a cause of action for nuisance, the plaintiff must show conduct by the defendant. in breach of a lelia! duty, Ihat proxin,ately caused the injury, inconve· nlence or damage. SI.'f!, e.g .. Willard II. City of Nuntsviff('! Electric Utility Board. 599 So. 2d 1108, 11 13 (Ala. 1992). The Bor/aml cllse Is highly significant because it held that compliance with pollution control laws does nol relieve a defendant of liability from damages for nuisance. Although the defendant com· pany was found to be in compliance with the Alabama Air Pollution Control Act. Code f f 22-28- 1 el SL'Q .. the defendant was still C.llposed to liability for damagt$ caused by pollutants emitted from ib smelter that formed a danger. ous aceumulation o( lead particulates and sulfoxide deposits which made the plaintiffs property unsuitable (or rais·
ing cattle or growing crops, See IJoriand, 369 So. 2d at 525-26. lkJrland also held lhal lhe fact that the plaintiffs
property had a m\lch higher value as commncial property Ihan as residential or farm property bcc.lluse of its proximity to defendant's lead plant did not bar recovery. Id. at 530. 1'relpau-ConduCl that constitutes a nuisance may also constitute a trespass if the conduct results in the actual inva· sion of the posses.sor·s inlert$t in exclusive possession of the property, Sa Oorlalld, 369 So. 2d 523 (Ala. 1979). The polluting substance does not have to be placed directly on plaintiffs property to constitute a trespass. In the cue of Rushing /), Hooper.McDonald, Inc., 300 So. 2d 94 (Ala. 1974), the Alabama Supreme Court held that a complaint alleging that an adjoining landowner dumped a.~phall and asphalt-like material 50 that in due course the materials f Iltered a stream which carried them into a fish pond (in which the plaintif( had a leasehold interest) polluting the pond and killing fish was sufficient to allege a cause of action in trespass notwithstanding the fact thllt lhe mille· rial was not dumped directly onto the plaintiff5 land. However. the complaining plIrty mU$t actually have posse»ory rights in the land or waler at issue. See, e.g.. JOlles v. Newl()ll, 4SA So. 2d 1345 (Ala. 1984) (where complaining adjactnt landowners did not enjoy any possessor)' rights in the land al issoe and there was no evidence that developers built any structu re on or over property owned by the adjacent landowners, developers did not trespass on that l)rOpcrty). Damagu-Compensator)' damages maybe awarded for each of these torts.' lila. Code n 6·11 -20 e/ seq. governs award5 of punitive damages, Punitive damages arc not available for simple negligence, Bradley /). Walker, 93 So. 634,635 (Ala. 1922), bul may be recovered i( there is clear and convincing evidence that the defendant's act or omission wu wanton, seeA/a. Calk f 6-11 20{a): Hamme v. CSX 'l'ransportatiorl, Inc.. 621 So, 2d 281. 2M (Ala, 1993). Punitive damages may also be a~'arded (or nuisance and lrespu5 where the act
on which the claim is based is wanton or mal ldous. See Abbofl v. Braswell, 265 So, 2d 87 1 (Ala. 1972) (nuis:ance): Rushing v. floopcr.McDonald, Inc, . 300 So. 2d 94 (Ala, 1974) (tft$pas$). Injunctive: reHef is also available for nuisances.!;ft, e.g .• Ala. Code .. 6-5- 122. 125.
Illustrative Cases While the reported court opinions and administrative decisions concerning construction and stormwater permits nre few In number, it standi to reason that they would, for the most part, focu5 on the necessity of aCQuiring a permit and on the manner o( implementation and maintennnce of I3MPs. An instructive recent federal case from our jurisdiction is Driscoll u. Adams, 181 F.3d 1285(lllhCir, 19~).C(Jrt. di!/Iied, t20 S. Ct. 1961 (20GO). Adams owned 76 acres of land, and the Driscoll$ owned appro~imately five adjacent acres. The Galbreaths owned two acres adjacent to the Oriscoll$. Astream nowed downhill (rom Adams's properly through a pond on the Driscolls' property, and then through a pond on Galbreath!' property, before the stream merged with the Notterly River. which united across the Georgia-Tennessee border with the Tennessee Rivtr. Witho\lt seeking approv .. 1from any federal, stale or local government, Adams harvested timber. cui and graded roads. graveled Ule roads, buill culverls and dams to channel stormwater runoff, and subdivided his property into resi· dcntiallots, The developmeTlt caused erosion (which Admns did Httle to pre· vcnt) and damaged the I)rlscolls' .. nd Galbreaths' properties. Adams finally sought a state permit a year and a half after he began to develop his property. He did not procure a county development permit until two months after the Driscolls and Galbreaths sued him for violations of the CWA and for nuisance. trespass and negligence under Georgia slate law. Adams "''Ver obtained an NPI)ES permit. The Issuu on appe::.l were (I) whether the CWNs zero-discharge stMdard, 33 U,S,C, f 1311{a). applied to a discharger who could not
obtain an NPI)(o:S permit because none was available and (2) whether Adams's discharges ftll within the $Cope of prohibited dischaTltes under the Act. On the firsl lssue. the appeals court looked to the narrow eKception il had previously established in Hughey lJ. jMS /)qw/opmmlt Corp" 78 F.3d 1523 (11th Cir. 1996), to the general rule of Hablli· ty for dischargu without an NPDES permit. The exception would be deemed to apply if: I) compliance with the zero dis· charge standard was factullily impQ55ible because there would always be some stormwater runoff (rom an area of development : 2) tilcre Wall no NPDES permit avail· able to cover such di~chilrge; 3) Ihe discharger was In good·faith com· pliance with local pollution control require menu. which sub.itanUally mirrored the proposed NPDES dis· charge sUnmrrls; and 4) the dis· charges wen minimal.
()risco/I, 181 Fo3d at 1288, 1289 (ciling HUl/hcl/. 78 Fo3d at 1530). In Olher words, Hughey crellted II narrow tltcep·
lion to the CWA's zero.discharge stan· dard (or any "minimal discharge that occurs despite 11 developer's best effort! 10 reduce the amount of it and comply with applicable law.~ ()riscoJl, 181 t:3d at 1289 (citing Hugheg, 78 ~~3d all 530). The Driscoll court distinguished the case before it (rom Hughey. finding lha.t developer Adams did nol satisfy the third and fourth elemenu of the tIlceplion: Adams did little or nothing to limit erosion or stormwater discharge before be[linning construction. He $Ought none of the required per· mi~ untilal\er considerable dam· age had been done to the [plain. tiffs'l properties.... ITlht amount of Adams' stormwater di5C.harge and the resultlng damage were wbsmnlia!. ... 64 tortS of sediment wtre deposited into their pond~ as a result o( Adams' activities. Driscoll, 181 F.3d 3t1289.
On the secol\d issue, Adar'i'ls IIrgucd Ihlll he did not discharge a pollutant (rom a point source into a navigable
waler. The appeals court summarily rejected this argument. The definition of "pollutant" is broad and specifically I nclud~ sltrld Imd silt such as was left in the plaintiffs' ponds. See Driscoll, 181 ~;3d at 1291 (citing 40 C. ~; 1t § 122.2 and Hughol/, 78 t:2dat 1525 n. l ). "Point source" is also broadly defined and. becauu Adams collected stormwater through pipes and other means prior to discharge into the stream, he was within the meaning of 1ha.lltrm under the CWA. Driscoll, 181 F.3d at 129 1 (citing 40 C.F.R. § 122.2). Finally. the Elew:nth Circuit had previowly spoken authoriU· lively on the term ~ navigable w31ers~: The CWA defines "navigable waters" as "waters of the United Slates. including the terri torial areas." 33 U.S.C. § 1362(7). This broad definition "makes it clear that the term 'navigable' as used in the Act is 01 limited import" and thai with the CWA Conllress ch()$e to regulate waters that would not be deemed navigable: under the classical meaning of that term.... ConseQuenlly, cou r~ have acknowledged thllt ditchu and canals, as well as streams and creeks, can be ''waters of the United States" under § 1362(7). Ukewin. there is no rea· son to suspect that Congress intended to eltclude from "waters of the United Stalu~ tributaries that flow only intermittently.
United States II. t,'idsolJ, 108 t·.3d 1336. 13<11 ·42 (lith Cir. 1997) (holding thai a man·made drainage ditch was a navigable wllter under the Clean Water Act) (citations omitted) quoted in Driscoll. 181 F.3d at 1291. The stream Into which Adams discharged was thus a "navigable water" llnder the CWA. The federal district court eMes of Mol{Jkal Chamber ofCommet'CC lJ. Kukui (No/akai), 1m.. 891 F. SuPP. 1389 (D. 11aw. 1995), and CUll ofNI!IJJ )'ork lJ. AJlg/ebrook. 89 1 ~'. Supp. 908
(S. D.N.Y.), uff'd, 58 F.3d 35 (2d Cir. 1995), arc also instructive. In Molo/mi, the derendants were alleged to be in vlo· lat lon of lhe CWA (and applicable Illite statutes) because they (1) failed "to
obtain .a proper and timely stormwater permit before and during con5truction~; (2) failed "to comply with the state's general stormwater permit cond i ti on~": and (3) discharged pollutant! into waters of Ihe United Stales without a permit. Because the defendants began construction without having their BMP plan accepted by the stale ilnd before they had receivtd iI Notice of Ceneral Permit Coverage, they were held to M in violation of the CWA. The fact that the defend/lflt! stopped construction as a result of receiving a Notice of Violation (NOV) from lht state was not a defense because there ....as "8 total absence of erosion controls, extensive runoff, heavily stai ned with top soil, silt. and other d ~bri5. runninll from the pro· ject site irlto the ocean." 891 F. Supp al 1395· 1396. The court observed. [The defendant's argument] loses sight of the focus of the Act: the water. It fails to account for the interplay of rainwater lnd the con· struction site. and interaclion thai the act and itJ regulator)' scheme is intended to manage. It is tile dis· charge of water without permit coveralle thal violates the Act, not the construction activity itself. 891 E Supp. aI1400. The defendants should not then have Men surprised when they subseQuenlly received notifi· cation that their NOI was incomplete. No Bf.1P plan had even b€en submitted: there was no grading plan, no sediment and erosion control plan, no permit approving plans from lilt rdevant coun· ty agency, and no detailed description of lhe installation and location of slit (ences being used. In Anglcbrook. 891 ~~ Supp. 908 (S.D.N.Y. 1995), New York City sued the developer of a golf couru, claiming that the devdoper's SWPI'I' violated section 402(a) o( the CWA. Under Ihe State of New York's program. the Ceneral Permit requi red that a SWPPP "include detailed descriptions of plans for erosion and sed· iment controls, monitoril'4l, and rec.ord keeping"-a slandard t:PApermit condi· tion. Id. The trial court found the critical i$.Sue to be whether the Cenerall'ermit's guidelines are "hitching posts" or "sign
IIWIc\I. UnTIL. 11.11.I'!t \cnn: I': WI'IITS po5ts~-that is, whether they are "mandatory" or "aspirational:' Id. The court looked to the language of the General Permit itself and observed:
the regulations governing the con· tents of an SM' PI' are cast in con· siderably more open.textured terms than the City would con· cede. Pari III of the General Permit states that the plans should be prepared In accordance with "good engineering p racUces. ~ In its description 0( various sediment and erO!ion control and stOtl\lWIller management practices, the Ceneral Permi: requires that permittees prepare plan5 which ~con· form to" or are "implemented in a manner consistent with" those meMuru. Further, the Appendices which set forth in more detail various storm ....'ater runoff prevention approaches are self-entitled "Guideli n es~-not requirements. J'.10reover, each Appendi)!. explains that its purpose is to "provide guidance" and each includes the provision thal li is "not fi)!.ed and I nnexibl e~ but is to be applied in a manner which considers lhe "particular facts and circumstances of a particular projecl.~ In review of this tcxt and conte)!.t, we find that the Guidelines are Intended to be nexible rules which contemplated-and Indeed require-applications to txercist good engineering practices, informed by profusional judg. ment and common sense, This interpretation best harmonizes permit compliance with the pracUcalitll.'$ and realilies of conslruclion and landscape architecturt. Tht preparation of a SWPPP contemplates the interaction of many disciplines: wetland biology, biology, biochemistry, engineering, allriculture, agricultural engineer. ing, lUrfgraS$ studies, landscape architecture, limnololt)', soil scienct, hydrology, architectural history, and horticulture. Tht Cuidelines tacitly recogni:te the practical di(ficullies of synthesl%-
lng these areas by leaving space for professional judgment. Id. ilt 9 15-16 (citations omitted). The developer's SWPPP demonstrated vari· OU$ erosion and sediment control measures-Including diversions, earth dikes, surface roughening and grading, interior si lt fe nces, perimeter silt (entts, sediment traps, IOdding, temporary seeding, and mulching, The SWPPP also Included stormwater management controls, including detention pond", vegetated swalC$, vegetated buffers, filter strips, oil/Water separators, and biofilters ("a ditch with foliage which intercepts overland runoff and filters it"). The developer's SWPPP also required II neld Inspeclion once a week and within 24 hours after every rainfall of two inches or more and monthly testing of on-site streams and ponds for various chemicals and pesticides. ~'inaJ1y, the developer hired a "qualified professional monitor" (at a cost of $163,000) for the immediately neiQhboring town ;md PQsted a $2.3 milHon erosion and sedimentation bond ,·to insure remediation of any dam.lg~." The developer was not even required by the General Permit to take thO!e last two step5. The court concluded as foll ows:
ITlhe design requirements at issue art Guidelines. They accommodate themselves to the sound professional judgmenlthllt is necessarily required in any complex project driven by the vagaries of weather, topology, soil condition and the unforeseen or unforueeable construction contingcncics, Mlile the swrl'P in question may not be completely immune from criticism of the wisOOm of certain or its design choices, considered as a whole, the SWPPI>is a carefully conceived plan thai falls well within the boul'ldllrit! of good engineering design judgment. If It is Implemented in accordance with its deSign, the proof at tria.l sh<M'ed no real threat or rea.l harm to the Cil}"S water supply and certainly no danger o( immediate irreparable harm. SGA's Swppp conlai.l5 adequate erosion and sediment controls.
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surface roughening and grading, interior silt rencts, sedIment traps, sodding, temporary seeding and mulching. The SWI' PP also provides adequate measures (or maintaining stormwater quality. As indicated above, the tlrst nush of runoff 15 (rtilted IIdequately through dettntion ponds, biofil-
ten. vegetated mter strips, swales and vegetated buffers and its Thrfgrass M~nagcme nt System. Id. lit 924. Because the plaintiff city did not demonstrate that the defendant's plan would cause tht release of pollutants into the waler supply, lhe courl rendered judgment for the defen· dMts. 'TV.'O other dtcisions-one from the Alabama Court of Civil Appeals and one by the Environmental Management Commluion- .ue also worth noting. In ADEM u. Wright Brothers Construction Co., Inc., 604 So. 2d 429 (Ala. Civ. App. 1992). defendant. lht site grading contractor for a shopping cenler developer, was contractually responsible for erosion and pollution control. There was some e((orl 10 mitigate erosion. but soil nowed from the construction site into two tributaries of a creek. Sampling by ADEM Indicated Ihal water from the site did not meet state water quality criteria. and Inspection revealed violations of departmental regulatlollS. The grading contractor had not obtained a permit for discharlle into state willers, so AI)EM i"ued a notice of violation. The conttactor was required, among other things, to monitor engineering plans and implemenlation schedules for sedimen! and stormwater control con· struc15 and for pollution control strue· tures for preventing the discharge o( waste water. Mer a number of deadlint extcn$ions without compliance by tht contractor, ADEM
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live order ~ssing monetary penalties and ordering the contractor to ceMe aU unpermitted di5(.harges (rom the site. The order was appe~led, was determined to be reasonable by the hearing officer, and WIl5 appro~d by the Environmental Management Commission. The contractor appealed various issues to the cir· cuit court, and the circuit court entered an order that did not please either the contractor or ADEM, leading to cro"· appeals to the court of civil appeals. Whll! tht appeals court held that is immediately pertinent to the present topic is this: "Since Wright Brothers (ailed to obtain a permit to dischllTge the sediment. pollutants, and other wastes, every time discharges from the const ruction site resulted in new or increased pollution, Wrillht Brothers violated Ilhe Alabama Water Pollution Control Act I." Id. at 43:1. FiTllllly. 8rfJwllll. ADF.M, 1999 WI. 956675 (Ala. Dept. Env. Mgmt. October 12, 1999). is a very short, straightforward order thal denied an appeal from an ADEM order assessing a penalty against the petitioner bec.luse, even a year after the initial inspection, he was not using BMPs. and sediment from his 40-lIcre con$lruction site was running into II creek. The petitiontr, the hUrin" offi cer found. had "no convincing explanation ... as to why he failed to obtain II permit or initiate proper remedial or preventive measureC 1999 WI. 956675 at ·2.
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The (oregoing only highlights what should be of concern to lawyers and thei r clients. In order to fully under. stand the complexity of this evolving part of the NPI)~:S program and to avoid costly penalties and other sanct'IOns, c• un"" ,. , ShOU " un de,"ok ... e a th orough review of tht ptrmitJ. statutes and re"ulations. •
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DISCIPLINARY N OTICES
Notices • Clarence Chrillopher Cll nlon.
whose whtrcnbouts ar!! unknown, must answer the A];lbarnn Statt Sllr's formal disciplinary charges within 28 days of September 15, 2000. or. thereafter. the charges contained therein shall be deemed admilled and appropriate discipline shall be imposed aJiainSI him in ASH No. 00·87(A) before
the Disciplinary Board of the Alabama Stale Bar.
Relnst.tementa • On July 5, 2000, the Alabama Supreme Court affirmed a prior order of the Disciplinary Boord (panel IV), reinstat· ing Birmil\glWll attorney William Edward Ramsay lo the practice of law. RarTl!.1Y had ~n on disability in.1ctive status since Ftbl'Ulll')' I, 1992. Ue was reinstated subject to certllln condiUoru regarding CI.E and mentoring. He fulfilled these requirement.! prior to Ihe issuance of the supreme court's order. (ASB Pet. No. 97-(04) • The Supreme Court ofilabama entered an order reinstating Atlanta, Ceorgia attorney Paul Ransom Knighten to the practice of law in the State of Alabama effectivt May 23, 2000, This order was based upon the decision of I'allel II of the Dbciplinllry So.lTd.IASS Pet. No. 00·041 • The Disciplinary Board, Panel IV. upon hearing the petitIon for reinstatement of Anniston lawyer o ll.nlt l a-; ugene Moml, ordered that Morris be reinstated to the practice of law effective June t2, 2000. The board's ordtr was adqlted by the Supreme Court of Alabama by order dated July 17. 2000. (Prior public discipline considered: transferred to disability inactive statuI effective 1213199) lASS Pet. No. 00-021
• Notice is hereby given to William Cnohlm CUTOII, who prncticed law in Binningham, lind whOK whereaboulj are unknown, that l,uI1UlLl\! to lin order to shO'o'>' C:luse of the l)iKiplinary CommiSliion of the
Alabama State l3<lr. dated May 24, 2000. he h.u 60 days (rom lhe date of this publication (September 15, 2000) to come into compliance with Ihe Client Security Fund :tSSCSlmenl requirement for 2000. Noncompliance with the Client Security Fund ll.suument re(luircment shall result in a susptnsion of his license, ICSF 00-21 Suspen,lon • Enterprise lawyer Gary Wyatt Stoul received an 89·day 5uspension from the practice of lilW In Ihe State of Alabama with lhe imposition of the suspension to be !uspended and held in abeyance pending succes.sful completion of a two·year probationary period. Ilrobation was conditioned, among other Ihin)U, on the receipt of a public reprimand wit hout gener· al publication based upon his pIca of guilty to yiolating nule 8.4(11), which provides U\at ~it i! professional misconduct for a laW)er to engagt in any other conduct that adversely renects on his fitness to practice law.~ The facts upon which this discipline Is b.lsed are as follows: In AprWI997, a chIld WM hIt by a train. As a result of this accident. her foot WM severed and she was hospitalized at the Southeast Alabama Medical Center in Dothan. Mr. Stout's part· ner's wife, Carrie Brock, was employed at Ihe time with MedAs5ist, which provided u .... ices to patients at Southeast Alabama Medical Center. [n the scope of her employment, Brock met with lhe child and the child', grandmolher. Subsequent to this meeting, Slout appeared at the I\o$pital room, introduced himself to the child's grand-
mother as a lawyer and indicated his desire to represent them regarding lhe injuries the child sustained in the train accident. The next day, Stout again appeared at the hospi\11.1 room and was advised at thai time that they had retained the serviCe!; of anolher law firm. It does not appcar that Stout h:w furlhtr contact with the child or the grandmother after thM time. The fact.! and circumst.ancts surrounding Stout's appearance at the hospital beside of the child alm05t immediately after she sustained severe injuries in a train accident were disputed, The matter was ruolved by a negotiated settlement agr«ment upon Stout's admission to violating Rule 8.4(11). No prior discipline was oonsidertd. Other conditions o( probation were ordertd. IASB No. 97-228(AH
Public Reprlm.nds • BirmIngham attorney Donald Towns Trawltk receiwd a public reprimand without gtneral publication for accepting a fee (or an uncontested divorce during the timt his license was suspended. !ASB N[). 95-172(All 1'rawick received a public reprimand without general pllbl ication (or his failure to appear to receivt II preyiously imposed public reprimand. IASB No. 95-48(AlJ Trawick also received a public reprimand wilhout general publication for impropcrly handling a fo reclosure proceeding with the result that the foreclosure deed was determined to be void, causIng the complainant to sell the property at a loss. IASB No, 95· 49(AlI • Birmingham allorney Dayld Ma1t:oiIn Tanner received a public reprimand with general publication. Thnner reprcsented some clients In a property dispute. The ca5e WM uttled fayo rably to Thnner's clientJ, They filed iI grievance when Tanner (ailed to pur· sue litigatlOf'l against the bonds of a title company and real utate broker. They alleged neglect an~ a failure to
communicate with them. Tanner did not cooperate in the investi"ation of the complaint and failed to respond to three letters and sevetal telephone call5 from the bar. His conduct was a vlolalion of rules 1.3, 1.4(3) and a.l(b), Alabama Rules of I'rofessional Conduct [ASB No. !}g·085(AlI • 'l'\uc.aloo:>a allorney Jamea D, Smith
re«ived a public reprimand without general publiCltion. In July 1995, he took II ca.~ in\'olvin" the overcharging of mortgage payments by a bank. It was a conllng€nt fcc case. He pulthe bank on nolict of the cI"im in August 1995, Mer that he did IiUle else on the case. Thertafter, the client had an increasingly difficult time communicating with Smith. He conlacted another lawyer in the fnll of 1997 and learned that no suit hnd been l1Ied and thtll Ule slil\uh of limitat ions had run. The conduct violated rules 1.3 (willful negleet) "nd 1.4(a) (failure to commu· nlcate), Alabama Rules of Profwional Conduct [ASS No. 98·226{A)1 • Bessemer attorney Halph Lowry Arml trong received 3 public repri. mand without gener,,1 publication in two separllle c.ues pursuant to his plea of guilty In each case to failing
to respond to lawful demands (or information from II disciplinary authority, a violation of Rule 8.1(b), Alabama Rules of Professional Conduct. In both eases, although the respondent attorney communicated with the Office o( General Counsel of the Alab"ma State Bar regarding the matters, ht failtd or refused to 5ub· stantillily comply with their repeated requests for information. [ASB n05. 97·278(A) & 98·258(A)]. • Birm!r\i!lhllm Illtorney Wlillam E. Friel. II received a public reprimand without generlll publication on July 13,2000 as reciproclil discipline fI\Irsuant to Rule 25(11). A.ltO.P., based upon a January 28, 2000 order of the United States Court o( Apr>Cals for the 11th Circuit publicly reprimanding the respondent attorney (or his (ail· ure to timely file the brief o( the appellant in 96-6761, U.S. /J. Sandifer, [Rule 25(01): Pet. No. 00·011 DIs-bUlly In.ell •• Sl.lua
• Cullman attorney Victor Benjamin Grl mn WIiS transferred to di5ability inactive status puriuant to Ihile 27(c), Alabllmll Rules of Di5ciplinary Procedure, effective June 8, 2000. [Rule 27(c); Pet. No. 00-021 •
ALABAMA LAWYER
Assistance Program Are you watching someone you care about self·des:ructing because of alcohol or drugs? Are they telling you they have it under control?
They don't. Are they telling you they can handle it?
Thoy can't. Maybe they're telli'lg you it's none of your business.
It is. People entrenched in alcohol or drug dependencies can't see what it is doing to their lives.
You can. Don't be part of their delusion.
Notice
Bo part oltho solution.
Addition to the Alabama State Bar Rulas of Disciplinary Procedure Effective August " 2fXJO l awyer. on DllIblllty Inactiva StatuI or lawy.r. Who Hava Been Suspendad or Di, blrred. 0) Adisbarred lawyer may notlH19aga in the practica 01 lew or In elTl emplovrnent in the I~I Pfofesslon (2) Alawyer cn disability inactive stlltuS or a suspended l{IIM(Cr may sooi( permission from 1110 Oiscipliflilr)' Commission 10 scnkomploymcnt in IhO legal prof6s5Kln Pormission will be grMtad onlv if tho lowycf has compliod With all tho conditions of suspension Of dlsabifrty inactlVO stutus and has demonstrated 8X9mPlory condrxt in,hcutlVO 01 fIllnstatomen!.ln Ihe cventlhat pemlission is grnntod, thl! tawyer $hall not have any c0ntact With tlwl chents of the offICe elthef In person, by tolll!hlno. Olin writmg (3) Alaw firm may not employ. retain. contract with, Of hila a disbarred lu;vycr to provide sorvioos, adviCO. or labor of the t'{pe customarily lelalo11 to the prOVISion of legal services. This specifically includes, but is not limited to, paralllWll s81Vlces, law·clork s8rvices, research assistance. ctorical ijssistonce, socretorial s(lrvices, office·managument servi;es. administrative-support soNices, 01 onv other scrvice! ...merc the sub· Joct la.....,.er could have access to clients. clients' tiles. or client conloonces If, how· ever, permsslon has boon grantod [0 a suspended la;vycr or a 18'Ny'91 on disabili\y Inactrve status as provided in paragloph (hM2) of thiSrute, a law lim' may IlIl1I>loy the lawyer for purposes that do not conllict with paragraph (hi
(h) Employment of
m
For o~ery one person with oIcoho!ism, olleasl fi~e other li~es are rlegatively alfOCled by the probtem dlinklOg Tho Alabama La'W"{ef AsSIstance Program is ovailable to help members of the logal prolesslon who suffer from alco· hoi or dlug dapendencias. Information and assistance is also avallablo 1m the spooses. family mcmbers and office staff of such members fJJ..PI is com· mluod to IlaYaloping a greater aware· ness and understanding olt~is illness Within tile legal profession. If you 01 someone you know needs help coli Jeanne Malie leslie (ALAP director) at (334) 834-7576 (a confidential direct line) or 24·hour pa{I8 at (3341 J95.0807 All calls are confidential U"CtAhDh 21111111 343
YOUNG LAWYERS' SECTION By Thomas 11. A/britto/I, YLS president
Young Lawyers' Phone Drive I a Success
am plcilsed to announce that thanks to the efiorts and hard work of mllO)' young, and not-so-young,
lawyers throughout Alab<lma. our phone
drive wa~ a huge success. We have collected over 600 eel!
ph onc~
whith will
be distributed to domestic violence
shelters throughout our state, If you {lave a phone to either a YLS representative in your area or you sent one directly to me, please understand that your contribution cou ld be the one thing that saves a family or an individual (rom abuse. ncpQrts (rom other stales that have conducted simil:!r
phone drives show thai these driV\!:$
have actually saved the Hves of adults and children. None of this would have been possible without your help, This project was coordinated by the YI,.S executive Committee, but the affili· ates did all of the hard work, The Young t...lwyers' sections of Oirminllham,
Thom•• B. Albritton
Tuscaloosa and Mobile all received press coverage, both in print and television, for their collection efforts, and as a result, those local bar aSlodalions ~ re high. lighted, Il$ well. It is our h(lpe that this year's project will be the fi rst of many In the fu ture thllt will involvt the collabora· tive effort.! of young lawyers throughout Alabama, By doing this, Wt not only hope to strengthen lies among Alaooma's young lawyers. but also to bring recogni. tion to the "000 W{}rk done byalilawym (or the public in Alal).,ma. In closing, I thank the I\xccutive Committee for II gr(!at year as president. A5 weJ1. I also thank the sl:l.ff of the Alabama State Bar and Keith Norman (or all of their help, I especially thal'lk Margaret Murphy who, with the excepliol'l of some slight verbal abuse on the phone, was extremely patient in waiting on my articles this year. Ag.1in, thanks for everything. •
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not
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Jl: llh h indifference
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KNOWLEDGE . EXPE RI E NC E. INT EGRITY.
Mn. imlzl ng Ih" ,,,Ium Qn ...., Uttlt. Inv..tm.ntll lOt buye, _, le ll e' l and len de ... ,eq ul,u lOund Judgmenl end ,Ilk ml,ltlOtlme.11 •• ptlrtll., One 0 1 the but waye 10 lucceed II 10 Inllel Of! a yaluatlo n expert who', e member 0 1 Ihe App,~18t11 Inllllute, tile world'i mO l llroltld ~ulhorlty gil real utell ppprpilol, You'll rl(lO\lnl~1 Oil' m,mbl .. by til. dOllgnplion l oft" Ih ei, nomel MAl , SRPA, SRA, Sltlnd;~g btlhlnd thue leUlr. ere Suptl,lor Knowledge. Oocu.nented Experience, Uncompromising Integrity, Membe... of the Appreleel Inliliul. c.,ty till, high deg'e. 01 proleulonall, m wllh thll' du lgnoIIO"I, Vou . hould ' lqlll'l II 10' YOII' Ilno"cl~1 protllction ond pllIllI of mind,
APPRAISAL IN STITUTE'
For tho nllmol of dollgMtod opptlIl"rt or lor more Inlormation on the Alabama ClIBpter of the Appratsallnslltu!e,
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(334) 344·5151: Mark DaviS, Mobile Triol
Defense ServlM (334) 3a7-7680: larry Sparks, Birmingham Trial Delensa Service (205) 985·3000: Dan Bornard, Blrmlnghom (887) 749-9063, alltenslon 1515, ATTORNEV POSITIONS! Gathings, Kennedy & Associates Is seeking attorneys lor expansion In Iha BirmIngham and Montgomery offlce8. A minimum 01 three years' Civil litigation eMparlence required, Send resume 10 th e Ilrm In care 01 Hiring Parlner, p.o, 80M 10545, Birmingham, 35202·0545,
ATTORNEV POSITION: Three·atlor· ney IIrm seeks atlcrney lor corpor{lte/estate and business planning practice, Will consider new or r&Cent gradl,lata with LLM In I{lxatlon. Contacl OOllg FriedmQn, 2000·A SOllthBridge Parkway, 51111e 210, Birmingham, 35209. ReSumes Or'Ily Irom !'lew or r&eenl graduates, J)leose,
FOR SALE
ATTORNEV POSITION: Montgomery law firm seeking atlornoys wllh Slrong cllont counsollng skills 10 bllComo port 01 a growing stoto .... ldo legal benellt plan practice, Two years' experience In private or governmsnt practlco prelerred. General clv~ and criminal prac· tlce backgrounds preferred over "apeclslty" pracllce. Compelllive saloriea, good bEmefit packages, and non-tradl· 1I0nai work environment make this an exciting opportunity. Send con fidential resumes to: Attorney Position. P.O. Box 230254, Montgomery, 38123,
FOR LEASE/RENT
POSITIONS OFFERED: Part·tlme attor· neys wanted In U,S. Arrrrj Reserve,
LAW BOOKS: William S. Heln Company-Mors than 70 years later, atlll your ~1 source lor biJylOW&Ellllng law books. 500/0·70% &Elvlng5 on major sets, International law, rare/antiquarian Law. Appraisal servlMs available. Calf (800) 496-4346. Fax: 716·883-5595. Web site: www:wsh6ln.com/used·boo/(s.
• HOMEWOOD OFFICE: OIlice or suite 01 offices available, Furnlshad office can be provided, two conlerence rooms, library, coplar, lax. voice mall. rllCeption, lull break room, ilia atorage, Iree parking, loin three other attorneys. graat location to slart or build a prac· tlce. Located at 2908 Crescent Avenl,la. Phona (205) 879·2999, •
ATTORNEYS WANTED Good Lawyers are in great demand Now is the time to lesllhe market. UlW finns lind corpor;tlions arc hiring lawyers at a mpid pacc, If you cver wanted to cxplorc other opportunities in a confiden tial and profess ional manner, you shou ld c:tl1 us, Wc rcprcscm great clients, and our fees are paid by the employer. There is cur· rently a high demand for lawyers with 1·25+ years of experience in real estate, corporate law, commercial lending, litigalion, estate planning, empJoyment law, ERJSA, and intellectual propcny, Please conlact Richard G. Brock, Bsq, at Acymtech, Phone (205) 871 ·3223, Fax (205) 871 · 3224, B-mail : ri chard @acymlech,eom.
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