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10 111 ANNIVERSARY

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Alabama

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Hfrmlllghltm eMf Rlghll InJt itull, Dtdie:attd on N<M:mbtr 15, 1992. lht Hlnnlngham Civil Rights Institute Is a commun ity's commitment to ItlOle rouragews individuals who walked to frtCOOm. It Is II center for education 1100 discuuk:n about civil and hUfTWl rights iNuf•. Tht Institute's projects and Kl'Vices promote rC$Ul'Ch, pr'OYklc infOrmlilion and fncourngc discUSlion on human rights In America lind around tht WOI'Id.

- Photo bV Paul Crvu.'Iord, JV, CW

IN THIS ISSUE

249 236 .. , •••• 241

Jle ADVISORY O]'IN10NS ON TIlE IN1l:RNt:r .......................• ,

A1ADAMA STATE Il~ 1999 SPRINC ADM1'TTf.P.s .. " . " " . , .. "

Al.AIJAMA STUI)I':tonS NAMW MEDAL WHiNERS ON U!W DAY • ••.• •• • • • , •••

247

248 ..•....... . ...•..••.. 248

[\10BII..: BAR AssocIATION CELEBRATES 130m ANNIVERSARY " , •• • •• , •••

NEWEST ADDITIO~ TO 11IE AI.A1111MA STATE BAR

UNIQUE A1AUAMA TRUST AND ESTATE INCOf.lt: TAX RULES Ckt:ATt:: TRAI'H'OR AIAMMA LAwvEIiS " .. ", .. ",,,,,,,,,,,., ...

, 249

JUDICIAL Ih:vll.·;w 011 Al)~IJN1STRATlVF. ACEf'lCV ACTIONS

257 Dt:OICATION O~' JUSTICE JOl iN McKINU:Y FEDtRAL BUlilllNC .. , ... , .. , .. 262 TIlE Ai..AIJN.tA ETHICS LAw: A Rt'TKOSPt:C'TIVE .. , ..... , .... , .. , .... , 264 UNOt:R Tm: A1A1li\.\\A AnMINI STRATIVJo; AGENCY PROCEDUnt: Acr " " " " , .

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www.alabar.org The Alabama State Bar on the World Wide Web What's New + Publicati ons + O n-Li ne Commun ity aGe O pinions + C LE Ca lendar + O n-Line B~H Directory JULY

.un, 2 . 6

PuDilshooeeven Ilmee B year (Ihe June luue Ie a bar dlroolO!)' edillon) by Ihe Alabama SUlle Bar. IConlilhH!d fmm P/JI1O 315)

1",0 . BoK 41 56, MonllJOffi8ry, AIObaml' 36 101-4156. Phone (334) 2S9' 1515 ' WNW,lIlabar.org ........................ . ........................ .................... ....... Ckol., EdilDr Suaan SNrocI! O'PaoI& ...... , .... ,............... ,.............. ,.......... ,..................... Vk:e-Cllalr' AlIIOdaII Editor Civid B. CkorT1j)Wrl ". , " .......................... ,., ............................. ,.. " ............................ ,.............. ,Vk:eoCtutir. Flrlllno.

Sul~n H. 4n(I'H....... ............ """""""""." ........ ,,, .. ,,. SUlII IJ,lIJon & COmm.rnlc6llont p;,tetor MIIIOI'eI L. Mu,p/Iy .................. ....... ............ .............. 8U111 L..*", & M9n&a1ng editor BOI. d O. Editor.

Uftd/Io G. I'»J>po, B1'~"' . HOII , PMlt!1 W, BaIlCflab. MOf1IQ011"1tfY ' OIoA(! O. ClllfI'II)«n. 8 nnlnon&m ' E\IOIfIIa H, Mub. BI'rn5rIgIIl\lll o s.mt.oel A 1'100l0I1. Jr.. BI'm!nokIm ' J. T1molnv Smllh. 8I'onlnQ/UIm ' Rober!

8. Sm~h. Hunt.vi!1a · Gloril J. McPtwrwon. Monlpnery ' WotndoII J, ChlmbliH. W,mlngkom ' G~ G. COCIII.~. BI'OI'IlfIQhlm • M, 00rIII1d 01"". J' , M~'" VIClOfll J, F'I~Nn.5lIton, Bllfl'lHlQllam · WI~lem G, GeM, B1.~m 0 Hon. 0tbnI (Io1d,IlILo!, W.mlnghAm • Lynoa. L. H,ndnx, nUHYlI' • Micko" A. Kirtland.

Monlgomery · Ma'OI.el Kcblnzyn, BI.mIng/IIm · Alan T ~. W.mlngllam ' MaIlMw A, 'HOI, BiltTllnoham 0 I'IQ1)tt! " , H"".W'

DEPARTMENTS

I)rcsident'$ Pnlte

218

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Mor1t~ry

M. WMberg,

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£xecutive Direclor's RCI>ort

220 Bar Brids

225 Memorials

226 Aboul Members, Among Firms

231 Building Alabamu's Courthouses

238

R.~. MOrIlgom.oy • " ........" ..,.. ........................... "'... " .......... "'".VIc<t-or.~nl 8. l<iorman, MonIOQllltry , ........ "......."...... " ...... lllry Boor'" 01 Comml.llolltt •• 1&1 CllcrJI. E. Marlo; E.tel. 8J!1t1, 2ncI ClteuII. FII\i1O. A. ~. G~ . 3rd ClrCl.OI. WlIWam I,G'ubI). II, EIIIWl. ~m ~ ",,!ph N, Ho/)I)f StImf,. 5ttI CIrw/I, EI"..dnl S. SaIlP. TUtQolot, IIIIl CltcuII, I'IItot ~ I, W. Seen DcNkllOfl. "llJ1CoI1oou. 15Ih ClrcUt, PIlat No.2, J. 0cugIaI McEtvy, ThacaIoou, 1lh Cln:uiI. WfiIm !-t , BroomII. AllnlaKln. 8th CirC\Ot, W,Iir'I E, Shi/YI, J,,, 0eCa1lH". l1l/I CirouI1, W.N. WttllOn, Fl. Payne. 1011 Cl<euII , PIlOt NO. I. ~ H, F.. tI!<JIn, 81,~m, 10m CItcvII. ~ NO. ~. ~"'" w. ~, 91.nWIgIIom. 1/)1h CitcuI1, PI&c;o No, 3, J, Marie WIlde. Birfl'llngNlm , 10111 CIrc<.W!, PIaat No. 4, CI\I.~ R. ..Ic:NnIon, lit, Birrnln(t.am, 100\ CIIcuiI, PIlat No, 5. Edwllrd p.~, Birlnlngham. 10lIl CIre\iI, ~ NO. e, MBc B. 0 . - , 6I!rNngtwom. lilt! CIrM, I'!tIot No. 7. SIo¢oan A, Aawor. BlrmIngiwn. 10th Cl=II. P!.oorr No. 8. M... C. rep.. J, .. Br""'"ulllm. 10\11 CIrculI. Place NO. G. Ca~ H, SIe¥la'l, BlrlllinQl'.atll, 8tMfnW CuI~, GtoIge M, ~m, 8tNotmIt. l ' m Clrcr.lll, RoIJ.trI L. ~, F~. !:!In ClwiI. ~ E. F...... Ttw. 13th CkM, Place No. I, We*" ~~. 13U1 CIrculi, I'tacfI No, 2, BIlly C. 8ed1IOIt. MobIle. 131h CircUI. PIIcfI No. 3. caine 0'1'1"" In , MObIle. 13\11 CI'aIiI, "'-ce No, 4, CIoIIt! J. ~~, 14th t>Wl. PhilIp P. NeiIOrI. JUper. 15m CIraJII. ~ NO. 1, AOiWl O. Stg.aII, Montpomery, 15m CIteuII, FI\jo.ce No. 2, Warl(la D. 0tv0tG.... , MonIgrOmtIry. 15111 CltM. PIaat NO, 3, JatllH E.

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WiIIiIlTII. Mon~. 1S1n CIIWIl, PIlat No, 4, TlIomu J. MeihYlrl, MonIoomery, 15th ClrcuII, Place NO. 5, 0IYId A. 6oyd, MonI ~ry, 16Ih Cirwll, Ooorve P. Ford,~, 17ltl CIrwIt. 'IlIyIorT. "-'ry, Jr.. Dtmapoh. 18th CIrcuIt. John E. MedIIr/s.l'Whllm. 19th CiraJII. JolIn E. EIIII...... Wtltumpkti, 20th Circuli. R~h'" R SmIth, Jr" Docht\rI, 21t1 Everene A, PIleI. JI.. Brewton. 22no CIrwII. E~~ V JOI\fIfon, AnO&I\4II. 23n;I CltM, PIIret No, I, DoMrr. S. P."" 11\Jflr.vIk. ~ C\rcuk, PIKe No.2, Pnic:k !-t. am.., Jr., HunII'Ih. 2041h Clrcud, CI\I.M A. LangItY. FIlytlI\e. 26th C/n:UI , 04i... FredetIc:k WoOd, Hllmillon. 28th Circuli. Hcl!Mr W. CorneR, J ... P~ City, 27th C~~. John C, O.... -'>Ofn, AAl9rIYlIlt.Z8f\ CIrwIl. 9fIy Mlrlvnt. 2GI~ ~I. FI, E\U!k1 LAunoy, T,II~ :)OIn ClrerJtI, William J, T.u$NII, PtII City. 3111 CIrc<.W!, WOit.m I<. ~ . T\IIeumbill. 3211d CIn:ui!. Roy W, WiIIMII, Jr. CI*nIn , 33«1 Circuli, HIII.Y F. Lee, In, Geneva. 3-4th Circuli, I.ukI E. AIelIandI •• RIIIMIYIII. 35th ClrcuII. John B. Sar/lll!, III , ~, 3$lh ClrcUt, Tlrnotrtt D. LhI ..... MauIIon. 37th CirwiI. J. "llJn BII.",", 0;>aIiI<.I. 35th Cin::uII. SIeI)IItn M. Ket\fll\r!Itr. 5coMboto, 39Ih CIrf:uoI. J.aroItt M, COr\IIt, J." AtIIenf. . OIII CItWI • .JOI'W\ 1<. JOMton,

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Legislative Wrap·Up

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Alabama r.1edialion & Arbilration '!'raining

268 Opinion5 of the Ceneral Counse l

269 Di sciplinary Notice!

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Itecent Decisions

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Alabama Property Rights and Remedies, Second Edition JESSE P: EVANS III

A la/wlII ll Pro/Jerty Rig/Its ti ll/I Remedi rs, Bdifio/l answers ql1estions unique to rhe SI:HlItory underpinnings of Abb:lm;) propeny I:,w.

Imended as a handbook , A /ab/IfIIII Pro/Jut), Ri.l!Jr lJ alld R f.' lII l'lliel, Suotlll Ed;tioll covers the areas most frequently encountered in priv:ltc practice and oITe rs cOlnprchcnsivc :t11:'llysis of d,c statutory rights and remedies associated with the LISt, ownership. and crtioyrnclll orreal property.

This manual will hel p yOlL fi lld the appropriate right Or remcdy IHld then bu ild a powerful c:l.~e in ~uPJ10rt of yom :lrg limCllt. OITering c:.:pcrt gui dance from c onlU1CnCC lll Cllt through tri:t1, A /nballltl Pro/JuI)' Rig/rrs IIIIJ Remedies, Suomi EJitioll provides inva luable information on a widc !':ingc of propcrty i S~\lc s, Somc c h ~pters in AIi'/limUl P ro/lerf)' ni.IlI,ts fill/I n Clllc/lies, Sec:ofld Edition comai n :l seetior! o ffor l11 ~ e:lsily ~ d ;lpte d for specifi c cir<:u !1lSt:lnCC5, This lundy reference :lIsa includes checklists to guide the practitioner when drafting particular instru11lents or pleadings, or when prcse ming evidence in specific actions,

$105' 1154 pages. hardbound

item#61851.IJ © 1998 Cl '1'1') LEX I S~ L..... I'ubl;,hin~,' d,v";QII Q( I~ •• d r:1 .. v,., Illc. 1111 .,g1m ... ~,,,,,d ·1'1", "I.. !AX, ,h'PP"'1I "lid I,."dr.,," wh~,~ Pro ."' • ..: ,,,hj.'~ I" rlo",1I" "',~hQUl "OUlo,

'1'1,,,,,101.

PRESIDENT'S PAGE fly Vic /.011

hen I look back on my year as president l am struck by the fact that our state bar is morc relevant and more vibrant than at any lime in its h15-

W

lory. I havt written at length during my

}'tar about the many challenges facing IlIwyfu <lnd our proreuion, and the

quickening pace of change. These chal. ienges are both institutional and Individual, in that the t\'er-Increasing demands of our profession IIrt taking a greater loll all lawyers and their personallives than ewr belore. This is not to say that mosllawyen in Alabama arc unhappy or dissati$rled with their prac-

Final Thoughts

Vic Lott

~IO

~UlY

11>I OJ

tices and thei r profession. because our

reccnlsurvey data indicates to the contrary. In (lid, mOM C'i the practicing

lawyers in Alabama enjoy their work and mO!I client! haw: a great deal of respect for their own personal attorney, even though many cJ those same individuals would severely criticize Ihe profession 85 a whole. [believe this dithotomy in and of itself has height· ened the prenure on lawyers not only to perform in their jobs on a daily basis, but also to tty to please the public and improve the perception of our profession.

I know that I am "preaching to the choi r~ when I tell you that through all of the criticism the fucl is that lawyers In Alabama have been and will continue to be a positive and progressive force. and a source of dynamic leadership in every area of our state. There Is no doubt that our lawytrs lire among tht most generous and community.mlnded

citb:ens in all o( the towns and cities that they serve throughout Alabama. In addition to donating over $30 million a year In the val ue of pro bono services to the poor and Indigent In Ihls state, lawyers contribute countless thousands or additional hours or !en'ice to vilrious not·ror.profit boards and orltanizatlons ranging from 'r'r-1CAs and OOYS and Girls clubs to arls and educational organiza. tions. One wonders how these generous, dedicated community leaden and vol· unteers can don the rolt. tn masse. as a Prince or Darkness by day. Of course, we know thllt this is not the (lise. Lawyers by training and experience are dedicated, selOen. focused and successful in serving the needs of their families, their clients. their communitieJ and the public allarge. In this heyday of leadership by public opinion poll, true service still means doing the right thing, th~ neeess,ny thing. and O(It n~cu.<arily the popular thing. From defending accused murderers and rapists, to advocating lhe rights of consumers Ilnd the less fortunate. lawyers are often called upon 10 swim upstream. When necessary we do it well and we should be proud thai ~'e are willing, and thai our slate ami federal constitutions give us the right and the ability. As an organization whose mission and purpose is to serve the profession and to ensure that ou r profession serves the public, your state bar Is focused on the chal:enges, and prepared to lead the bar of the State of Alabarm into the 21st century. I am proud to have played a small part.

•

Cumberland School of Law Continuing Legal Education The Cumberland School of Law at Samford University is indebted to lhe many Alabamo a1l0meys and judges who contributed thcir time and ex pertise to planning and speaking at our educational seminars during the 1998路 1999 academic yenr. We gratefully acknowledge the contributions of the following individunls to the success orour e l E programs.

Jnl11cs P. AleXflnder

LoUella S. Alvis, 84 OlTin K. Ames, III, 69 I-I nrold I. Apolinsky O. Leon Ashford Leslie R. Bnrineau, 85 Michael K. Beard, 80 Jere L. Beasley Richard W. Bell, 72 Sleven A. Benefield Hon. Thomas D. Bennett Joe Bird

Brad Bishop, 7 [ E. Martin Bloom. 81 Ralph Bohanan, Jr., 87 Joice U. Bollinger, 9S R. Michael Booker, 74 Lee Borden J. Birch Bowdrc. 79 Deborah S. Braden, 83 Gregory B. Breedlove, 79 Albert P. Brewer I. Ripon Britton, Jr., 85 Richard J. Brockman , 86 Courtney B. Brown, 84 Richard E. Browning William J. Bryant S. Oreg Durge, 84 Carl S. Burkhalter Hon. Charles R. Butler, Jr. Andrew P. Campbell Charles F. COl'!'

Philip J. Carroll , rIl John S. Civils, Jr. Charles Tyler Clark Hon. U. W. lemon John J. Coleman, UI P. Ted Colqucu, 86 Deane K. Corliss, 89 Judith S. Crittenden, 70 Michael J. Crow J. Patrick Darby Richard Eldon Davis, 89

Edward A. Dean Marcel L. Debruge R. Alan Deer Annesley DeGaris, 88 David R. Donaldson, 80 Susan D. Doughton J. David Dresher, 83 Duvid S. Dunklc Douglas E. Eckert Les SturdIvant cnnis, 92 David G. Epstein R. Graham Esdale, Jr. Michael J. Evans, 80 George W. Finkbohner, m Frederick L. Fohrell Sydney F. Frazier, Jr. Richard A. Freese, 85 A. Henry Gaede, Jr. Charles I). Gaines lIimes G. Gann. Ill , 77 Alan H. Garber William F. Gardner Walter T. Gilmer, Jr. R. Marcus Givhan, 86 10hn E. Goodm:m Mile B. Greaves W. McCollum Halcomb, 82 Clllrk R. Hammond, 84 Hon. Arthur J, Hanes A. Lee Hardegree, III George Harris Alicia K. Haynes, 87 Dc1acie C. Hester '路Iarry L. Hopkins Edwin E, Humphreys, 80 Darryl W. Hunt Hon. Joseph S. Johnston Neil C. Johnston Robin Windham Jones, 94 Hon. Robert O. Kendall C. Chris Kimble Lawrence T, King, 88 JameS C. King

John T. Kirk Donnld D. Kirkpatrick, II Dennis J. Knizley, 79 Alva M. Lambert Patrick M. Lavette Robert W. Lee, Jr., 78 Richnrd I. Lehr John A. Lentine, 87 J. Kris Lowry 1..1. Patrick Muh:mey J. Michael MonllSCO Ted L. Mann, 85 Virginia Lanair Martin, 89 Rodney A. Max. 75 Stacey L. MeDuffa, 95 Bruce J. McKee J. Anthony Mclain, 77 D. Todd McLeroy, 92 E. Ann McMahan Edward P. Meyerson, 69 Hon, Tamara O. Mitchell Hon, Samuel H. Monk, II Patricia N. Moore Richard D. Morrison, 91 Randall H. Morrow Russel Myles, 86 George M. Neal, 77 Pat Nelson. 73 Carol Sue Nelson, 77 Steven L. Nicholas lbomas E. Norton, Jr. Thomas L. Oliver 11, 89 Burbara F. Olschner. 84 Lewis W. Page, Jr. John M. Peck James E. Phillips Mark B, Polson, 74 Denise J. Pomeroy, 89 James R. Pratt. III , 78 Phillip B. Price, Sr. Patricio J. Pritchett, 90 Caryl P. Privett David W. Proctor

SamfordH U,;w'sity

R. David Proctor C. Michael Qumn, 75 Barry A. Ragsdale Donald R. Rhea William C. Roc:dder,lr.,72 Bruce F. Rogers lion. N. Daniel Rogers, Jr. Jerome C. Rose Robert J, Royston Robert H. Rutherford. Jr. Richard D. Sanders John D. Salton Lisa J. Sharp, 92 Patricia S. Shaw, 91 Barber Sherling. Jr" 75 Maurice L. Shevin Justice Janie L. Shores, ret.

Wilbur G, Silbtrmnn Nanette Sims.Perry '路'on. James S. Sledge 'f'. Dwight Sloan Alfred F. Smith, Jr. R. Carlton Smyly William G. Somerville, III Tommy Spina, 78 William D. Stewart, 90 Charles D. Stewart. 68 Joseph W, Strickland Henry C. Strickland James G. Swift W. Lee 'Illuston, 74 Mnrshall Timberlake William P. Traylor, 1Il, 82 George M. Van Tassel, Jr. Charlie D. Waldrep, 76 E. Glenn Waldrop, Jr. Howard P. Walthall Allan Wemcr, 81 Jeffrey n . Wertheim John P. Whittington, 72 Robert I~. Williams R, Wayne Wolfe Lois S. Woodward

EXECUTIVE DIRECTOR'S REPORT BII Keilh B. Nonnl1l/

fter 1ll:lIly tries, hourly compensa·

tlon (or attorneys appointed to repA resent Indigent defcndanu will increase.

Coyernor Don Siegelman allowed this bill to become law at the conclusion of the regular session of the legislillure.

While 118. 53 received the attention of the media writers btcllusC of the included compensation increase for JUdgc5 and dislricI3Itornc),$, little allcntion was given to other aSI~cts of

this comllrehcnsive legislation includ· ing indigent defense. I have highlighted what this law will accomplish.

Effective immediately aTe: • Increasts from $40 to $50 PCT hour

KUDOS! H.B.53 Becomes Law

Ke ith B, Norman

220 JUlY 01100

for time in court and

• Increases from S20 to $30 per hour for lime oul-or·courl.

Effcctivt October 1,2000 the: • In-courl rate is increased from $50 to $60 and • Out-of-court rale is increased from $30 to $40.

The Illw sets new ClljlS on total fees except in capital cases or life without parole, for which ther~ will be no limit on in-court time, Feu are limited as fol1OW$: • ClaM A (elony-53,500: • CIIIS! 8 felony-S2,500; • Clllu C felony-$I,500; • Juyenile cases-$2,OOO: • All other ea~e$-$ l ,000: and • Capital offense casu or a charge that carrie, a pOSSible stntence of life without parole-no limit.

• Acourt may, upon a finding of good cause, allprOVe fees in execS! of these limiu.

• The per.hour payment on appellate casts increases from 140 to S50 upon enactmenlllnd (rom S50 to S60 effective October I. 2000. The total payment (or an appeal is increased (rom $1,000 to $2,000.

• Hourly paymen15 are increased in ]lOstconviction remedy ph;uc for in-court and out-of<ourt lime SIIme:u nbovt.

• The hourly overhead expense remains in effect.

An important feature ofthi! legisla. tion thal received no attention in the media is the creation of the "Adyanced TechnOlogy and Data Exchange ~\md," Moneys from this legislation placed in this fund can be used fOr acliyitiu related 10 the administration of jusUce, including Ihe use of credit and debit cards and ~Iectronie fund transfers for collection and distribution of courtordered moneys authorized under Ihis legislation. These funds will also be used to improve the collection of court costs, fines, child support and other court·ordered moneys, Another important aspect of thi$ legislatioo is the funding for lhe supreme court to est.lblish a st.ltewi~e coordinator of ,,1'0 bono $(!rvice$ and II commission on professionalism. Many slates have shnilar programs lind this legislation will allow our slAle to join the n\IIJnstream in these t....,o important area.s.

Man), of )'ou wrott letters and called legislators to urge the I>WIIge of H.B, 53. This grauroo13 effort was veT)' crucial to the passage of this bili. The hard work of Joel Wllllam ~ o( Troy, chair of lhe Indigent I)efense Committee this year, and the entire committee for the IMt several years to increase indigent defense compcnsatiOl1 finall), paid off Ihis ytar. We owe a debt of gratitude to the bill's SponSors in the House, SpeOlker Pro Tern De melrlu ~ Newton o( Birmingham, Judiciary Chairman 8111 Fu ller o( LaFayette and HC]lresenlative Jonu of HunlsviUe, who sleered Ihis bill through safe passage in the House, The bill pamd convincingly in the I-louse and I encourage you to thank the bill's thret $pOrtsors, as well as Speaker Seth lIammelt 8nd the other

"at

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members of the 1·louse who supported this bill. The following lawycr$, who arc membeu of the House, also deserve a special word of appreciation: Marcel Black, Ma rk Gai nt~ , Kt l\ Guln , Howard Hawk, and Mi1(t Rogers.

You should also thank Senator Pat Llnd$ey of Butier, chair of the i!:conomic Expansion and Trade Committee, for seeing this bill out of committee in the Senate. L1. Governor

Steve Windom and President Pro Tern Luwell DarTOn were Instrumental in IUl 53·5 overwhelming passage in the Senate as were filmy other Senators, Senators who are also lawyers and deserve a thank-you include: Koger Uedford, Ted Little, Charlu langford, Curl I..(!c. Wendell Mitchell, Hank Sanderl, Phil Iloole, and Rodger Smlthennan.

Pinally, Governor Don Siegelman

deserves our sincerest thanks for all(IW· ing H.8. 53 to become la.... despite intense pressu re to killihe bill.

Governor Siegelman's Rood vi$ion allowed him 10 sec the bill for more than just a "judicial pay bill" as lhe editorial writers lagged it. All of the element! of this bill are important and Govcrnor Siegel mall e>lhiMed great leadership by allowing ]·I.B. 53 to become law. Thank yotl Covernorl •

ALABAMA lAWYER

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umbe rland SChool of Law

Continuing Legal Education Fall 1999 Schedule September

10 17 24

October

1 8

15 22-23

29 November

.5 11

19 December

3 9 10 17 29-30

Developments and Tro nds In Health Core Low 1999 Prosecuting cnd Cefending OU t Co !es in Alabama Courts Pro bate Practice Seminar 10lh Annual Bankruptcy low Sem inar Managing Today's Low Pract ice : law Firm Breakup, Technology, Avoiding Malpractice Selecting and Influencing Your Jury with Susan E. Jones Fundamontal lawyering Skills Y2K litigation , 3th Annua l Workors' Compensation Seminar Choice of Business Entity - Of Partnerships, LlCs

and Corporations Tho Truth. The Whole Truth , and Nothing Bul The Truth with Stephen D. Easton Persuosive Legal Writing featuring Ste ve Stork Employmenllaw Updato "Hoi Topics in Civil litigation - Mobile "Hot Topics u in Civil Litigation . Birmingham ClE By The Hour H

A brochure describing Ihe course conlenl in de toil will b. moiled approximately 5i)( weeks prior to the seminor.

If you do nol receive a brochure for 0 particulor semi nor lei us know by calling CLE o t 726 ·2391 or 1·800· BBB- 7 454, e _moiling us Qt IQwcll@sgrnford,tdu, or visiting our website 01 hllcil/cumbtrland,sgmforsi,tdu, Additionol programs moy be added 10 Ihi. "h!ldule, SomfOfd u.w.nj'V if QfI ~qUQI OppGftunoly Irnt,Mion ond ~_ opplico/ionf for Indioodvoli r.rdlen 0/ ro.:_, color, f", CtQ6, d'f(lbil,'V, or notjonol or .thnic ortgin,

SamfordB University

~10'ffMfI1

ond «!U«Ihonol p!ogromf hom 011

I}GAL ASPECfSof DIVORCE ALABAMA

.. .Qffers options and choices

involved in divorce

STATE

BAR

Publications Order Form The Alabama State Bar is pleased to make .. "ailable 10 individual o1t\orncys, firm s and local bilr associations, at cost only, " series of brochu res o n a variety of legal topics of interest to the general publiC, Below is

J

C=======:-

current listing of public information brochures available from the Alabama Slale! Bar for distribution by

local bar associations, under cst<lblisiu.>d

SUidClinCSrochures

Law As A C.lfcer

$10.00 per 100

Qty. _

_

$ _ __

... opportunities and challenges of a law carccr today

L.lwycrs and Legal Fees . .. <l

$10.00 ptr 1110 Q ly. _ _ $ _ _ __ summary of basic information on common legal questions and procedures for til<! gCIll!ral public

l.ast Wilf & Testament

$10.00 per 100

Qty. _ _ $ _ _ __

... covcrs aspects of estate planning and the importance of having a will

tegal Aspects of Divorce

$10.00 per 100

Qty. _ _ $ _ __

$1 0.00 per TOO

Qly. _ _ $ ::-;:::-;;::__

... offers options and choices involved in divorce

Consumer Finance or "Buying on Time" ... outline5 important considerill ions

Medi.ltion .. ,Anothcr Method

,md provides "dvice on fi nitncia l mattcl'li

i1fr~t ing the in(li vidual or family

$10.00 per 100

Qty. _

$ _ __

for Resolving Disputes ... provide. an overview of the mediation process In (Iucstlon.and.answer form Acrylic Brochure Stand $5.00 each Qty. _ _ $ -,---_ _ __ ... Indlvidual stand Imprinted with individual, firm or bar association name for use at distribution l>oinl5 One stand per brochure is recommended, Name to imprint on stand: _ _ _ _ _ _ _ _ _ _ _ _ __ Subtot;!1 S M ai ling Addres s Shirr ing & I-Iandling

S 5.00

TOTAL $ Plcase remit CHECK OR MONEY ORDER MADE PAYA IJLE TO THE ALABAMA STATE BAR for the ;!mount listed 011 the TOTAL line and forward it with th is order form 10: Susan H. Andres, Director of CommUniCillions, Alilbama SlaW H(lr, 1',0. Box 67 t, Montgomery, Al 3( 10) , (33 4) 269路) S15

BAR BRIEFS

• JOltl)h 8. MIY'. Jr. of Oirminllham hal been re·elected as vice-chair of the Alabama Educiltlolll11 Teh..'Vi~ion Foundation (A~'TF). lhe governing body of Ala.bama Public Television. The AEn' was foundd in 1982 by the Alabama Legislature to help raise private fundi (or Alabama Public Television. Mays is a partnet in the finn of8radley, Arant, I~ose & White in I1irmingham.

• A legal educalion program designed by Grego!,), S. Cusimano of Gadsden, Al"bam" and David Wenner of Phoenix, Arizona won an "Award of £Kcellence in Education Certificate (or 1998." The honor WM giYen by tht American Execut i~J in Washinillon, D,C. The

Society of A.uocialion

Program, ~ Overcoming Juror Bias." won in the single seminar program category. Cusimano. II Diplomat in l'rial AdvOC/lcy, is a member of the lirm of Cusimano, Keener, Roberts & Kimberley.

How do we impllo¥e ( he ~ mage of the legal pilotiessiolil ~oda¥7

Our answer is "One lawyer at atime."

Winner of ~ IgtJ7 Public IlCl/itlorlS Council of Alill);U1la t-1erit Award and a prestigious 1998 TELLYawi\rd for vidw production. '1b ScM The Public" is designed for use in speaking to civic and community "",ups. including schools.

Every 10C<l1 bar association in the state has received a free copy of the video presentation and 300 brochures. Contact your local bar lIMOCiation president or call the ASB at (334) 269· 1515 for additional copies or inform.'ltion. This complett public service video pr(:Stntation includes: the eight.minute video; a handbook of speech points; and Infl)rm.,Uon.,1brochures {or the audience. (NOTE: 1V and radio announcements have been excerpted from the video and /ITt now being shown acl'055 the state-look and listen for them in your community and enoournge your local stations to air them1)

r----------------------

u(\l) ~~~w~

A uG{)[E

[plQj] [B3[)J]~

YES, I voluntee r to present or to help schedule a presentation o( "TO SERVE THE

PUBLIC" to groups in my area. Contact me to make arrangements] NAME _____________________ BAR ASSOCIATION PHONE OR E-MAll _______________ L _____________________ _

JULY 19lm I

n~

•

MEMORIALS Bill and Jane Tyree eLiln and husband Dan: lind numerous grandchildren. nieces and nephews.

- Fron"" TimuOaIl"

Karl T. Tyree, Jr. ~'10rCT\ce,

llrI T. Tyree, Jr" 73, of died October 29, 1998. Mr. '!)oree K w;u born In Florence and attended lhe Kil by Tl'llinlng School. Coffee High School and Florence State Teachers College. lie was an Eagle Scout and as an adult would help the Scouting move路 ment. lie attended Auburn University where he was a member of Phi Dell", Theta Fraternity. He served in the U.S. Army infantry during World War II and then graduated from the University of Alabama School of Law. Mr, Tyree was a lifelong member, elder and trustee of We First I'resbyterian Church, t'lorcnce. He has been n member of lhe Jr. Chamber of Commerce and the I':xchange Club of ~'Iorence. He had been a law partner with t-lims Rogcl'$ in lhe firm of nogen & Tyree and was a member of the Alabama State Oar. lie strvtd as executive director of the Plorence Ilouslng Aulhority (rom 1955 to 1990. He ur.'ed In many orfices lind WIIS :a li(e member of S.E.R.C. and N.MI.ItO. ,.lr. 'lYrec is survived by his wife.

Freddie Richardson Tyree: sons WiII'lYrce and nober! 'lYree and wife nhollda; daughters Clyde 'lYree Cook and husband 2:z.

~uu

"III

Keener Tippins Blackmarr hereas. Keener TIppins B1IICkmarr, a looll-time. resl)fCted, and well-liked member of the ~1obilt llar AsJocialion, departed this life on September 2. 1998. at the age of 81 years; and Whereas. the Mobile BliT Association desires to honor his mIme and perpetu路 ate his memory: Now, therefore, be it remembered that Keener Tippins Blackmarr W<l$ born on June 2. 1917, in Brewton, Alal),1ma. and grew up in Gulfport, Mississippi, where he Ilraduated from ClIlfport IUgh School.

Kenner attended the University of Alaooma, where he rKeived his A.B. in 1939 and his law degree in 194 1.

Following his graduation (rom law school. he served (ollr and a ha1fyears in lhe Uniled Stille5 Army durin" World War II. receiving five Bailie Stars. Three of those yean were served in Engllmd, Africa and Italy, handling claims In the Judge Advocate Ceneral's Corps.

W

Mer the war. In 1945. he began his law practice with the firm of H.1nd. Arendall, Bedsole, Creilves & Johnston. He left thai firm in 1947 to open his own office. In 1954, he was appointed an Assistant U.S. Attorney and served as such until 1959, when he resigned lhat pas.lion and went oock to private practice. Among lhe lawyers he practiced wilh at various times wert Sam Stockman, Bill Saliba and Alice Meadows, Keener Is remem路 bered (or having high standard!; for his legal practice, for having empathy and concern for people, for belnlll:lcnerous with his time. for being willing to represent anyone with a just C.ltlse. for being an innovator (he was one of the first lawyers to mOVt his office to Ihe western part of town. opening his office at Bel Air Mall in 1966), and for having a wide variety of interest!, Including opening and running a successful rutallrllnt. He made it some of his personal rulu to alwa)'$ talk to other lawyers on the telephone when they called him, il$ he recognl7.ed thai they were as busy as he wM, and to return telephone call.' before the end of the day they wert received.

During one period of his law practice. he also served as a Judge in the City of Mobile's Traffic Court. In 1970, he accepted a Job as general counsel with Jack R. Taylor, handling the legal needs of a number of Mr. Taylor's companies, including Fact-O-lJake International and Bumper Service Corporat ion.

Keener was a vcr)' active member of Dauphin Way Methodist Church. where he taUl:!ht Sunday Schoolll!ld served on the Official Board.

He was also ver)' active in civic affairs.

He was a former president of Ihe Mobile Child Day Care Association and was a member of the Civitan Club, where he supported all o( its projects and helped run the Mobilian of the Year Program.

He was a Ma.5()n and a member of the Loop Lions Club.

K~cl\er was VCI')' dedicaled to his fam Ily. He is survived by his wife of 56 yeau. HaT)' Lillie Echols Blackman; two daughters. Virginia Blackmarr

---------~--------Voght of Alexandria, Virginia, and Anna Blackmarr James of Birminllhllm, Alabama: and seven grandchildren.

-Slewl F. McFadden, prtlldenl.

L 'Iablle Bar Auoclatlon

Judge Thomas F. Sweeney hereas. the )1obile County W Association wishes. on this dale. to honor the memory of Judge Thomas BIIT

F, Sweeney, a distinguished retired jurist and member of this l\S$()(.i1ltion, who died on June 8, 1998, ,.nd Whereas, the Mobile Bar A$socilliion

further desires to memorialize his cOireer and to recognize his many contributlons to our profession and to this community: Now, therefore. be it remembered: Judge Thomas F Sweeney was II native and lifelong ruidenl of Mobile. He gradu.

IIted from tilt old Spring Hill High School in 19)5, lind then graduated summa cum lauck from Spring!lill Colle~ in the elMS 0( 1939. Following thai accomplishment. he entered Goorget()WTI Univtl1ity t...1W School and was graduated cum lalld/! in 190\3. Each inst itution selected him for m~mbeT$hlp In It:s highest aendemlc honor $Otiety. The year he graduated from law school, he married Margaret

Cecelia Ode\\'alt of York, Pennsylvania.

She preceded him In death in 1993.

He practiced law in Mobile from 1945 until 1970, at which tillle he WiU appointed judge of the Court of Ceneral $e禄iON of fo1obile County by Covcmor Albert I'.

Brewer. He served on th:at court and later on the district court until hls retirement as a districl court j udg~ in 1987.

During his legal career. h~ taught as an associate professor at Spring IliII College, co-hosted Mobile's "Creat !look!" television series, and served as chairman o( the board o( Ihe Catholic Maritime Club and as chai rman of the parish coundl of St. Mary's Catholic Church. lie was appointed by Covernor Patterson as a Spedal Asslst"nt Attorney Genual to help modernize the probate court deed records, and by both Covemors Wallace and PaUerson as an Honorable Lieutenant Colonel.

In his "spare time." he successfully raised II children. Jolly Sweeney Coombs of Birmingham; Antonia fo1aureen Sweeney of Mobile; Jean fotarie Sw~eney, Metairie. LO\lisiana: Timothy Sweeney of Atlanta; Dln iel Sweeney of Baltimore; Donald Sw~e ney of Loxley: Gregory Sweeney; Robert Sweeney and Thomas I. Sweeney of Mobile; Joseph Sweeney of Grand Junction, Colorado: and Mark Sweeney of Huntsville.

Alabama; 29 grandchildren: and two "reat-grandchlldren.

Judge Sweeney was widely regarded as an outstandin" district court judge, noted for hi ~ falme~ and judieiill temperament.

-Siova F. McFalillen, pruldent. ~lobi1e Har An oelillon

Cecil A. Chason eeil A. Chason. deln of Alabama r-1unicipal Law, was born in Chatom, Alabama In Washington County on July 11, 1914. and passed away on April 17 in lIaldwln County.

Chason graduated from Spring Hill College. where he play(d (ootbilli. and attended the Univer:sity of Alabam..

School of Law whm he I1!ceived his law

C

degree in 1940. He served as a Naval officer during World War II and after the war opened his law office in ~路oley. Alabama.

His law practice WiU to continue for 55 year:s and include service 115 city attorney fOr Gulf Shores. Summerdale and Elberta and coun5cl (or area b..1nk!i /Mld South Baldwin H05pita1. He served his community in many wa~, including as director and president of the South Baldwin Chamber of Commerce and .....as the recipient of the I'aul Harris rcllow Award and free Enterprise I'eoon of the Year A....-ard. This long service and his dedication to ~'olt)', as wcll ll5 his knowledge and skill, earned Cedi Chas<ln the unoffi路 cial title of dean of Alabama ,\1unlcipal Law. Cecil Chason will be grcally missed by his fri end~ and fellow IIttorneys and he will be remembered by so many Baldwin counlian! he helped. My family was among those he assisted many years ago after we lost my little sister In tragic accident. He provided advice and counsel and never sent:l bill for his services. He gave me an opportunity to begin my legal career by hiring me as an associatc :lttorney 15 years ago and beIng my mentor durinll all of my endeavors. There are many otheu whl) have been helped Md supported by his generosity and concern. ~Ul"

t . .,

' '''

Chason 15 survived by his wife of 62 years. I)Qrothy. three dllughters. a sister. seven grandchi ldren and eight great· grandchildren.

-Judge Pamela Batchab, Alaba ma C(lurt of Criminal Appeal,

Roderick Beddow, Jr. hereas, after 72 years on this W earth. Roderick Beddow. Jr. was called by maker to his eternal h i~

reward on f>1ay 13, 1998. The son of a grellt lawyer, Roderick Beddow. Sr..

Roderick Beddow, Jr. achieved a rare stalion in life in that he, as his fllthe r. was recognized as a great lawyer; and, Whereas, his commitment to the cause of righting a wrong or rectifying inju$tice wa~ second to none and he devoted his li fe lO ensuring that justice wOuld prevail; I1Jld, Whereas, Roderick Beddow, 1r. served as president of the Birmingham Bar Association In 1986 and was honored a! the Birmingham Bar Associlltion's Outstanding Lawyer of the Year in 1991.

On that occasion it was Stlid that no cause could have a better advocate. no client could have a better attorney and no person could have a better friend than Roderick Beddow. Jr.; and.

Whereas, de$pite the infirmitiu caused by his 1I lneSll, he never permitted himself to be anything oUleTthan tenacious in his profession and in his commitment to life. On the occasion of his memorial ser· vice, the nurses who accompanied him on the journey created by his last illness spoke of him with humor and reflected on the inspiration he was to each of them. He would have considered himself honored by their word$ lInd by the W(l rd~ spoken by others on that occasion; and.

Whereas, in addition to his selVice to the legal professi[m. Roderick Beddow, Jr. served as a member of the Jefferson County I'ersonnd Board for ten years and was active and prominent in other civic and professional matters. In addition 10 the Innumerable host of friends who mourned his passing he left behind

a loyal and devoted wife. Joann: two children, Mrs. Daniel Heidrich and noderick Beddow. III: a stepson, Scotty Creene; stepdaughters. Oarah Dufresne and Leslie Yarbrough; and two sisters, Mrs. F:rneslo Cook and Mrs. Royal Hatch; and.

Whereas, while we recogni~c that he was one of the few of whom it can be said that tht void created by his pasSing will never be fil led, ....·e are left with the inspiration that was created by his life here on earth; and, Whereas. it is well that we pause and reflect on this life which WM so impor' tant to our own, mindful that such refl ection Coln do no less than contribute to a better tomOrrow for e,u;h of us; and, Whe rea~, this Resolution is offered as a record of our admirallon and affection for I{oderlck Beddow, Jr. and of our condolences to his family.

- Brlttln T. Coleman, preSident, Birmingham Bar Alloclation

Alfred G. Swedlaw hereas. the Birmingham Bar W Associat ion lost onc of Its distin-

guished members through the death of Alfred G. $wedlaw on January 6, 1998; and, Whereas. a I1i rmln~ham nlllive, Alfred G. Swedlaw took his undergraduate degree at Vanderbilt University and received his law degree from Harvard University in 1939. He practiced in Birmingham with lin (jrm of I.eader, Tenenbaum, Perrine & Swedlaw. More recenlly, he practiced with lhe flrm of Johnston, Sarton, Proctor. Swedlaw & Naff. He was an excellenllawyer, lellal scholar and draftsman, teacher of young l awye r~. and valued friend. He WM not a bad fishe rman and tennis player and was quite a baseball fan; and.

Whereas, Alfred C. Swedlaw is sur· vived by his wife, Ruth. daughters Shelly and Patricia, and son Henry; and, Whereas, this Resolution is offered as a record of ou r admiration and affe ct ion for Alfred C. Swedla....~ and of our condolences to his wife, daughters and son,

and the other members of his family.

Now, therefore, be it resolved by the f.:xeculive Committee of Ihe Birmingham Bar Associi\\i<m, at i t~ rellular meeling assembled: I. This ~:xeculive Committee greatly mourns the pas.,ing of fllfred G. Swedlaw and is profoundly Ilrateful for the l!Xi\mpJe that his long arld useful life hM brQught to the membe~h i p. boUI individually and collectively.

2. That the sUlViving members of the family of Alfred G. Swedlaw are hereby assured of our deep and abiding sympathy.

3. TIu!t II copy of this Resolution be spread upon the records of the Bi rmingham Bar Association as a permanent memorial to this departed member.

4. That copies of this Resolution be fur· nished to his wife. daughters and son as our expression of deep sympathy.

- Brittin T. Coleman, pruident , Birmingham Uar Au oclallon

Jack Gideon Paden e it resolved by the Executive B C(lmmittee of the Birmingham Bar Association that: \\lhereM. Jack Gideon Paden was born in Bessemer, Alabama in 1922 and grad. uated from Birmingham Southern College in 1947. He received his bachelor's of law and doctor of jllrisprudence degrees from the University of Virginia, where he served as editor of the Virginia lAW Review. He also attended Columbia Univer$ity lind tht Northwestern University Trust Banking School, and selVcd as a captain In the United States Naval Reserve; and.

Whereas, Jack Gideon Plden prac· ticed law in Bessemer. Alabama up to the time of his death on O~lobe r 27, 1998. He was a member of the Bessemer, I3lrmlngh.. m, AIOIbam.. and American bar associations. He was a Pellow (If the International Academy of Trial Lawyers and a member of the American College of Trial Lawyers. He

also scrved as eMecutive vi ce-p re~ide nt and chief eMecutive o((icer of the Trust Department of AmSoulh Il.ln k; and.

Whereas, Jack Cideon Paden Willi active in numerous associations throughout his life, including stMng as CMinnan of the Board of Hill Crest Foundation, president of the Birmingham Southern College National Alumni .\ssocilltion, president of the Alabama Ballet Company. board member 01 the AI)'Ce 8. Stephens Perlonning Aru Center, and a member of the board of the American Counsel for the Arts; and, Where:t" Jack Gideon Paden also gave free ly of his time and served as a member of the J30.,rd of Dlreetol1 for the National All iance for RestaTch on Schi~oph renia and Depression and Director of F&M Bank Corpor.atioo. former pre~idcnl of Town & Gown Theater and a supporter of the Theater in Binningham. Ue was also dted by the Alabama Association of Independent Colleges and Universities and the Counsel of the Advancement of Private Colleges in Alabama for his dedi· cation to the cause of imprOYing education. He was (urt/ler highly honored by Birmingham Southern Collcgc inferring upon him the degree of doctor of lilWS hot/om roUStl. Ht was also an active member of Mountain Brook Baptist Church; and, \'/hereas, Jack Cideon Paden is sur· vived by his wife, Marjorie; daughter Lisa and son-in-law Rld Gaines: tWQ grand. sorlS, Dewar and Paden Caines: and a host of other relatives ilnd CIOK friends.

- Brittin T. Coleman. pru ldent, lUrmlagham Bar Auoclatlon

R. B. Jones hero: 1. ~an Illustrious warrior· 2. -u mon admired and emulated (or his achlelN!ments a"d qualillcs· 3. -the centrol figure in lin event or period" (&e R. O. jones)

hether serving with the United St.ates Marine Coms in World Wnr II M part o( the Invasion Force of IWQ Jima, on the battlefield in Korea or in the Circuit Court for lhe Tenth Judicial

W

Circuit. R. B. Jones wu a hero. He WiIJ consulted by Iltwytrs with no eX(lerience and by lawyers who had Infini te experience. His opinion, both iIJ to the law and as to life, was solicited by e\lel')'One, received with respect, and given with 1M. Ilis advice and commenlJ have been and will continue to be quoted by la~rs seeking to illustrate a point, Mlvance a c.aUSf: or provide wimm.

Notwithsl:tnding the high esteem In which he WIl.$ htld by otheu, he was mooest in his description of his own l\chievemenl5 and humble In his asSCMment of his own success. CllcnL~ rU llecl· ed and benefited (rom his cou n~el. Judges and lawyers enjoyed his commilmenl to the law and his tenacious representation of his clients, and women IIl"Jed him. \'/hereas, it is well that we pause and reneelon this life which was so important to OUr own, min(l"ul that such rtfleClion can do no leu tl\.," contribute to a better tomorrow for each of us: and, Whereas, this resolution is offered as a record of our adm ir~tion and affection (or It B. Jones and of our condolences to his family.

Now, therefore, bt it resolved by Ihe Executive Committee o( the flirminghllm Bar Association III lIS regular meetinglluembled; 1. This Executive Committee Ilreatly

mourns the passing of R. B. Jones. and is profoundly grateful (or the example lhal his long and usdul1ife brought to the member! of the 8irminttham Bar Association, both individually and collectively.

2. Thallhe surviving members of the

fa mily of It n. Jones are hereby assured of our deep and abiding sympathy.

3. That a cop)' of this nesolution bt

spread upon Ihe records of the IJirmingham BDr Association as a per· manen! memorial to this departed brother, 4. That copies of this nesolution be furnished to his (amlly as our expression to them of our deepest 5~mpa thy.

- 8rltlln T. Coleman. pru lden t.

Blnnlngham Hlr An ocll tlon

Ifonomlt Jt rrUyn Hlanbn. hlp Huntsville Admiltcd: 1976 Died: Al1'i126. 1999

Died; March 2. 1999

Joe CIUI Coral Gab/es, Florida Admilll!d: /934 Died: IkcemfMr 26, /998

Roy Hardlng l·hlllip.

Phtmix City Admittl!d: 1949 Died: April 4. /999

Frank Mkhael Ford

Ronald Philip Slepll n

7llscuioosQ Admilld: /975 Dit1d: Ilpri125, 1999

Mobll/!

M milled: /957 Died: Pebrllorv 16, /999

Samuel Spartan Itaya, Jr. Binning'ram Adm itt//d: 1952 f)it'f/: "'ebruarv 28. 1999

t-; dgar A, Stewart. Jr. &Ima

Byron RO, II/eil lieu. III Nohile Admilllll!: 1962 f);t'f/: April 21. 1.9,99

Alan Vavld Levine Binm'ngham

MmitMI: 1967

Admillefl: /932 Died: /)('C(!mlwr 29. 1998

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Th' ASB TlSk Fo,,' On

OOuglll O'Brl,n, tormer chair, New York State Bar Association Public Relations Commltee, addresses the tough topic 01 Image and lawyer-bashing In a direct, pracllcal and upbeat manner, You will dellnltely leave this session a$ a better lawyer.

And that's no 10kel

MinorIty P,,"clp,lIon showcases th~ challenges ' -. ot our legal prolesslon ""- '. today and how specialty and local bars can work with the ASS on Issues Important to ~II Alabama attorneys. Program highlights Inctude: ~Mlles To Go: PrOQf9SS of Minorities In the Legal Profession "; How to Get and Retain COf()orate Cllents ~ and a luncheon with guest speaker James O. Cole, eSQ .. past president 01 the National Bar Association,

M,rk M,yfl,'d conlin' ues to earn accolades tor his hlgh路contont seminars and stand-up comedy, He received rave reviews at his previous appearance bel ore the Alabama State Bar and returns by populat demand 10 help Alabama lawyers "Keep 8aI8nc6(1l "

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ABOUT MEMBERS, AMONG FIRMS

Due to the nu,c increase in notices (or "About Mcmber1, Among Firm5," 1'he Naooma Lawyer will no longer publish address changes for firms or individual practices. It will ronlinlllJ to publi5h announcements of the (ormation of new

firms or the opening of solo practices. as well a5 lhe addition of new associlltes or p.1rlner5, Please continue to send in addrc55 changes to the membership depIlrtmCllt of the Alabama Slate Bnr.

About Member.

R. Scott Golden announces the openIng of his omce at 109 Compan), Street, Sui le 210. Wetumpka, 36092. Phone (334) 567-9 191.

Klarl U. TedI'O\'l announces the opening of her practice at The Benson Building.

1824 29th A\'enue. Sooth. Binningham, 35209. Phone (205) 871-8084.

Archie C. Lamb. Jr. announces the formalion of Law OInCtS of Archie Lamb.

LLC. Offices are located at 20 17 2nd

Avenue, North. Suite 200, Birmingham, 35203. Phone (205) 324-4644.

Heather Crumpton announces the formation of The Law Finn of lIu ther Crumpton with offices at Financial Center, 505 20th Street , North, Suite 1005, Birmingham, 35255. The mailing address i ~ P.O. Box 55881, Birmingham 35255. Phone (205) 930·9840.

Hoy !.,ynn Vanderford announees the opening of his office at 1302 Noble Street, Suite 2·0, Anniston, 36201, Phone (256) 236-0557.

Shawn HilI·Gunter announces lhe opening of her office al Liberty Square, Suite 323, 7 F.:. 13th Street. Anniston, 36202-8022. Phone (25tH 238·6200, Chriltopher H. Jonn announces the opening of his office at 2223 8th Street. fuscaloosa, 35401. The mailing address

in P,O. Box 1477, Tu.scaloosa, 35403.

Phone (205) 34<1-4555.

Among Firms

Wllllami &: <:hnhlre announces Ihllt Chrll topher A. Thigpen has joined the firm. Offices are located at 2617 8th Street, fusca lnosa, 35401, Phone (205) 345-7600.

Slevan K. Goozee, Lawnmee T, King and Richard F. Horsley announce the formalian of Gooue. King &: lIorsley with office$ relocated at Om. I)erimeler Park South. Suitt 486. North. Birmingham, 35243. Phone (205)969-0500.

Cabaniss, Johnston, Ganiner, Dumn &: O'Neal announces Ihat C. "'red D:mlel. ilnd John M. Gnham have become partners of Ihe firm, Offices are located In Birmingham and t>lobile.

BUIT &: F'onnan. !.LI· announee5 that Richard A. F'l$hman. C. Read Morlon.

Jr.. WIlliam T. McKende, Jame. O. SIII1III. Jr" R. lIunt Dunlap. Jr" O. Tully !lueil. Peler A. Grammal, Patricia Powell 8urke, Gregory ..~ It.rlt)'. and FA F'lowenl, TIl have become parlners in the firm. and thai Cameron I'. Thmer.

Stephen J. Bumgarner, Jamu C. Stanley, III, Rebecca W. Block. lori L. lIoward. Jamie L. Moore. D. Brian O'Oell, and Calhleen C. Moore have joIned the fi rm as i\55OCiates, Pierce. Ledyard. Latta & Wu den, p.e. announces thai Abc L. Philips. Jr. and A. 1Aw1' Philip,. III have joined the firm, Oavld 1'. York. Michael D. Slnllvkh and Jeffre, U. Heaventock have become associated with the firm . and Thomas E. ']WIlly, Jr. has joined the firm Q(coullsel.

Rlvu & Petenon announce5 that Daniel O. Sparks. David P. Condon and Jamn R. Buu ian have become shareholders of the firm. M. Alex Goldsmith and Dayld L. Fnlkner, Jr. have joined

the firm as associates. Champ t.Yonl III , Reginald L. Snyder, l'alrlck S.

111)1nn and Summer II . Zulnnu al~o joined the firm as l1$.$ociates. Offices are located at 1700 financial Center. 505 N. 20th Street, Birmingham. 35203·2607.

Phone (205J328-8141.

Lan ier. "·ord. Shaver & I' ayne , I'.C. announces thai Fnnk McRight, Edward ..;. Wlil on, Jr., Jam ie j\1.

Brab. ton and I). Scoll Anuton hal/e become members of the fi rm, and that Oaniel F. Beasley and Paul n. Seeley have become associated with the firm .

Offices lIrt located at 200 West Courl SQuare. Suite 5000. i"lunts'lilie, 3580 1.

CherT)'. Givens. I'eten &: Lockett , P.C. (,"nounces that Alex W. Zoghb)l

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J. ~'lrmttr 1~lIu)· •• 1t1 CI. U

You establish gouli ror creming weililh. We help you mett your gOlds. whik prol!!cting your (umily lind CStlltc through insurance 1100 finl1l1ciul pmdu(:1I.

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The Company'l&l Keep.I().I "wen/tll Celllef 1'liIN

Sill" SOO IIIrmlnsh"'n. AI. JJUl flU· ll ll

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has joined the firm. Offices are located at 401 Church Street. P.O. Dr,lwer 11 29, Mobile, 36633. Phone (331\) 432·3700.

MIchael L. !"us and C. Cregory lJur"tJIJ1 announce the formation of Fees & Burgeu, P.C. Offices aTe local· ed at 200 Clinton Avenue. West, Sui te 507. Hunlivi lle, 35801. Phone (256) 536·0095.

Maddox, Austill, Parmer & Lewl 5, P.C. announces Ih .. t Jouph E.n.

Stewart has joined the firm as an asso· ciate. Offices are located LIlkeshore Park I' laza, Stlite 215, 2204 LIlkeshore Drive, Birmingham. 35209·6702. Phone (205) 870-3767.

Sldl'ley C. Summey announces the addition of KlI.ren M. Williams as an associate with the Law Office. of SIdney C:.

Summey. O(fices are located at 2112 11th Allenue, South, Suite 219, Birmingham, 35203. Phone (205) 326-4149.

Wablon. Wells, Andersol'l & Ball'll .

LI.I' announces that Jerry Dun Hillman has become a pattner in the firm and that Benjamin f:. Waller, Alan M.

Warfield and Tracy H. 8eauchamp have joinl:d th ~ firm as a~t.Ociales. omce~ an: located at 500 I~inanda l Centl:r, 505 20th Street. North. l1irmingham. 35203.

Phone (205)251.9600.

Riezman & 8litz. P.C. announces that Richard N. Tishler has joined M a principal with the firm. Qmces are located at 7700 Bonhomme, 7th Floor.

St. Louis, f'.1issouri. 63J05. l'hone (3 14) 727·010J. Nathan & ASloclatu. I'.C. announces that Ju on 1\. Stove, has joined the fi rm as an associate. Officej are located at Suite 300 f'. ll1S5ey Building and the mailing address is 1'.0. Bo)( 171 5. Birmingham.

35201· 1715. Jlhone (205) 323·5400.

Brown , IIl1dgen" P,C:. announces that Urlln W. Miller became associated with the firm. Office~ are located at 1495 University Boulevard. P.O. Bo)( 16818, f'.1obile, 36616-08 18. Phone (334) 344·7744. tusk, Fnlley, McAHsler & Simms.

P.C, announces that I.e~ Rone has joined the fi rm as an associate. Offices

Here's a buslnl.'SS proposition from Avis be<:ause you're a member 01 Alabama Slllte Bar. We'll give you very special d~oul1l5 al participating Avis locations. For example,you are eligible for 20%orr our Allis Association Select Dally rates and 5%orr promotional rntes.

And you can expect thc most professional service in the industry Because Avis cars come with Avis people.and trying harder is whBllhey do besl.So make II your businl.'SS 10 take advantage of alilhe member benefits thlll Avis hIlS wailing for yoU.Just show your Avis Member Sailings Card or A$ociatlon MembershiplD card at time of rental.For more informalion or reservallons.call Avis al r-B0().6g8-5685.And be sure 10 memion )'Our Alii!: Worldwide Dlscounl (AWD) number. A530 100.

_ .ffii',,"!!.

"","'ubuIll<lWU~

are located at Suile 1700.

AmSouUVHarbert PI~t.~, 190 I Sixth AVl:nul:. North. BIrmingham, 35203.

Phone (205) 323-7100.

America n Employee Leulnf{, Inc:. announces that Amie Remington has joined the company as general counsel.

Offices are locatcd 1119160 Iloc Street.

Pens-lcola. Florida 32514.

Rick D. !"mnd8 & AlIBada tea. P.C. anTlOunces that Charita C. Dawson hu become an associate with the firm.

Offi ces are located at 20 15 First Avenue, North. Birmi ngham. 35203. Phone (205) 254·3800.

Kenneth Ingmm, Jr. & Associates.

1'.C. an nounces that Cathtrlne Moncus and Jeremy Knowles have become asso· ciate~. Offices lire located at 1055 Cherokee I~oad, Alexander City. 35010.

Phone (256) 212-9700.

Constangy, Brooks & Smith, loU: announces Ihat Dllna L. Thrasher has joined the firm. Offices are located in Birmingham, Atlanta, Columbia, Nashville, Arlington and Winston-Salem.

Frank S. Buck. P.C. announcn that Lin Frost 8rown h.u joined the firm .

Officn are located at 2160 14th Avenue, South, Birmlngnam, 35255. Phone (205) 933·7533.

James T. Suur, Lynn McCain , WHilom B. Ogletree and Lee T. Ozmlnt annollnce the formatlon of McCain, Ogletree, SUler &. O:tmlnl, P.C. Omces are located at The Printup Building, 350 Locust Street, Second Floor, Gadsden, 35901. The mailing addrus is P,O. Box 1099, 39502, Phone (256) 547·0023.

Off. hore Tool & Energy COl'1)On tion announcn that Kllhy P. Shennan ha5 become gener1l1 counsel. Omces are located at 300 SI. Frlll'lci$ Street, 1).0.

Box 1352, Mobile, 36633· 1352. Phone (334) 432·4472, Paula I'lcCreleu Bau ham ;r.nd TImothy L. Shelton announce the formation o( Ih u ham &: Shelton. Omces are located at 303 2nd Avenue, S.B., Suile S, Decatur, 35601. Phone (256) 35 1·8827. lIaygood, Clevt!1and & I'tertll! LLI' announce5 IhaL Gerald {\. Matt.A on, Jr. hM joined lhe nrm as an associate. Ofnces are loc.lled at 611 E. Glenn Avenl,lc, Allbum, 36830. Phone (334) 82 1-3892.

Kenneth W. Underwood, Jr. and Lude Underwood McLemore announce the formation of Underwood &.

McLemore LLP. omcu are located at 200 S. l-Iul1 Street. Montgomery, 36101.

Phone (334) 263·3034, McDonald. Fleming, Moorhead &.

•'ergul on announce that William J. Green and J.D. S mith have become partners in the nrm and the firm name has changed to McDonald, Fleming,

For an Expert Business Appraisal, Knowledge and Experience Make the Difference .. .

Ru"sd l Finand:.1Co n~ult j n l.l' Inc. l~ on l11dcpen· dem ccrt ified prof~"lonal (I,m 5pecillUdnilin busl· n~M ~ppntisal!. Dei rdre Il uud l, owner. h ~ the expe rience lind r«Oj!nlll-G lndlJitry Cll'dentials thm proVide lhe nillhtn quality, expert vHluatiorlll (or buslnes.5Cj and profwlonal prilCtlcd. Her IIml,· ation wilh the Alnerican Buslnw APf'r'I'ustN Net· work, a nallonal oxllillon o( Independent blJSh,w "rrrnilCn, ex pallds her rC$(JUrcC!i to offer a wide rilngt of OOsin(';33 . ppmlsallCrvictl, VA WATtON SERVICE USESI • LITIOATION SUPPORT SERVICES

• ESTATE PI,ANNINO • MERGERS AND ACQUISITIONS • EMPLOYEE STOCK OWNERSHIP PLANS • INVESTMENT AND FINANCING DECISIONS

Wilson has become associa.ted with the

fi rm.

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RUSSELL FINANCIAL CONSULTING, INC. Oma Bolt 241 6n . MoNK.oMuv. A LAbAMA 361.24· 1612 TlUrHON~ 334'6 IHi044 ' f.vr: 334·6 13'6029 MftotM " - s-w" .w-o N--' N.",""" . AlIA 0jJb0 N_ "'-fW llll ( ..... ~

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usto mized investment grade pine ti mbcrl ands available as replaccment pro perties fo r SEC. 1031 TAX DEFERRED EXCHANGES or :lS lo ng-term investments. all Bob Lyle at (60 1) 948 ·8733 .

Fax (60 1) 35 2-7463

Moorhlld, Fergulon, Cree n &: S mith.

The firm also announces that P. u\ A.

Deirdre (lxc) Y. Ru ~ lI.

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WOODLaNDS O ",- O U I'

The firm of Mann &. Cowan P,C, announce! thaI RDbert !'olter has joined the firm as an associate.

6 54 N ORTH STATE TR£ET, J AC KSON, M S 39202 •

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a Did you know that the Alabama State Bar can provide you with IDOls to help you practice law more effectively? With tools to help you manage your law practice mOre efficiently? With I~Ols to help you

better serve your clients?

Arwj all the I~Ols you need are "in stock and available now" through the law OHice Management Assistance Program of the Alabama State Bar.

lOMAP Director Laura A. Calloway has put together an extensive library of resources to assist the sale and small firm practitioner. Designed to act as a clearing house for information on all aspects of the operation and management of the modern law office, LOMAP services include resources from office management assessment and slaff Iraining to guides for law firm marketing. lQMAP is the one tool you can't afford to bewithout in your law practice today.

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Alabama Crimi nal Defense Lawyers ASSOciat io n 1999 Su mm er Seminar & Annual Meet ing Justice Must Be Won What's HOT a ncl What 's NOT!

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TopIcs! The ABC's of flHA Shoken Bob, Syndrome Cross Exomlnollon E~lcs

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he Alabama Judicial Inquiry Commission's advisory opinionS1L re nl,lw avai lable on lhe Intern et Tht

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posted and managed by ALALlNC, the State Law Librnry's legal IMormatlon service Web site.

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BUILDING ALABAMA'S COURTHOUSES 13)' S.'\muel A, Rumore, Jr.

lIlJa/prIori rIfKwI coutrltousc doorwav Qr1bfl'(/(}

Spain

he cnrly history of Alab<lma i5 the ~tory of Spanish explorers. Tht earliest documented Eumpean visitors were lhe Spanish sailors under Alonso Alvarez Pineda who visited Mobile Bay in 1519, which was 300 years before

T ._m"..

Alabama be(.:ame a state. Other Spanish explorers included Parlfilo de Narvaez, Hernando DeSoio, Cl,Jido de t..1S

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Bazarcs and 1'risian de Luna.

Because of this early Spanish influence In Al a.hamn, which did not end

untll a Spanish garrison at Mobile sur¡ rendered to Americ.'ln forces in 1813, It is relevant to consider our heritage from this European country, Recently cou rthOllS~ author Sam numore and his family took a spring breilk trip that included several days in Spain. This trip was particul3rly $pecial because the family stayed with fr iends in MlIddd,

Each day in Spain they vtn!ured out to fi different loc.a.tiorl. At Toledo, they saw the Palacio de Justicill which Wa! on the ancient square and acl"OS5 from the 13th Century Cathedral. They were not able to enter the courthouse because, tnle to loc.ll custom, it was closed in the early aftern oon for the traditional siesta.

On another day they visited the walled city of Milli. Here they viewed the judici31building ncar the birthpl3ce of SI. Theresa. It is located in il 16th Century 1IIIIaee Lhllt WI\! once the ho me of a Latin American viceroy. Among the interesting features found in this courthouse were the religious symbols that are specifically prohibited from bei n!! di$played in an Americiln courtroom.

This courthouse contained artwork and beautiful wall accessories. Aho, the courthou~e at Avila was originally a home with iu own courtyard.

It was a tremendous n:perience for the (amily to \/isit Spain and to see buildblg5 of the Spanish legal system, The regular fea ture ~Bulfding Alabama:, Cour/houses· will con tinue in the next issue of The Alabama Lawyer, •

Chap7..13 Filing • PnldUa.lllllhll ofl'lcilll IwInkruptcy form.

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• Thu froerallnlOkrul>Lcy c~cmplions pnd .Ilote 1I~~l1pCIo)n" nrc Included -limply point nlld dl(;k to ftpplytOpl'opet"ly .

....

• All m.th Ind crethtor $OI1inll il lu tomlllic _ Drld IICCuhlL~~

. lnchKlcM vnlUllbl1i nllntl ch~<ckll~tJ .1d pI'!II:llce forms.

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rrom Wnt Grot'l~

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Clue/fix In Spml/sh ('Wffroom

LETTERS

JUZGADO

PENAL

C,Iminai (Aufl

NO JULY lUi

Deer Mr. Rumore: Being interested in history. I read )'Our stories on Alabama courtllOuses, and recently reed the one on Berbour County, Alabama, So that the record is straight, I point out that the commissioner you Irst as Jacob Ulery should be Jllcob Utsey, ThiS man was my great, great-grandfather who was bom in Swth Carolina and moved to Barboor County. He latOt f'I'IOVed to Choctaw Coonty and died hele and is biJfied here, His full name was John Jacob Utsey, and he IS listed in tho Iloot;.

EIJrly Selll8rs of Ba,.bour COOnEY, first edi· tlon, by Marie Godfrey, He is al$O listod liS one of the commssioners to IOClito Iho county seat in the ~Story of Barbour County. I enclose po:ges of each publica· tion in order to veri~ the COllect spelling of his name.

Keep up the work. Your articles ere eKeelient Vary truly youra.

William L Utlay Butlet Alabam.

April S, 1999 Dear Mr. Utsey: Thank you for your recent letter setting Ihe rocoed slrElIghtl71a\ the person listed In my ElrtlCle on Barbour County as Jecob Utery should have b:!en IrSted 8$ Jacob Utsey t went back 10 my notello see how the mistake coJld have been made My source for that particular section was Thomas McAdory ONOns' History of AlabiJm/l On page 11 Bof tho book ho listed the commiSSioners and tho first one mentioned wes Jacob Ulory I om very happy t) set the record straight end I essure you that the torract name of your OllC:es'or, Jacob Utsey, wlll be Included !II any f~ture publicatIOn 01 the Barbour County artIcle Thank)'Ou for vo~r kind WOfds Sincerely yourl, Samu,l A. Rumore, Jr. April 20, 1999

Dear Sam: Over- the past savllral yeers I have IInioyed your articles about tho vallous courthouses throughout Aleoomo aOO their hlstoricel developments, I do not rllC(l1l how lonG you have been wri ting vour (lrlicle, howev8r I 8ssume that you must be getting ClOS8 to the end of the 67 counties in Alabama Ithoirght I would pass some information along to you about another COIlrtOOuse. and 8'o'8n though it is located ouulde tho State of Alabama, it probably has a hiltorical con· nection to tho northe(lst part of our stale.

1recently visited the Now Emota Stale Histoeic Site near Calhoon, Goorgia and visited tho roconstrllCted courthouse 01 tho Supreme Coun of the Cherokee Nation.

As you probably recall, much of north· east Alabam(l (to Include OeKaib and CherOkee counties} W(lJ part of the Cherokee N(ltion The Cherokee Nation had a system 01 government paralleling the Urited States GO\Iernment and had a Suprene COUll. four Circuit CourtS and eight Oistric\ Courts in its judicial system, as well as shoriffs to attond these courts.

I first became acquainted wi th this state historic site in an Brticle that I r8ad in tho American Bor Association Journal In the late \ 960s SIncerely, Patrick H, Tile March 30, 1999 Dear Pat:

Thank you 101 YOUI loltE!! of March 30.

Tho informatioo you relotod aooJlIhe coort· house buildings of the Cherokee Notion located at tho New Echota StalO HistOlic Site near Calhoun. Georgia was QUite inter· estlng lam paSSing YOOIletter 00 to tho edItor of Th8 Alabama ~ magazine I hope that the infonnatlOfl Will 00 useful to Other \awier$ around the Stala Nho mtg/lt enjOY a .... Slt to tl\at partICUlar locale

Thank you for YOUI Interest and shallng this information With me Sincerelv VOUIt, Samuel A, Rumore, Jr. April 20, 1999

1999

STATISTICS FEBRUARY

OF

1999

INTEREST BAR EXAM

Number silting for exam , , ... .... ....... , ... , , , ................... .... .. , . , , , , .. ,.

348

Number certified to Supreme Court of Alabama, . , . , . •• •..••... . •...•.....•.. , . , .. , .. , .

174

Certification rate· . . .. , . , ...... , ...... , . , . , .. , ....•....• . .. . • . .. . • . .. . . , .

50

percent

84 84.2 27.4 44,6 7.1

percenl percenl percenl percenl percent

Certl'lc. tlon Pe rce nta g •• : University of Alabama School of Law.,., . .... .. • ......•....•............. , ...

Cumberland School of Law .. .. .. , ........ • .. . . , , . , . . , ...•.................

Birmingham School of Law .............. . • . .... . ..• . •.. •• ... ••... •• ...•...

Jones School of Law, . , .................. . .... , ..... , . , . , .. , .•....•.......

Miles College of Law ., ................................... , ....... . ...... , "Includes ollly those successful(1/ passb1g bar exam (me! MPRE

~ULY ....Ul

U1

Alabama State Bar 1999 Spring Admittees Mi chilel Wayne Annislead Katherine Brown Arnold Marc JlImn Aye~ EdwMd Mdrew B~lIey

Sheri [(cnte Barker IllJ rbara Iknise Dorriely Bate.s Daniel

~'arri~

IkMley

George Steven Bell. III l!aYlllon\ll.loyd Bell, Jr. MdiUli Itope Ik:rldu Calhe), 1~laine Berardi Martin Kassab Ik:rks Poll)' Rene BI ~ll)Ck Irene Ellltrlbeth Blomenkl'lmp Rebet:c.1 Elaine IM.!weIl William Louis McKinney IJTO". IV Ja)' W. Ilrown M lch~le Marie Ilmbaker Kerry Hnrmon Bryan Janine Mllrie Burrtll John Edward Il),rd. Jr. Elbridlle GCIl)' Cab.lni1S. JJ I J)mJ1I1;1,\ Walter Cmf Lloyd Wlllillm c:.rr Wayne ClITter Thomas Wa)l1lc Cal}' I)~vid CIlI)' Cicero Allin Ilruce Clements Kimberly Mbtie Clenney Jennifer Erin Cobb Derrick Kcndllil CoIliru Clorlll Lowell BI'Q'Ml Collins John Collins Jennifer Olalre Kunk Com pion John l>leKcillllo~ rl COrllpton Catherinc Heuer Coppedge Mark Aubre), Covin Roy L..'ljllan O~nC)'be)' Tem Lynn Danfor<l l..arry Eugene Darb'/ Charl es Brian David.son William Ridlilrd llavi, AUlson Jo.) n Hornsby lleison Ann Inl[!'3r1l Denne', Tamm)' Anita Den~n Hay t:Uis Donaldson Jamie IleAna ~rs Durham John Martin ElIdes, Jr.

Glendl! DeniM; BumpU! Gamble

Jo.scph Charl~a McCorquodale, IV Steven Curtis McCinity Reta Ann Allen fotcKannan Mitchell MMthew McKinney Bl'lIdley Crant McNutt 1"I1I1'lk Edwin f.1cI~t, III Tiffin Amanda Miller Jacqueline Renee Mills

Tracey [)awn Gibson rrederick t)ar'Wrl~ Cl hlwe Duane Ilranklin Cordon. Jr. Brcndcttc l..aurione Brown Green M icha~1 Scott Green Sony;, llarlene Greene Jose ~:nr!lluc CU~rl\M James t:dward It~1I Rand~ Allan I-lames Dusty I.)'nn Harre ll Eileen Lu\:i!le Ilarrls James lAInlimire 11IIrrisol1 Wal ttr Let Ilcglar. Jr. Andrew Arden Holhem Kilth.wi ne AIken Huffman Susan Am.1nd" Cook liuffslUller BriM Ktl lh J:r.doon Monica Elisabeth I'au li Jayroe Mard Michelle Suggs Johns Lucindll Byrd Johnson Mlcllnel PWick Jol1llson Valerie [)elone Dawson J\IMh D.wid Patrick Judd Mary DuBois Krohn Kamp lain Cheryl Anderson Kidd Keith D;ltllel Klrkle)' ShmhMie l>loek Kn ight l..aura EIi~th Knrck Anlanda Ilose Lewis Th rrelt lIarr Linton lk:mdol1 Cl~yton Little John Thoma.s l.ongino, IV Tcrrincll 4'oru Dann), Ra)' ManiC)' Hichard Johl) Marsden Holly Stubhleflelll M alh~ Gordon Anthony Mayfield Wc.slty TOOd Mays Eric Christophe r McAdory Kim Elizabeth McClain

Cathleen CUrI'lIn f.1l)Qre Harol d V~n Morgan. Jr. JlIrnc.s EMI Morl!3n. Jr. Ilachd Diane Murph~ MorllM, Robert Jennings ~t orris Nina MoulhS Mary Evelyn ~lo.r lton Mal')' l.tt Ellinaton Mrochek Patri ck Joseph Murph)' John Michael Murray William GI~'tle Nllool'll James Park Neill Johrll.cland Nel ms, Jr. Cary Rellg.ln New David Robf.rI Nimocks NQrman Alennder Nolte Normlln Mcleod Orr Carter l!andolph I'alole Debora Ellen I'Jlmcr Cary Dean Parker Tommy Eullene I)attel'llon. Jr. John Calvin f'eacl)Ck Scott Walker f1tdigo RUSSl.:1l ~:lIi5 Penfield M~ron Cordell Penn &llllUel Richard !'erioff Michael Johl) Petersen lI~nT}' Wirulon Pirtle, Sr. Will iam Calvin I'orter Celeste K.!lfen "oleat Joh n Mlclulcl Pot! Vi rlctnt (;(rarll l(aIlP Eric Tyson llay Stal:)' Jant Loti Reed FAlward t:arl Reynolds. Jr. Ilobert Forest Ripley Ilellinold Ilobiruon ~'ranci! Jnckson Rogel'll Melvin Douglas nu~1I Roman Ashley Shaul

Che!),1 MJrie Earle Nadine

~'a rid

Daniel

M~s

Filler

SteJ'!hen O~le n~her ChMlu CIMT ~'isher, VI JOkllh I.ec Fitzplllrk k, Jr. ~;dcn

Joanna Brown Caines

Billy Joe Shem~ld. lI l::1izabtth Ann ShtpJ)llrd Derek Brandon Simms Mara lleginll Sirles Kl\thl een Alllle Skel1lp Bradford Jamea Smith

Francoise Mtlc 1\lI#on Smith RoOC rI Briiln Smith SllM'n Vincent Smith M~r)' ~:II~lbeth Snow W~rr~n Kevill Snyder Uartlcy Stiers Spung Susan Belle Stedman Hubert Ray Steinmann l.Ilrry Ray Stew.llt Tony Bruce Stroud Michelle Bmmbaugh Thngcl1llIn Am)' I~ Kondl"llth 'Tanner Brian Steed Thtum Erika Perrone Thlum SI~~lt ~'()jter T:1)'lo!

Nd l Caston T~'W Richard l..awrence Thigpen. I[ James J~ph Thomp!lOn. III Mic h~eI leslie l1 \ompson I'aul JOMlph Thompson CIÂŁnnon ~'lctchc r Threatt, Jr. Cameron I'a mell 'l\rmer Deena Voncia 1')'ler I'owelll)ean W~lte, Jr. BMry Wa)'ne Walktr David Higgs Walker JaC~el ine Denise ll rock Wu inlolton Franklin Hilrolll Watson Nedra JOlIn Walson Grellory Lee Wall MlirUIlI Ellen We:dherford Hilchci ClIl1ie l':lI'cnllcr Webber William Howard Weems. Jr. l>ebomh I{oruniowski Wheeler Lou SIMla White Kenneth Hay Wlllm r J~rnes Cu rtiss Wil!tllrt~ Gary j,u Will forll Jr. Calvin l..akeith Williams Tam\lla Renee Yellinll

Lawyer8--t In the FamllyMdflV 11i.~IIII •.,,1imJ li'illiutnt (1.'199) IIrtd Jim It 'i.'11ll11!dill'if (1.'17'.1) i1dmilll.'fl lind (uloo

nil/v J. ShrffM,1 II (/999) (l1I(f /JII/JI J. Sh"muld (197:1)

mJm/l/<!t' 1J.1I1 (<lUN.'..

INnis. &11.-1 (J999, ",111 DfiUsJI~ Uult'S (l9?1) udmilll'll uml hUWaul

Slo-pIwn O. J.~I~lwr (1999) lind f:.·,bv J. IoYsrll"r (1.996) IJdmill.'lJ mill brolllt!r

M/(h<H.'1 IV. Amlislood (/99.9) u,td 111m IlIlrr Amr/$I.'III1 (l99l1) ,,,/mil/ri' rmrf w/fll

Clr"dd '..,mh/~ 11999) uml Cllmt/!1 G<lmh/Il (1.968) Mm/llt'tl ulld f<ll'w,..(,, ·/uw

f'Mkrklt I\JfWtU Gilmon (1999/.

I( "NIV'1fl Gilmf.H't PhillIP/ii (1919) ",11111"""m 0. Gilmo". Jr, (1983) i1dmilll'f!. jim:.. "m/ brulMr

J. Cltarld I-kCIJIlIIKJWk', IV (19!J!J) rnld MIJC McC(JtQUQI1uk (197JI

l.urrJl N. Slfll.'url (1999) Imd l'alriclo II\J~ (1993) rrrfmlllf!jt tmd si$I•.,..itdilU.'

JUJI Tlwm(!$(lO' (1m). JIm ThImI",.", (1969/ ",oJ Jolm ThompJfJtr (1969) admil/I'/!, (ulh, .. rllld r",(I~

$(tlnu,1 N, fYrloif (1999) ",111

emilJl Ifom$bJI fIo'f:ISOIr (1994). AlI/WlI l/o"l$bJIl);),srnl (1999). c.1uv lIonl$bv (1988) lind &mIlV I/omsbll (196()) Sis/a, udrnillt't. brothif' und WI"""

MorIN' IV Pt!rlolf(l9!IJ) udmilllV <IfId wlhIr

IIdm/llt'tI ,mIl (",11;-,

JDhI1I;. l/jJnJ (1975) (md Jolm IlJlfll, Jr. (1999)

(uriwi' u,td uilmlt'l!!/I

JUU 1000 I

~4l

e.

Attorneys: Buy Extras for Your Staff!

1999 [Q) u~~~

are in!

Members $25 each 1 TO 5 COPIES $20 each 6

OR MORE COPIES

Non-members $60 each ORDERS MUST BE PRE· PAID Mail chock

tOI

Alabama Bar Directory • P.O. Box. 4156 • Montgomery, AL 36101

11111

LEGISLATIVE WRAP-UP

By Itobert

I~

f.1 cCurlt')l. 1r.

The court system and the Alabama Staie Bar supported 1·loust Bill 53, which was sponsored by Representatives Demetri us Newton and Bill Fuller, to equaliu pay for ap~ l ­ t"te. ci rcuit and districljudges. This bill eliminates loeal supplem~nts and settles the pending law suit over inequities of Judges' pay due to county supplements. It also increllses attorney feu (or indigent defense and provides funds (or compuler· Izallon of the court system.

Pay R.I •••

On October 1,2000 the nlinimum Slltary of clrcuil court judges will be lht !arne as a Stale Attorney IV, step 14 (5\00.526) with 5upreme court judges receiving S\41.580. appellate judges $140.580, and district judges. along wilh district altornc)'l. receiving $124,658. All s.:tlaries are adjusted, relative to the circuit judge's pay. as provided by Act III of the 1990 Regular Session.

On October 1,200 1 the s.alary of ci rcui t judges will be that of II State Attomey IV, step 17 ($108.248).

On October I, 2002 circuit judges' salaries will be increased 10 $111.973. wi th othcr~ adjusted accordingly. This will be in lieu of cost of living raises.

Any ci rcuit or district judge Ulklng orfice after October I. 200 I will receive no local county supplements. Incumbent judgullnd justicu will receive additional comp(!nsation of 1.25 percent for every year of service, to a maximum of 25 percent of thei r case pay. all from stille funds. This will allow circuil judges with experience to receive up to $125.658. This additional compens.ation will offsellocal supplements which will eventually be phased out completely.

I~urth e rmo re, all judg(:$' retirement benefiu will be paid by the state. The la~ providing (or the Judicial Compenution Commission is also re pealed.

Effect ive October I. 2000 attorneys will be paid S60 per hour fo r appeals. with the maximum amount Increasing to S2.000. up from $1.000 (or each appeal. plus expenses.

Court Co.t.

All docket feu will be increased to fina nce jud,es' pay rais· es, appointed council fees and computerization of the court system. Examples of the increasu are set forth. For tiling fees in civil cases: Small C l alm~ $25 increased to $:10 $74 I n crea~e d 10 $10<1 District Court $1 10 increased to $1<10 Circuit Court For criminal cases. the docket fees also increase as follows: Traffic Violations $62 increases to S92 Misderm:anors $87 increases to S117 Feloniu $155 increases to SIBS Juvenile S55 increases to $BS

THE HIGHEST QUALITY IN COURT REPORTING LOCAllY

OWNEO

c - .. lrt(Mo:.d ' _

0IM:_. l)c.A.$CI "

Indigent D.'en •• Attorney.' F••• Attorneys' fees for appoi nted counsel In indigent cases will be raised immediately (rom $40 to $50 per hour. In court. and $20 to $30, out of court. On October I. 2000 the hourly rate will increase to $60, in court, and $40, out of court. The maximum in each CIIst will be: Capitol Cues No limit Clau A rclony $ 3,500 Clau B Felony $ 2,500 Clau C Felony $ 1.500 Juvenile Cases $ 2,000 All Other Cases $ 1.000 The maximum may only be exceeded in exceptional cases with court approval.

FOR

~

25

YEARS

.....

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All d{)(;ket fees will Increase an additional $5. e((ectivt October I . 2000. In addition to criminal case d{)(;kel feu. thert are addltlonal court cost fees (or drug cases. These additional fees range from $40 fo r unlawful pos,session of marijuana. to $600 for trn(ficklng In it cOntrolled .substance.

Adv.nced Technology .nd Dete Exchenge Fund

Out o( these new (ees 1I fund is created for the follOWing purposes: I:':lIipand methods and means for collection and disbursement or court-ordered monies through the use of credit cards and electronic funds and transfers: enhance sharing of data with the bar and courts: provide (or electronically (;ling of c.\$es: and traininll of court personnel.

Tort Reform

Three bills reu~ved great debate, $cnate bills 72, 305 and 137.

Senate Oill 72 sUllplerncn15 AlII ItCiv P.23 and provides new guidelines for cerUficatlon of class actiOns. SenMe Oill 305 amends Ala. Code Sections 6·3·7 and 6·321.1 and delineates the proper venue fo r filing of civi l ca~es as (I) the county where the occurrence look place, (2) county where lhe corporation's princip.,1 o(flce Is located. or (3) county where the plaintiff re~ i ded III time of the occurrence.

A third Senate Oill. SU 137, provides caps on punitive damages except for wrongful death and actions involving intentional physical inju ries. The limits are as (ollows: Three times ewnomlc damages or $500.000, whichever is greater.

For other actions against smal1 businesses, the punitivE: award may nOI exceed 10 percent of Ule defendant's net worth, or $50.000. A "sma.l1 business" is a business with a nlll worth 0($2.000.000 or leu al the time of the occurrence,

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Punitive awards (or personal Injury may nQI elceed three times compensatory damages, or $1.500,000, whichevtr is grellter.

Child Custody JurisdIction end Enforcement Act

Sponsored by Representatives Demetrius Newlon, Marcel Black and Bill Fuller, and in the Senate, Sertators R()(1ger Smitherman and Roger lIedford, House Bm 224 provides a procedure (or the filing and enforcement of interstate child custody c.\ses. This bill provides guidelines for lh ~ proper forum ilnd resolution of disputes where divorced parents live in separate states. It also will auist in the speedy enforcement of visitation requests by the non-custodial parent (ef(ectivt Ja!'Iuary I, 2(00).

The act repeals the current Uniform Child Custody Jurisdiction Act For more information about the Institute or any of its projects. contacl llob McCurley, director, Alabama Law Institute, 1',0. BOl( 861425, 'fuscllloosa35486-00 13: falC (205)348-84 11; phone (205) 348-7411: or vl~lt the Institute's home page. w/I/!Il,law, ua.t'(lulali.

•

A full service Investigative bureau serving the legal community throughout the Southeast (surveillance, backgrounds, asset checks , etc.).

Call Coburn Investigative Agency at 1-800-C IA-0072 or visit our web site at www.cJa007.com.

Gathering intelligence, intelligently.

Rabert L. McCurle~.

Jr.

RootI! L MCCUlley. Jr illIIt (111_ (II !III LP IrlfbllM I! h t.WYw1tr 01 ~ HIo roceMlO ".. .ns.~Idua!l ..,;I ... _ _

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tIam IN I..InIv-.I!Iy

, Alabama Students Named Medal Winners on Law Day

olodul posters and thoughtful euays mlde it tough (or the judges orthe 1999 l.aw Day I'oster and Essay Contest sponsored by the Alabama Slate Bar. A reco rd number of Alabama elementary, middle and high school students competed for honors in the statewide contest.

For the first time, winners in fi rst,

C

second and third place received gold.

silver or bromte medals. 85 well as United States Savings Ilonds and II com· mcmorlltive certificate. Honorable men· lion winners and all participalinlt schools receivtd ctrtificalu of recognilion. Winners wert recognized at the r.1ontgomery County Bar Association's Law l)ay I.unehton and lhen l oured the Judicial Building.

This year's winners were:

..

Second Place: Matthew Ilond, I~ed Level School, Hed Level Third Place: Lindsay Durham. Phillips School, Bear Creek Honorable Mention: Hoderick 1':Iylor, t'itzpatrick Elementary School.

Montgomery

Second Place: Le~lie M orn~, Hartselle Junior School, IlartJelle Third Place: Brad Wallace, Hartselle Junior School. Hartselle 1Ionorable Mention: [len Atchison.

I l:lTt~l1e Junior Iligtl School, I-tarbelle

POSTER CONTEST

Gradu 10-12

Gradu 4-6

First I'lace: Jamie Jackson. Coffee High School. Florence Second Place: Aaron non Burks.

Ashville High School. Ashville Third Place: lamllla 1\oward. Brad$haw High School, Florence 1"lonorable Mention: Thomas Drake, Bradshaw IUgh School. Florence

Firsl Place: Amber Lynn Zaber, Floyd Middle Magnet School, Montgomery Second Place: Brillany Jackson, t'loyd Middle Magnet School, Montgomery Thi rd Place: Peyton Roberts, Indian Valley School, Syl~cauga Honorable Mention: Ben Andrews, Indian Valley School, Sylacauga

POSTER CONTEST

ESSAY CONTEST

Crad n K-3

Gl1Idll. 1-9

First Place: Joshua White, Phillips School. Bear Creek

First Place: Brock Berllslue, Hartselle Junior High School, Hart.selle

ESSAY CONTEST

The judges for this ycar's contut were Shirley Z. Brown. Deb Keysor, Lynne Thrower, Dean Hartzog, Linda B. Allen. Mac Mcllrthur. and Tommy Klinner and Tim l.ewis. who serve as l.aw Day Committee co-chairs.

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MOBILE BAR ASSOCIATION

Celebrate. 130th O n April 15. tht r-lobile IJar Association celebra ted its 130th anniversary as the firsl bar ass0-

ciation in the slale and the 14th oldest

bar I1!$odal ion n:ltionwide. The celebration ilt the MBA's Levert offke headquarters included lhe unveiling of a special oommemorali~ plaque authorized by Ihe Alabllma Slate Bar Legal

Milestone prog ram, which recognizes im(lOrtanl cases, events or personalities in Alabama's legal history.

On April 12. 1869, 32 local llttomeys filed a Declaration of Incorporation, having contributed $5,000 in C<lpital. The original mcmber5 included: P. Hamilton, Thos. A J lamillon, I lenry St. Paul. ThO$.

N. MaC.lrtney, H. AU$titl, Rob€!rt H. Smith, Wm. C. Jones. Thos. II. Prlet, ThOtn.'I.~ E. Hemdon, D.C. Anderson, M.E. fo1acartnty, tlugh L. Cole, E.S. Dargan. D.P. 8eslor. L CibbOlU, A.R. Manning. George A. Stt'ol-'art, w,e, Easton, G,Y, ()yerall, R. lnge Smith. I'erey Walker, J. Litlle Smith. ,.1.8, Jonas, A.M, Cranger, Jno, A. Tompkins, W, BoyIe5, G. Ilorton, A,t::, Buck, Jame5 Hond, Uany T. Toulmin, Jame5 Gillette, and e.EHoulton.

The corporation existed for the next 20 years and continuoo to fl ourish, Incorporating in June 1903115 the Mobile nar Association. The new corporatlon, boasting of 65 members. was II no-stock nonprofit corporntion with the stated obJective of "cultivating the science of Jurisprudence, to promote lind encour·

.,.". />1001111 /Ji1r AuodIIliotJ ~ hw/dqI#IrlnJ 11/11111

La"'" HuJ/dinjJ u."-" 1M pI~ r:r;m_moruting thill3()(h _h_rv 01 f/w "", IU f/w nfJI bar IJS.f«ifllion kllM Itrlll IJ d/spJ!ljf«i

age reform in the law, to increase its usefulness in promoting the due complete administralion of Juslice, to elevate the legal profession to the highest possible standing of learning, irtegrity, morality, dignity and courtesy. to regulate jl5 practice, and to cherish the spirit of brotherhood and social intercourse among il5 members. and to establish and maintain for the free use and convenience of its members. a law library."

Until 1981, Ihe MBA had no permanent o(fice.

•

Comm,,,_ti!w p/aqlN Ikpkth'llllw orlv/nrtl fflIIIl lbfrs who tstubllslwd 1M Nobl,.

A$.w(/iJtiQl' /"

Bar

1869

Newest Additions to the Alabama State Bar he mooth of M8~ SOWsoY(IfOl ll(lw namos added to tile list of SUIU mombers of the Alabama Stale 88r S.nd ... CI'IMntl jOIllOO tho Alabama ST3to Sa, as an admimSUBt ve 8uistont to the lirw OffICe ManB\llJment Asslstrce ProgIam lind the I.awier AssISUlI1C8 Progmm 1'f1MOUS1y, Sardre WOIted lOt the MontIjOfllllf'/ law 11m! of Gldl.e. Hinton & Hemdoo ShG a\l{W\(l(Wj ull$COfl1b CoIIega In NasIMllo Sandm lias three chiltlren. Julie (marned 10 Jlmml8 Dunl, Tnpp(marr!Od to ElllIIbeth Starul, lind Tyler She 1IIIfOYI1lll1 1~OO grandchrklren. Qles,

T

241 JULY 1100

Will M1 l 11 Sandra oojoys read ing. snorl:ellng, enll!flainlng f8fllily ood fnenr:il.1Qng walks and. of COUf$ll, baby·!llIlng tIM grancthrldran V.larfe ROil was hired IS a 58CflIterv in the Contrnuing l egal Education Ileportm8nt IJaIGrr/l IS a IID!lW of Welll'11pka She IlIendOO Alabama

State UniverSity and nl8j01od in compu1er Infor· matlon l'ftlM'lt Sh9l1at a MWlfl·yeal·oId daugl\tel. Shaklra In IIor spare lifT\3. Vallllie oojays relaXing WIth f&mliy 8Ild 1110lI(l, Shnnon EIliOft also jOIn(KI the Alabama StaIB Bet. as the ~ic8t1OflS ar;\rnIrMSIrI-

11'0'11 ossistant sm Jl"1IVI<lOS1y I'oUkod IU 01l1CG IIIlnFIobon lmle MIIIwo!\: Co. lOt SA !1JII(S Shatrm IS a IIiItMl 01 Wet~ anj ~;n,ated frem Watlll'l'll*a H91 School SIle is IlIIJ/lOO and lias two ctukiron, TI'fb and Ht.mer k'I ~ !Pi\I'91lm8.

Shamon anjoys wa~ MIl 'i\SitUllMlil takes Cilol Thornton bIIcamtIlhtI founh stair DdcII bon III May. taking CM!f as the lawyer Refanal $ervIte suaalatV Calol preo.iOu$ty wort.ed for Jess Smlth & Sons Colton Carol I""", In WttlKl1l*a .....,th her husbiInd Ray BOd daug/1ter IiIIiI Sha enJOYS fl$hlng and spord;ng tune WI\1I j&mll'; • &gel for

Unique Alabama Trust and Estate Income Tax Rules Create Traps for Alabama Lawyers

By Joseph W Blackbum wlll discuss some specific planning pitfalls arising as a consequence of these. distinctions. Such pitfalls can entrap any attorney advising fiduciaries 11$ .....'tll as tax planning sptcialistJ.

Introduction Alabama's system for income laxation of estates and truslS and thtir respective grantors and beneficiaries is broodly modeled aft er the federal pattern. Alabama does 1Io t , hoWeVfr, follow current fed · eral Illw in !evenl impor· tant, specific respects.

Somc of these disparities can be used to greal advantage by Alabama taxpayers in I:.wfully avoiding Alabam~ tax on capital gain and investment income. Such di~parities can also and havt led 10 misunderstandings regarding Alabama lax rult$, These mis· understandings, In turn, creale lax planning and fiduciary administrative traps (or the uninformed attorney and hi ~ client. This article addresses the lat· ler of these ramifications.

Broodl)" both Alabama and federal income laxation rules art duigned to tax income of a trust or estate only once. The income will be taxed either to the fiduciary (trust or estatt) or to tht beneficiary. but not both. Thxability dcpends on whether the trust or estate accumulates current income or distrib· utes such income to the beneficiary bdore yellr·end. If trust or estate income Is not dist ributed before yearend. the respectivc twst or estate is taxed on such income. If income is dis· tributed before ytllr-end, the beneficiary is taxed on such distributed income and the trust deducts the amOuT\t $0 distributed (rom the trust's Incomt. The t....'(1 concepts of a deduction of distributed incomt by the trust or estate and inclu· sion of such income by the beneficiary are thus Interdependent. "!A) decision on either (lueslion becomes authority 011 the other." I A.I,.R,2d 1283 (1948).

I)espite the brOl!d similarity in taxing s}'Stems, there 3re some very important

Grantor Trusts A. In Oaner.'

sl.illutory distinctions. Two important specifics on which current Alabama and current federal law differ are: (1) laX treat· ment of so·called Crantor trusts and their grimtors, and (2) mles goveming dlstrib· utable net income ("DN''') which determine whether a trust's income is deemed to have been distributed and thereby deductible by the trust and taxable to the beneficiary. Thtse differences can result in creation of unanticipated Alabama taxable income and in unexpected shilling of the Alabama laX burden AmOng grantors. trusts. esl.iltes and beneficiaries.

This article will fi rst discuss these imt)()rtant. though infrequently recog· nized. distinctions between Alab/lma nnd federal rules governing taxation of trusts and estatcs and their Jlrantors and beneficlaries. Thereafter. the article

The concept of "grantor" trusts arose and eV()lved under fede ral cast law.

Therufter. in 1954 these common law principles were embodied in a ~ries of statutes. Today. lhe United States Internal Revtnue Code (~Code~) of 1986, sections 671 679. define grantor trusts for rederal tax purposes and prescribe special rules (or laxation o( grantor trust incomt.

The underlying concept! [)( the grantor trust rules are simple. If a grantor (orms a trust. but rdains sufficient power over or interests in the trust's income or cor· pus. then the Jlrantor. not the tnlsl. is dtemed to still be the true owner o( the trust property. A!. a result of being deemed to be Ule true owner of the trust property. the grantor is dIrectly taxed on trust income from such property. Neither the twst nor the beneficiary is lIlXed on such trust income. The grantor is lIlXed irrespective of whether the income is accumulated by the lnlsl or distributed to the benefici<lry.

The grantor is treated as lhe alter ego of the trust. That is. the tnl~t'5 separale existence is igl'l()red and a grantor and his or her grantor trust are treated as the same taxpayer. Normal rules governing I.ilX.Dtion of trusts and their beneficiaries are not applicable to grantor trusts.

8 . Feder.1 Rule.

Among the earHeSI cases establishing grantor trust prinCiples were (;QrUss v.

8oi.oors, 28 1 U.S. 376 (19:IOJ. //e/verill!l v. l/or.st. 311 U.S, Jl 2 (1940), and Helvcring v. Cllfford. 309 U.s. 33 1 JULY '6el I 240

(1940). These cases. laler cases. and, finally, statutory provisions refined the circumstances under which a trust would r«eive federal grantor trust status. Such circumuance! il\Clude the grantor's retention of a reversionary intmst in the trust (1673); retained powers to control benel'icial enjoyment (f 674): overly brOJd administrative powers (§ 675); retained power to revoke (A 676): retained beneficial interesu in income (t 677); and creation of a foreign trust with a U.S. bell(!ficiary (t 679).

When a grantor retains one of the foregoing powers or Inti::resl$ -all transactions by land income the trust are treated as transactions land incomel of the owner.~ I.ItS. Notice 97-24, 1997-16 I.IUJ.6, The common identity of a Rrantor trust and a grantor is evidenced in numerous cases lind rulings: Swanson v. Commissioner. 51S ~:2d 59 (transfcr of grantor's life insurance): GCM 37575, 1978 WI. 43533 (transfer of installment note not a disposition); and Rev.l~uI. 85-13, 1985-1 C.l1. 184 (no gain on sale by Grantor to grantor trust).

on

C. Alabama Rul •• Alabama clearl>' has 1101 adopted fed eral grantor trust rules, For Alabama lax purposes, a griintor is not taxed on Ihe income of a trust unless the trust is revocable. "The income from a revocable trust is taxable income to the grantor unlfOss the trust is irrevocable as to the income; then the income is taxable (0 the trust or the bfnefidary.". ~ AI. Dept. of Rev. Regs, § 810-3-25-.05(7) (emphasis added).

In Siale 01 Alabama v. Monlgomerll, Alabama Tr1Xp(lJfifr, Docket No, INC. 86113 (1986) Dept. of Ilev" Admin. Law Div,: \v'L. 28948, the Alabama ))ep.lTtmcnl or Ile\'enue argued thaI § &14 and § 674 ("rantor trust rules) of the Code should be the controlling authority for interpreUltion of the Alabama statutes governing income taxation of trusl.!. The admimstrativt IMY judge held that federa l law did not control interpreUilion because Alabama had no sUllulU corresponding to Ihe federal gr1lntor trust rules. Indeed, the Alabama Code hM no statutory provisions which even remotely correspond to Code tt 67 1· 679. Alab!lm/l rules governin" tax.ltion o( trusts were adopted in 1935 and have never been amended. See WaIlOIl. illfra.

This predates federal statutory grantor trust provisions by almost 20 years.

One early case did suggest th.ll Alabama might adopt the common law principles that ...'Cre prccul'$OJ'5 10 the federal grantor trust statutes. In Snow v, Siale, 60 So.2d 346 (Ala. Sup. Ct . 1952), lhe Aillb/imll Supremc Courl SI)(!cincally cited the federal common law of grlllltor Irusts (liarsl and Clifford) fo r the propo· sition thai "ltJhe command of Incomc and its benefits marks the real owner of properly for income IiX purposes."

Snow. at 34S. Snoll}, however, has never been dted ror that PlWOsition in a grantor Inlst context. Indeed, the facts of Snotv did not involve ii trust and it would seem tl) slrdch this single holding too far to say it established grantor trust principles ill Alabama.

Thus, In Alabama, income of l\ trust is taxable to the trust or to the beneficillry, not the grantor, so long as the trust is Irrevocable. Tax results turn solely on whether the trust is revocable or irrevocable and not on the grantor's retained interests or powers.

Planning concerns .... hich arise as a result of thi: differences between federal and state grantor trust rules occur freQuently liS II result of lack of information as to Alabama's unIque statutory and regul:ltory rules. These plnnnlnj:! concerns are discussed subsequently.

Distributable Net Income Rules D. Oener•• Concept /IJ slated at the oubet of this article, a trust's income is tax~b l e either to the trust or to the beneficiary. If 8 trust's income Is not distributed to the beneficiary before the end of the trust's taxable year, the income Is taxed to the trust. If trust income is distributed, the trust Is allowed to deduct the distrib· uted income from the trust's gross income In calculating its net taxable Income. Such distributed and deducted income is then taxed to the beneficiary.

Since its inception in 1913, the Code hilS excluded fron, gross income the "value of property acquired by gift, bequest, devise or descent." nevenue Act of 1913 § lIB, 38 Stat. 114, Today, this exclusion continues in section 102(11.) of the Code.

Though bequesu of property are not included in an heir's taxable income, it has long been cle.'Jr that bequests of illcorm! from property are tuable, I.e" not excluded. lrwm /J, Gavil, 268 U.S. 161 (1925); Code § 102(b). Thw. in the system for taxation of tnlllS, estates and beneficiaries, it h(15 always been and is essential to determine whether amounts received by a beneficiary are tax-free receipu of bequeathed pT(1)l:rty or rather r&eipu of taxable Income from properly.

Once a determination has been made that a payment is (or a specific bequest of property, then clearly such IJIT'IOUnt is not taxable to the beneficiary and the trust or estate receives no corresponding income tax deduction for such a payment. Any such amount or distribution is deemed a payment of principal receivable tax·free as II gift or bequd!. The governing instrument, e.g., a will or trust document, and applicable state law control the determi· nation of the beneficiaries' righLt in property as contrasted wilh rights to receive income. Weigel v, Commissioner, 34 B.TA 237; 96 ~~2d 387 (7th Cir,): 141 ALR 1055, 1059·1064 (194 1).

The key is to determine which distributions are of principal and which are of income, Slate Principal and Income Acts have evolved to distinguish between principal and Income for nontax purpO~c~. Operating in conjunction with wills and trust documtnts, Principal and Income Acts determine whether. for elUJmple, gain on sale of assets goes to a remainderman or to an income benefiCiary, The most an income beneficiary could receive from a trust or estate would be the fiduciary accounting income determined under such state law rulel as applied to the dispositive instrument.

EIIrly federal t..'llI ru l C5l).~d the existence of fiduciary taxable Income and its distribution on UICse same state law principles. Thus. even though a fiduciary's taxable income may exceed its fiduciary accounting income, the most that could be distributed and lhereby wed to an income beneficiary would be the maxi· mum fiduciary accounting income distributable to such a beneficiary. Likewise, If a distribution was deemed a distribution of principal und~ r a state's Princip.11 and Income Hules, or other applicable state IlIw principles, then no di~trlbutlon of income was deemed to be properly paid

for federal income tax purposes. These rules are explained below more fully.

However. today's rules gOYtmin!J determination of a trust's income available for disl.ribution to a beneficilll,), are quite complex under (ederal illw, Current feder· allaw creates the concept of "distrib· utable net income" or "I)N I" to govern deductibility and taxability of trust distri· butlons, Current federaoll)NI rules have a built·in preference for taxing a beneficiary rather thlln the trust or est.,te. This preference was intended to help limit the usefulness of trusu and estates for Income·splitting pUrpolle5.

The discussion below analyzes the federal I)NI rules and the Alabama 'l'\'ust Distribution Rules, and then contrasu the Iwo seu of rules, E. Current (Poat.1941) Federal DNI Rul ••

Under current fedcr.lII)NI rules. distinctions in will$, trust instruments and slate law between distrlbuUorU of principal and of fiduciary accounting income no longer control the <\Ctual taxable chllrIIcler of distributions for federal tax pur· poses. ~'or example, assume a trust or eSlate has undistributed, current year income and mak~ a final distribution of all re5idUllry asstU prior to its year·end.

This distribution will be deemed by cur· rent ONI rul ts to Include income (or the year of distribution, even though the trust instrument may characterize the distributiOll a.s being from Ilrincip;II, e.g., a distribution of an est.lte's residue to il~ residu., l heir, t R.C. f§ 66 1 and 662.

Current fede ral rules utilize a complu tiering system to determine which beneficiaries arc taxed. 1·lowever, an underlying theme is Ihat distributions to any beneficiary are deemed to come first from trust income 10 the extent the trust has undistributed current income.

This effectuates the policy favoring taxa· tion of beneficiaries rather than trU5U. F. AI.b.m. Truat Income DI.trlbution Rul •• J. Current Alabama Statul u

Key Ilrovisions of the Alabama Code dealing with Alabama income taxlllion of trusts. eslates and thei r beneficiaries are a! follows; 114 0· 18·25. Thlll•• nd u l. tu (a) The tax imposed by this chapler shall apply to the income of

estates or of any kind of property held in trust. includIng: (1 ) Income received by eslates of deceased persons during the period of administration or settlement or settlements of the estate.

(2) Income accumulated in trust for the beT'll!:fit of unborn or unascertained persons with contlngent lnteru15.

(3) Income held for future distribution under the terms of a will or trust.

(4) Income which is to be distributed to the beneficiaries perl. oc.Iic.ally, whether or not at regular inlervals, and the income collected by a guardian of an infant to be held or distributed as the courl may direct.

••••• (c) In ca.ses under snlxlivisiou$ (I). (2), alld (3) of su~tion (a) of this sec·

tion, the IlIX shall be imposed upon the net income of the e~tate or tl'\l.St using the rllte schedule in subdivision (I) of Section 40·18-5 and .mall

contemplates that the fiduciary will be taxed on all income described in subd;· vislon5 40-18-25(a)( I), (2J, and (3) unless, as described in subsection 4018-25(c). IImoun1.$ collected during administration or settlement under subdivision (11)(1) are thereafter "properly paid or credited" to the btneficiary.

In order to determine when Income collected during the administration or settlement of a trust or estate has been "properly paid or credited" to the bene· ficlary requi res a review of applicable swtutory and common law precedent.

2. Curre nt Alabama Statut u Ibud on 1935 Federal Statutu Alabama's rules governing distribution of income from trusu and estates were adopted in 1935. Generlll Laws of the I.cAlslature of Alabama, 1935. nevenue Act. § 345.18, Other lhan renumbering of sections, today's statute has not been altered since Its initial adoption in 1935.

Alabama's 1935 laws governing taxiItion of trusu and their beneficiaries were derived from and ba.sed upon comparable 1935 (ederallaw. 1935 COOe.

00 paid bylhe (duciary; ex«pl, that in detennining the net income of the C$tale of all) deceased person during the period of administration or settlement. there may be deduct· ed the amount of imy income prop/trly paid or oy..'ditl!(/ to any legatee. heir, or other beneficiary.. , . (d) In cases under $ubdivisioll (4) of subsection (II) d this section, and In the case of any Income of an estate during the period of administration or settlement permitted by subsection (c) to be deducted from the net income UI)(ln which tax 15 to be p;lld by the fiduciary, the tax shall TIQl be p;lid by the fiduciary. but there $hall be includ· ed in computing the Iwl income of ooch brnefiduTJ his or her distrib· utive shllre whtther di5tributed or not. of the net income of the C$late or trust for lhe taxable year. , . , (e mphll.$i~ lidded) Note that the mtule contemplates that the beneficiary will be taxed on all income described in ~ubdlvision 40-1825(0)(4) above. See subsection 40-182S(d), supra. Conversely. the statute

\IEIIIC\1. UnTIl. \1 \1.1'11 \CI'ICE EXI'I:III'S

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" 161 and 162, When Alabama revenue statutu are based upon comJ)ilrable fed · erallaw, federal regulations and fede ral CMe law normally u lablish precedent for the Alabama Jtatute. See the discus· sion of Waltoll, infra.

Federal statutes, aA discussed above, hi....e changed markedly since 1935.

Ilowever, since no comparable amend· ments were m ad~ to Alabama statutes, current federal Iilw and related prece· dent are Inapplicable in the State of Alabama. Today In Alabama, income tax· ation of trusll, estates, and their beneficiaries. including charadtrization of trust or estate distributions, is based on 1935 federal statutes and related prece· dent, according to Walloll, infra , Imd the Alabama Department of I~evcnue's interpretation and application or Alab.~ml\'s st;Ilult$.

The Court of Civil Appeals of Alabama In Eslale ofWallcn v. Stale 1)(.7X1rtm('1lt of RevenIUl, 579 50.21.1 643 (Ala. Civ. App.l99I) addrfs..ttd this exact i$5ue. The. Waltoll case invol'Jed an alate's attempted deduction 01 part of a $78,000 payment to the dtttdent's widow, The payment was required to be paid to the widow in the nature of an inheritance and was in no way linked to or lXlyable solely from the cslate's fiduciary accounting income.

At the time of the payment. under cur· rent fede ral rules, the tru$t had $59,528 of undistributed trust income, i,e,. ON!.

The estate deducted $59,528 of the total $78,000 payment. The $59,528 deduction was based on a deductible distribution of estate income which 'NOUld thereafter be included in taxable iooome of the widow iI5 the distributee, The widow W/IS to receive no other benefill or distributions from the estate, Thus, imposition of Income L'IX on her rather than on the e$late truly 5 hift~d the economic burden of the tax to her WId away from Ihe estate's residual heirs.

Upon audit, the Alabama Department of Revenue denied the ~tate's deduction, This denial would place the burden of Alabama taxes back on the utate and lu residua.l beneficiaries and remove this tax burden from the widow. The case WitS fi rst before the Administrative Law Division. &'0 Alabama. lA'JXIrlm('11t of Re/JOYluu II. . . . 'I'uxpa!l/,!r, Docket No. Inc, 88·127 (1989); 1989 WL 104200.

The Administrntiw Law Divi5ion's opin· ion states:

However, while th~ Alabama and federal statutes relatf to the SlIme sub· ject matter, the Ia.ngua.ge of IIu! Alahoma statute does ,wt prooide for the same (/cdut;li~l as cumml1v allowed bJl the fcdl!l'u/ statute,

,

....

The predecessor to f 40·18·25(c) was cl..., ctcd in 1935 by Acts of Alabama 1935, No. 194, § 345. 18, imd provided a deduc· tion for 'the amount d "flY income properly paid or credited to any legatee, heir or benefieiary'. Thal 5(clion was modeled after the federal statut~ on point, Heyenue Act 01 1932, 1 162(b), which also provided in substance for a deduction for income distributed 10 a beneficiary or heir. For a history of the federal section, M!e Amlersons Esla{c II. Ci.l?.. 126 1;:21.1 46.

The old federal statute was interpreted so thai on{y distributions of illcome UJ(!fjj deduclible, and nol (/istrtbufions from CCrpu.f. That 1$. if a dis/ributioll was not conditioned upon thu roceifJ{ of sufficient {fiduciary occowltin9{ income by the t>Stute, Ihi!1l i/ was nol di!ductibfB. Richards II. C.I.R.• III F.2d 374 , Anderson ~ Estate II, C,/,R" supra.

Craig tJ. l/rIitlld Stale,s, 69 F.Supp. 229 (1946), Bishop Trusl (;Qmpallll v, Commissioner of Infernal RClX!lIue, 92

F.2d 877 (1937). (Emllhasis added.)

On appeal, the Court of Civil Appeals of AIlibamll, in upholding denial of the deduction for Alabanu lax purposes, stated: "The predecessor to 140·18·25(c) was enacted in 1935 by Actl! of Alabama 1935, No, 194, § 345. 18. 1\ was modeled nfter the then·analogous fed · crOll st.llute-HeverlJc Act of 1932, § 162(b). TheAlabam.~ legis· lature has nQt}'\'!t amended f 40·18· 25(c) to conform with the language of IU.S. tRC.] § 66 1. There is no Alabama cw Law construing § 40-182S(c). 1\ is generally the practice for Alabama tax statutes to, mort or le55, track similar federal tax sllltutes, but it is not a required pl"llctice, An amend· ment of a federal stitute does not amend a similar state statute without action of the st.l le Ifgislature.

Thcrdore, we find the pre-1954 jshould be pre-IM21 federal slaMe

and the case law interprtling It to be applicable here."

3. Prt· 1942 federal Tn,t Distri bution Rulet

Current Alabama rules governing tax· ation oftrusll were enacted in 1935, were based on federal law, and have never been amended, See discussion of Waf/OIl, sllpra. Federal policy hM not always favored taxation of Deneficiarics over taxation of trusts, :md in 1935 was tied to state law concepll of fiduc iary accounting income.

In 1935, a trust's deducthm for distrib· utions of itl! income. and the correspond. ing Laxation of the beneficiiry, were con· trolled by Code sections 161 and 162.

Cenerally, only fiduciary accounting income actually distributed M income to an income beneficiary or credited income nmounll also traceable to and paYOlble directly from fid uci~1')' accourlting income pursuant to trust documenll or applicable state laws were deductible by the trust and twble to the beneficia· ry. Cen. Couns. Mem. 2203t 1!)40· 1 C.B. 90 fThxation turned on order of probate court; distribution of residue, including commingled current income, held not deductible by trust).

The 1935 Code and related common law divided fiduciary Income: into several types and determined which types corutituted or became commingled with principal (the distribution of which .....as not deductible to the fiduciary nor taxable to the benefi· d",ry) and which types were traceable to fiduciary accounting income (the distribution of which wa.~ deductible by the fiduciary and taxable to the beneficiary). In 1935, the Code required trust income to be divided into two "mutuaJly eM:lusive categories: (1 ) hlCome accumu· lated for future distribution las principal] umk:r the terms 01 the will or tl'U5t and (2) il'lComt which is to be distributed cur· rently las iooomel by the fiduciary to the beneficiaries. The first lcategoryl is laxable to Ule trust, the second to the beneficiaries." Spreckels /), Commisslollf!!', 101 ~:2d . 72] , 722 (9th Cir., 1939).

• • Distributions 0' Current

Flducl.ry Accounting Income,

I

! \ I

Code 01 AI_.m., 1975 I 4018. 25(_)14)

[n [935. Codt section 161(a)(2) described this type of iocome M Ml lJllcome which is to be distributed currently by Ihe fiduciary to the benefi· clarles." (emphasis added). The eompa· rllble provi5ion of the Code of Alabama 1975 (enacted in 1935 as Section 345.18(1)(d)) Is A(a)(4) Income w/u'ch is 10 be distribulIJI! to the beneficiaries ... " (emphasis added) ~'ederal courts Interpreting Code sec· tion 16I(a)(2) determined that it encompassed only distributions of fidu· ciMY accounting income to income beneficiaries. Thus. where the will or trust instrument or applicable slate law requirtd fiduciary i1ccountinll income, or some portion thereof. to be distrib· uted as income to an income beneficia· ry. then such dlstribuilible IImount would be deducted from trust Income and taxed to the beneficiary. flelwring II. Butterworlh, 290 U.S. 365 (1933).

The amount of any 5uch distribution deduction would neceuarily be depen. denl upon, Iractd to. and limited by the IIdequacy of fiduciary accounting income. Tht Supreme Courl in Bullerworth held that distributions "paYllble at all events ... did not depend upon income ... land) wert not distribu· tion of income; but in dischargt of a gift or legacy." Id. at 370·37\. b. Income Accumul.ted .nd Merged with Prlnclp.l. Code 01 AI_b_m_ 1975. § 40· 18· 251_)(21 _nd (31 In 1935. Code section 161(8)(1) accumulated in trust (or the benefit d unborn Qr unascer· tained person or persons with contino gent interests. and income accumulated or held fo r futu re dlstributi(Jn ullder the terms of the will or trusl.~ The Code o( Alabama 1975 divided this category into two separate subdivisions (enllcted M 345.18(1)(b) and (c)) as follows: ~(a)(2) Income accumulated in trust (or lhe benefit of unborn or unascertained persons with cOlltingent interests; landl (3) Income htld for futurt dist ribution under the terms of a will or trust," ThislYlle of tnutlncome was clearly taxable to the trust or estate. Code of Alabama 1975. ,40·18·25(c). Even thouAh this category of incomt would de~cribed ~ income

ultimately be distributtd. it would be deemed blended with and made a part of trust or estate prif\Cip;al. Butter%rlh, lit 370. DistributionJ of trust or estate principal were to be received in their entirety by the beneflcilll}' or heir lax free as excluded gifls or inheritances. c . Income Received DurIng Admlnl.tr.tlon. Code of AI.b_ma 1975.14().10.251.1I11 Another type of trust or estate Income described by 1935 Code Section 16 1(a) wu ~(3) Income rectivtd by estates of deceased persons during the period of administration or settlement of the estate. The comparable provision of the Code of Alabama 1975 (enacted 11.1' 345.18(1)) reads "(a)(I) Income received by estates of deceased persons during Ihe 11eriod of administ ration or settlement or settlemcnL~ of the estate."

M noted~. Cod~ of Alabama 1975, subsection 40·18·25(c) taxeS this type of income to the fiduciary un/cSl II has betn "properly paid or cred ited~ to the benefi· cial)'. The Mproperly paid or credi ted~ terminology also comes directly from the federnlstatute. 1935 Code § 162(c).

M

Federal case law discussed below establishes the clear precedent that in order to be "properly paid: incomt must be tr<lced to i\nd properly paid directly from fiduciary accountina income.

Prior to amendment of Code § 162(b)(2) (governing a trust's deduction (or income distribution) In 1942 and further refinementJ lind amendments in 1954. most Iltig.,Uon eMr thi5 1ytlC of income during administration or !ellle· ment of an eslate or trust arose in the context of either a partial or finalliquidat. ing distribution from an t.ltate or trust.

As with Alabama law, the f«le",,1courts had to delermine when su,h income was dc:emed to have been "properly paid or credited" to the beneficia I)'.

In the estate context, tht issue most (requently arose for the year in which the estate made its finOlI di~lrlhution to I~ beneficiaries. The question wu whether income reali1.ed by the utate dudr\g i]j final year was distributed as income to the btneficiariC$ or whether the income effec· tively merged with princi~1 .so thai the final distribution cOll$isted .solely of prin. cip.'ll. If the income .....;15 distributed as such, i.e., u fiducillry ;w:countinll income.

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M'nlC lawytll who mnllt the bill nl(lllC~ arc not n«esilltl ly bC1Iet lawym," Wftrd 111)'1. '1 'hcy have Ilmpty learned IIow 10 rnlUkel lhe" $CIVlCet ..

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Wllfd po.nt!! 001 Ihal 1111101'11' "1OlI1 I" ....yell lei the bulk of tlleir buslncn lhough f~rc:tTflJI. nOI one In 100 lilt.! Arcfcml symm. which. he militlains. C4I1 (nCrc~ ' Cf(ITDII b)' as muth ., 1000%. Wllhooll l~lto:m. he notes. lefmal. arc:

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I'~I Ihal most I'wren ' .lMbhn& 'J, ''JomcWMr"C bclwfeII MroCKM IIld none".stenr ~ /II • rc:sulr. I'tc II)'" tK Ilwyer \0'110 \t,_ evm I few J.mpk nwkean. 1«1'In'quc:l' can Jland 001 from 1M eonlpclllktn " Wbtn IIIaI. hlljlp('ns. Film, chml' i, elly M Willd has wrillen • new ~ wHited. ~ lI o .. To Gt l Mort CI\t "e. In A Monlh Thn You Now Ger /lU Ynrl which reveal, how lin)' lawyer eM U$Il lhil nuuk~in l IYlrem to ,,~ more clients ,."d !nc~ll.~ Iheir incOlhC. To sel b nU; i: copy. call 1·100-562...62; for. 24.hour

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the esl:lte would receive a distribution deduction and the beneficiary would be

taxed. If the income was distributed as an integral P<lrt of pnncipal, e,g .. as the residue of the e~tate to a residu.ll benefi· cial')', then no deduction could be t.1ken by the esLl!C, and the e~Llte. not the beneficiary. would be taxed.

The same issue also IIrose for trum (or terminating or partially terminating distributions. If. (or eXllmple. a trust beneficial')' was to receive the property held in trust fo r her benefit upon rcaching age 21. would Il distribution of such amounL~ durinilihe YCilT of her 2JsI birthday CaTI')' with il a distribuyon of the

tru~l'!

11iXabl( Income for such year

or would it be vk'Wcd in it~ entirely as a tax-free receIpt of principal?

I'rior to amendment of re l evnnt~ec­

!ions of the Code in 1942, th federal district courts, the ~oard of Thx Appeals (Tax Court) and fed,ral circu it-courts. ali r;:onsistently held that such Q./51ribu· tions consisted solely of princiltal. The)"o Supreme Court Uen(ed r;:erlio/ari in / these cases b\:r;:,Luse ILlIr;:ircll1ts deciding the issue were in agreement :.nd there was no contlict.

Thus, all otherwise undi~lr!butcd fiduci ary acco un lm~ income in lhe ),ear of such distribution\ was taxable (0 the fiduciary, i,e" the estate ~r the trust No amount of such income was taxable to the beneficiary and was not deemed to have been "properly paid or credited" to the beneficiary as fi duciary accounting income. The C(I$es held lhat sLlch final distributions wert necessarily made after, not during. estate administ ration and that such amounLS were plL),lLble In all events and not limited by the suffi· ciency of income, [n Spreckels, supra , the Ninth Circuit held thilt trust distributions to a benefi· ciary in the year he attained the age of m<l.iority did not include income as sllch, ilnd no amount WQ.5 Iilx.able to the benefi· ciary. The Ninth Circuit made a similar holding as to the final distribution from Il.I'L estatt to its rc.~idu..'\1 beneficibry in Anderson /J, Commissioner, 126 F.2d 46 (9th Cir, 1942), [n Anderson, lhe Ninth Ci rcuit SpeCil'iC.lll)' noted that income for the year was (actually mingled with cor· pus, but thilt the. income was not distrib· uttd as income to an income beneficiary but was distributed M p<lr\ of the residue or principal and c~cludcd a.~ an inh~ri ...... uLV ,gilD

lancc. The Ninth CIrcuit held, therefore, that such h1come. h<ld not been "properly paid or credited." Andtll'SOn, <It 48.

The Second Circuit made simi lar dcter· minations in the context of the residual beneficiary of a trust in Commissioner ".

Clark, 134 ~~2d 159 (2nd Cir, 1943) and for the residuary heir of an estate in C<Jmmi:~siOlll!r u. Sleums, 65 ~~2d 371 (3d Cir. 1933). The Third Circuit likewise made a similar llndillg involving liquidating trust distr ibutioL1~ in ROI!blillf/ I" Commissioner, 78 F,2d 444 (3d Clr. 1935) The Board of Thx AI)peais and numer ous federal district COLLTts consistentJ held tlmt such dist ributions were distributions of principal, nol of income as .~Ilch, S~e,

1'.1I., lJurkhi!-iml!r II. Commissioner, 41 li.tA. 585 (1940); Wiloo.o: II. CiJI1/"II:~si()n('r, 43 B.T,A, 931 (19.11), (9 I1OWi n~Du/"':fleinll!r; Ifhitak(!r

~~~;~;e:, ~%~~/l, ~:'F~~I~~p~~3~ 194 t); (1 942\; and Norris /J, Ifnlted Slales, 48 ~~ Supp, 673 (1943), Ar\i,endme~t of relcv:mt Code sections in 1942 was neCCS5.1ry lb thereafter cause the beneficiill')" not U,( fiduciary, to be taxed for fcdcrall}l cs on such income realized ijy lIle trust or estate durin~ thl:far of a final qr liquidating distribulion For a disOJsslon of the issue and the pu e of the 1 9"2I1m~nd".,~nt. see Carlisle II. Commis.ioller , ~,!C, 56.1 (1941')' 165 E2d 645 (6Ul Clr, 1J148). Of cour~, 1lS noted In Wallon, sllpM, nQ comparable amendmenl lw ever-be n mllde to Ala6hma law, Therefore. pre 1901 ~' federal precedent should emain the law In Alabama, d. Deductions for DistributionsThe "Properlv P.ld or Credited" Issue, Code of AI .. b.m. 1975,' 40018.25(c) .. nd (d) Since the issues of tlJxalion of income to the trust andJll.e tr .lst~educt ions for distributed income re interdependent, ultimate taxation can also be "ppro.1ched from an analysis of deduction provisions. The 1935 Code embod· itd trust and estate income calegories dlscu5$ed abov£ in stction 161 , but deductions fo r distributions (the mir· ror-image of the same issue) were embodied in section 162. Comparable Alab.lma distribution provisions are CQntained in Code of Alabama 1975,

subsecLions 40.18-25(c) and (d).

Analysis of these provisiom renecl that tht)' do in fact mirror lhe \lIxalion of incomt categories described above.

Alabama's statutesllre not drafted a~ "deduction" proviSions as .such but rellch the Sllme result. ~'irst, Cooe of Alabama 1975, subsection 40·18·25(d) allows a fiducial)' to exclude from income any "mount which is to Ix! distributed currently to beneficiaries from fiduciary ilccounting income described in subdivislorl (11)(4), Since the beneficiaries have tnforccablt Itgal righl!l to receive such incomt, the deduction is allowed and the amounts taxed to the beneficiary ''whether distributtd to them or not."

Thus, as 10 such distributions traced directly, to fiduciary accounting income, ,Alahama ~ IC$ properly grant the fiduciary ;L d uctiof\a~d tax the beneficiilry, Ode of Alaba~ 1975, subsections 40· 1 ~5(c) and ~d) afso allow the fiduciary to 'Plclude ;,.moupts 'Wmperly p:!id or cn.>dited" to the benellci.h As noted, 1935 fed· erallaw al:IQ grlll\{~d a deduction Ullder sectJon 162(c}/oV income rtceived by estates of dcte"Fd persons during the ~Od of adl/linistration or settlement of the estate, , , '"'I.!lich is properly (Xlid or credit('(1 dL1ing such year to any legatee, heir or bel}et1ciary 9,.~ (emJX1ilSis added), J\g.lin, to be deductible, i.e.. to be "properly I>'.id," the-di~tributic:m mU$t be trilced to fiduclf.Y accounting income JXIyable M ~uch uniler ~tate llLw, AJ/d(~II, supra; Gen, Couns. Mem. 2203<1, SU{IL7I.; ferguson, Income 'lUxation ofEstates.

'Thais and /krIeficiaries, 3rd Edition, p, 7·57; to the contrary, see Maimgrt!rl II. /tf(.{;O/gaIl, 126 P.2d 616 (1942), but Malmgrell applied to California state income tax and appears limited by unique ~pCf;ts of California!aw.

Under the clear pronouncement of WaltOn and under lhe interpretation and application of the Alabama Department of Revenut, pn. 19012 feder· 11.1 law today govcrns Alabama taxation of trust and estate income. Evcn though compar:lble federal laws were amended in 1942 and thereafter to bring about a different result, no such amendments .....ere ever made to Alabama statutes, l:.arly federal law only allowed a ded(IC' lion to the fiduciary and cOrll!sponding inclusion In the bentficiarlu' income if the distribution were payable directly from and traceable to fiduciary account·

ing income, If the distribution was dut to be paid in any event. i.e., it would be p;lid irre.spectivt of the adequaC)' of income, Ihen the distribution was deemed to be from principal and did not give rise 10 a deduction for the trust or t:3!.lte.

income taxable to the gra.ntor as under federal rules. Query Yohcther payment of the trust's or benefici.ry's Alabama tall liability b)' Ule grantor would create a gin (or fed crlll gin tax purpo5CS, H. DNI Cons.qu.nee.

Consequences O. O'_nto' Trust Cons.quene •• Differences in federal and Alabama grantor Irust rults create planning and administrative problems In numerOm wa)'S. Tax practitioners routinely advise clients to take a/firllUltive actions as part of planning to minimize federal income and estate taxation, Too often. planners, u pecially o(II-of-stale practitioners advising Alab.lma clients, fail to consider Alabamllincome tax ramific.llions.

Affirmative planning techniquu currently utilized b)' laJl planners nationwide are centered on ftderal grantor trust rules. One such planning technique is a transaction frequemly referred to as an "intcniiollillly defective grantor trust." ~ part of "intentional1y defective grantor trust" planning, vel')' valuable as.~eu such as stock in a family business are deliberately ~~ Id" b)' a taxpayer to a grantor trun. Under federal grantor trust rules, such a ~salt" docs not rcsult in any federal gain becau$(: the grantor (as seiler) and the granlor trust (M buyer) are, as discussed above, Ule same taxpayer.

However, for Alabama income lax purposes, the grantor and the trust lire not the lame taxP1lyer, Thus, such a sale of Ihe stock b)' an Alabama resident to the trust is likely to be (ul1y taxable (or Alabamll income lax purposes. This, of course, would be quite an unpleasant surprise to the tax advisor, to his client. to the trust fidu cial')', and to beneficiaries o( the trust. Indeed, post-sale taxation o( the grantor, the trust, and its beneficiaries on nducial')' Income will also be different under Alabamll rules.

In addition to triggering unanticipated gain, misapplication of federal gra.ntor trust rules to Alabama trusts would cause improper shifting of the Alab.lma tax burden. In Alabama, income of an irrevoca· ble trust is taxable to the trust or to the beneficial')'. depending on whether the income is distrilMed or commingled with principal. In no event is such

Differences in (edenl and Alab:una dis· tributable net income rules (or trusts and estates create different and perhaps more widespread problems. t\(l<1in, most problems would arise as a result of a misun· dersL,ndlng Ill! to the existence of these differences. rotosl, but not all, distributable income problems arise in the same context as the early (derallitigatlon described above. ~Such cases are usually cases where accumulated income of an estate i( Isicl paid to a residual')' legatee upon termination of the estate or where Income of iI tru~t is acclimulilted for distribution upon the beneficial')" s reaching a specified age." Corlisle, supra. at 647, One dear example aris« when an estate funds marital and non-marital testamental')' trusts. Under tadlly's esLlte and gift tax laws, estate tax plllnning for a married couple normlilly centers on maximizing funding of II nOlHllllrltal trwt in an amount equal to the nontax· able unified credit amO\ml. This planning Is accomplished with formulas which calculate a ptCunial')' amount

which shall go to the surviving spouse with the ruidue to the non-marital, unified credit trust, or vice tIf!rSO. Regardleu of which trust receives this calcuillted amOllnl, the formula is not sufficiently specific 10 allow such an amount to constitute a tax free inheritall(e of pfOperty for federal lax purposes under Code t 102(a) by reMQrl orCade § 663(a)( I).

Thus, under cumnt federal rules, fund ing of bolh such trusts cames out ONI for the )'ellr of such funding. Under Alab.lma's niles, funding of both lrusUwould not be traceable to nor constitute distributions of fiducial')' accounting income "as such."

See Amk'r.fOf1 and Wallon 5l.q1ra.

Therefore, for Alabama tax purposes, such funding would not be viewe;! to carl')' out the u tate's tax.lble income lor such year to Its beneficiaries. The result is that federallaw Imposes income I<u; on the benenclal')' whereas A11100ma law imposes its tax on the same income upon the fiducial')' to be borne by the residlJ,'ll')' heirs.

Since the State o( Alabama does not apply a significantly progressive income I.-.x rate schedule, there is little difference In total taxes owed whether an Alabama trust or an Alabllma beneficia· I')' pays Ihe lax. Thvs. In drafting trust Instrumenu or wills, there is no substantial overal1 Alabama tax advantage in carefully planning whether income

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will be taxed to such a trust or beneficiMy. The total tax liability will likely be almost the same in either ca~e, The important difference, as in the Walton case, is who will bear the burden o( Alabama income tax on trust or estate income, An Alabama trust instrumenl or will may be drafted so thai a distribution to a beneficiary is payable in all events, includillB fractiOnal or pen:entilge shares or residuary interests, i.e., payable (rom principal, not Income. TIlis mcans that such a distribulioo, Including II final distribution from a trust or from an cstate, (unding marital (If' unined credit testa· mentary trusls will not constitute II. distri· bulion of Iax..lble income (or Alabama tax purposes, even though it carries out \;'C( ' able DNI for federal lax purposes. The Alabama income tax wOllld be pay;lble by the trust or the estate and the true cost borne by the residual bencficiary.

Indeed, many tax Illanrlcrs plan final estate distrlbulions to a su ..... i"'ing spouse. or to a trust for the spouse's benefit. in order to carry out M much ON! as possible. By doing this, the dis· triblliee spouse i~ obligated to pay the federal income lax. This obligation

reduces the surviving spouse's net inheritance and. hopefully. reduces such ~p(luse'$ future estate taxes, This planning is ineffective, based on Wa/tOll, for Alabama income tax purp(lse~ irrcspe(;tive of such 1\ distribution sincc Alabama. imposes state income tax on the estate or trust and its residual heirs in confor· mity with pre-1942 federal rules.

If trustees ilnd executors fail to renecl Ihese importilnt differences in their Alabama fiduciary tax returru. they may fa\l(lr the remainder or resid\Lal benefidaries ovcr the current distributee$. Where such persons are one and the same. there would be little differcllce. Where, however, such persons are not the same. e.g., the currenl distributee is a spouse under a pecuniaI)' marital deduction formu la and a trust (or the children receives the residue, the spouse should be receiving such amounts from principal and thereby frce of ilny Alab.lma income t..1X obligation. If federal rules Me unwittingly and improperly OlppHed, the fiduciary and his, her or U.s advisors "lay be unfairly burdening some heirs in favor of others.

Again, there may also be a federal gift tax issue as /I result.

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Conclusion Differences between important Alabama <Ind fedcral irlCome tax rules have been minimized in many areas of taxation by recent Alabama conformity legislation. See Alabama Act 98·502. ~I oweve r. the newly conforming legisla· tion did not address these issues involv· ing income taxation of "ranlors, trusts, c~tb te5, and their beneficiaries.

These differences are not well understood or perhaps just not c.cceptcd by many practitioncrs. Even lax specia li~t~ are understandably either confu sed or unaware of these sublle but ~ubs tan tial differences. Fiduciaries and practitioners may merely be refusing to accept this analysis untillhc Alabama Supreme Court has ruled on Ihese issues. Such mi~understanding5 and intonsistencies can clearly lead to planning and fiduciary administration problems.

Howevcr, like most tax prinCiples, the differences discussed above can be 11 double·edged sword cutting both ways.

Not only do such differences result in planni ng and administratil'e problems, but they also result in majl)T lax plan· ning opportunities. Such planning opportunities may be even more substantial than the problems described above for tax planners and their clients.

Such ~nefi ts are limited only by the imagination of tax practitioner$.

For example, carefu l planning can lead to the complete exclusion of certain types of income and gain from Alabama taxation altogether, Likewise. intention<llly defective grantor trust planning can also be effected for Alabama residents, but only when prob· lems described above are recognized and solutions developed.

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Judicial Review of Administrative Agency Actions Under the Alabama Administrative Agency Procedure Act

Introduction The federal Administrative Procedure Act ("APA")l was enacted in 194610 provide a check on the power of feder-

al administrativf agencies, which had ex.perienced unprecedented growth durinA the New Ofal era. More recently. the states have allO been fo rced to deal with a rise in power by their own administrative agencies. In

nifican! opinions of the Alabama appellate courts that explain the standards that hillle been adopted (or judici,,1 review of administrative ageM(,:Y decisionmaking, IL is worth noting atth!s poinl thlll the Alabama Pubhc Service Commission ("APSC") is exempted from the AAPA by Ala, Code 1975, § 41 .22.2(e), and this article is not intended to provide any information rcg.lrding judici.. 1review of APSC rulinA:5,

1981. the IcglslMure of

By Michael C. Skolnicki Alabama enllctcd its own Administrative Procedure Act ("MIlA"),2 The MPA was "intended to provide a minimum procedural code for Ule operation of all state agencies In Alabama, the general procedure for obtaining appellate when they lake action affecting the rights and duliu of the P\lblic." 3 Among the specific purposes of Ihe AAPA are to review of a state administrative agent)' decision under the MPA is governed by Ala. Code 1975, '41·22·20, This section ~increa5e public participation in the formulation of administrative rules~ 'and to "simplify the process of Judicial review of the MPA providrs a detailed list of requi rements for perfecting an appeal of lin agency decision 10 an appropriate cirof agency action as well as increase its ease and availability." $ Now lhallhe MPA h~ bten in place for nearly two decades, cuil court.' However. appellate review of a final decision of the Alabamn Environmental nllll'lIgemenl Commission this article Is intended to (I) explain the statutes that control ("AEft1C") (which oversees the actions of the Alabama the procedure fOr oblainhlg judicini revi~'W of agency actions, Department of Enyi ronmental Management) Is sought, II pro(2) provide an arulysis of when an Alabama administrative agency is required to enact policy by formal rule-making provision of the Environmental Management Act is also IIppUcablc. Contrary to the detailed procedure of § 41 -22·20, Ala, cedure rather than ad hoc adjudication, and (3) to review sig-

Obtaining Judicial Review

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COIle 1975, § 22.22A.7(c)(6) provides much simpler requirements (or appealing lin AEMC decision, In E.x IKJrte Plumbers and St('OIl1fiU(>rS, /.oct" 52, 622 So,2d 2"7 (Ala, 199:1), the AlabmTla Supreme Court explained how the two nPllClllltc procedure ~Uttllte5, • 41 -22-20 and § 22·22A7(c)(6), were to work with one another in the appeal o( an M;MC ruling, The court determined thllt the ~tntules were "squarely al odW" with each other, 50 that the requirements (or perfecting an ilPpeal :set out in I "\ ·22·20 did not apply to appeills (rom the t\EMC, 622 So, 2d at 349, Instead, the procedure (or perfttting iln appeal from lhe At;MC is prescribed solely by f 22-m7(c)(6), and' 41 -22-20 is only applicable to issues unrelated to the perfecting the appeilL Id. The court noted thllt by creating Ule simpler nPl>eals procedure of § 22-2'lA-7(c)(6), "the legisla. ture evidenced an understandable :sensitivity to the gravity of the types of appeals OOIICred by the AEMA ,," Thue nppeals often inllOlve some risk of serious adverse c(fccl~ to the health and wel(are of the public and sometimes the risk of widespread and irrePilrable harm,~ Id, The court reasoned that although h.wing technical requirements for perfecting an appeal lw cert..lin ben· efits. the more detailed requirements also cre.lte addtd risk that an apf>eaJ will never be heard,7Accordingly. the court reve~ the ruling of the court of civil appeals. and heW that the union's awtlll had WilS procedurally proper,'

What is an Agency "Rule" and When Must an Agency Proceed by Rule-makmg Procedure Rather Than Adjudication?

The MPA delinition of a ~rule" under 141·22-3(9) includes any ~agency regulation. standard or statement of general applicability that implements. interprets, or prescribes law or policy or lhllt describes the organiUltion, procedure or practice requirements of any agency ,... "11 This st.1lutol)' delinition has been closely examined by lhe Alai).1nl<l Supreme Courl several times, Iirst in fj parte fra,lI/or Nursing Nome. 543 So. 2d 11 79 (Ala, 1988), where a nursing hOllle sought to have an amendment to lhe Stilte Health Plan ("SHP") declared a rule and, thus, invalid becau:se it had not been adopted according to the formal rule·tThlking procedure of the MPA.10 In Ex parte 'Traglor. the court reversed the ruling of the court of civil appe~ ls and held that the SHP amendment was an agency rule. The court noted that the SUP amendment pre· scribed procedures and prllctiee requirements for health care providers thaI had the general appliClibility of II rule. rather than the limited applicability of a deci$ion or policy made in a contested case against an individual entity. 543 So. 2d at 118<\, [n fact. the court slaled thai ''we can lind no beller Cx.<!mple of a rule. regulation, or standard," Id, The fix parll! Traglor opinion Is important because in perhaps its Iirsl opportunity to

write to the issue the court clearly endorsed the bro:ad MPA definition of \\'hat type o( a{leTIC)' rulings constitute a rule and, thus. trigger MilA rule-making requirements before they may be enforced. Moreover. the court dclined a "rule" lS including "agency interpretations of statutes, rules, or other species of law or policy,"Id. Ilt 1183, Under thill broad definition, it would appear Ilmt formal MPA rule.making procedure is required for II wide variety of agency action describIng. Interpreting, or implementing law or policy that has general applicability over a class of persons or other members of l!. defined clw. such M a regulated business. 1I Accordingly, claM menlbers may have grounds to challenge the validity of agency actlom of general applicability when the agency has not implemented that policy lhrough (ornlal rule-making procedurt.'~ ~'ormal mle·making procedure obvIously provides a valuable opportunity for the regulated class to h'lve advance notice of propose<l rules and to provide Ule al.lCrlcy with UII'. benefit of the class's comments imd input Into the policy.making process.l l The Alabama Supreme Court continued its brood view of an agency rule in IJrl/nson Conslr. & En/), S/!T'/J" Inc, /), Cilg of Prichuni, 664 So.2d 885 (Ala. 1995). where the court held that ADEM's procedure for determining lhe daily permitted volume of waste to be deposited in solid wilste landfills \\'aJ an agency rule due to its statewide application, Consistent with the approach taken In Ex porle 'f'rol/lor, the court's focus was on the fact that the standard that hild been used by ADEM had "general applicability" lind, lhus. met the definition of an agency rule, 664 So.2d at 893.

While the above·noted opinions Indicated that In during the 19805 through rnid·1990s lhe Alabama Supreme Court viewed the MPA's delinilion of a rule as h.wlng been hrOlidly worded and, so that administrative agencies were required to receive input from regulated businesses or other regulated entities before making generally applicable changes to policy. it appears thilt a miUority o( justices on the present court view the definition of an agency rule more narrowly. This apprOl'lch makes it highly likely Ihat administrative agencies will now make mtewide policy changes without following the MI'A's fo rmal rule.making procedure.

In Alll/xJma De,Jt. of Transportution v. IJlul! Ri{{qe &md unci Gravel, 718 So, 2d 27 (Aln. 1998), the court held th,lt a generillly applicable amendment to the Department of Transportation's standard road and bridge construction specifi cations. which mandated new standards (or acceptable gmvel lIg(lregate, Wi15 not an administrative rule thllt required to have been implemented through rule-making procedure,14 Although the standard specifications at issue were clearly intended by the department to be applicable to MI)' rood construction project statewide, the court's reason for holdinllthat the standard specification was not a rule WaJ that the stand.lTd specification Wl15 only "a term thnL mag be Incorporated into a contract between the Department and some other party." 718 So. 2d at 29, The cou rl5ei~ed on the distinction Lhat the grlllel criteria amendment might not a/WQIIS be included In the ItMe's con· slruction projects. even though lhe department had previously

indicated a broodly applicable purpose for making the gravel aggregate criteria more stringent- to Improve longevity of road and bridges statewide, Because the Alabama Supreme Court rarely ha$ the opportunity to speak to the issue of what is an administrative agency rule, the IJlm: Rit/gfl Solid and Groud opinion must be taken as an indication that the court now viev.'! the I 41 -22-3(9)'1 definition of a rule more narrowly than il has in tile past. This ruling appears to invite a "rOWlh in stale administrative agency power and flexibility in action, at a cost to regulated businesses and other entities who desire agency action to be predictable and are able to provide important input to the agency's proce$.~ of changing iu polley on a subject only when form~1 MPA mle-making procedures are be followed , While tht MPA's definition of II rule indio catcs a legislatil/t preference for agency policy" making by formal rule-m<lklnil procedure r<lther than ad hoc adjudication, the MPA dou recogni~e thal state agencies must be allolled 11 certllin amount of flexibitity in their decision-making procus. Thus, tht MPA specifically exempts from the del'inition of a rule the N(d]etermin.ltions, decisions, orders, stlltemenu of policy arid interpret-ltion! th.ll are made in contested caseS:'I$ For example. in Polls v. fJemcll, 487 So, 2d 919 (Ala,CivApp, 1985), the court of civil appeals held that the Alcohol ~rage Control (~ABC") Boord's decision to deny a liquor license to a store located less than 200 ftoet from a school was not subject to MJ'A rule-making requiremenu. The court held that the ABC Boord had properly exercised iu discretionary I)()'oIIer in using adjudication to deny the applicant'S liquor license based on the 5pecific faclS of the case, such as tile store's location and surroundin/U. rather than through formulating a rigid regulation.

487 So. 2d at 92 1, Tht Potts CQurt noted that under federal law, administrative agtncies are "not precluded from announcing new principles in IU'I adjudicMOI)' proceeding" and that when II controversy arlses the choice of IIcting by adjudic.ltion rather than by rulemaking is largely len to the di5Crclion of the agency.ld. t' urther, the court reasoned lhat the legislature had granted Ihe ABC Boord cerlllin dlscrellonllt',Y power the court WOuld not "accept the argumentlhat all licensing criteria and policy mu~t be made through formal rule-milking procedure." Id. The reasoning used by the court In PO/t.f [s similar to the fcderal 5111.ndard which allows agencies to create certain policy through adjudication rather than always requiring rule路making,lft In sum, under a strict reading of Ihe M I'A the scope of the applicability of an agency policy decision controls whether or oot the agency must effectuate that policy via formal rule-making procedure. If the policy decIsion [s one of general applica路 bility to an entire clw or community of parties, then MI'A role-making procedure mUll be foll~'Cd. Bul j( the agcncy policy decision is fact -!pC:Cific and limited to a single party or partiu in a contested action or otherwise has no genual applic:ability, then adjudication alone is an appropriate vehicle

for agency policy-making. HowtVer, this SI1l.nd.:!rd is now $Ornewhat in doubt. as the IJlue. Ridge Sand a"d Grovel opinion suggesli that the Alabama Supreme Court may now be willing to Interpret the MPA in such a way as 10 allow adrrinistralive agencies additiotUll p!)'o\-'tr to formulate generally applicable policy without following rule-making procedure.

Standards of Judicial Review In general, the standards for judicial review of a final ruling of lin admini5trative lItency in a contested case are mntrolled by f 41.22-20(k). That provision of the MI'A states, in relevant part. th.'11I reviewing court may reverse or modify an agency decision or provide other relief from tht agency action "if suOstantial riRhu of the petitioner have been prej\Jdlced because the agency action is ... (6) Clearly erroneous in view of the reliable, prob.1tive, 1I1\d substllntild evidenCe on the whole record; or (7) Unrcasonllble, arbitrary or capricious or c haracteri~ed by an abuse d discretion ... :' The Alab.lm.l Supreme Court tw noted that an agency action will not be found arbitrary or capricioUl simply I:M:cause the agency l\Cled incon5i~tent with a prior ruling. The court has slaled lhat "Iblecause there is a need ror nexibility in administrative decision-making, the doctrine of stare decisis generally dots not bind administrative ageocies to their prlor dtclslons. MEx porte Shelbg County Medical Q!I""r, Il1c., 564 So. 2d 6.1, 68 (Ala. 1990). These MilA standards for judicial review are similar to thate in the AI'A controlling judicial review of federal administ.... tive agency decisions," Ilowever. decisions 0{ the AE,.1C are expressly txempt (rom AAI)A standards of revicw.ll lnstead, judicial review of decisions of the AEMC utilizes the same standard as under certiorari review,l~ In /Jotes Mote{ v. t,'tJviromlllmtal jlfatJagl!m"lJl Comm'n, 596 So, 2d 92", 925 (AIlJ.CivApp. 1991). the court of civil appeals noted that under ccrliorllrl revil""", "if there i$ any evidence in the record to sustnln the Commission's decision, the court must affirm." (Emphasis added,) Further, Ihe court stated that a decision of lhe AEMC should not be reversed unle~ it is unsupported by the uncontradicted evidence or it is found that the AJ::MC has misapplied the evidence to the law, 596 So. 2d at 925. Thus, the legislature has granted the AEMC grtliter discretion than other state administrative agencies bound by the MPA sl1l.ndard (or judlcilll review which, as noted, uses a Nsubstantial evidence" standard.20 A. Judicia' Review of Que.tlona of Fact The same public policy underlying the creation of administrative agencies. lhe need for e~pertjse in a specialized tleld or discipline, also argues for a deferential standard of judicial review to be applied to agency nndings of fact in a contested case. The court of civil appeals has re.aJ()O(!d that M[tlhe special compe路 tence of tht agency lends great weight to iu decision,M Slate J UlY ' WV , 2U

Hoolth Play/IIMg &!krJ. Agmcy v. AMI8rooku'OOd Medical Cellt(..,., 564 5o.2d 54, 56 (Ala.elvAI'P. 1989), Accordingly. under the AAPA, "the llg~n cy order shall be taken as prilTlD facie just and reasonable and the court shall not substitute its judgm~nt for that of lhe agency as to Ihe weight of the evidence on QUe!' lions of (ac1."21 The court of civil appellis hM also stated tlull "(wlhen lhe legbillure delegates II discretionary function to an agency with spectal competence, the court frustrates that dis. cretionary role by stepping in when the agency's choice is not clearl)' unreasonable or arbitral'}'." State 1/('tIlth Planning & ResoufWs DetJ. ~lt.'mi1l. u. Ri/J0ukl/ of Alabama. 111(., 469 So.2d 613.614 (Ala.Civ.App. 1985).

Thus. a court is to apply an ~arbitral')' and capricious" stand.ud of judicial re-new to administrative agency fllet-nnding. hldicating the lellislature's intent that II court should not mere· Iy substitute its jldgment for that of the agency, and may only invalidate an agency action if the court determines U11\I the agency's action is irrational. For example, in Ro/x'J'fs /J. State Oil alld Cas Boon} ofStota ofAlabama, 44 [ So.2d 909 (Ala.Civ.App. 1983), Il proper· ty qymer appealed the Oil and Cas Board's denial of his petition to have the Smackover Cas 1'001enlarged to include his land so he \!,'Quid receive a shilre Qf its gas prOOl1etion, The Board had con· eluded that the evidence presented to it Willi insufficient to indio cate that the natural gas pool extended beneath the petitioner's property. In reviewing the OOard'$ deci$ion, the court Qf civil appeals noted that the case involved complex technical issues caliing for "expert testimony from people that speciali7.c in the areas of geology, mining and dri1llng.~ 44 [ So.2d at 912.

Accordingly, the court held that it was not its function to suDstitute its own judgment for that of the board. which had expertise in evaluating the expert testimooy. ld.

A similar case b Alabama Departmellt of Public Ncallh /J. Perkins, 469 So.2d 65[ (Ala.Clv.App. [985). where a landown· er appealed the Public Health Department"s denial of his per· mit to Install a 5e~t ic tank. The department's decision has been based on a factua.l fi nding that the groundwater table at the chosen si te was shallower than the depth requi red (or

$cPtic tank placement. In reviewing lht department's ruling, the court of civil appeals noted that judicial deference to administrative allencics with regard to {act·findlng Is nects· ~ry "10 insure uniformity and consistency or decisions in light of Ihe agency's specialized competence," 469 5o.2d at 653. Further, the courlstated that it would frustrate legisla. live Intent arid usurp agency discretion if the court "stepp[ed] in when the agency's choice Is not clearly unreluonable or arbitrary." Id. Explaining its understanding of the "arbitral'}' and capricious" standard or review. the court noted that an agency factual find ing cannot be ovtrturned IlJ Ilrbitl':lry when there is "a reasonable justification for the decision and that a reviewing court cannot simpl), "substitute its judgment for that of the administrative agenc),," ld.

Even with the deferential "arbitraT)' and capricious" stan· dllrd of review, the Alabama Supreme Court has ,hown a will· ingness to disturb agency dcdsiQn-mllking when the CQu rt found It neceuary. [n Ex partl! Shl!!bll M,>dical Cellter, 56.:1 SO.2d 63, 69 (Ala. 1990), the COUft ruled thlll the State litalth Planning and Development Agency's decision to grant a certificate of need for a new hospital in Shelb), Count)' was ~clearly erroneous in view of the rel iable, probative, and substantial evidence on the whole record. In a notable dissent, however, Justice MaddoK warned that the court's majority hlld 100 greatly expanded the scope of judicial review by conducting an independent review of the record rather than simply determining whether the agency had clearly abused itl discretion. He warned of the danger of the court5 substitut ing their judgment for that of an expert agency, stating "[t[he al'.'arding of certificates of need, the set· ting of utility rates, the granting of moor carrier certificates. the granting of ABC licenses. the regulation of banks, roning, and a myriad of other regulatory functions are \lUted in administrative boards and agencies that supposedly are in the best posltlon to determine what i$ and what is not in the publie good." 564 So.2d at 73.

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B. Judicial Review of Que.tlon. o' Law

Pure questions of law, such as an administrative agency's Interpretation of a statute in a contested case. are generally to be reviewed by a court without any presumption d correct· ness. The United State$ Supreme Court C$tabtished the federal policy for judicial review of an agency's statutory or regutatol'}' interpretation in Ch/!/IfOn. Inc. II. Natural Resources f)d('fIS(!

COImdl, 467 U.S. 837, 104 S.CI. 2n8 (1984). Undtr the Chcvroll analysis, if the language of the statute a.t Issue is unambiguous. then lhe reviewing court must give effect to the dear Intent o( the leJtislilture regardless of the agency's Inter· pretation. [04 S.C\' at 278 1, However, if the court determines that the statute Is ambiguous in meaninJt, then the court'5 role is to deternline whether or not the agency's Interpretation o( the statute Is reasorlable, Id. at 2781-82. The court will adopt

the agency's Interpretation of the statute if it determines that the Interpretation is reasonable. Thus, Chevron allows federal courts court to follow the guidance of administrative agencies in instances where the court Is in need of auIStl\1lce.

It appears that to some extent the AJabllma Supreme Court I"W "dopted the federal CIwvror! standard for review of administrati\lt agency's interpreLltiOll5 of statutes. In FamlCf II. Hypo Noidings, Inc., 675 So.2d 387, 390 (Ala. 1996), the court noted that while generally an administrative agency's interpretation 0( a matute it administers will ~ givm consideration, where the statute is plain in ITle.lning Ule ccurt "will not blindly follow an administrative interpretation, but will interpret the statute to mean exactly IJ.i\at it 5oiI}'$." In addition, the court noted !.hat even when a statute is reeMCted without modification after the legislature can be presumed to know o(an agency interpretation 0( the statute, the intel1lretation is 11)( binding on the judiciary, although II will be considered persu'lSive. These slatements suggest that the Alabama Supreme Court will follow an agency's interpretation of a statule when Ihe statute's meaninlt is delennined 10 be uncertain, and the court requires guid.1nce.

Pre·MPA prectdent al$() suggests that Alabama courl5 will acknowledge some deJerence 10 3dministr"tive 3gencies on interpretations of slatutes 3nd their own regulations. ~'or instance, in IJroadwott!l' /J, 81m! & Gray Patio Club, 403 So.2d 209, 213 (Ala.. 1981), the Alabama Supremt Court noted thill while it was not I»und by an agency's Interpretation 0( a statute the "Iol:ency had the responsibility to enforce, it would give that interpretation consideration. Likewise. in CI,,'11 McClendon Truckmg Co. I). Null Mo(or Express, fne., 285 Ala. 98, 229 So.2d 488 (1969). the cour( noted that the interpretation by Q "Qunsi· judicial body," such as the Public Service Commission, of one of ill own agency rules should bl: given wei"ht and followed unless found to be arbitrary and C3priciollS.

court noted that although it might have weighed some factors under the State Health Plan guidelines differenlly than the agency. the agency had complied with the applicable law and it ~ta t ed that it was not the court's place to "substitute it! judg. ment for that of the administrative agency." M. at 1375, IlowL'W!r, the Alab.lma Supreme Court 11M not always been willing to show deference to agency decision-making, and it has on occasion reaffirmed its power (Ner st.,te astenciu. In ex IX1r(e Shelby Medical Center, IIIC., 564 So.2d 63, 69 (Ala. 1990), the court ruled thatihe State 1·lealth Planning and Development Agency's decision 10 grant a certificate 0( need 1I110'Ning the con· struction of a new hospital in Shelby Counly was "clearly erroncow In view of the reliable, probative, and subslantial evidence on the whole record." However. the decision is r1\O.It noLlble for the dissentinl:l opinion by Justice f\1addox which called for a very limited role for the judiciary. He wrote thai the court had too greally cXI)andcd the S(;ope of judicial review of <l~ency adjudica' tlons by conducting an independent review of the record rather that simply determining whether the agency had cleilrly abused ill diKrelion. 564 So.2d at 73. He ~tated thai the court h:Id substituted It! Judgment for that of the agency and nOled th..1t ~ltlhe 3warding 0( certificates of need, the setting of utill\), rates. the granting 0( motor carrier certificates. lhe granling of ABC license. the regulation of banks. zoning, and a myriad of other

THE UNIVER ~ I TY Of

ALABAMA SCHOOL Of

C. Judlcl.1 Review of Mixed Que.tlons of Law

WH ERE

Most cmllenges 10 administT3tive agency decisions in oon· tested CMCS art !».sed on the argument thai the agency misapplied the rclevarlt law to the its filct-Onding. This creates an appellJ to the judiciary based on a mixed questlon of Iilw and (act. Generally, In such a review the federal court! apply an "arbitrary, capricious, or abuse of discretion" standard of review22 and the similar AAPA standard 11M ~en applied by the Alabama courts. Thus, although a court should not si mply defer to an agency's interpretation of law, it is required to show somt deference to the agency's application of the law to a set of facll. ~'or example, in State H/Ullth Planning alld Devel, Agencll u.

Nobile lnfimw'l//ls.s'n , 608 So.2d 1372 (Ala,Clv.App. 1992), the court of clvill\p~als reveued Ihe circl,lit court and affirmed the agency's decision to deny a ctrlifkate of need to f\1obile InOrmary. The COllrt noted that ill review was limited to ''whether the (agency's l decision WM made in complillnce with applicable law, whether Ihe [agency's) decision was arbitrary and unreasonable. and whether the lagency'sl decision WII5 supported by sub~ta ntial evidence." 608 So.2d 11.1 1374. The

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regulatory funct ions aTe vested in administrative boards and agencies that supposed1y art in the best PQ.$ition to determine what is and what is not in the public good." ld.

Despite Justice Maddox's view of a limited judicial review of administrative agency action, the Alabama Supreme Court has often applied what could be considered a de now standard of review. For example, in Ex parle f.(jw! Rioor PrQtl.'Clille Ass 'n, 572 So,2d 446 (Ala. 1990). lhe cou rt held lhilt the AEMC had erred in its Interpretation of the state's water quality il'*i-degradation polley Ilr'Id hlld improperly granted a pollution discharge ~ rmit to t-10bile's Board of Water and Sewer Commission. The A8MC has adopted the findings of an ADEM hearing om· cer who had concluded that the anti.degradation policy was not applicable to t-10bile Bay, and that even if it were, the proposed di5charge would not violate the policy. 572 So.2d at 451-52. However, the supreme court concluded thllt the AEMC's interpretation of the ilnti-degradation policy was erroneous, because under such an interpretation the policy would notap]11y to certain waters that ··by its own terms it does apply to" and would a!tow "degradation of the water in violation of the anti-degradation policy." Id. at -155. Tllis was an appropriate ruling by the court on a quution Of law where the court's e.llpertise is unquestioned in comparison to an admini$trative agency, However. in fowl River the court was required to also addrcS$ tile AEMC's findin"s in an area of tile agency's exper· tise, computer modeling of PQII\ltant di~harge into fo1obile Bay and how strallf1cation of the saltwater in the b.1Y would effed the discharge, A!Ulough the MilA exprculy requires the courts to show deferenct to administrative agencies on questions involving the agency's area o( ex~rtise, in FOUiI River the court showed a willingnes.s to ignore that mandl\le. 1~l!.lhe r than simply defer to Ihe AEMC's issuance of the discharge permit bascd on the agency's determination that the dynamic estuary computer model .sufficiently represented the conditions of Mobile Bay, the court per(ormed its own review of the conflicting txpert testimony regarding tile computer model.ld, lit 457, After reviewing the complex record in detail, the COllrt made a

finding that the computer model could not sufficiently ~imu­ late the complex environment of Mobile Bay and, thus, should not have been so relied upon by the AEMC in reaching its conclusion that the pollution discharge at issue would not violate the anH-degridation policy, Id, at 462, While the Alabama Supreme Court may have reached the correct result in Powl Rhx.'r, its in-depth review of the record In thlll ('II..~ is in direct contradiction to the certiorari standard of review thllt is particularly applicable to AEMC adjudicatior,s which, as previously noted. are exempt from the MPA stllndards o( review. The stMdard is even more deferential to the administrative agency than the Mj'A's ".substantial evidence" standard o( § 4 1-22-20(k)(6). Thus, the Fowl River opinion stands as evidence thalthe Alabama Supreme Court has been willing to ignore the MI'A"s standard of review if that is required to reilch the result the Court believes is be~t In thlll cMe. The MilA's standard of judiciill review oJ mixed questions of law and (act Is obviously easier to explain than for My court to consistently apply. The proper apllroach i! most likely the middle-ground between the Alabama Supreme Court"s sometimes aggressive depth of review and Justice Maddox's call fo r great deftrence. Under $uch a standard the reviewing court would give more de(erence to the agency decision the more complex lhe facts, or when the decision Involves questions of scientific or other special areas of expcrli$t whicll a j~ldici'll body does not normally possess, and leu deference where the decision did not involve those considerations.

Conclusion It appears that for the most part, judicial review of agency actiOns by the Alabama appellate courts under the MPA par· allel$that of the fede ral courts under the APA, However, there arc notable differences.

First, until the /JIue Ridge Sand ami Graool case, the Alabama Supreme Court had IIrliculated a very broad standard for what constitutes an agency "rule" require adoption

by MPA procedures, The M I'A's "general appl !cabiUty" test (or required rule.making had been enforced by the Alabama appellate CQ(lrts and when combined with the inclusion of agency interpretations of $tatutes as "rules," it allowed a great many agency actions to be challenged with the argument that the action WII~ bMed on a ;·rule" that had not been properly adopted. This standard may have constrained administrative agency discretion, but the 1055 In discretion appeared to be offset by increased fairness to busincsse$ and other I"I'Icmbers of the regulated community that formal notice and comment rule-making provides, After mile Ridge Salld and GralN!l, however, the balance may have shifted back toward greater agency discretion on whether it make implement generally applicable policy without {ormill wle-making.

Second, the Alabama Supreme Court has in the past proven willing to undertake an in-depth review and overturn admin" Istrative agenc), decisions. While this expanded depth of judicial review seems to confli ct wIth lhe level of deference Aiven to agenc)' adjudications b), the terms of the AAJlA, It is appropriate as to pure questions of law where no ambiguities c ~ is t :lnd possibly also mixed questions of law and fact where lhe quu tion does not involve an area of agency elCpertiu.

1·lowever, the manner in which the court currenll)' views 11$ sometimes contentious relationship with state administrative agencies wlllllkc!y differ a$ we move Into the 21st Century. •

""'I IhIlnIoIIpr. .lIOn wtllnIoIIIIIed 10 IItVI (III'ItfIII ~ III'd ."., AO£M hid no! 8CICIptId .... ~tion IIVOUgh tornIII ~ ~ dutI. ADt:M IIIG not poovItIed IUIIIo::ItInI ~ 10 till tndut1ly III '" 'InI~.' nor r..d MInlliflIed ~klnO ~ 10 M(IiIy !hi ~. lion 10 more c!oarty ... n.o::t AOEM'1r 1nI1'll'ftI\II1lDn 0I1N1 ~1I0n. ~1tfIr,

...-ttd

me. v. ",/,t1Nt1M of EfIV. MgmI. Dackot No. 82 , 15 V."'. em. ~I COmm'n, Sept, 23. l Wa) .

13. WhiII AA1¥o. ~ ~ ptOYItIe......., cIuI prOOIMI jIIVIICtIonI I"IItItd 10 • jIIWOM(I ~ NIt -..ell .. ~tIon III • r'IaIICIIln IhI AIIboImII AcImIr"'trllhl fI'IOI"tIt#t 111'4 • pUbIc 1IHrtnO. _ All. OOCII 1m I 4'·22-3. ICIuIi ~ 10 "ll"lalood oonll!lloro Ie not required _ whtftI_ ~ regultlkN WOI*IlIO*O\Ielly ImpoH eM 1Idity.1(m)p CJjI

co. '"

IN"",,," lle5 So.2d 820 (All. 1l1li5).

14. TNt

'>OkIInO" turplillng becI.... In tile ~ on lllla _ _ _11111"', 1rIw,

on

~ K.meIh D4Mt. l1li 1QrIfIIOII-.IIhOrI!y 1IIft1 M$t. ciIed 11MdIIrd ~ - . d a n ~1ionI ... po\me -...01 In -*"'IItrt· ... ~ rW. lIIftOt .... 8IuI Ridj)ot SMldMd ar...IoplIon tIIe-..

"'*"*'

Endnote.

lIgItItolurt lifo.

1M AAf¥I" <IIfWIIon III In ado ..... 1IIw "rIM" 10 II*M\CItIy exdutItt ~nm.nt .,. TI..-..porIItior1l\1g11W1oy ard brIdOIlII*lfI-

I. II U.S.C.A·HMItom.

C81~"

2. ...... CodIII87e. '~ '1 ·22·'" Mq. Tl!e M PA Ie ~ 'ram ..... 11.......

Mo<III SIIt-t AamIrifAnI~~' AcI (l iIII l ).rId "NIouI1lt1l ~". ~ The COO'IYI"III"IIlIG INCh ...... .,. ... AAPII< IICII" ....., MCtIona .,. !he R...... MOOII N:lWIII lit.. _ Iht ~ 1tgIMt..... ftoIitd ~ """" ..-1Iing INI ..,;:lIon. llIuf. ... RIYIMtI MOOII ACI .rid ea_ lnI,f1I'IIIroII ....1II'IOtd NC1IonIo \ram OIlIer "III _ m.)' I)t ....,1II \0 proYIde ....".rw;o ltIlnI,,~,,' 1ng HCiIonl 01 \lie MJ¥-..

...

'*

111. ...... OO<II lt7&,

1 4 1 .22~tHd), TIlt

lelltrll APA corMIrlI ........ -.pilot.

!rom IN deftnIIOn III I ...... II U.8.C. III53(b)(A) •

11. 8M s.wrlfIH IrIICI ~

eo..wn"n '" cn.n.ty. m u.s. 1114, 07 S.Ct

157$,81 LEG.2d Im( I"7). ThI cr.n.ryOPWon"~!hI~ rvIe lhel • lIOIr.llt1m1n11tr.1IYI JOI!'CII " .... la .... h IOII'd Ifjecrl"llion 10 fof ~.t 8 ~N:y

,tlllM by ,uJomaidng wUh oor .. tl)OrI(lIng Qef\tll' IppIiCa~ !~

a< by aGjuGieation willi eppIIcablllly 10 I... oonliliood ca... Tilt Supttml Court

"'*

3. ...... COOl 187&,'" ·22·2(,).

'1I11t1lh11 "1IIIdr1'11n1ttf."'" aDInCY ....., boI aquIpped 10 Ior:I by ~, lit NIt or ~ 0fdiI<.1b tnMI ~ _ \orm IIIICIion 10 .... tIId\JIIOn III IhI 01IIII1110 . . . 101m _ -..ny." 332 U.s.., 20),

, . All. COde l t7&" .' ·22' 2(11"5).

8. All. C90e ' 87&. I "·122·2(11)(7). e. 1\Qj)ta~!rom \lie hi ~I 0I1he clrwII oourl ." PfrtlC"" ~ 10 11'4 AltIl)tn\ll Au," 01 AwIIaIe Proeadu".

,.juctI

7. The CGutt COI'ICIucItd .".1 ~ ritllie IogIceIIy unOMiIIIIIe WM/e. .. 1'4N, poIenIidy "'_ WIll Iar·~ mIIIOfI ~ Iht putIIk: ....."

_

............ IIwoI-..Id. 822 So. 211 II SoI8

s..ror-

CO\Ir1 01 o\IabIIorNr hal liiio ~ IhIt • wide -.at\tIy 01 l1li'.

1101 "'IIY ~ II.ndng 10 f;lI&leoge an AEMe 1CtiOfI. I'oOI(IIng ..... , In """MIy llI6C1ed IeQII right 0< . . . . .,,....,1I1tnd Ie not r.quIred 22·2G-7(c).

EIr 1M" Fotw1 RMt ~ AM"n. 1172 80. 2d .we. 4!Se. n.2l IWO).

• . The

by.

8 The AA1¥o. deIinrIIorI 01 I "" Ie ~ ........, 10 V\fII PfV\MIod tor In lilt APt< In IS U.S.C. I5.5 1l4). bUlle IlOl <IIM.I 1ItoId. The " PIt. cItIInIIIon IoItoInduOM "~I.....m. 01 I*1CuIM fIPIlIIcabIIItI; AA1¥o. ",limited 10 .,.1.,.,.".. o!~ ..

wI'4'_ ,....

~. ~. tlICh 1lII1_11I ~Iy uncle! ' '''' APA IPI>H' 10 boI limtlod 10 Ulility . 1Id _

01 Pf.ticull,~· CIIrr1t' ,.It 1I\Iklng.

11'1 AA1¥o. " not aj)jl/jcabIe to 1M AlaDarNr PubIio &eM:. ~ • ..mIr;:to "II'o-'II.1uch '"1 maltInG. lhIrIle no fINd tor .....

AAf¥I" dIIInIIIon 1111 ~ 10 boI kllntlc:ll1G "'" A""...

a-u..

17. The ~ in $ U.S.C . • 700, III. "'" "'" .t'JIewInO oaurl llllll •.. l2) IIOICI IIIIIIwltJt .1Id1lll IIC!\ofI ,•• \our"Id 10 boI (A) '~fY or ~. v.cI &buN 01 ClillCftlior1, a< OiherwIH noIin iIOOOrdAnr;. wlttlllw; .•• (e) 1Jl\,UP-

' ' 1oI/I''IC)'

porlood by

_lInt~.-.IdInOI

••• ."

I' AlII, Coot 18711. H . ' -22·27(1) In(! 22·22A.7(cXII) .

I t. kif ~ 0IJpt 01 Em; MgnW, '" wrIp/Ir 811». c-rr. CG.. fI()oI 80. 211 ' :/8 lAII.CIV.Ai»- 1m): ~ Em. MgmI' CoIIwn-" '" ~~ 5«1<. Inc•• 11M 90.2G II06l..... Clv.At». 1 ~1): D.I_ O! AIIbIrM fHpI. 01 Em. MgmI•• !2fI 80. 2d IOI2lA1l.CIII."-W. li&8).

20. 8M~,. HH/t1t PIMtIttO~~. ~ IfrIimrMy AM"n.IIOI80. 2d 1 ~72 (AIa.Ct.-.App. 1012): HliWYO! ~ lid. III ~ etl7!b. 2d 25e (AII.Ct.-.ARI- 1012): HHMI Car-. AuIItotffy IIIIhIr c.y III ~ '" BIHf HHIItI PIMtIttO~. &411 So. 211.873 (AlLCN.AjIp. IIIMI·

2 \, ...... COcIe 111711.• ., .22.2O(k).

22. SH MoIor ~ MIra AN"'~. Sr./IO Filfm Mu/. 1M. CG.. 410 U.S. 28 (1953). ~/r)"'-""OwtIOllPrMt",~, 40 1 U.a~I I II7 1 ).

_t

10. The AAPII< .. Pf1IC*InI ~ by whICh 1 ...1f ~Itiw IIQWIC'f rNIiV IoCIOOI t '"rvIe'" ... Nlblh In H 4 1,22" 10 ·7. Moe! 1mOor\Ir'IIIy•• 41 ·22· 5 ~ ... 35-dty ~ 10 lflii puCk by pOOIIojIlIon 1I ,.... AI _ _ ,f.(t1Ilnt.uatlvo MOntii)' .1Id .~ OOQOflun~ tor !he pubIkI 10 CIA 1M propoMd rule. tlI/Itr orIIIy or In w.1dng

an.-

CttnIII''' Em; 5«1<, Inc:.~. Cllrol PtIt:IIMrI.II&I So.2II 885.'e-.

(All l lM16). IhI Cour1I111d tIIII AOEM _ ~ 10 ~ jHOII'UgIIlI. rW or ......1IOn tlllcullllng lilt fIcIOn or CI'MrIot _ ... 10 boI ~ In ..1allIieNng ptm'IiIIt(I \'QIUmM tor AIIDImIt IIOIIdJ wltM IIcIIiIiIe In OOMIC>

11. In

I~ willi ~ med/fioIlionI or In/IIal PIf"""," beceUN the InlOflNlt IWIdlrdI .tJ)EM "-tI btIn I'tll\g IIad (I&I\e •• t .ppllcabl~ly.

12, Tl!e YIIIdiIy o! In AIlbAmI o.p.n,,-..nt 01 ~ 'InI1/pre\a1lotl" 01_ III Ita ......~ _ - . , . . . . dIII~ by • .....-..IIc:Iur on Iht boIIII

Mlc ....1 C. Skotnlckl MleMei C. SIIotnIckl '**"«1111 ..-.cIOfgr~ tn(I ~ _ _ \torn AuIlum UrWIttI!y n 00CIar. ".... CIIIII!It.otM, !rom . . ~ St:hoDIllllaw He IIOfYOd ., • ~ IIIW cIIric !of CnIet Jvst~ Sonny ~. n ... II1II 811Q!nev Iof ..IJItICM Henry SIoagII. Torry M • .rid CIwnp LI'tn 01l1li ,...,.... ~ eo...n H& IUIIfldy It ~ will lilt Bir i "1gM1'\ .111 01 ~ " AIGtI<tr, U.C

'*.....,.

JUly' on.OOl

THE

ALABAMA

ETHICS

LAW:

A Retrospective /3.11 James 1... wnner, Jr.

T

he Alabllr1'lll

E lh ic~

L':LW, CQ(lfl Of

Ethics (or Pl.lblic Offlcials, Employees, efc" Section 36-2,';- /

through 36-25-30, Cod/J ofAlabama,

197.'1. which was conceived in II cavalier game of "chicken" between the stale Senate and 1·louse of Representatives and then, once il betame law. barraged with ev£:ry possible lell:al ch<lllenge imaginable, just celebrated the 25th anniversary of it~ enllctmenL Scptl.:mber 1<\, 1998 marked that milestone anniversary for the law few thought would live to see its !'irst, much less iu 25th, birthday.

Although Ule Ethics Law has been revised several times-most significantly in 1995-it still stands liS a strong deterrent to using one's public office or employment for your personal gain.

Enactment of the Law The genesis of the law .....:.$

a third·rflte burglary, which became known as "Watergate." 111e "Watergate" scandal not only led to a President having to resign from offi ce, it opencd a n!)l)(lg,1te of reform legislation at both the federal and stllte levels. The ~'edernl Elections Commission was created in the immediate aftermath of ''Watergate.'' f he I~thics in C~mmentAct

of 1978, the fed-

eral ethics act. was

enacted into law. Ethic.s la~, c.ampaign fi nance and election reforms were adopted and revised across the countl')'. 01' the heels of this movement. Alabama adopted its first Ethics taw, Act No, 1056. 1973 Alab.lma Acts, 10 the surprise lind dismay of many in Ihe Legislature, The pr()Ce5S beg.ln uneventfully cnou"h with the introduction of Senate Bill I by SCnlltor George Lewis Bailes, Jr, of Jefferson County a.! i1$ lone sp(lnS()r, What hapllCned next could only be deM:ribcd :.$ recklcilS It best and Machiavellian at worst. Senfltor Balles' bill passed the Scnateon tolay 1. 1973, with only two dissenting votes. The bill closcly resembled model ethics legisla. tion that had been drafted by Common Cause in Washington. The I·[ouse of Representatilles then took up the bill and added $(lrne 16 amendments. Th\ls began the Solmc of "chicken" with the I·louse raising the ante On the Scnilte with the hope--a.nd full (:)Cpecl:ition- lha.l lhe Senate would kill the bill. Unbelievably, the Senate adopted the amendments In their entirety and sent the !egisla.tion to the Covernor for final action. Governor Ceorge C, Wallace signed the bilt into law the next day, September 15, 1973.

In his wonclerf\ll law relliew article aboullhe lefli51atille history of the adoption of the Ethics Law, "The Alabama Ethic! Act- Milestone or Millstone," 5 Cumb...sam. L. ReI). 183 (1974). Melllin C. Cooper, Ule Conwnlsslon'! first executive director, shared a marvelous quote from a veteran senfl tor who had told him: "Mr. Cooper, )'Our Ethics Commission is a red·headed step-chi ld with \I.'\ly freckles, bow legs. big nose, and many Wilrts which is hated by its father and despised by its mother, both of whom kept hoping for an abortion ..... hich neller took place." In spite of this, the newly-enacted law was lIiewed as the best such law in the counlry bttha.t time and was used as a model fo r other

s ta te~

a5 they delleloped thei r own ethics laws.

Immediate Legal Challenges The ink from COIICrnor Wallace's signa. hire was barely dry before the first lawsuit was filed on September 18, 1973, chal· ienlling the conslituti011<llit)' of one provi~ion of the new Ethics L.1W. This W(l5 only the first of alm&.\t 20 such lawsuits challerlging tht Ia.w In every imaginable way.

TIle definitive-and I!Xcell enl-~Ia. tement on these legal ch:tllengcs was authored by William T. Stephens, who Sfl\l(:d aJ chief of the civil dillision in the ()(fice of the Attorney Ceneral and who defended the 8thics Commission and the Ethics Act in each of these malters. In hi' article. found atllOlume 10, mlmbcr 2, Climb, L. ReI).

317 (1979), entitled '1'he Alabama Ethics Cases," StcphCM state~: "No law in the history of AIfiOOma. haJ been challenged so llWIy times by so many people in the courts of this stale as has the Alabama ~:th ics Law.. ,The Ethics Law was challenged lind the Ethics Commission WaJ sued by such diverse groups aJ the Board of Commissioners of the Alabama State Bar. the League of l'-lunicipalilies, the Bo.1rd of Trustees of

""

University of Alabama, and the Alabarna State Employees Association. M The IitiWttion d all of these ca.ses essen· tlally amounted to a Mholy ...."arM against the Act and U\t Commission. Emotions ran as high M tht stakt.i. It W<l$ extremely contentious and intense. But, in the end. the act was upheld and the Commission begM to carry out its charge.

The first c h all~n"e was neither unexptcted nor difficult to dispose of. [I was filed In Federal District Court in r.10ntgomery by the editor of The Birmingham Tim~ and challenJled the constitutionality of Section 14 of the Ethics Law. This section prohibited any member of the news media from attend· ing leglsilltive seuions if they failed to register with the Ethics Commission and receive Il pass fo r such attendance.

The obvious bll5il of the lawsuit was th"t Section 14 violated the fi rst amendment guarantee of freedom of the press. The cau .... it~ heard by a three· judge panel and the opinion, written by Judge Frank M. Johnson. Jr.. held that Section 14 was unconstitutional and enjoined its enforcement.

A more serious challenge followed with the filing of seven lawsuits over a six· week period chllllenging the constitution· ality of the Ethics 1.. .1W. SpecifiCJIlly, these I llws ui l$llu~ stioned whether the require· ment Ih.lt st"tcmcnts of economic inter· ests be filed annwlly was an infringement on the fourth amendment right of priva· cy. Among the plaintiffs in th~ laW$uil$ .....oere: the Board of Commissionm of the Alabama State Bar. the mtmbeN of the Court of the Judicillry and Ule members of the Judicial Compensation Commission: the Leal{ue of r.1unicipalities and the Associ"tion of Cou nty Commissioners: the Board of Trustees of the University of AJab.l rT'kl: and the Alab.lrT'kl StOlte Employ. ees Association. 1'tmporary restraininl{ orders and preliminary injunctiOIl$ were iMued in all of tIM cases, oftentimes ex parte, restraining the Commission from enforcing the gth:cs La.w.

Quoting (rom the Stephens article. supra , ''The preliMinary injunction hear· ings were fairly unifo rm. In each case. members of the plaintiff class testified that they would milln their positions rather than comply with the provisions of Ule Ethics Law. gach tC$lificd th,lt he thought that the fi nancial disclosure requirements of the Ethics Law invaded

his right of priv"cy. Each forecast doom (or Ule particular govtrnmental entity with which he was associated. According to testimony, state, county, and local goyernment would COOle to a screeching halt unlm the court enjoined application of the Ethics Law." The Commission's counsel arl{ued that "the IIl1cgcd injuries ... simply did nol constitute cognizable legal injury to the individual plaintiffs, thllt the forecast of mass resignations WOLI merely specula· tion. and that, cwn if such reslgnlltioru did occur, sufficient numocl'$ of conlpe· tent people resided in the affected cilies. counties. and the state to replace the persons who resiJlned M(Stephens. supra ) The Commission also argued that the benefits derived from the f.:thics Law such a\ ~ honut government lind public confidence in the i ntc~ri ty of govern· mental officillis. far exceeded whatever (orecMt 'injuries' the plaintiffs had alleged. (Stephens. supra) It was the intent o( the plaintiffs that the teague of r.lunicipalitieslAssociaHoo of County Commissioners' ca.se be the test case. The attorneys (or both groups had been preparing for months their challenge to the consbtutionality of the law. Ilowever. the Commission felt th(l\ Its strongest CI1${' wM aR<lins\ the Alabama Stale Emplo~ees Association. so they filed a motion for summary Judgment in the State Employees Association case soon after it WOLI filed. but before attorneys for the League/County Commissioners could proceed in their case. The Commission's counsel also l'i1ed a motion to $Uly any further proceedings In all othf:r causes pending the outcome of the S"'Ii! Employee~ Association case.

After or~l argument, briefs and consideration of the record from the preliminlll')' injuncl10n proceedings, Judge ~;ugene Carter deliberated for several weeks and then entered an order upholding the constitutionality of the Ethics Law and its application to state employees, ruling against the State Employees Association on all issues.

"The first and most significant case. the test case. had !wen y,t(Jn. The Ethics Law WIIS constitutional." (Stephens. .~/J",a) The plaintiffs in the oUler wes and those cases which followed had been dealt a serious blow. /\J the CIISts pro· ceeded to trial there WUt some minor. and oftentimes short-hved. victories on H

behal( of the plainti(( groups, but (or the most part, the Ethics Law was upheld. the Commission began its work and the Ethics lAw was enforced. As a result of the u agueiCounty Commissioners case, the Legislaturt amended the Ethics Law. in 1975. to clearly include county and municipal officials and employees within the coverllge of the law.

Space constraints prevent me (rom doing an exhaustive summary of the legal t hallengu to the Ethics Law. For those of YQUinterested In the blow-by· blow description of these legal skirmishes, I highly r«:ommelld that YQU read WilHam T. Stephens' outstanding law review article, slI",a.

I might also add that not every legal challenge to Ule Ethics Law was fought out in the courtroom. Each time the l.egislature met over those years immediately foliowing the passage or the law. there were bills introduced to repeal the law and abolish the Commission. There were efforts to ~sunset " the Commission and efforts to limit the Commis.sion through the appropriations process. The Commission was always (ortunate to have II core group of legislalivt supporters who prevented theu d forts from being successful. To those IUI)porters. the Commission and the cltlv.ens o( this state "re forever indebted.

Commissioners and Staff The Ethics Law provided for tM Crtalion of II five·member Commission, Meach of whom 5hlll1 be a fair. equitable citizen of this state and of high moral character and ability.fl Throughout its history, the Ethics Commission has truly been blessed to have serve as Commissioners 29 private c:ti1.ens (Sft! Chari on page 266). who came (rom "II walks ofli(e: business. labor, religion. law, medicine and other professional endeavors, education and civic leaders. 1'hcse Commissioners rtnected tht great diversity of Alabama and, no mailer what their political affiliations or personal allegiances might be, they rose 10 the vel')' hiBhe.~t levels of the responsibility that had been thrust upon them to fairly, equilllbly. imp:.rUally and in nn absolutely nonpartisml manner determine the outcome of the issue at hand. They have

Ethics Commission Commisioners v,. . Served Occup.lion

H'm'

D~BTOR MANAG~M~NT

SOF1WIR~ UNIOU~lY

FOR CDLUCTIDNS mORNEYS. PRIC~S START AT JUST SI7DD. D~S IGN~D

1800 B1 7 1457 JS UCH MOLOGIU, INC.

151 ' WIUOW LAWN DRIVE RICHMOHD , VA nm WWIII .jl l ,C ,U"

ofienlimes undertaken their wk in the f3Ce of great adversity and have pr()\lided great service to tlte Ethics Commission and to the citizens of Alabama that far exceeds their mil'llscule compensalion of $50 per monthly meeting.

The Commission was aided in its wk by strong and dedicated starr members who also faced all manner of resistance and adversi ty astht)' sct oul to enforce the law, The fir$t Executive Director of the Commission, Melvin C, Cooper, W1I5 hired In January 1974, Ills task was to literally start the Commission operation (rom scratch. There was no office spilce, no telephone. no stationery and no staff.

Faced with the legal and legislatlve hurdles I mentioned earlier, these obstacles were the least o( his worries. But. obstacles they were. There were times when the small staff (elt there was no way to get the job done. Funding Willi extremely Ught and not only did the Comml»ion opernte for several years with no investi· ptor. it oft en (ound iuelf unable to purchase routine. but neceUllI')'. office supplies. Nonetheless. with a steady hand

James H Andefson Whil ArmslrOflQ Or Geor'll' E. Bagley'

""'.

Best« Bonner Jec~ W Soykin Camilla 5 &ItrUS H. Dean8uttrllfll.. Jr Donald Comer. III Nell 0 OftVrS AlIssell JacklOn Drake Connre Entrekin Hanry 8 Gray. III Dr. James J. Hrcks Maynard Layman Allo Loo. III' Helen Shores Lee Willillm H lo-.in Fl'lmk L Moson Loo McGriff Dr. Saoora K M. McLMd lewis G Ddorr\. Jr. James T. Pursell Edward C, Sherlill\l. Jr. AlMlrend John VIckers J. Ray Worron JolIn H WaUOn Adolph Werl. Jr ' Or leslie S Wttghl· Or Cordell Wyoo

CoIlooe Professor BIISIFIeSSIIIIIn CIVIC Volunt8&l' Attlll'ney. Fedlnl Judge Busrneuman Kewspapar Pubiishef/Collage Profossor Attorney AFl-C1D Official Cottle Rancher/Alab&rne DePI He&d "",~ Newspaper Publiliher AUI Altornov Altornov Mal ntonance SUf16lVlsor, Amoco Cham.

Buslrlll"m8n InsuIence E~ecutive Junior Collega Prasldenl Attorney Businessman BUJlne"man Minister 51818 Employee Businoullllln Businessman Unrverlrty President CoIl. PresrllOnl

._...

AttOfney

bee. Sec Alebarne SaPlI!t Conv

on Ihe rudder and it large measure 0( per~ran(:e, r-.te.lvin Cooper led the Commission staff for more than 20 years untl1 his retirement in 1994.

Melvin Cooper was succeeded by hi~ long.time Assistant Director Iloward McKenzie, who served as acting executive director in 1994 unli1 the new exec· utive director was named. McKenzie provided continuity and kept the ship on course during his tenure. Upon the selection of Ihe new Executive Director, E. J. "Mac" McArthur. in the rail of 1994. McKenzie retired from the Ethics Commis~i()rl after 17 years of distinguished urvice.

The three hallmarks of the McArthur ern at the Ethics ComRlission are 1) the passage of a major revi!ion of the Ethics Law in 1995.2) the tri pling of the legislative appropriation (or the operation o( the Commission. and 3) the hiring of an out, standing group of ~taff members who are wcll-equipped to handle thtir assigned lMks. When Mac McArthur resigned to

1986-1992 1991·1994 1913·1977 to 1S78·1982 19n-1OO1 1983·1988 1994-1999 1992·1998 1973-1976 197&-198A

,,,.1973·1975 1993·1998 1983·1989 1977-1980 1973·1978 1995·200[) 1981 ·1985 1992·1995 1989·1993 1985-1992

'".2002 1992·1998 1981·1986 197&-1982 198J-I992 19!1e-2001 1979-1983 1973-1979 1984-1991

pursue another endeavor In February 1997. he was succeeded very ably by Commission Ceneral Counsel Hugh R. ,",'vans. [11. Under ~lugh Evans' leadership. the staff and Commission never missed it beat as the Commission conducted their $tarch for it new director of the Commission. My nrst official act M director was to appoint Ilugh to the additional 1>O$[tlon of assistant director. as IWlI as his role as general counsel.

On April 26. 1997, 1began my dulies l1lI director of the Ethics Commisslon-only the third permanent director over the 25.year hi.tory of the Commission. At the time of my selection, and In the period since then, 1have diligently strived to tarTY out my pledge to the Commission th..1! I would maintain the \Iery highest standards of fa[rness. imf)llrtiallty and nonpa.rtisaruhip In the matters that come before the Commiuion. At the end 0( my service here. it Is my sincere hope that everyone would agree I had achieved thal goal.

Major Cases Under the Ethics Law Over Ihe 25·ye.1T history of the Ethics Commission CO\,lJltle$$ public officiab and employtes.. ranging (rom AQYemon, legislators. cabinet officials to sheriffs, circuit clerks, county commissioners, lnayol'$ to rank·and·file employees of various dtlC$, counties or the slll!e have run afoul of the Ethics Law. The frlilowing Me a fcw of the major cases involving public officials: • Former Governor Cuy Hunt: Hunt Wa5 convicted and removed from office in 1993 for using $200,000 (rom his 1987 inaugul'lIl fund for his per· sonal usc. Althoulth Ihe verdict was uphel d in stal~ and federal appeals, the Alabama Boord of Pardons and

...

•

•

•

•

Paroles pardoned Hunt b.ued on their belief that he was innocent.

Former Siale Treasurer r.1elba Till Allen: Allen was convicted In 1978 (or using her public office to obtain bank loan5 fo r II personal busine5ll venture. She ilso fail ed to report the 10.11'15 on her Ethia financial disclo· sure form$. She WilS Kntenced to three years in prison.

Former Public Service Commis.sion President Juanita ~1cDaniel: She was COf\viettd in Ig80 for filing f"lst expense requests and scntcnced to seven months in prison. ~'o rm er Insurance Commissioner Jimmy Dill: Dill was convicted in )997 (or accepting $175,000 from his daughter who was in the Insurance business and subject to her fa ther's regulation, Dill, who had been appointed by fo rmer Covernor Jim ~'o lso m, was no longer serving in his state position when the ~;th iC$ case btgan. The verdict in the case was overturned by the Alabama Court of Criminal ApPfllls.

Industrial Rel~lions Director I)()ltie Cieszynskl: Cleszynski WIIJ fined $3,000 in 1996 for using state employees (or her personal errands and a state car for personal use. She was appointed to her cabinet post by former Governor Fob Jamu.

Selma Mayor Joe Smitherman: Mayor Smitherman was fined $4,000 In 1998 for using his city automobile

to make personal trips to the beach and to other destination!.

• t'onner Birminghal'n Water Boord Chainllllll Horace Parker: Parker WaJ convicted in 1998 lor arranging to get a water main upgrade done on the street on which he lives in Cardend.lle to improve the watn prC$5ure (or his lawn .sprinkler ~~t~m. I'arku al$/) voted aJ II member of the Water Board to approve U\e work being done.

A Current Perspective In 1999, Wt daily Itt examples of ethically questionable conduct in Washington, in state government and in our city and county government!, These examples Involve public o((jcials and employees from the I'resident o( the United States on down to the local water board. In Alabama, the revised 1995 Ethics Law provides us with major new tools to deal with the matters which come before the Ethics Commission: 11 revoh'ing.door provision, the authority to Initiate our own investigations, whistle·blower protec' tion and it establishes a system for fines lind restitution (or minor violations, among many other new provisions, The revised law is much more workable and understandable than it previously was which maku our job much easier. [n the period I have served as director, our operational philooophy has been oni!: of estnblishing clear and reliable precedent and 01 education and prevention. In every possible way, ""t are laking the Commission and the law to the people, By that I mean, we IIrc conducting edu· cational prOll:rams (some 77 last ~ar or 1.5 per week) at every opportunity, We recently conducted II seminar on Ihe Ethics Law for several cities and towns in the Quad·cities area ",hlch was attended by nearly 100 m.1Iyors, coundl membtrs, polict chiefs, fire chie!s, ttc., as ""ell as rank·and-file employeu. We now distrib· ute a digest or the Commission's opin. ions lind II Quarterly newsleller to the governor and other constitutional offi· cers, cabinet officials, department, agency, board and commission directors, members 01 the legisl~turt, the Auocialion of County Commissioners and the Ltague of lotunicipalities.

I am also extrtmely proud of the (act

that we have eliminated our backlog 01 atlvisory opinion rtquesll and we art \\IOrking 10 signifiClll'ltly rewce the length of time rtquired to conduct an invesUgation Into a complaint filed with the Commission, The Commission rendered 69 opinions last year and had 328 com· plaints filed, Wealso are striving to ensure th,lt those 26,000 PlJblic officials lind employees requirttl to file Statements 01 Economic In t~rtst do so properly and in II timely m.1Inner. TIle samt i5 true for the 561 lobbyist.' and 68 1 prindp.1ls who are registered with the Commi~joll.

After 25 ~ars, have we eliminated unethiCllI behavior? Clearly not, but I would strongly argue that the Ethics Law has made a differtnCH real difference-in how our governmental businCS5, the pe0ple's businC$5, is conducted. [ believe we lIS ll lX!ople hllY(: II much bener understanding of our ethical respon.1lblllties and, (or the m05t part, we adhert to them, MO!t public officials and employees realize today that they cannot use their public office or position (or their ~rsonal gain or the gain of their family, 1)0 the citizens of Alabama lIet their money's worth \IS a result or our efforts?

Absolutely. The Commission's budget is leu than one·ttnth of one percent of the state's Ge~ral Fund Budget. The annUllI cost of operating the Conlmission for each or the 200.000 covered public offi· cials and employees is $4.69. The cost per citizen or the slate is only 22 cenll. What a tremendous bargain to ensure the integrity of our governments at every level throughout the state.

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Mobile Media/ion Process & 1n9 Skills of Conflict R9solutlon UtlgaUon Alternatives, Inc. (Troy Smith) (800) A D R · ~ IRM or (888) ADA·

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CLE; 20 hours July 29-31 Birmin gham Media/Ion Process & /h9 Skills of Conflict R9solu/ion Lil lgallon Alternatives, Inc. (Troy Smith) (800) ADA·FIAM or (686) ADA·

CLE3 CLE; 20 hours : MISsISSJ I'PI VALlEY TI't1Jo; " •• ' ' INSURANCE COMPANY

CLE Opportunities The Alabama Mandatory ClE Commission continually e~aluales and epproves In-state. as willi 85 natioowidll. programs which IIle maintained In II computer dalobase. All Bfe identifiod by sponsor, location, dala and specialty area. Fe» II complete "sting 01cOffent

elEoppottunitits or a calendar, contaCt the MClE CommiSllioo office at ~334 ) 269·1515, o.tenSlon 117 a 158, Of you may view II complete listing of CUllen! programs 8\ the state bar's Web Site, wwwB/a/RJrOl(}.

200

~u~y

1000

August 25-27 Huntsville Medlatlon/Confllct Man8g9menl BellGr Business Bureau (Anne ISbell) (256) 539-2 118 GLE: 20 hours Note: To date. all courses except lhose noted have been approved by the Center. Please check the Interim M ediator Standards and Regis tration Procedures to make su re course hours listed will satisfy the registra tion requirements. For additional out-of-state Ir&lnmg, Including courses In Atlanta, Georgia. call the Alabama Center for Dispute Resolution at (334) 269-0409.

OPINIONS OF THE GENERAL COUNSEL iJu J. ,II/thong McLAin, gctU/1'uf COUTlSl!/

Qu •• tlon:

An Attorney May Not Pay the Advertising Expenses of Another Attorney in Exchange for Referrals from the Attorney Whose Services are Advertised

The Disciplinary Commission has determined Ihat it .....ould be appropriate 10 givt further consh:!eralion to the conclusionJ reached in RO', 92-23 and 93·23 which address the issue of whether an attorney may pay the advertising expenses of another attorney in exchange (or rere rri\l~ (rom the attorney whose services are adllcrtised.

Answer:

An arrangement whereby advtrtising expenses art paid by romeone or rome enlit)' other lhan lhe lawyer whose services art Deing advertised would, in Ihe opinion of the Disciplinary Commission. violate Rule 7, I of the Rules of Profeuional Conduct, in that advtrtising under such circumstances would constitute "a f~ l se or misleading communication about the lawyer or the lawyer's services." Additionally, payment of advertising cxpcn$U in cxchllllge for referrals violates the prohiblliOf\ in Ru le 7,2((:) against a lawyer giving "anything of value to a person for recommending the lawyer's services.~ DI.cuaalon: Hute 7.1 of the Rules of Professional Conduct prOvides (1$ fo llows: "Rule 7. 1 Communications Concerning A Lawyer's Services A lawyer shall not make or cause 10 be made a false or misleading communication about the lawyer or the Jllwyer's ~I:rvices. Acommuniclltion Is fllise or mbleadlng if il: (a) Contains a material mimmresentation of filet or law, or omits a fact neCes5a1")' to make the statement considered as Ii whole not materially m1sle.1dingi (b) Is likely to create an unju~lined expectation about result! the

lawyer can achieve, or states or implies that the lawyer can achieve rtJulu by muns thai violate lhe Rules of Profwiorl.!ll Conduct or other law; )c) Compares lhe quality of thc lawyer's services with the QUlllity of other lawyer's services, except as provided in I~ule 7.4: or (d) Communicatn the cerlincation of the lawyer by a certify. ing organization, except as provided in Rule 7,7."

II would appear obvious that any potential client who calls the telephone number listed in the above described advertisement $Cherne would be mislead as to which attorney they would be dealing with and who would be representing them in lheir particular legll maHer. White lhe referral concept is obviously an acceplllbte olle in this state, advtrtisement by means of this type of conduit whereby one attorney or fim) avoids direct pMtlcipation in the IIJvertising, other than funding the same, misleads the! public as to what aHomey or attorneys a potential client will be dealing with and which ..Homey will ultimately serve as the client's legal repreStnt.1ltiv(:.

Further, the lawyers Involyed in open referrals must ensure the client Is aware of the referral system, division of fees, degree of participation of the attor· neys involyed, etc., as mandated by Rule 1.5 of the Alabama l~ule5 ol l'rofeuional Conduct , The purpose of the rules b to protect lhe pubHc, Any advertising scheme which would circumvent fu ll di.\Cl~u re of relevant information to the consuming public violates, not only lhe TUlu themselves, but their spirit and purpose as ....-ell.

Strict adherence to applicable rulu would not allow such an atNerlising and rden al arrangement. The cir~UL"O~1I120D

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cuitou$ rderri.\1cOOl;ept envisioned therein is not a plan structured OIl to prevtnt misleading tht public while maint.aining the integrity of the representation of the client.

Other rules of professioMI conduct would be affected, or polentially affected, by this type of advertising and referral arranllement. ~'irst, the fact lha! OIle attorney would be payi n~ the advertising expcn~u of a ~ec()nd attorney in I.'xchange for rderrals means that the second attorney would be receiving something of vlllue in return for a referral or recommendation of the first attorney's services., This is clellrly violative of Rule 7.2(c). which provides. in pertinent part. that "Iallawyer shall not give anything of value to a pers,on for recommending the lawyer's services .... ~ ~'u rthe rmo re, Rule 1.10 deals with vicarious disqu:.lification of lawyers associated in a '%m." Whether a group of lawyers constitute~ a "firm" for purpoles of this rule is a (aclu:.1 qUl.'stion.

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in one context of the rule, but not in another. If lawyers are auocialtd in the practice of law in some way, the exact relationship can be Immaterial (or the purposes of disqualification under Rule 1.10. In light o( the provisions of null.' 1.10, :.nd the constn.ction which hilS been placed thereon, there would appear to be a. distinct 1l0~sl bi1ity that attorneys or firms who pMtlclpate in such an advertising arrangement would inherit one another's contlictJ of interest and would thereby be vicariously disqualified from any matter in which tht other had a connie!.

Based upon the libovI.', it is the opinIon of tht DiSCiplinary Commission of the Alabama Stllte Bar that it is ethically impermissible (or one attorney to pay lhe expense of advertishlg lhc services of a second attorney In c)[change for the referral of cases by the second attorncy.

To the extent that 110-92-23 or 110-9323 may be inconsistent with the conclusions $Iated herein, they are to be considered <l5 modified in conformity herewith. [RO-99-01[ •

ALABAMA DIVORCE, ALIMONY AND CHILD CUSTODY HORNBOOK THIRD EDITI ON by

Penny A. Davit

'"'

Robe.rt L Mc urley, Jr. CONVEN IENT QUIC K n EFEIlENCE AlllbllOllI DlvON:c. Ali mony lind Child Custody Horn book. Third Edition, i. the IlIOit comprehensive book 01\ Alabama divON:1l Inw IIvli1able. [t hn. 42 chnpterl lind OVllr 175 r-ge. of the 700 pagel IIr.! fornu which art convenlentty orssnlzed with the Inny lawyer In mind.

LA WYERS EDUCATIONAL PRESS Post Office Box 861187

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Alw Included nre .everal new federal laws relating to ehild eliliody nnd chJld support

Also Available: LAW OFFIC E PRACfIC E DESKBOOK, Eigh th !!dition at $83.00 (S7S.00 plus $8.00, ta x, pos tage and hand li ng)

TUSClloou, AL 35486-0013 PkaHf('nd ~ _copiel:of ..... LAU ..... M ..... I>IYORCI'.. ..... LlMONy ..... NDCI IIl.DCUSTOOy IIORNllOOK third Edition with I'()(ket r art. I t $99.110 tllCh ($90.00 pi .." 59.40 tu. poIt.II' IU'd hl.ndUng) , Plell"" !lend me _ c opies of th' 1999 PtH'k" l'al1 (or ..... LADAMA D1VORCF~ At.IM ONY AN I) III LO CUSTODY 1I0ltN ilOOK III $33.00 ~""h ($30.00 pi... $3.00 'n, pc>IItago and hllndUntJ. , AU ordol'3 nlult II. I'll.IiI'AID. Mike (J\KkiI r-y.blc to LAWYliRS EOUCAl'IONAL !'RESS, If '10, ... II,{io:d ),ou "''')' n:h,m 1M book ... Ilhlll 10 dll~. k>r" fuill't'fund.

21a J un ,na

Notice is hereby gi~en to Oavld Malcolm Tann,r 01

Jerome Tucker of Birmingham, who r8tci~ed e public repri· mand on January 11, 1999, is not to be confused with Jerome

Birmingham, Alabama that he mus!respond to the diargos In

Tucker, III 01T.JCker & Wagnon of Birmingham J.rOmIJ

Oisciplinary "'e, within 30 days from tile date 01 this publica·

Tuel/ .r, III hu n.rtf ftc.ired a public reprimand end conlinuts 10 be e member in good standing 01 the Alabame Sta', Ber.

tlon, July 15. 1999 Failure to respond shaliresult in further action by the Of/ice of Ge!MIfal CounS(lI and/or a delault judg. ment to be 8nterooagalnst him,

Reinstatements

• The Alabama Supreme Courl entered an order reinstating lolontgomel')' attorney Keith Auabom to the acti~ practice of law effective December I, 1998. [ASe Pet. No. 98.03) • John Samuel Gon... , Jr. was reinstated to the practice of law by order of the Supreme Court of Alaooma, effective April 2 1, 1999, conditioned upon Gonas' having by said date obtained 24 CLE 110ul'$ in courses which have been approved by the lolandatol')' Cont inuing Legal Education

Committee of the Alabama Stllte Bar, [Ase Pet. No. 98·06J • On lo1nrch 5, 1999, Birmingham lawyer Itobcrt 8, noden was reinstated on lhe roll of the Alabama Supreme Court as an attorney authorized to practice law in the courts of Alabama, lASS Pet. No, 98.012) • On September 23, 1998. Alabaster laW)'tr Nkkt)' John Rudd, Jr. was reinstated on the roll of the Alaooma Supreme Court as an attorney authorized to practice law in the courts of Alabama. lASS Pet. No, 98·0081

PHftfll\lOnio l'Xllhrlll~ how nellhcr ClarerK ... Dutrow

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in the '90~,

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b,llltncc 10 their liws.

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• On j\.1arch 5, 1999, Birmingham lawyer Rubert J. II ~. was reinstated on the roll of the Alabama Supreme Court as authorb:ed to prllclice I..w in the cou rts of Alabama. IASB Pet. No. 98·013] Public Reprimands

• Birmingham attorney J<: dwam Eugene Angwin receiwd II public reprimand withoul gcneral publication on March 19. 1999, for violating rulcs 1.3, lA and 8.1(h). Alabama Rulf!$ of ProfeMiQrwl COl/duct. The respondent attorncy was

retained to represent a client. He obtained a settlement on behalf 0{ tach client and. thereafter. did little or 00 work in the matter which included fail · inA to communicate with the client regardin" the st.ltm; of the mailer or to fOl\\·;.rd the procetd$ of Ihe settlement to Ole client or the clienl's me to the client upon requut. Di~dpllne was aggravilted in this eMe because of the respondent attorney's failure to cooptrale and refusal to TC$I>ond to numerous requests for infol'TNtion by the local grievance committee investJg;.tor. IASB

No. 98-n(AlI

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II . , .. q~l ... 'ho 1iI1I.....·h.Mdl.~I.lm ..: ·1'0'0 " 'I" .. n'ollon b mod. l hol t h' ~W"lty or t ho I•• ol " ".",'u!if 1'.. ~.rm.oI •• I ... t" ,hi. Ih. qu ,lI., olltl,I ..",k.. pt . l'orn"d ~ , o , ~ .. I ''' ~.'' ."

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Angwin al50 received t public reprimand without general publication on fo1arch 19, 1999 for violating rules 1.3, 1.4 and 8.l (b), Alabama Rules of ProfessiOlWI Conduct. The respondent attorney was retained to rt'pruent a clicnt. He obtained II seUlement or Pilrti~l seillement on behalf of each client and. Ihereafter. did little to no work ;n the matter which included failing to communicate with the client regarding the status of the matter or to forward the proceeds of the settle· ment to the client or the client's file to the client upon request. Discipline was aggravated in this case because of the respondent altomcy', fai lure to cooperate and refusal to respond to numerous requesu for Informallo!\ by the local grievance committee investlgator. [ASB No. 98·78(A)1 • Prattville altorney Jame. Myron Smith received a publiCreprimand with general publication on Hay 21.

1999. Smith pleaded guik)' to formal charges which ..lIeged tlut he h..w given falst testimony under oath in a deposition given during the course 0( his persooal divorce proceeding. Smith substquently informed the court of his false depositIon testimony and gave trllthfu llestlmony at trill!. SmHh pled guilty to a violation of nule 8.4(c) which provides thalli b professional misconduct for a lawyer to engage in conduct involving dishonesty or misrepresentation.[ASB No. 98.026(A)[ • On May 21, 1999. HunLs\;l1e altOrncy Carter Alln HoblnJOn received a public reprimand with general j1Iblication.

This reprimllnd was based on a linding by the DiscipHnary Commission of the Alabal'llll Slale Bar Ihal nobinson had violated rules 1.3, !.4 and 8.4(8), Alabama RuII!S of flrofl.'JSional

Dmduct. I~obinson was appointed to represent a criminal defendllnt. During the 13 months in which Ilobinson represented the defendant. he did liUle or no work in the mailer and failed or reflJ.5ed to communicate with his client regarding the case. During an investi· gation conducted by the Ilunuville· Mlldison County Bar Asso:iation local grievance committee, Hobinson failed to limely respond to numerous requests for Information legarding the malter, lASB No. 9 -255(A)J •

-

RECENT DECISIONS Bv David O. IJVrrH!, Jr., Wilbur C. Silberman Qnd William M. IJru'lm. Jr.

Recent Decisions of the Supreme Court of AlabamaCriminal Jolnder/.ever.nce of offen ••• for t,lal

Ex {X/rle Pillc}WOll. No. 1911129 (Ala" l'oll1)114, 1999) }X!rcur/am. Under I~u le 13.3(a). A,R.eT,I'" the charges of inter· ference with the custody of one child (J K) were improperly tried with the offenses of rape of another child (MK),

even though all offense5 were charged in the same indictment. [n a separate trill[, the evidence against one chitd would nol hllve bfen admissible againsl the olher. The chuges are not of lhe Aaffie or of 11 simibr charllcter, lilt'}' are not based on the !arne conduct, and they arc not alleged to have been pari of a common scheme or plan. In addition,

the charges relate to two separate victims. The only connection is that the alleged victims are sisters, There is on obvious prejudice to the defendant inherent in his being forced to defend against the charg~ of Interference with the custody of 1.K" when he was additionally charged ..... Ith first - and seconddegree rllpe of H,K, Here. the courl found the prejudice to be "compelling prejudice" requiring the granting of II DtlvIcI • • • vme, ,J,.

Ot'oid e Byrne. J, •• II'lICIUIItl 01 tilt lIrwIrllly 01 AIIbIwne.

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severance, Quilty pi . .

Ex parte 8lackmon. No, 197 11 45 (Ala., April 23. 1999) Justice Lyons, A defendant may prove an unknowing or involuntary guilty plea based on representations or promises made by defense counsel. the trial court, or the State, A miueprescntiltiQn by a defendilnt's counsel, if material. 1n.1Y render a ~uilty plelllnv()luf\tllrY, Whether a defendilnt should be allowed to withdraw a guilty plea is a matter within the discretion of the trial court, whose decision will not be disturbed on appealllbsentll showing of abuse of that discretion, In this case lhe supreme court could not find that the trial court abused its discretion because the evidence W3$ conflicting, The court fou nd it significant that the defendant neither called his trial counstl u a witness nor introduced an affidavit from his trial counstl verifying defendant's claim thai counsel had made lhe. alleged miuepresentations, Testimony verifying that counstl made the Illleged misrepresentations may be sufficient to warrant withdrawing or letting aside a guilty plea.

Sentence I-.'x parle KelJ/. No. 1971588 (Alii ..

t-1arch 19, 1999) Justice t-111ddox. When the same trial judge imp05l:!5 a harsher sentence on a defendant following a second trial on the same charge, the Judge is required to affirmo.tlvely state on the record his reasons for imposing the harsher sentence, Arter bolh trials, Kent was sentenced to ten years' imprisonment. However, after his first trial. thai sentence was MSl'li!" into one year of impri$onment and three years of probation. In his second trial, the sentence was "split" into two yeus or imprisonment and two years of probation, The Alabama Supreme Court applied the holding or North Carolino v. Pearce, 395 U.S, 711. 725·26 (1969): "[Wlhenev• er a judge imposes a more 5eVere sen-

tence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear," The court distinguished Bx parle l1t-eks, 59 1 So, 2d 439 (Ala. 1991). and Alabama v. Smith, 490 U.S, 794, 799-800(1989). The court also found it irrelevant that the second sentence WIlS only "sllghtly harsher" than the fi rst. Finally. the court set forth guidelines for when, as hert, the burden will not rest tillon the defendant to prove actuill vindictiveness.

Pro.ecutorl •• misconduct parlll Kanl. No, 1971588 (Ala ..

ex

Harch 19, 1999). I II this opinion authored by Justice Maddox, Justice Lyons concurred special1y to address the defendant's argument concerning lhe prosecutors' misconduct during the cr0S5 examination of the delendant's wife and during closing argument. A pl'()5tcutor's putting prejudicial allegations before the jury withollt being prepared to pl'()Ve them is ~enerally reversible error. However. I!''tn ir a prosecutor'J conduct was improper, the txtreme remedy of II. mistrial is nol always required lind not Mry violation of the rules is so ~grossly prejudicial" that it requires a mistrial, Aftet conduding that the prosecutors' Questions and comments objected to were not so "Jlrossly prejudicial" thut they amounted to rt'Vcrsible error, Justice Lyons wrote "to make it clcar to the prosecutors in this ca.~e that I cannot condone their action$." "'The primary dUlies of the o(flce of the District Attorney are to ~~ lhal justice is done. and to see that the state', case [isl properly pmented to the court and jury as made by the evidence. ". In the performance of his duties the District Attorney should treat the defen· dant fairly and the witnesses courteously. both in cxamination and in argument. The prosecuting a\tomey has a duty to bt fair and impartial in present· ing the evidence and in examining Or croll examining witnesscs. While he may not take unfair advantage of a

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defendant, he is under a duty to prose· cute with eameJtne!$ and vigor.'" "li lt would se~ lhe ends of justice fo r pros· ecutors, who are acting as representa· tivu of the State, to tenwer their zeal in future cases by paying closer attention to a prosecutor') obligation of fairness. " DUt

&p(1rteParker, No.197001 (Ala" F'ebruary 26, 1999) Justice Cook. This case involves a prosecution under § 325A-191(f}, now codified as § 32-SA· 191 (h) providing that a person convicted of driving under the influence of alcohol or a controlled substance is guilty of a Class C felony if the DUI conviction Is the fou rth or subsequent such conviction within five years.1The "with· in f'lve years" provision has now been removed from subsection (h). See' 32· 5A-191(h), Ala. Code 1975.) The defen· dant argued that the fact of the prior DUI convictions was not an element of the crime for which he was charged and that evidence ofthO!t prior convictions would constitute improper evidence of b.,d character, The supreme court held thai t 32.5A. 1911h) does not stale a substantive offense. and the three prior convictions referred to in that subsection art not elements. The prior of(ens· es referred to in that subsection are properly to be considered only for the purposes of detenninin" whether upon conviction a defendant shall receive an enhanced sentence. Subsection (h) pro· vides for sentence enhancement, rather than as stating the elementJ of an offense.

Rape Shield Law f:X Iwrfe Denllis, No. 197 1060 (Ala" February 19, 1999) /wr Cllrimn , This case contains an excellent history of Ihe "rape shield law," when it appl ies and when exceptions must be made. The Alabama rape shield statute, Ala. Code 1975, t 12·21·2ro, has been superseded

by Rule 412, Ala, It Evid. (effective date w;u January I, 1996), Rule 412 merely "expandledl the Irape.shield statute's l def'lnilion of 'evidence relnt ing to past sexual behavior' to include opinion evi· dence regarding Ule victim's character" and changed the nolice provisions of the rapt shield statute. To read Rule 412 as requiring an absolute exclusion of 11.11 evidence of past 214

~ULY

unlawful remaining, 11 separate prong of the offense of burglary upon which a conviction can be based," and held that Gentry is owrruled to the extent that it Is Inconsistent with this rule, The court reiterated that the evidence of a commission of a crime, st:mding alone, is inadequate to support the f'lnding of lin unlawful remaining. but Evidence of a sl ru[Utle can supply the necessary evi· dence of an unlawful remaining.

Justices Almon, Shores, Kennedy, and Cook dissented.

the victim and third persons could. in some cases, violate a criminal defendant's constitutional rightJ. Therefore, we hold that when Rule" 12 is applied 10 preclude Ihe adminlon of particular exculpatory evidence, the constitutionality of ItJ application is to be deter· mined on /I case·by·case basis. Itere, Ihe rule applied WM thai testi mony by a proposed defense witness that the vic· tim told the witness that the victim had had sex with someone ot her than lhe defendanl was inadmissibl e hearSliY when offered to prove that victim in ftlct had had the sexual encounter, That witnus's proposed testimony that she saw someone other than the defendant allcmptingto have ux with Ihe victim· child was inadrnl!$ible because its prej· udicial effect substantially outweighed its probative value. The medical c x~rt testifi ed unequivocally that he believed the child's condition was caused by recurrent penetration, rather than by /I sinJile Incident. Thw, the proposed testimony regarding the assault had very limited probative value because her tes· timony would not have established that l>enetra!iol1 OCcurred during the inci· dent Involving the other man, much Ius that the other man .....as responsible for recurrent penetration.

Capital murder/burglary f;X payfe Stote (Addu" {)(mis), No. 1961993 (Ala" January 8, 1999) per curiall/ , In f.,'.. parte Ga/ltry, 689 So. 2d 916 (Ala, 1996), the Alabamll Supreme Court ~O\Ierrul ed a line of precedentJ holding that evidence of it struggle and a murder inside the victim's dwelling .....as sufflcient to establ ish that any ini· liallicense to enter had been withdrawn." G(lIItry condemned a f'lnd inlt of burglary merely from the commission of a crime that could not be deemed to be within the scope of the privllege to enter, and condemned the use of evidence of a struggle as indicium o( revocation of the defendant's license or prjv. ilege to remain. At the urging of the court of crimin.. 1appeals, the supreme court revisited Ccmtr.1I and recoJlni,;cd thai "IOn so doing, the Court swtpl with too broad a broom ,~ The court announced the rule that ~Ielvl dence Of II. struggle that gives rise to ci rcumstan· tial evidence of revocation of a license

Recent Bankruptcy Decisions United S.a.e. Supreme Court take. on que.tlon of whether the,. I. new value exception to abaolute priority rule Bank of Amllrica National Trust and Sailings Association, Adifionl!r v. 203 North iASalle Street Partnership, U.S. Supreme Court, May 3, 1999, _ U.S.-> 119 S.Ct. 1411. Justice Souler's opinion begins with the issue of whelher pre· petit ion equity holders could. over an objecting senior class, contribute new capital without offering the same pur· chase privilege or offer of property to such clau. Section 11 29(b)(2) reads in t>trtinent part: (2) For the purpose of this subsection, the condition that a plan be fair and equitable with respect to a clau Includes the foll owing requirements:

•••• (b) With rtspectlo a class of unsecured

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•••• (H) the holder of any claim or interest that is Junior to the claims of such CIMS wiH not receive or retain under the plan on account of such junior claim or interest any properly.

•••• The (aetJ and opinions of the lower courts have bun reported In prior i~su es but, fo r those unfamiliar with the facts of the case, I summarize 115 (ollows: Bank o( America (bank) loaned $93 million, secured by /I first mortgage on a IS·f1oor office building in downtown Chicago, to 203 North laSalle Street Pllrtnenhip (debtor). When debtor defaulted in Janullry 1995, the bank beg.l n foreclosure. Debtor filed urldcr chllpter t I , the principal pur· post being to ~lJ.ve off foreclosure which could cost the partners some $20 million in personal Income taxes. Debtor's plan separately classified both bank's secured claim and Its unsecured deficiency claim of $38,5 million, and the unsecured trade debt of $90,000, The plan also propo$cd: (I ) to pay bank's $54.5 million secl.lred debt in full , albeit stIIen to ten years later tNn the originlll COntract date: (2) dischllrge b<lnk's unsecured debt of $38,5 million fo r 16 percent o( its Ilre$enl vlliue: (3) $90,000 to be paid in full to unse· cured trade creditors, without interest on the effeclive date of the pilln: lind (4) II contribution of $6,25 million by former partneu of debtor (present value $4 ,1 million) over a five ·year period for which surn these former partners would enUrtly own the reorganized debtor, land no other IXlrtll could contribute for an oumership interestl Dank objected to Ihe plan, but debtor was ~ucC:(:5sful in 11 cram down under § 11 29(b) of the Bankruptcy Code. The two-prong requirement of: (1) acceptance byan impaired clMS was met by the acceptance of the $90,000 trade creditors, and

(2) best interest of creditors test was met b)' being uncontested, The bankmptcy court held thllt the plan did not unfairly discrimillllte. but was fair and equitable to imp.1ired non· acccptlng cllUSl!s, Justice Souter, in reJecUng the holding of the bank· ruptcy court, emphasized that for a non-assentirtg impllircd unsecured creditor class, a pLm may be fa ir and equitable only if "the holder 0( any claim or interest that is junior to the claims of such limp..lired unsecured) class will not receive or retain under Ihe plan on account of such junior ciaim or interest anJl P/'OfX!l'/II'~ (emphasis supplied) This is /he absolute priority rule! Or in layman's terms, pay your creditors before you pay yourself, In the b(lIlkruptcy court, the bank had unsuccC5sfully objected on the ground that the absolute priority rule was violated. The Seventh Circuit, with a divided panel, affirmed. The majority of the Circuit, in Interpreting the Bankruptcy Code, held: Wh'?1 (tn old equity hoMer rctaills equity inlaresl in I/Ie rL'Orgallized debtor by meeting the requirements of the lIew vulue corollary. he is flO/ receiving or retaini1lfl that illterest 'on accoullt of his prior f!fju/lable ownenhip of the debtor, Rulher, he is affowcd 10 partie/txte In the roorgoniz,'(} IlIl/ily 011 o~u"t of a IIIIW, subJlollt/o/, n«tlssarg und fuir I"fusloll of cupltal, '(emphMis supplied) all

The minority in the Seventh Circuit stated the plain language of the absolute priority rule did not include a new value exception, Justice Souter then stated thai the U,S. Supreme Court would not decide whether there was an exception, and that on the facts it would reverse because the proposed plan did not satisfy the statute. He first referred to the historical data, reflecting that many bills had betn introduced in Congress since 1973 on the particul(lr iss(le o( new value exceptlon, but were rejected either directly or by lack of action, Even so, he opined thlltlhere is nothing in the history to prohibit the Intcrpretation now sought by debtor that ~ new value~ in the phrase "on account of $uch junior claim" could imply that the absolute priority rule

prohibition against receipt by junior creditors of any interest, when an unconsenting senior class IS not paid in (ull, may be modified, He diKussed the langulI.!!e of "on account of' concluding that It meant the same a.\ "because of': this recognizes that a cauyi connection between holding the prior claim or interest, and receiving or retaining property, is the catalyst which activates the absolute priorit)' rule. Ilowever, he continued by first di5llgreeing with the amicus ClI rtle position of the U,S, The U.S, had contended that under a plan, old equity should not be allowed to take any properly or the debtor if creditors are not paid in fu ll. Justice Souter $/lid that thi5 was a ~5tllrchy" position. that the Covtrnmenl could not be correct because under this view o( the abrolute priority rule, Congress would have omitted entirely the phrase "on llccount of.~ !-l is reasoning was that the ~exc lu · slvity~ allOWing old equity in setting a price amounted to a properly right in itself, The fol1awing 1$ quoted from his opinion: NI.!II~ il is (h(lilhe exr;lusiuencss of the opportunity wilh ils prol,'Clion against the marlwls scru/lnll of /he purchase price by means of competing bids or even COm(HIlln9 plan proposals, rmden Ihe portlier,' right a properly in/crest extmult'(} -an (1ceoltnt of' /he old equity ,mition (111(/ therefore subjecl l o all unpaid sl!lIior credi/or class's obJectioll, The opi nion concludcd by stilting that the question of whether a market test would require an opportunity to offer competing plans, or Simply the right to bid along with old equity, w.u not being decided in Ihis case. Thi ~ CMe decided only that, If it be "m Lmed there is a new value corollary, providirlg junior Interest holders with exclusive. opportu· nity. (ree frOrrL competition and without market valuation, viotates Code § 1129(b)(2)(B)(ii), There is II scathing concurring oprnion by Justice Thomas joined in by Justice Scalia. It takes the majority to task (or comment ing on a new value corollary when it $/IYS there is none. 11 seizes the opportunity to denounce the court for its opinion in Di!WSIIUP v.

Timmall , 502 U,S, 410 (1992), which taK had absolutely nothing In common

with lhe instanl ClUe olher than statutory interpretation. It reiterates Ron Pair I!'''erprises. 489 U.S. 235 that the clear meaning of words should not be changed by coorts. and it should be remembered that the enactment of the l1:mkrulltcy Code Wa$ to moderni~e bankruptcy laws and, in so doing, made significant changes in the law. Ju ~tice Thomas further stated that it Is errOneoos to rely on pre-Code precedent. and that bankruptcy judges should not have the burden of makin~ independent rulings where there is the clear mean. ing of words. He ,l5scrted that in this case. the y"ording is absolutely plain and clenr. ,md lhlllihere $hould be no grafting of a "new value exception." 1"inaJly, he declared that there is no ambiguity just because lhtre ,He sel»lrate and distinct views enunciated by adverse parties and. in such instances. "it usually means that one of the liligant.s is simply wrong." He also criticized the majority's use of dictum in prior casu to find differences in interpretation of the law. He wrote that prior to the enactment of the Code. no courl eW!r relied on the dictum of Case v. I.os Angl!ll!s I.umber ProdlictS Co. , 308 U.S. 106 (1939) to approve a plan. and thaI it should not be done 50 now. All I Clln say is "whew!"

There is also a strong dissent by Justice Stevens who dissects the majoriIy opinion, but pay5 scant attention to Justice Thomas and the Covernment's more extreme views. It is noteworthy that Justice: Stevens ats() refers to the clear muning cf the statule. but his view is exactly the contrary of the: maJority. His interpretation i~ certainly worth reading.

Commenl: This time r will make no prediction into the (uture. Certainly, the bankruptcy court will be compelled to look long and hard at any plan based on "new value" tQ determine if it is fair and equitable.

For your In(ormatlon, I wrote the fol lowing comment after revieWing III re CoUll.'( Loop CA!lIlraf TIIrf:e Partlll1rs.

L.P .• 138 E3d 39 (2nd Cir. Feb. 19, 1998) for the September 1998 i~ue of thi~ publication Alas, it ended on the culling floo r.

CO''''1IIml : Until 'he U.S. Supreme Court rule.( OIl/hI! caSf! tJ! 203 N, 210 JULY.UOo

LoSulle Strut /'urtflf!rshlp. in which the SClx!tlfh Cireuit hl!/d Ihl! /lew vallie uct!pliotl/o be IJOlld, 126 f :.1d 955 (1997), Ihis case is prcY!IItcd gel/erally for informaliQlla1 purposes. It III predicted lhut the SlIprwme COllrt will moslli/(ellllted9. bv hold;lIg that it aepf!llaS 011 Ihll partlClllor fOc/1I In dotermlni"g wholh e,. lite Itliectloll of clJpitul ill SlImdfml. Perhalls Iflu U.S. Supreme Court will aiso require Ihal credilors should 00 allowed the optioll of }Jarticlpaling ;'1 tlla sama mannar (J,f Ihe prior I!quity. There should be an onlhis illllu! llear future.

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So, we now are sure th<ltthe right to is a property right which can. not be denied. but we still do not know if there Is a Mnew vlllue exception to the absolute priority rule. purch a~e

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Eleventh Circuit dl.tlngul.he. between "core" end "related to" Jurl.dlctlon In re 'Tbfedo 170 ~~3d 13<10 (11 th Cir..

1999),34 BCD 205. fllaintiff .....as II partner wilh lIebtor in It real e~ t .. te part nership. Debtor, without Illahitifrs knowledge, mortgaged partnership realty 10" bank to sec ur~ personal debt. The bank foreclosed on the pMtnership property along with debtor's personal property. A sale of the property .....as approved by the bankruPtcy court, which order contained a provision ror a portion of the pr()Ceeds allowed to the bank to payoff its mortgage. The plaintiff partner was successful in an adversary proceeding contesllng the validity of the: bank's mortgage. The district court, consider. ing this" core proceeding, did not consider it de 11000. but affirmed under the deferentiill st<lndllrd of review. On appeal , the Eleventh Ci rcui t vacated the order and remanded. In the appeal, the b.mk contended thatlhe bankruptcy court had no jurisdict ion to Ilccept the A.P. flied by Ole plaintiff but, if SO. it was non-core with limlt.1tion on the right of the bankruptcy court Lo adjudicate the matter.

The Eleventh Circuit first held thlit the bankruptcy court had jurisdiction under title 28, 11334. There are three categories to determine bankruptcy court jurisdiction, to-wit proceeding:; thllt:

(1) arl5e under title I I.

(2) arise in CIl.St'S under title 11. and (3)

are related to cases under title 11.

It Mid thllllhe: instant ca.~e did not arise:

(1 ) under title II or (2)

in a case under the Bankruptcy Code, but Is

"related to" case, ....-hich is the minimum for bankruptcy court jurisdiction. It based this upon I" re l.emco GVJ)Sum. 910 ~~2d 78-i (11 th Cir. 1990) as the seminal case in the Circuit, which in a very liberal definition. held thlll If a proceeding could affect the administration in bankruptcy of the estate. it was "related toH jurisdiction. In the present case, it decided thDtthe v"lidity of the mortgage could have a $200,000 effect fo r ir it went to the partnership, the interest of the esL'lte in the parlner~hip would be increased. If Ihe bank had to look to other autts, such as the debtor's residence. it could not De paid in full . but would be lin unsecured creditor (or the defleiency cllusing the unsecured creditors 10 be spread thinner. Thos, the outcome o( the litigation would have an effect lIpon the estate. HllvinA decided this issue. the court then held that the district court erroneously had determined it 10 be II core proceeding on rtaSol'lins that the outcome affected priority of liens. This .....as in error Dtause the res .....as p;lrtnership property which was never part o( the estate even thouAh the debtor was a plITtner. It cited CIl5eS to show that the bank. ruptcy of a partntT does not cause admlni.~trati on of the partnership assets. It said that this case could have Deen brought outside of bankruptcy as well as In It; thus. although thert is Jorisdictlon in bankruptcy. it is non·core. Thus being such. the district court 5hould have reviev.'ed the bankruptcy court's decision as merely prop()sed findings and conclusions. and ~should have conducted a dl! nooo

(3)

It

review contemplated by §157(cj{l) and Bankruptcy Rule 9033,~ Comment: This case sets up guidelines for determininJi jurisdiction, and core versus non-core. The distinctions become very blurred as it appears that yalid Ilrgumenu eould be made either way but, nevertheless, the opinion $hould be helpful to the judiciary lind practitioners in first deciding the jurisdiction of the bankruptcy court and ucond, whether an appeal is limited to questions of law, or whether it is de "OliO allowing the appellate court much more discretion.

Recent Decisions of the United States Supreme Court r.' •••

Sup rem. Court the b.r In eerJecklng pro •• eutlon.

Jones II. Uniled Slaies (Ca.~ No. 976203) _ U.S. - ' 1999 WL 155688 (f.1Mch 24, 1999).

A federal carjilci<ing law thllt makes it a crime to u~e a lIun while tilking a motor vehicle from someone else by force and yiolence, 18 U.S.C. § 2119, requires fedwlI prosecutors to prove be)'{lnd a reuonablt doubt the "serious injury~ provision of the sllltute.

This five-four decision will make it harder for prosecutors to seek enhanced punishment for alleged carjackeTS who hurt or kill someone durInlt their crimes. The stalute makes the mrudmum penalty for use of II gun 15 years In prison, but that penalty goes up to 25 years j( "sniou$ injury" results, and to life in prison if a death occurs.

Jone5 Wa5 charged with inler alia carjacking. in yiolation 0( 18 U.S,C. I 2119, which at the time provided u ... that a per$Qn possessing II firearm who takes a motor vehicle ... from the person or presence of another by force ilnd yiolence or by Int imidation ... shall - (I) be imprisoned not more lhOln 15 years ...

(2) if serious bodily injury results, be imprisoned not more than 25 }'C1I1'$ ...

and (3) if death resullS, be imprisoned by any number of years uplo life • ...

The indictment in.kmes, supra, made no reference to §2 11 9-nvmbered subsections and charged none of the fi'Cts mentioned in the lamr two 5vbsections.

Jones was told at arraignment that he faced:l maximum IS-year sentence for carjacking and the jut'}' instructions at his trial defined that offense by reference solely 10 §2119(J) . After Jones was found guilty, the district court imposed a 25-ycar sentence on the carjacking charge because one victim suffered serious bodily injury. The district court rejected Jones' objection that serious bodily injury ....'u an dement of the offense which had neither been pled In the indictment nor proven before the jury. In a{(irming, the Ninth Circuit ngreed with the district court holding that .2119(2) was a sentencing factor and not an element of an independent offcnsc.

Justice Dayid A. Souter, writing for the Court. reversed the Ninth Circuit.

The Court held that §21 19 establ ishes three separate of(enm by the specification of elements, each of which must be charged by indictment, proven beyond a reasonable doubt. and submItted to a jury for its verdict.

Justice Souter critically noted, "", We think the fai rest relldin" of Section 2119 treats the fact of serious bodily harm as an element, not a mere enhancement.~ Tht Court reasoned tnat the Government', construction of the statute would raise serious constitutional questions under the Fifth Amendment's due process clauu and the Sixth Amendment's notice and jury trial guarantees. Ultimately, the Court resolved the i~lI e with these words: "Any doubt (m the i5sIIe of statutory construction should thus be resolved in favo r of aVOiding tht question, under the rule that, "where 20 statutt is susceptible of two constructions, by one of which grave and doubtful constitutional QUe5tions arise, and by the other of which such QUe5tions are avoided, (this Court'sl duty is to adqll the latt er.'~ Practice tip: Counsel should be mindful that with Alabama's extensive criminal enhancement sch ~ me, this decision may give rise to a constitutionnl challenge brought under the ~'ifth , Sixth and Fourteenth amendments.

U,

C.r ••• rch b.longlng.

0' p•••• ng.r'.

IVgoming u. Houghton, No. 98-1&1, _U,S.-, 1999WLI811 77. l)urinJl a routine traffic stop, II WyominJl highway Piltrol officer noticed a hyPOdermic syringe in the driver's shirt pocket, which the driver admitted usillg to take druj;!s. The offi· cer then searched the pn~se nger compartment for contraband, removing and searching what respondent, a pa$senger in the car, claimed was her purse. Tht officer found drug paraphernalia in the purse and arre5ted the passenger on drug chiITges.

The trial court denied htr motion to suppress all evidence from her purse as the fruil of an unlawful seuch. The Wyoming SUllreme Court reversed, holding that If lin ornccr krlOws or should know lhat a container within a car belongs to a passenger who is not 5uspected of criminal Ilocti~ity, then the container is outside the scope of the search unless someone had the opportunity to conceal contraband within it to avoid detection.

Adivided Supreme Court reversed.

Justice Scalia delivered the opinion of the Courl. The Supreme Courl held Ihat police officers with probable cause to search a car may inspect passengers' belongings found in the eM that are capable of concealing the object of the scarch. In determining whether a particular governmental Iloction violates the Fourth Amendment, It>e Supreme Court inquires first Whether the action was regarded il$ an unlawful search or seizure under the common law when the amendment was fram ed. See, (I.g., WIIII_", M,

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/J, J1rku1'l$US, 51 4 U,S, 927, 931, 11 5 S,C!. 1914, 131 L.Ed.2d 976. Where that inquiry yields no answer, the Court must evaluate the search or seizure under tradition~1 reasonableness standards by balancing an individual's priva· cy interest aJiainst legitimate govern· ment interest.

Justicc Seall .. fcasoned that "... Thi$ Court has concluded that the Framers would have regarded as reasonable the warrantless sellrch of a car that police had probable cause to believe contained contrab.lnd, Carroll /J. Ullited St(ll es, 267 U.S. 132, as well as the warrantless se,lrch of containers within the automobile, Ullil~>d SaI(!S /J. NQSS, 456 U.S. 798."

The Court further reasoned that the analytical princii\lc underlying Ro.u' rule is also full y consistent with the balance of this Court's Fourth Amendment jurisprudence. Thus, passengers, no less than drivers, possess a reduced expectalion of privacy with regard to the prop' erty they transport in cars. The govern· mental interest in effective law enforcement would be ~ pprl;ciably impairl;d without the ability to search the passenger's bel()r'lghlgs ~ ince lin automoblte'$ ready mobility creates the risk that evi· dence or contraband will be permanently lost while a warrant is obtained, Justice Stevens fil ed a dissenting opinion in which Justices Souter and Ginsburgjoined.

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Recent Decisions of the Eleventh Circuit Court of Appeals Eleventh Circuit adopts Knowl•• v. Iowa, _ U.S_ _ , 119 S .Ct. 484 (19981 Uniled Stales II. Oscar Heman Pena,

Case No, 97-6217, _ F,3d_ (May 10, 1999).

Shortly after midnight on July 29, 1995, Officer Joseph Moore of the Shelby Counly, Tennessee Sheriffs Department slopped II van on Interst"te 40 In Memphis, Tennessee. O~car Pena was the driver of the vehicle. Miguel A. Garrido, a womnn and a young male

Hili"

were 1111 pM~e llgers In Ihe van. Offi cer Moore informed Pena lh3t he h3d been stopped for speeding (65 mph in a 55 mph zone). Moore directed I'ena to accomp.1ny him to his police car 50 that he could check on the status of Pena's driver's license and issue him a speed· ing ticket. Once in the police car. Moore began a~ king Pena Q ue~tiorl $ unrelated to the stop, e.g .. where Pena's family resided in Memphis. I'ena told the offi· cer that he was visiting rell'ltives In Memphis who lived ncar the intersec· tion of Baltic and S\lmmer streets, Moore then asked Pena if his registration and ins\lTance papers were in the van. Pena responded affi rmatively and Moore left to retrieve them. Standi nil (lut$idt the van, Moore I1$ked Garrido, scated in the front passenger's scat, for the registration lind i n~ u rance paper!.

He also asked the two other passengers who they were going to visit in Memphis and that pErson's street address. Moore then returned to his police car where, instead of completing I'ena's ticket, he proceeded to ask Pena (a) to identify the three other van pas$Cllgcr$; (b) hOw nl\lch he pllid for the van; (c) what kind of work he did for 3 Hving; (d) whether Garrido wa~ his brother; and Ie) finlll!y. why did they have different last names?

Again, postponing the writing of '>ena's tickel, Moore asked !'ena if he had anylhing illegal in the van: I'ena 501id no. Moore followed up by asking if he had pislols or weapons or drugs.

Ag,1in, Pena responded no a third time.

Moore, having no rea.~Ollab le $u$pi· cion of criminal 3cti\'ity by Pen3, nonetheless asked him if he could search the van. To that end, he handed I'ena a written consent form in Span ish to be signed. I'ena declined to sign the form. Inslead of completing Ihe traffic ticket. Moore picked \rp his police radio to declare lhat "... I have a ref\lsal," a code phrase indicatinll to other officers that they ~ hOuld bring II drug dOli to the scene.

Nearly one·half hour aft er Perm's initial stop, the dog arrived. The dog sniffed the outside of the van and indicated the presence of drugs, The van was then searched by Moore and other officers acting without a warrant. The search revealed significant amounts of m3rijuana (approximately 81 pounds).

Pena and Garrido were arrested and read their Miranda rights in English and in Spanish.

M trial and on appeal, Penll chal· lenged the constitutionality of f>loore's search, The district court denied the motion finding that Moore's conduct leading up to the search was supported by the required rea$onabit Su ~pici(ln of Pena's gullt.

The Eleventh Ci rcuit reversed, following its earlier holding in l1Iliflld Stales /), Tapia, 912 F.2d 1367 (11th Cir, 1990), Ilnd the more recent decision of the Supreme Court in Kllow/(JS /). lowa, _ U,S, - ' 119 S,C!. 484 (1998), Since the issuance of Ttl/lin, the Eleventh Circuit has consistently held th,lt once an officer has briefly stopped a motor vehicle operator {Dr the pur· pose of Issuing a traffic violation. i.e .. a ticket, the officer's continuing detention of the vehicle's occupants is authorized under the Fou rth Amendment only if the offi cer can point to specific and artlculnble facts which, taken together with rational inferences from those facts, reasonably warrantlhe intrusion.

S''e lJrIiled Slates u. Nollomwl, 113 ~·.3d 192, 196 (11 th Cir. 1997), JN2r curiam. noting that a police stop cannot otherwise last "any lorlger thnn neceulIl')' to process the traffic violation."

Thus, at lhe time I'elm. Garrido and others were stopped, Officer Noore had before him evidence of spfeding. His questioning following the stop, therefore, should have been directed 10 sccurinll 11ena's license, registration and inSurance papers. Once ~ uch brief ques· tioning was completed. Pen3 and the others should have been free to go, 11$ Moore was provided at that lime with no reasonable suspicion of Ulei r crimi· nlll activity. In such circumstances, ", .. additional fishing expedition Questions, such as 'What do you do for a living?' and 'How mueh money did your van cost?' are si mply irrelevant and constitu te a violation of 7ifrry." i>ractict tip: [n light of the Supreme Court's holding In Wyomillg /J. Noughtoll, counsel must focus on whether the arresting officer was acting on unsupport· ed hunches instead or reasonable suspicion that the driver had violated anything other than the speeding laws or similar movinp: traffic violations.

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