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Photobv ChrisGrimshawe RoaonA.Hvftalo>r- ·-···- ·-·- Ede."' SuA ri Stllrock.De?aola ..Associate E 2 I January1992 THEALABAMA LAWYER PRESIDENT'SPAGE Theseremarks were delivered at the answer to this. In asking the question, I do not necessarily October1991 admissions ceremony of mean the State Bar of Alabama,because as I ha,-e previously told you, it is most definitelylmPortanl. Whal I mean when I the AlabamaState Bar. use the Lerm bar is the communityor lawyersin our state, our region and our nation. Our profession ... its role ... its scope... its responsibility. n behalf of more than 9,500 lawyersof Lhlsslate, I Since I am president of the Alabama State Bar, you could welcomeyou as new members to the Slate Bar of hardly expect me to say, "No. i don't feel the bar Is impor Alabama. This is a day that celebrates an achieve tant." The bar is important and it is importanl to everybody mment In my opinion, there are only a fewdays in a in society, not just lawyers. I believe the bar plays a critical person's lifetimethat can equal the feelingof accomplishment role in the establishment and maintenance or a free society. that you and members of your family have today attained Asyou look back through the history of this country, it is easy upon your becoming a member of our to see the accomplishmentsand benefits slate bar. Those or you who are being thatc the ommunity of lawyers. or the admilled today have worked long and bar, have made. However. in my judg hard to attain this goal. However, I am ment. no time ,n the history or the v.'Orld also sure this is a proud day for your par rivals the present or future days for the ents. your husbands and wives, and 1•our bar lo be or service In establishing and children. Without the collectiveeffort and maintaininga freesociety. sacririce of family and friends this day The eventsof the past year and a half in migh t not have been possible . My eastern Europe and other parts of the remarks today'" illbe brief. "'Orldhave drawn a very clear distinction First, I want to tell you a little bit about between the value of an active, viable. the State Bnr or Alabama. Our bar is a adversarial.Independent lega l system and mandatory bar. You cannot practice law a system that acts as a puppet for totali in Alabama if you are not a member of tarianism. our bar. Our state bar is unique in the Goodthoughts and words on paper are nation because of its pc>wer.duties and not enough to make people free. How responsibilities lo promulgate and effecti,~ \\'Ouldthe Bill of Rights in this enforce rules relating to admissions , Ptollllp E. Adams , Jr . country be without lawyers? Lawyers ethics , education, and discipline of breathe life into Lhewords and ideas of a lawyers.The powers of the stale bar are free peopleand legal system. La,vyersare administered by 57 commissioners elected by all lawyers in al the very center of every facet Ma person's life. It seems that the 40 judicial circuits of our state. every time I Lum on t.he televisionor radio or read a newspa The lion's ~hare of the real work done in our bar is per· per the story is about some legal issue and lawyers. formed by over 900 members of sections, commiltees and The law has been aad is now so wovenInto the fabric of our task forces. Allof these members are volunteer lawyerswork country that our system will not '"lthstand the stress. tension ing for the betterment of the pubI ic and our profession. and strain placedupon it without independent,aggressive . pro There are many opportunitiesavailable lo the young lawyu fessionalla,vyers. for service lo our bar. This year, there are more than 45 com Asyou beginyour leg.iicareer. I want to Lalkwith you a Little mittees and task forces operatingin areas such as !al accesslo bit about professionalism. I am not talking about professional legal services, (b) alternative methods of dispute resolution, ism in the sense of ethical canons. While it is important to be Cc)insurance programs, (d) mentor programs, (e) speciaJiz.i. ethical and to abideby the Codeof ProfessionalResponsibility . lion. and (f) substance abuse in society.to name a ftw. I know professionalismis a broade_rterm, It is a state of mind, it is an that Keith Norman intends to talk with you about member attilude, it is a higher standard expectedof all lawyers. ship in the Young Lawyers• Section, and this is most impor We all want lawyersand the legal professionto be respected tant. However,I urge you not to limit your activitieswith the and admired for the role we play in society. This is not to say bar to work in the Young Lawyers· Section. Each of you that our actions and activities should be done lo suit public should become a me.mber of a committee, task force or sec opinion. Everybodyknows that lawyerscannot be governedby tion in which you have an interest and in which you feel your public opinion. However.the public has respect for lawyers service may be of some betterment to our profession and soci who conduct themselves in a responsible, professional wa)•, ety. Is the bar important? I wa nt to talk with you about the even if the position taken by the lawyerd isagreeswi lh majori- 4 / January 1992 nm ALABAMALAWYER ty opinion. 1 urge you to be professionalin your day-to-day gram in Alabama.If we are to be professionals, we must activities. I suggest that we can all improve in our profession realize that it is our responsibilityas custodians of the jus alism if we focus and try to remember several basic ideas. tice system to make it better each day. Our systemcannot Theyare: exist if a significant number of citizens are denied accessor 1. Rememberthose things that you were taught about right are lockedou t or preventedfro m seeking justice because of and wrong when you were young. Those things like hon their lack of money. Giveof your time and talents to help esty and courtesy and respect that your parents and grand those persons who are less fortunate. Our professionand parents told you were right are still right; those things like the less fortunate wiJI be better because of your efforts. lying and cheating and stealing that your parents and Moreimportantly . you will gain more than you give. grandparents told you ,~erewrong are still wrong. Do not 4. Do not neglect your family.While i t is certainly important think that because you are a lawyeryou have some differ to attain professionalgoa ls, the most important goal one ent set of rules and that right and wrongare differentthan can attain in life is to make time to participateand enjoy they havealways been. familyand friends.Do not everallow the professionto con 2. Do not be afraid or reluctant to seek advice from older. sume you. lt can exact a terrific toll if you lose your sense more experienced lawyers.Th is yearwe formeda task force of balance and pe.rspective.T ake time to "pause and smell to estab I i sh a mentor programin this state. The ideaof the the roses". Participate in activities like Girl Scouts, Boy program is to assist young lawyers to obtain from older, Scouts, Little ~ag ue and school functions. Give to your more experiencedl awyersadv ice on the basic courtesies, community and to your church. Make your voice heard. Be customs and practiceso f our profession.However , do not multi-dimensional and balanced. wait on the program to be established.My experience has Again, I congratulate you for your accomplishment. Be been thal lawyers respect other lawyerswho say, "I don't proud! Enjoy your achievement. Make our state bar better know the answer to this question" or "I need help in this becauseyou are a member. ~ave our profession better than area'' and are alwayshappy to be of assistance. you found it. 3. Giveback to the public and to the less fortunate.T his year Thank you for letting me be here with you on this special is the organizational year of the voluntary pro bono pro- occasion. • REAL ESTATE IS YOUR SECRETARY CERTIFIED? ATTORNEYS Y ou've made a large investment to staff your offices with LASER SOFTWARE good, qualified people. Did you know tlut there is a certifica- 1ion examination for legal secretaries? A complete line of ReaJ Esta te Closing T he Alabama Association of Legal Secretaries (MLS) offers Programs including the Certified Professional Legal Secretary Examination("Pl.S") @ HUD's, Buyer & Seller Statements, for legal secretarieswhic h providtsastanda rdmeasurement of Disbursement Register, Check-writing professionalism, knowledge and skill. ~ Deeds, Mortgages , Notes, & Affidavits T he knowledge gained in preparing for the cxamina1ion ~ Title Policies, Commitments and improves on•the..job skills so dutjcs e:Jnb e performedmo re Endor sements efficiently with less cffoit. @ FNMA and More L: t AALS give your employees a strong fO THEALABAMA LAWYER January 1992/ 5 EXECUTIVEDIRECTOR'S REPORT Legislative Initiativ es , 1992 lawyers111 their circuits who have purchasedthe licensewith The board or commissionershas approvedthe introduction in the requisitetimeframe . or legislationin the 1992Regular Session of the AlabamaLeg · It is my beliefthat this will be a serviceto the membersof islature which will have a significant impact on the annual the bar, and we have been asked on occasioowhy the licenses licensingprocedures for membersof the AlabamaState Bar. were not sold by the bar. Nol only will we be able to afford The 11rstor these piecesor legislationwill be an amendment every member of the bar adequate notice or their license to Section40· 12-49 or the Codewh ich governsthe manner in requirement, but "'e will also be able to monitor any over which the annual license in currently purchased. Presently, sights that can resuJt in significant penalties for failure to licenses are sold in the officesof the probatejudges or license purchase the License in a timely manner. The legislationwill commissioners in the 67 counties of Alabama.This is the not eliminatethe penaltiesfor failure to purchasea license. annual business license which is pur- This action has been taken following chased each year betweenOctober 1 and discussionsover a number of years with October 31. The only things uniform in the state treasurer's office, the revenue the current purchaseprocess are the time departmentand the ProbateJudges' As5o frame in which the purchase should be ciation. If the Legislature approves the maM and the amount of the license, amendment to 40-12-49, the lawyers or which is presently$150. Alabamawill have a central registration In some of the counties, lawyers are point for the first time in modern history. sent a bill for their license in advanceof The legislation,if passed,will be effective October 1. while in others it is the re with Lhellcenst year commencingOcto sponsibility of lhe lawyer lo go to the ber I, 1992. courthouse and purchase the license The second pi 6 / January 1992 THEALABAMA LAWYER If the legislation is approved, lhe annual license fee for lhe Without the increase in the license fee, the bar will not be 1992-93 fiscal year will be $200, with lhe additional $50 being able to meet its responsibilitiesand perform in a manner that phased in during the 1993-94fisca l year. will reflect credit on the profession and ensure the continua The board recently approved the submission of its budget tlon of the privilege currently enjoyed by the bar to regulate for F'Y;93 to the Legislature. It is an extremely conservative its own professionalactivi ties. budget with minimal increases in operating costs. This budget l hope that you will be supportive of these efforts. since our wiIt provide for the efficient operation of the new bar head profession and our association will be the sole bener.ciary of quarters which, for many years, has been in dire need or this effort. • expansion and which has desperately needed additional per soo.nel. Because of the Jack of physical space, some needed positions have not been filled and much-needed work of the fn the Nouember1991 "Executive Director's Report'', /he bar has had to be delayed. following panel of the .Disciplinary Board of the Alabama The 1993 budget of $1,997,729 does provide for two clerical State Bar was omilled. The editorsapologize for the ouersighl employeesat an entry level salary and does provide additional and hope110 harm or inconveniencewas causedby this. funding to support the work of the various commi ttees engaged in bar work. The budget also contemplates the addi tion of one investigator to assist wiU1 the increasing workload Panel V: Richard S. Manley, Demopolis in the Center for ProfessionalR esponsibility. It also reduces Abner R. Powell, m, Andalusia lhe bar's reserve balance 64 percent; higher than usual inter J. Tutt Barrett, Opelika est rates have also had an adverse impact on bar finances in Larry U. Sims, Mobile the recent past. William D.M elton, Evergreen The Alabama State Bar • EndorsedI nsurance Programs * FA~DLv L TP11I NS1JJ1A1'C£fea tures benefits (or both eligible members, spouses, children and employees. lS\ Available through Northwestern National Life Insurance Company. * MA.Joi\MEDI CAL lNsuRAi THEALA BAMALAWYER January 1992/ 7 BAR BRIEFS West's b•nkruptcy filing for addiLional information. call l· Judicial Conference of the sottw•re rele•sed 800-328-9352. Eleventh Circuit West'sBankruplcy Practice Systems The meeting or lhe Judicial Confer Chaplers 1• 11• 12• I 3 is now available Broome certified by national ence of lhe t:leventh Circuit will be May from Wesl Publishing Company. The board 3-6. 1992at llilton Mead,South Caroli softwarepackaste produces laser-quality David P. Broome or lhe firm or Mc na. The conference is being convened replicasof the new official forms that are Donough & Broome In Mobile recently by the Judges of the circuil to consider to be used in all 9 J bankruptcy districts. became board certified in civil trial law business of their respectiveco urts (the The official rorms became effective by lhe NationalBoard of Trial Advocacy. court of appeals and the district and August I, 1991. ThI s new bankruptcy Requirements for certification in bankruptcy courts In Alabama. F'lorida softwarecontains all of lhe forms neces clude: documentation or al least 15 tri and Georgia) and lo devise means or sary to produce a complete Chapter 7, als to verdict or judgment; 40 additional improvingthe administration of justice 11. 12or 13 filing.Also included are rei contested matters; 45 hours of continu in those courts. erences to West"sBankruptcy Code, ing legal education in the Lhree years Any attorney admitted to practice Rules and forms, as well as thorough preceding application for certification; before the court o( appeals or any or the on-line praclice lips and commentary submission of a legal brief for review; district courts of the Eleventh Circuit from three nationalbankruptcy experts. provision of six references (three may attend the meeting.Attorneys who The softwareis designedto work "~lh la'\\1•ersand three judges): proofof good wish to attend must advise the circuit any IJ3Mor IBM-compatible personal standing in the legal profession:and a executive,Norman E. Zoller, in writing, computer with a hard disk drive and a day-long examination on trial tech al 56 l'orsyth Streel,A NW, tlanta, Geor Hewlett-Packardco mp.,llble laser printer. niques, evidenceand ethics. gia 30303. Gender Issues for women lawyers enough to fill new magazine: Perspectives Perspectives.a newsletter for and The Video Advantage about women lawyers. is a new product designed by the American Bar Associa Professional video and photography gives tion Commissionon Womenin the Pro fession to fill a gap in national publica you the edge in presenting your case. lions. Its inaugural edition. which pre miered NO\lemberI. is aimed al covering the gamul of women la"1-ers' interests. • Video depositions from lhe national precedent set by • Evidence videos Minnesota in having a female majority • Training videos on a state supreme court lo a consent • The accident scene decreein a sexual harassmentco mplaint • "Day In The Life" presentations against a law firm. Perspectives is edited by Marena • Corporate presentations / lmage McPherson, assistant staff director of • Still photography services the commission. ror mor~ information, • State-At-Large Notary Publi c write 750 N. LakeShore Drive.Chicago, Illinois60611. Full service location and studio ABA commission updates directory of women ' s bar produc tion, editing, and photography. associations The 1991-92 Directoryor Associations COMPLETE VIDEO & PHOTOGRAPHY of Women Lawyers in now available from the AmericanBar Association. 205-556-5856 The directory shows that growlh in the number of women's bar associations has leveledoff. after significantprog res- 8 / January 1992 TliE ALABAMALAWY ER sion in the previous eight years. The • Participate in complex liligation as son. director or the Alabama Capital number or groups lilted remains steady lead and co-counsel. Representation Resource Center in at 178;the first directory,in 1982,lisled • Work with localbar in region. Montgomery. He is a graduate or Har onl>•47 organizations. vard LawSchool. Accordingt o the ABA, For information about prices, call • Oversee the case intake and accep Stevenson "spumed offers or high-pay (312)988,5555 or write ABAOrder Ful tance proctss to ensure the selection ing jobs with prestigious law firms lo fillmentDepa rtment. 750 N. LakeShore or priorityand eligible=· follow a calling in the deep South. A Drive,Chicago, Illinois 6061 I. Applicants must have three years or product of a system that discriminated litigationexperience. M inimum starting against him and other Arrican-Ameri Managing attomey sought for salaryis $27,669. cans, he is particularly sensitive lo the Moblle regional office, LSCA Please submit resume, writing sam question or racism as capital punish The Legal Services Cc,rporation or ple[s) and references to Sylvia Sankey. ment is ap1illed in Alabama." Alabama Is seeking applications for LegalServ ices Corporationor Alabama, managing attorney or the Mobile 500 Bell Building, 207 Montgomery Court TV 's "In Practice " airs regionaloffice. Street, Montgomery,Ala bama 36104. at new time Under the supervision or the execu CourtroomTelevision Network's Con tive director. lhe managing attorney Lawyers honored for tinuing Legal Education program. "In shall h.i"e the general responsibilityfor outstanding public service Practice", started airing at a new time management or the regional. satellite Five lawyers, a law firm and a law la.st month. The program now will be and part-lime or/ices in the Mobile school legal services clinic have been televised each Saturday and Sunday region and supervision or staff attor selectedto recel,-ethe John Minor w·is from noonto 3 p.m. (EST). neys. paralegalsand support stlff. Spe dom Public Serviceand Professionalism "In Practice" airs seminars from the cific duties and responsibilitiesinclude. Award.conferred annually by the Ameri Practising Law Institute. The Profes but are not limitedto: can Bar AssociationSection or l,iligation. sional Education Croup, The Rutter • Case management - Supervise staff The award was estab lished by the Croup and state and local bar associa wilh respect lo ca~e review, case 64.000-member trial lawyer group lo tions. acceplance/rejeclionan d case man recognize"high standardso r profession During Its Ovem onths on the air, "In agemcnl. Supervise staff to insure alism and outstanding contributions in Practice" has covered such topics as balanced and manageablecaseloads. promoting an open profession and an bankruptcy,fomily law , estate planning, open systemof Justice". federalcourt motion practice, S&Lreg • Client eligibility - Interpret eligi Amongthe recipients honored al lhe ulation, legal ethics. counseling trou bility and make decisionsor eligibiii October rail meeting or the Litigation bled companies. trial techniques, and ty or particular clients. Section in Chicago was Bryan Steven- modem law l'lrmmanagement • NOTICE 1991-92 Occupational License or Special Membership Dues Were Due October 1, 1991 Thi, IJ .i reminder thar all 1991-92 Alabama allorncy's occup.rtion•Ilicense and special membership$ EXPiREO September 30. 1991. S<>c;rlons40.12 -•19, 34.3.17 and 34-J.l 8, Code of 11/abam,1,197 5, •s •mended. set forththe !oli11utoryr<'qulremen1s for licensing and membership In rhe Al.lbama Swe Sar Licenses or THEALABAMA LAWYER January 1992/ 9 LEGISLATIVEWRAP-UP By ROBERTL. McCURLEY,JR. mnty -fiveyears ago on Jan UCC Permanent Editoria l Board and Code which deals with personal proper uary 1, 1967 the Uniform e.,eculived irector designate of the Com ty leases. There is a bill pending in the Commercial Code became missioners on Uniform State Laws, Alabama Legislature drafted by the effective in Alabama. The reports the following revisions and edi Alabama Law Institute which will add IIUCCwas initially drafted by the Ameri tions havebeen made or are under study: th is section to our current UCC. can Law Institute and the National Con Already enacted in 19 states, this revi ference of Commissioners on Uniform Article 1-Ceneral Provlalon• - sion defines lea.~esto sharpen the dis State Lawsto bring" uniformitythrough This article is being studied by a Lask tinct ion between leases and security out Americanjurisdictions". The nation force or the American Bar Association. interests disguised as leases. al study began in 1942with a 1952 draft and ultimately culminated with the Artlcle 3-Commerclal Paper - 1962 final draft, which was adopted by This article has recently been revised lo Alabama on August23, 1965. take into account the automation in This is the first act which was accom check processing through the use of panied by extensive commentary. An magnetic ink characterization and the Alabama Comment follows the Official wide use of debit cards. To keep pace Comment to the Uniform Text where with the modern technology and prac appropriate. In order to maintain uni tices, the law of negotiable instruments formity with statutes in the other 49 was updated. This revision improves slates, the numbering of sections corre uniformity and resolves ambiguities as sponds with the Official Text a result or this technological change. Alabamawas the 37th state to adopt Articles 3 and 4 were revised together. the UCC.All 50 slates and the District Now completed, this revision has been of Columbiahave enacted the code. alreadyadopted in ten states. Since the national uniform draft is 30 years old, the Permanent Editorial Article 4-Bank Deposit. and Col Board for the Uniform Commercial lectlou. - See reference in Article3. Code has an ongoing revision of each The first provision being studied is the section. To keep the commercial la1vs obligation of good faith - the proper Artlcle 4A-Fund• Tran•fers - A uniform in the United States, we in standard, whether it should be subjec new article to the Uniform Commercial Alabama must constantly revise our tive or subjective/objective.The recom Code to make uniform the law which UCCas each section is modernized. mendat ion of this committee will be now deals with over one trillion dollars' ProfessorFred Miller.a memberof the worked into future revisions or other worth or wholesale funds transfers that articles with the probable completion occur intra- or interbank and within for this study being in 1993. the United Slates. The Law Institute is preparing for introduction in the 1991 -BAR Artlcle 2-Sales - A drafting com session a bill to cover funds transfers in mittee has been formed which held its Alabama. Already enacted in 30 states, DIRECTORIES first meeting in December 1991. 1t is as well as adopted in "Fedwire" operated expectedthat this study will take two or by the Federal ReserveSystem and the three years. There is a special commit Bar directories wi ll be tee on computer softwarecontracts that mailed this month. Extra will work with this committee looking cop ies are $15 each. Send at Article 2. It is anticipated that com Rob&rl L puter software contracts will either be chec ks or money orders to: McCurler , Jr. incorporated into Article 2 or possiblya Robert L McCurtey, Jt,. is the directorof the new complete article drafted just for Alabama Law lns!rtute Alabama Bar Director y computers. A recommendati on from at 1ho Ut1,...01Siiy o, this committe e is not expected until Alabama, He received P.O. Box 4156 his undergractuaie and 1995. 1aw degreesf romltlc Montgomery, AL 361 01 l)nlvers:ty Artlcle 2A-Leases - This is a new article to the Uniform Commercia l 10 I January 1992 THEALABAMA LAWYER ClearingHouse Interbank Payment Sys Article 8-lnvest ment Securities form Commercial Code is now looking tem (CHIPS)operated by the NewYork - This artic le was revised in 1977. at a second revision bul it is not expect Clearing House, this revision is being After the endorsement by the securities ed to be completeduntil 1996. rapidly adopted in all the states. This is industry in 1983, 45 states have now The Alabama Legislature is expected the first comprehensive body of law adopted revised Article 8. The Federal to consider new Articles 2A "Leases" defining the rights and obligations that Securities Exchange Commission has and 4A "Funds Transfer'' in the 1992 arise from wire transfers. threatened to pre-empt states from reg Regular Sess ion of the Legislature. ulation of investment securities unless Upon lhe acceptanceof these articles by Article 5-Letters of CredJt - A all the states have adopted the revisions Alabama, a study committee will be national committee is revising this to this article. It is expected that a revi formed later this spring to reviewarti article. The first draft is oot expected sion for Alabama will be ready in 1993. cles 3 and 4 and Article 8. lo be completeduntil 1993. The Alabama Legislature goes into Article 9-Secured Transa.ctions; Regular Session Tuesday, February 4, Sales of Accounts and Cbettel 1992and is expected to stay in session Article 6-Bulk Transfers - This Papers - This article was revised by until May 18. During that time, the article has been revised and four states the National Conference or Commis Legislature is expected to take up reap have enacted the revision. Nine states, sioners on Uniform State Laws and the portion ment of Congress, worker's however, have repealed this article. American Law Institute. After such a compensation, the genera l fund and revision, the Alabama Law Institute special education budgets, as well as Article 7-Warebouse Receipts , conducted a study that resulted in a some degree of ru reform. Bills of Lading and Other Docu revision of this la,v in 1981.Th is is the For further information, contact Bob ments of Title - Currently there is only revised article Alabamahas adopt McCurley,Alabama Law Institute, P.O. no national revision taking place with ed since U1e enactment of the UCC.The Box 1425,Tusca loosa, Alabama 35486. reference to this article. Permanent Editorial Board or the Uni- (205) 348-7411. • The Employee,Owners of Avis invite the members of The AlabamaState Bar to associate with us. And here 's your first benefit! YOU CAN GET A FREE ONE-CAR-GROUP UPGRADE ON YOUR NEXT AVIS RENTAL! Present Ih is coupon to the Avisrcntl'1 s.iles agent whtn you pick up you rear. and you can get a lree upgrade 10the ne,ct c-argroup. For inform11tionand r~scrvallona. call your iravel coruultanl or the Avb Speclal Promolion numbe.r at 1-800-8:31.SOOO, And be sutt 10mention >'ourAvis Wor.ldwidt-Discount (AWO)n umber below. • Certific.alc valid ro,a oneo.1in1e. onc-c:ar-gtoup upgrade on an ln1ermedlatc(Croup C) or• Full-size 2-doo, (Croup D) car. Mrudmum upgr.,dc 10, Full•Sizt 4-doo, (C,oup E). Rento.l Sales F • Cierilflea.lem~ tit surrendered a1 ti.meo f rental: one-pu rc:nlal, As;enl Instruction • Cc"mco1c valld al Avl., .,,, .. ~1eand po,1lclp"log ree •llcem« IOCAtlons in tilt contiguous US. At Cl,ee lt,Out : • C,n 1111du1>gmdet Me sut,.Jec1to availablllty. • ln CP't<'. cn1c, • An ad\'a nct ~Uon • Auillf.l ( Uffl)fflff o cu ooe poup tilghu tbAn ar grouit ,~rttd. (Upgrade, 110hlihcr Chan i:11wllh r THE ALABAMALAWYER January 1992/ 11 REMARKSBYHON. ALBERTP. BREWER AT OPENINGOF COURTCEREMONY 1991-1992 TERM October 7, 1991 The fol/owi11gis the memorialaddress given during the openingof courts ceremony marking the beginningof the new court term. ay it please the courts - Mr. Chief Justice, Jus Among these I number a niece, Melea Rodgers; two former tices of the Supreme Court, judges of the courts law partners; three or my law school professors; three law of appeals, members of the clergy, members of school classmates;four colleagueswith whom I servedin gov the AlabamaState Bar, members of the staffs of ernment; two distinguished jurists before whom I was privi mthe courts, honored guests: leged to practice; and several lawyer friends who trod the I thank you for the high honor and political trails with me. privilege of addressing you today. The Two of these law professors , Harry first Monday in Octoberhas long been the Haden and Ralph Williams, served in traditional day for formal open ing of Judge Patterson'scabinet; Hugh Kaul was court of the Alabamaappellate courts. In a four-term member of the legislature; years past, this day customarily marked Richard Belser served as reading clerk of the return of the courts from their sum the House of Representatives for almost mer recess to begin a new term. Nowonly 20 years; and Hubert Taylor served with a weekend separates the conclusion of distinction in the state legislature before one term from the beginning of the next becoming a judge on the AlabamaCourt term, a fact which attests to the onerous of Criminal Appeals. caseloadof our courts. Judges James Avary,Thom as Huey and But it is beneficialto mark the ending Murray Battles graced the circuit bench and the beginning, a time to conclude the whilejudges John Harris and Hubert Tay pending work and the starting point for a lor servedwith distinctionon the court of new work year, a time to review and criminal appeals or our state. Judge Bat assess the previousterm and to anticipate tles also served as legal advisor to Gover the next term. Hon. Albert P. Brewer nor F'olsom. Judge H.H. Crooms brought And it's appropriate that this is also a to the UnitedStates District Court for the time when we pause to honor the memo Northern District of Alabama that mea ry of our 41 colleagues who departed this sure of judicial temperament, demeanor life since the last opening of court ceremony. Among their and intellectual capacityand insight which serves as a model members are government lawyers, general practition ers, for trial judges. judges and teachers. Some resided in small towns, others in It's not surprising that these would have been so involved teeming cities, some were involved in politics and public ser since it has been forever true that lawyers are on the cutting vice, others in finance and industry. Their practices varied edge in public service. from the court room to the board room to the probate record In his Democracy in America, Alexis de Tocqueville room. Some were young, less than two score years, and had observed: barely scratched the surface of the mysteriesof the law.while others were old by the world's time scale. four score and ten I cannot believe that a republic could subsist at the or more, and had probed deeply the questions the law ever present time if the influence of lawyers in public busi presents to the practitioner. Their common thread is that all ness did not increase in proportion to the power of the were lawyersin the finest tradition of our profession. people. As I lookedover the names of these departed, and thought about what I should say today, I was overwhelmed with the And he conunended the role of lawyersin public service in cumulative loss which we. corporately and personally, have these words: experienced. Each of us identifies in various ways with numerous of As the lawyers constitute the only enlightened class these whose lives and contributions we memorialize today. which the people do not mistrust, they are naturally 12 I January 1992 THE ALABAMALAWYER called upon lo occupymost of the public stations. They Often his name was in a generationor two forgotten. It fill the legislative assemblies, and they conduct the was from this brotherhood that Americahas drawn its administration; they consequently exercisea powerful statesmen and its judges. A free and self-governing inOuence upon the format.ionof the law. and upon its republicstands as a monument for the little knownand execution. unremembered as well ilS for the famous men of our profession. Thesewhom l havenamed are but examplesof this concept of public servicewhich l have mentioned. Indeedall of these How fitting and how descriptiveof these our departed col whomwe memorializehave investeda significantpart of their leaguesare the wordsof Justice Jackson. lives in our society.Their imprint is prominent in the social, Julian Harrisof Decaturonce commented.·There are more religiousand cultural fabricof our state. Theyare a part of all lawyers teaching Sunday School in Decatur than any other that is ~nduringand eternal. Daniel Websterexpressed lt Lhis profession." indeed, U,ese colleagues served as trus tees, \\'ay: elders, deaconsand stewardsI n the churches of the respective faiths; on school boards, hospital boards. library boards and Whoeverlabors upon the temple of justice with use industrial development boards: they represented cities and fulnessand distinction;whoever clears its foundations. towns and counties; they led United Way campaigns and strengthens its pillars, adorns its entablatuTes,or con• numerous other worthy philanthropic:endeavors; they were tributes to raise its august dome still higher in the skies. upstanding,respected cilize.ns who willbe sorelymissed. connects himselfin name and fame with that which is Professionally.they handled the causes of the upper class and must be as durableas the frameor human socidy. and of the underclass.They accepted appointmentsto repre sent the indigent and devoted the same intensity to that These who served as judges observed the mandate of the assignmentas to their more arnuentclients. Pro bono work to scripture in Deuteronomy1:17: them was not a duty but a privilege.What an examplethey leavefor all of us! There shall be no differenceof persons,you shall hear And these shall not be forgotten.Reginald Hine tells us: the little as well as the great ... And if anything seem hard to you, refer it to me, and I will hear it. There is the blessed assurance Lhal.as a lawyer. his "works do followhi m," not into the grave, but into the And when l think of iaw prnfessors or teachers, I think of work-a-day livesof his clients. Longa fter he is dead and Perry Hubbard.His course when I wasin law school was titled gone, men and women will be acting upon his advice. "Trialand AppellatePractice". He used Whit McCoy'sbook. Me will be carryingout his directions,wi lI be orderingtheir would come into the well of the tiered classroom.sit down at affairs in strict observanceof his written word. Estates the desk, lean back in the woodenswivel chair. prop his feel will go on devolving under the settlements he drew. on the desk. cross his legsat the ankles. and proceedin a one Husbands, wives,children will go on being protectedby hour lecture to coverwrits of mandamus.writs of prohibition the trusts he created. Beneficiarieswill rise up and bless and writs of certiorari without seeming to pause for breath. him for the wilts he made. Yearaner year. clients will There are several in this room today who can attest to this occupyor trade or farm, relyingon the agreementsand experience. the leaseshe approved. Bul most of these, as most or us, thought of themselvesilS "just lawyers" or Just "country lawyers". And there's some Yes, indeed. blessedassurance. these will not be forgotten. thing noble about this appellation.Perhaps Justice Robert H. As WllliamJennings Bryantsaid: Jacksondescribed the practicinglawyers best in his Tribute lo Coun/rg lawgers when he observed: Theyare not dead who live Jn hearts they leavebehind Me lovedhis profession,he had a real sense of dedica In those whomthey have blessed tion to the administration of justice, he held his head Theylive a lifeagain .. . . high as a lawyer. he rendered and exacted courtesy. • honor and straightforwardnessat the Bar. He respected the judicial office deeply, demanded the highest stan dards of competencean .d disinterestednessand dignity, Expert Assistance In Fire Department despised all political use or or trining with judicial Rela ted laws uits power, and had an affectionate regard for every man who filled his exacting prescription of the just judge. The law to him \\'llS like a religion.and its practicewas FIRE SERVICE CONSUUJNG , INC. more than a means of support; it was a mission. He was not always popular in his community, but he was 5622 LeeRoad 66 respected. Unpopular minorities and individualsofien Auburn, Alabama 36830 found in him their only mediator and advocate.Me was too independent to court the populace - he thought of Ellis Mitchell (205) 826-3098 himselfas n leaderan d a law-giver,not as a mouthpiece. THEALABAMA LAWYER January 1992 / 13 •ALABAMA STATE BAR• LAWYERSIN THE FAMILY All. Vreela11d,fl (19.91) and Al Alicia K. Hagnes(1987) and SharonR. Hoiles(1984/ and Joan E. Powers(199 1) and l. Vreeland(1976) (ad millee KennethHaynes (1991) (sister MichaelA. Dasin.qer.[II (1991) RobertF. Powers(/984) and father) and admillee) (motherand admilteti) (admillee and husbo11d) lee M. Pope(1991) and Max C. RonaldPaul Thompson(1970) Mall Vea/(1991)and D. Euan Naomi Furman (/991) and Pope(1962) {admilleeand and TaraElizabeth Thompson Veal(1965) (admilleeand NowardFurman (1985) father) (/991) (father and admillee) father) (admitlee and fa/her) JamesA. Wear(l991), Dauid C. Paul W. Brunson.Jr. (1991)and Richard W. Fuquag(1991) and John Pierce( 199.1), Don Pierce Wear(1976) and John C. Wear Paul W. Brunson, Sr. (1939) EugeneW. Fuquag(1975) (1958).a11d /(atherine /·l()(Jue (1949),( admillee, brother, (admillee and father) (admillee and father) Pierce (1991) (admi//ea. and father/ fatherlfather•ifl•law. admillee) 14 I January 1992 THEALABAMA LAWYER •ALABAMA STATE BAR• LAWYERSIN THE FAMILY Cheryl Lgmw Bltnm1(199/), Ab/JoiMcll'horter Martinson .JOS4}I,X,,ttler {199/Jand C/fJJ!R. C1rr(199/)andJ. Cilrgl. Blume ( 1978)and (/991). Dou.glasC/owk/>larlin CharlesKe/Iler, Jr. (1958) RichardCarr (1958) Nellie C. Blume (1980)(admit son (l.964)and DouglasClauda (admillee and lather) (admf/11'11,md lalhf!T) tee, brother,s(Jter-frl-law) Martinson, fl (l!/89) (admilttt, father,btoJher) Steph1111H. Jones ( 199/) arid TrudieAnne Phillips (1991)and MichaelDennis Rogers (1991) Victoria VanVa/JrenburghNorris ThomasE. Jo»es(1979) John R. Phillips /1951)(admil and Donna Elizo.bethRO/lf!I$ (1991)and John EdwardNorris /admil/ee and fa/h(>r) lee and faJher) (1991){co- admillees) (1991)(co-admiltees) Allan S. Rewts (1991)and Rosemaryl. Buntin (19.91)and RobertJeffrey Perloff (1!19I J Robert C.Black, Jr. (J991) and Archie T. Roooos.Jr . ().95/i) ThomasE. Bunlin,Jr . (/955) and Mayer W. l't!rloff 0957) Ro/x.>rlC. /)lack (1961)(admit (admillee and father) (admillee arid folhar) (admillee and father) lt'fl and lather) THE ALABAMALAWYER January 1992I 15 •ALABAMA STATE BAR• LAWYERSIN THE FAMILY Judi Mitchell Alexander (1991) Jack Brock long (/991) and RobertSpencer Frost (1989), WindellRichard Owens (1991) and Joel ForrestAlexander. Ill Cratf.yJ. Long (1939)(admillee ElizabethOwens Frost (1991) and WindellC. Owens(1948) (1983) (admillee and husband) and father) andJ. ConnarOwens,Jr.(1951) (admittee and father) (husband.odm11/ee. lo/her) WarrenB. Ughtfoot (1964)and Coro/Ann C:,,/vin Clark (1991 ). Robert W. Norris (1955) and Warren8. /,ightfoot. Jr. I 1991) GeraldD. C:,,/vin,Jr. (1972). Ser Nathan RobertNorris (1991) (father and admillee) ena 8. Colvin(1950) and Gerald ((a/herand admillee/ D. Co/vi11(1950) (a dmiltee. brother,mother, father) FALL 1991 BAR EXAM STATISTICSOF INTEREST Number sitting for exam ...... 378 Certification percentages: • Universityor Alabama...... 92 percent Number certified to Alabama Supreme Cour1 ...... 289 • Cumberland Schoolof Law...... 80 percent • BirminghamSchool oflaw ...... 42 percent • Jones Lawl nstitute ...... " ...... 60 percent Certificationrat e ...... 76 percent • MilesCollege or Law...... 0 percent 16 I January 1992 THE ALl\BAf.iALA WYER :r--: ~~ :I ~I - r ------::--iI ---• - • ..r.----. - ~ ---,. . •- ' •ALABAMA STATE BAR• FALL 1991 ADMITTEES Abel, Luther Dickie Burke,Pe ter Harrington Denny, CregoryTodd Alexander,Judi th Mitchell Burke,Warren H unter, Jr. Denson,Dav id Leverett Alldredge,Suzanne Callins. TimothyRoy Deutcsh, ElsieMarie Allen, LeslieMcCafferty Campbell, MelissaLe igh Dever,Steve n Mitchell Amberson, Legrand Hamilton, Jr. Campisi, MaryLynn Dodd, John David Anderson,Roy Scott Cannady, TeresaLynn Dodson, John William Andrews, RobinWyatt Carlisle, WilliamTodd Dow. Cinette Allard Avery,Kelly Denise Carr, Clay Richard Duke, Joey Donald Bailey, CarolClenn Carter, DebraRene Dutton, MarkAnt hony Ball-Walker, HilaryE lizabeth Cary, JeffreyLane Eddins, KatherineMi lner Barber,Cai l l'rances Case. WilliamEarle Ellis, Paul Roger Bauer,Sam uel Christopher Clark, Brian Michael Evans, Karen Brown Beauchamp, TracyHodges Clark, CarolA nn Colvin Farmer, WilliamRoy Bell, John Caddell Clark, Thomas Crawford, Ill Ferguson, RandyWilliam Bell,Jo hn Charle.~ Clayton,Kelli Andrea Flora, KathrynBarton Bennett, VeronicaLynn Clum, Jason Edward Folmar, DavidMa rlin Benson,Crady Doug las Coats, LindaFrances Frost, Elizabeth Owens Bishop, Jennifer Lynn Coburn, RandyLaVo ne l'uquay, RichardW illiam Black, l{erry Dewain Coffey, f'red Lyle,Jr . Furman,Naom i N'chama Black, Robert Coleman, Jr. Cook, CregoryCa rl Camble, WilliamColeman , Jr. Blackwood,Ronni e Hugh Copeland, Stephen Russell Cambril, Cregory Lee Blake,Randy Barne tt Cosse. Marianne Tipton Ganus,Melissa J ill Blume,Cheryl Lynne Cotter, RossRainer , Ill Cardner,Ceorge Dwight Bostick,John Jackson Craven, DanileHosmer, Jr . Gentry,Chris topher Byron Bragan, Carl Linwood Daniel, Tracy Millar Cillespy, Cerald Palfrey Brantley, l;:\,elynH assinger Dasinger.Michael Anton, Ill Gilliland. Kristy Lynette Bridges, James Ernest, Ill Davies, Ceorge Nicholas Goh, CarolynPortner Britnell,Vonda Lou Davis, Brent William Could, Jillian Marie Brody,David Henry Davis,E lizabethShepherd Cr•ham, John Henninger Browder, HerbertErvin Davis,Eric Clark Crarnmas, Peter Alexander Brunson,Pau l Westerfield,Jr. Davis., t,.tariaKaros Granger, RoyWil ey, Ill Bucy, Pamela H. Davis,Nancy Andrea Gre.en, Kevin Tho1nas Buntin,Ros emary Leigh Debruge, MarcelLo uis Gregory,Steve Paul 18I January 1992 THE ALABAMALAWYER •ALABAMA STATE BAR• FALL 1991 ADMITTEES Griffin, DeborahAnn Kettler, Charles Joseph, UI McD<>nald,Kelly Marie Griffin, RickyEdison Khalaf, NancyElias Mccowin, DeborahDiane Griffith,Carol Lynn Kilborn,Vincent Fonde, IV McGowin, WilliamClaude Grimes, James Kevin King, FrancesEve lyn Meadc,ws,Ted Gordon Gross.Dwight Mi lburn, Jr. King, Kathryn Annette Michaels, JamesDavid Gunnin, CarlaJ eanne. Klasing,Daniel Raymond Miles,P hilip Earl Haddock,Blair Mabry Lambert,Donald Wi ndle Milla. Vickie Marie Hardin, Leigh Nobles L;rson. LyleDavid Millsaps, PamelaKi rkwood Harkins, MaryAbbott Lasley, ThomasO'Neal Mitchell, Joel Shannon Harmon, Christopher Brarne Lawson,Caro lyn Smith Mitchell,Phill ip Dinsmore,II Harp. Jimmie Gary,Jr. Lawson.Edward Kirby , IV ~litchell,Sherr i Stevenson Harvey, JamesStephtn Lee,J effreyAllen Morgan, ThadiusWilliam, J r. Hayes,James Marland Lembke, MatthewHoward Morrison.Richard Du ane Haynes,Kenneth Drew Lewis,Martin Sto tland Morrissette,Hen ry Tonsmeire Hembree,Robert Rosson Lightfoot, WarrenBricke n, Jr. Morton, Stephen Porter,Jr . Herrin, MichaelDouglas Locke, Eric Leland Moseley,Norwood Bruce Hieronymi,Bre nt Edward Lo!tin,Cordon Bartley, LU Mouyal. Helen Kohn Hodgens.Melanie Cather ine Long,Jack Brock Mulherin,William Au stin, ITI Hollis,Jeffrey Kram er l,ove.J ames Darnell Mulhorn-Smith, K.1renLee Hoover, JamesL ee Lowe,Wendy Runyan Murphree, DavidWayne Howard, BarbaraMcNair Luke, Colin Henry Narmore. RebeccaAnn Howard, Beverly Jean Luke. KerryPhill ip Neeley.Robert Rando lph Howard, ChristopherLee Lumpkin,J ulia Willcox Newton, James Perry Howard, HowardEdgar Lupinacci,Timothy M ichael Nicholas,Sherry Thomas Hughes.Nancy Covington Macoy,Mark Williams Nichols, Phillip Anthony Hull. Mark McClellion Madison, Donna Brill Norris. John Edward Hunt, DavidMcDowell Mann,Robert Carey Norris, NathanRobert Hunter, RandallKeith Mansell, DonaldBe n Norris,Victoria VanValkenburgh Johnson,Suzanne Martinson. Abbott Mcwhorter Oakes,Ha rold Eugene Jones, Stephen Masty Matthess,De .niseAnne Odom. DavidBrian Jones, \,VayneFrederic McClintock, Charles Allen Orr, James Murrell, Jr. Katt, Todd Herisson Mccooey,Tracy Stewart Owens, WindellR ichard Kelly,Jeffrey Todd McCreless.Pau la Melissa Paines, Peter Lee THE ALABAMALAWYER January J992 / l9 •ALABAMA STATE BAR• FALL 1991 ADMITTEES Parker, DebraBen nett Ruester, Susan Conlon Thomas,John Thornell Parker, Glenda Dale l!yder.Brenton Doug las Thomas,Kimberly Cooper Parker,James McCollum Sanders,Ra chel Deanna Thompson, Tara Elizabeth Peake,Amy Lasse ter Sawyer, WilliamRobert Thornton, Glenda 1.aVon Pena,Ric hard Calvin Scent, Karen Tomlin, GingerL eona Perloff,R obert Jeffrey Scent, WilliamE ugene Trammell,Bradley Ell is Perry, Henry La\\lrence Schauble,Edith Jane Traylor-Wright, Malera Petway,Michael Doug las Sealy, Michael Stephen Truelove. DeeAnn Rainey Phillips,Trudie Anne Seeley, Paul Burton Turner, Ann Louise Pierce,John Charles S. Seiter. Lawrence Jean Turner, Jon Keith Pierce, KatherineHogue Semon,Marsha l,ynn Tyra,B ryan Scott Pitts, Melvin Bruce Shaw,Patricia Swearingen Vaughn,Jos eph Lamar, Jr. Piziti. RichardAlan, Jr. Shi,oer,J erry Steven Veal, MatthewWard Pope, LeeM cWhorter Simmons. DeniseArde.n Vreeland. Albert Loring, n Powors,J oan Elizabeth Sizemore,Rosemary Viv ian Walding,James Kevin Pratt. Laurie Kathleen Slaughter, Julia Melanie Waters,Da niel Howard,Jr. Raines, KennethR obert Smith, GeorgeAutry . n Wear,James Andrew Randall. KennethC. Smith, PatrickFitzgerald Weathers, MaryE lizabeth Rasure, Charles William, Jr. Sno,v . TerriMurrell Weed,Edwa rd Martin Reeves,Alle n Smith Spain, DebraDeames Whiddon,J ames Gerald,IJI Reeves,Gregory Allen Spradling, Joseph Edward While,Ge rald Gregory Rich, John Jeffrey Stahler.Alan G lenn White.M itchellD rew Richardson,Robert Ford Stahl, John William While, NancyBrooks Riley, Robert Renfroe. Jr. Stark. Edith Wilkinson Whitehead,Nicky C hance Ritchie,Allen Archie Stein. John Stanley,Ill Williams, JamesSarven Robinson. l,isa Carole Steles,N icholas James Williams,Roger Dale Rogers, l,dwin Ogden Stewart, ElizabethDee Williams,Samue l Douglas, Jr. Rogers,El izabeth Phillips Stlrling, James Larry,Jr . Williams,Walton Eugene. Ill Rogers1 JanneaSuzanne Sulzby,Wil liam Dobbins,J r. Willoughby,Steven R ussell Rogers,M ichael Dennis Swagler, RichardCharles, Jr. Wilson,Ga il Lindsay Rosen.Terri Lyn Tampling, AndrewWilliam , Jr. Woodhull,Elizabeth Adams Rousseau, DavidWoodham Tankersley, ThomasClaude York,David Preston Royston. Robert James Tapscott.R obert Wayne.Jr. Young.An lia Lynn Rudd,Nic key John, Jr. Thagard,Thomas Werth, IIJ Zundel, Susan Powell lludd, StevenMichael Theiberl. RichardWilder 20 /Jan uary 1992 THE ALABAMALA WYER YOUNGLAWYERS ' SECTION By KEITHB. NORMAN,president A profil e of the YLS state is closelypattemed after the geographicaldispersion of With the new year underway, I thought it appropriate to non-YLSmembers of the bar. Possiblythe most significant profile the Young Lawyers'Section. YLSmembers are those thing these numbers reveal is lhal lhe pattern of legal urban lawyers who are 36 yearso f age and youngeror who have been ization continues with the majorityo f young lawyersc hoosing admitted to practice three years or less. There are 3,780 YLS to locate in the urban areas. I( the pattern as suggested by members, representing39 percent of the bar's entire member these numbers continues, we may soon witness the demi.se of ship. Three thousand one hundred and forty.three,or 83 per the country lawyer. cent. reside in this state. Of the state bar's J 7 sections, the YLSis by far the largest. With respect to the location of YLS Commftt- focus members in Alabama, the five counties Admissions - This year's fall admis with the largest number of young la~-e_rs sions ceremony was the largest ever. are; Jefferson,1,256 ( 40 percent ol in-state More than 750 people, inc.luding admit YLS members); Montgomery, 422 (13.4 tees, family members and friends, percent):Mobile , 362 (l l.5 percent};Madi attended the ceremony in Montgomery son, 193 (6 percent); and Tuscaloosa, 151 on October29, 1991.For the first time as (4.8 percent). In just these five counties a part of the admissions program, new alone are 75 percent of the YLS'sin-state admittees desiringt o practicein the f'ed members. Countieswith the fewest young eral DistrictCourt for the MiddleDistrict lawyers include:Choctaw, Coosa, G reene, of Alabama were admitted to that bar. Henry, Lowndes.and Pickens, with one The Honorable Harold Albritton, federal young lawyer each. Geneva, Lamar . district Judge and immediate past presi Sumler and Wilcox have two young dent of the AlabnmaState Bar. addressed lawyers each. f'lnally , Bibb. Bullock. lhe admilltes and the Honora.ble Cherokee,Clay, Crenshaw,Fayette, Hale, Ke ith B. Norman Thomas C. Caver, clerk for the middle Marengo.and Randolph each have three district, admini$ttred the oath to more young lawyermembers. than 30 admittees.Planning is underway Additionalanalysis reveals that the YLS to include the northern district and has 156.or 4.1 percent, black members and 14 members,or southern district beginningwith the 1992spring admissions less than J percent.representing other minorities.Of the total ceremony. number of black YLSmembers, 140. or 90 percent. are in Alyce Spruell of Tuscaloosa and her commillee deserve state members. Interestingly, 51 percent of all in-state black much credit for a very successful fall admissions ceremony bar membersare young lawyers. Geographically, the counties and the planning that is underwayto includeall of Alabama's with lhe largest number of blackyoung lawyersare: Jefferson. federal courts. Assisting, ,,ith lhis fall's ceremony were Beth 62 (44 percenl of all in-state black YLS members): Mont Slate Poe. Montgomery. luncheon chairperson; Elizabeth gomery,31 (32 percent): Mobile, 12 (8.5 percent); Madison, 6 Smithart, Montgomery; Gerald Jones, Montgomery; Gilda (4.3 percent);and Tuscaloosa,9 (6.4 percent). Although black Williams,M ontgomery; Laura Crum, Montgomery; and Char· young lawyersare located in 23 Alabamacounties , 85.2 per lie Anderson, Montgomery. cent are locatedin the fivecounties noted abo~. Annual Seminar-al-the-Gulf- May lS-16,1992, Sandestin f'emale YLSmembers total 1,082, or 28.6 percent of the Beach Resort. Hal West. Birmingham, and Frank Woodson, section's tot.ll membership.By comparison,females account Mobile. are planninganother outstandingoffering of CLEpro for 17. 4 percent of the state bar's total membership. Of all grams and social events for this ~r's annual seminar at the female)'Oung lawyers, 871, or 80 percent.are locatedin-state. Culf. As is alwaysthe case, accomodationswill be limitedso I Althoughthere are femaleyoung lawyersin all but 16 coun encourage)'OU to make )'Ourresel'\'lltions immediately. Reser ties, nearly 83 percent reside in Jefferson. Montgomery, vations must be made directly with Sandestin Resort. The Mobile.Madison or Tuscaloosacounty. Specifically,389 (44.6 telephonenumbers are (904)267-SOOO or l -800-277.0802. percent of all in-state female members) are in Jefferson:130 In a related matter, some YLS members have ex.pressed (15 percent) are in Montgomery;90 (J0.3 percent) are in interest in changing the locationof the annual seminar. Two Mobile; 60 (6.9 percent) are in Madison:and 53 (6.1 percent) alternative locations have been idenllfled.They are the Mar are in Tuscaloosa. riott's BayP oint Resort in Panama City, Florida and the Perdi Although lhe minority and gender percentages vary some· do Beach Hilton in Orange Beach,A i~bama. If you have any what, the geographicdispersion o f young lawyersacross the thoughts or comments about moving the annual seminar at THE ALABAMALAWYER January 1992/ 21 the Gulf, please drop me a letter at P.O. Box 671, Mont providing peopleat the shelter with an opportunity to learn a gomery, Alabama3610 I. The executivecommittee is interest skill with which Loearn money and to improve their self ed in hearing from you on this matter. esteem. Additionally, the Birmingham YLS established a Kudos- Birmingham Young lawyers. At the annual meet scholarship program which provides homeless individuals ing of the AmericanBar Associat ion's YoungLawyers Division with an opportunity to obtain their high ,school diploma in August, the YLSof the Birmingham Bar Associationwas through a CEDprogram. awardedsecond place in the "Single Project - Serviceto the The Birmingham YLSdeserves much credit and praise for Public" category. their outstanding work with Birmingham's homeless. Their This award recognizedthe BirminghamYLS for their novel efforts should be an inspiration to us all-both younger and project working with the area's homeless at the Fire House older lawyers- as well as an example of a true commitment Shelter and Mission. The BirminghamYLS established a busi to pubI ic service. Service projects like this help us to im ness for the shelter residents to manufacture fishing lures. prove our image with lhe public and instill pride in our pro The project provides financial support for the shelter while fession. • NOTICE OF ELECTION Notice is given herewith pursuant to the Alabama State Bar Rules Governing Election of President elect and Commissioner. PRESIDENT-ELECT The Alabama State Bar will elect a president in March 1, 1992. Any candidate for this office also 1992 to assume the presidency of the bar in July must submit with the nominating petition a black and 1993. Any candidate must be a member in good white photograph and biographical data to be pub standing on March 1, 1992. Petitions nominating a lished in the May Alabama lawyer. candidate must bear the signature of 25 members in Ba llots will be mailed between May 15 and June 1 good stand ing of the Alabama State Bar and be and must be received al state bar headquarters by 5 received by the secretary of the stale bar on or before p.m. on July 14, 1992. COMMISSIONERS Bar commissioners will be elected by those lawyers All subsequent terms will be for three years. with their principal offices in the following circuits: Nominations may be made by petition bearing the 1st, 3rd, 5th, 6th, place no. 1; 7th; 10th, places no. 3 signatures of live members in good standing with and 6; 13th, place no. 3 and 4; 14th; 15th, places no. principal offices in the circuit in which the election 1, 3 and 4; 25th; 26th; 28th; 32nd; and 37th. Addi will be held or by the candidate's written declaration tional commissioners will be elected in these circuits of candidacy. Either must be received by the secre for each 300 members of the state bar with prindpa l tary no later than 5 p.m. on the last Friday in April offices therein. The new commissioner positions will (April24, 1992). be determined by a census on March 1, 1992 and Ballots will be prepared and mailed to members vacancies certified by the secretary on March 15, between May 15 and June 1, 1992. Ballots must be 1992. voted and returned by 5 p.m. on the second Tue.sday The terms of any Incumbent commissioners are in June Uune 9, 1992) to state bar headquarters. retained. 22 I January 1992 THE ALABAMALA WYER A · D · E · M esponding to the need for a comprehensive envi ronmental program for the state and for a single agencywhich would administer the various feder Regulation ally approvedenviro nmental programs, the Alaba· mma Legislature enacted Act No. 82-612 which established the AlabamaDepartment of Environmental Management Codified at Codeof Alobama. §§22-22A· l through 22-22A-l6, the Alaba bythe ma EnvironmentalManagem ent Actcreated ADEM by combin ing the functions of the Air Pollution Control Commission, Water ImprovementCom mission, WaterWell Sta ndards Board and certain functions performed by the State Heath Depart. menl ADEMis designated, pursuant to §22-22A-4(n), as the Alabama state environmental control agency for the purposesof federal environmental law, including the Clean Air Act, Clean Water Act, Safe Drinking Water Act and Solid Waste DisposalAc t. Since 1982, the Legislature has designated ADEMas the state environmentalagency for the purpose of administeringsubse Departmentof quently enacted federal programs such as the Resource Con servationand RecoveryAct and underground storage tank pro grams, as well as others. Among the powers the legislature has delegated to ADEM Environmentalare the authority to administer the environmental laws enu merated in the Environmental ManagementAct and to pro mulgate ru les and regulations to carry out those powers. ADEM is charged with developing an environmental policy for the state, it servesas the state agency responsible for adminis Managementtering federally approved environmental programs, and it serves as the state's clearinghouse for environmental data. Enforcementof the lawsad ministered by ADEMis authorized By OLNIA H. JENKINS through the issuanceof administrativeorders which may con tain penalties and the filing of civil lawsuilts. ADEMi s also specifically authorized to issue, modify, suspend or revoke permits, certificationsa nd notices of violation. Among the powersthe legislature Organization of ADEM'======---- ADEM is under the control of its director who is appointed by, and serves at the pleasure of, the Environmental Manage has delegatedto ADEMare the ment Commission. The Officeof the Directorhandles many of ADEM·sadm inistrative functions. Included in the Office of the Director are the Officeof Public Affairs,t he Special Projects authorityto administerthe Officeand the Officeof General Counsel. The Special Projects Officeis responsible for planning and development of the state environmentallaws enumerat ed in Superfund program, federal facilities cleanup and administra tion of the state·s Waste Reductionand Pollution Prevention Program. Within the Officeo f GeneralC -0unselare the depart the Environmental ment's seven attorneys who are responsible for representing the department in enforcement and defensive lit igation, administrative appeals, Board of Adjustmentactio ns and per ManagementAct and to sonnel matters. In addition, the Officeo f General Counsel is responsible for preparation and/or review of legislation and promulgaterules and regulations regulations, drafting administrative orders, preparing legal opinions, approving contracts and leases. and providing gen eral legal advice. to carry out thosepowers. Of the department's five divisions, three are primari ly involved in administration of regulatory programs. The Air Division is respons ible for admin istering the federally THE ALABAMALAWYER January 1992 / 23 A · D · E · M approvedprograms under the Clean Air Act and the Alabama Althoughits primaryresponsi bilities are not regulatory, the Air Pollution Control Acl Included in its responsibilitiesare F'ieldOperations Division does administer the Coastal Pro the permitting of air pollution control sources, compliance gram. which regulatesbeach and dune construction. In addi monitoring. ambient monitoring and data analysisand pro tion, Field Operations manages the Department'sfie ld offices mulgationor air pollutioncontrol regulations.The Land Divi in Birmingham.Mobile and Decatur. F'ield Officepersonnel sion administers the state Solid Waste DisposalAct and the are responsible for conducting investigations of fish kills, HazardousWastes Management and MinimizationAct , as \\/ell emergency response actions, performing compliance evalu as portions of RCRA.Among that division's responsibilitiesare tions and other investigations,adm inistering the fish tissue the regulation of solid waste disposal facilities. hazardous monitoring program. conducting water quality surveys and waste generators and treatment, storage and disposal facili studies. coordinating the Clean Lakes Program, and coordi ties, and the management, transportation and disposal of nating coastal consistencyreviews. Additionally, the depart medical waste. In addition, the Land Divisionis responsible ment's environmental laboratories, which are responsible for for approval of specialwastes for disposal, provisionor techni conductingvarious analyses on water, sedimentand soil sam cal asistance in emergencyresponse situations. and investiga ples and for certification of drinking water laboratories.are tion of illegaldump sites. housedwith in the l'ield OperationsDivision. Responsiblefor administering the AlabamaWater Pollution Besideshandling personnel, physical and fiscal matters for Control Act,the Safe DrinkingWater Act , the WaterWell Stan the department. the Permits and ServicesDivision cordinates dards Act, and the AlabamaUnderground Storage Tank and communicationsand administrative functions for issuance of WellheadProtection Act, the WaterDivision is composedof sev permits, serves as a focal point regardingpermi t applications eral branches which have both permitting and compliance and information,arranges for conferenceswith private and/or responsibilities. The Industrial Branch manages the NPDES governmentalagencies regarding perm it requirements,and is and SID permit programs for industrial sources and issues responsiblefor receiptof permit application fees. water quality certifications for industrial and hydroelectric facilities.T he MunicipalBranch managesthe Nl'DESprogram Environmental Management Commission = for municipal and non-industrialsources, managesthe \\laste Alongwith the creation of ADEM,the EnvironmentalMan water operator certificationprogram and managesstormwater agement Act also created the Environmental Management JM?rmittingfor government entities. as well as administering Commission.The EMCis a seven-memberbo dy which has the the 205(g)construction grants programand the State Revolv duty to select ADEM'sdirector, promulgate rules and regula ing F'und Loan Program. Permitting of mining, coalbed tions, developenvironmenta l policy for U1estate, and hear and methane and agriculturalsources, administrationof the Non determineappea ls of ADEM'sadministrative actions. point SourceManagement Plan, issuanceof water qualitycerti Initiallyappointed by the governor.l ieutenantgovernor and fications to non-industrial sources. and managementof the speakerof the house, EMCmembers are now all appointedby Agricultural,Silv icultural and ConstructionStormwater Permit the governor. Appointments are for six years and terms are Program are all responsibilities of the Water Division'sMin staggered.The compositionof the EMCis set forth in Codeof ing/Nonpoint Source section. The duties of the Water Supply Alaoama § 22-22A-6and must includea physicianlicensed to Branchinclude the administrationor the chemical/bacteriolog practice medicine in Alabama,a professionalengineer regis ical monitoring programfor water supplysystems and enforce tered in Alabama, an attorney licensed to practice law in ment of the Safe DrinkingWater Act. Includedin the duties of Alabama,a chemist or veterinarian,and a biologist or ecolo the GroundwaterBranch are the managementof the under gist. 1n addition,one membermust be certified by the Nation ground storage tank program and the tank trust funds, the al Water Well Association.The seventh slot requires no spe administrationor the undergroundinjection contro l program, cializedexperience , but the member fillinglhe sloi must have managementof undergroundstorage tank corre.cliveactions , been a resident of the state for at least twoyears. administration of the groundwater protection program. and inspections of monitoring well systems. Development of Rulemaking ===- -- ======wasteloadal locationsfor NPDESpermits, management of water There are three basic functionsperformed by most regula quality grants and water qualityprograms, including develop tory agencies such as ADEM:rulemaking, permitting and ment and revision of the state's water quality standards and enforcement.ADEM 's rulemakingproced ures are governedby development of water quality management plans. are all the AlabamaAdministrative Procedures Act, Code of Alaoama, responsibilitiesof the WaterQuality Branch. §§ 41-22-1through 41-22-27. Becausethe majorityof the environmental programswh ich ADEMadministers are federallyapproved programs, most of Ollvla H. Jenkins AOEM's regulationsare derivedfrom federalregulat ions. Pur Ollv!a H_Jenk ins, general counselo l lhe Alabama Oepanmen1ol EnvlronmMtal Maoagomoru, g-raduatod fromll'lo £J Ylt'utoCotiag& ol Law at Sy,acuse UnNers> suant to the federal approvals, ADEM'sregulat ions for those ty. She sse member ol theEnv.ronm cnlal LawS ecttonand ihOAd ffW'l!Gua11vo Law federallyapproved programs must be at least as stringent as Sectiono ! the sta:e bat Shecs atso a member ol lhe Ut,ga1ion. NaturalR asources the federal regulations but may be more stringent. ln many and Adminis1rat1veLew sec tiono t the AmericanB ar Asoociatlon cases,ADEM's regulations are identicalt o the federal regula- 24 / January 1992 THE ALABAMALAWYER A · D · E · M Lions.Regulalions are generallydraAed by appropriatetechni required and to provide Lheapplicant with required permit cal division personnel with review by the Officeof General procedure informationto assure compliancewith applicable Counsel. procedures in a coordinatedand efficient manner. Prior to the adoption. amendment or repeal of any ruie. The reviewof pollution control requirementsre lative to the notice of the proposed rule is published in the Alabama project is processedby technical personnel in the respeclive Administrot/11('Mon1hly, as well as at le.ut three newspapers programarea , or areas. with continued coordinationprovided with Lhe largest circulation in lhe stat,. The notice gives a throughout the processby the permit center. briefsummary of lhe proposedregulations and providesinfor Once the permit applicationand appropriatefee is rtceived, mation as lo how to obtain copiesof the regulations.how lo the appropriatedivision determines if a permiLcan be is3ued submit commenLSon the regulations. and selS a time, date and. if so. draftsa proposedperm1L Notice of the draft permit and placefor at le.ut one publichearing. is published in the local paper with the largest publication Al the public hearing, a member of the Officeof General in11ttingpublic comment. I( a request is receivedor if there Counselpres ides .u hearing officer.After exp laining the pur appears to be substantialpublic interest, a public hearing will poseof the hearingand the procedures lo be used. the hearing be scheduled and notice of that hearing published in the officer recognizes an ADEMstaff member to explain the newspaper.The conduct of public hearings is procedurally department's position on the proposed rule. After the staff identical to those for regulationsexcept that a representative presentation. members of the public who have registered to of the applicantis given an oppOrtunityat the public hearing speak make their presentations.While the hearing officerpre to placethe applicant'sviews in the record. sides over the hearing and is responsiblefor compiling the record. he is not a part of the decision-making process. Enforcement ~~~~~~~~~~~~~~~ Althoughhis advice may be soughLif legal questionsarise. it ADEMfollows a graduated enforcementstrategy. with the is the director. with lhe advice of the affecteddivision chief, rcsp0nsebeing appropriatefor the nature of the violalion.An who makesth e final decisionon regulationsto be proposedto effort is made to achievecompliance with the least amount of Lhel~MC. reg(liatoryeffort in order to conserveresources for the most Once Lhe hearing has been concluded and the comment serious problems.However, even minor problems may require periodclosed, ADEM staff reviewthe comments lo determine an elevatedresponse when less stringent actions do not result if revisionsare appropriateand prepare a resolutionstatement in compliance. addressing all substantive comments. The regulations. as Upon discoveryof a violalion,the inspector for lhe facility revised. are then presented to the EMCfor adoption. After MSCSSesthe violaLionand makes a recommendationwhich is adoption. the regulations are filed with the legislativerefer fo,wardedto the appropriateapprO\-al level. Informalactions ence serviceand becomeeffective 35 daysafter filing. such as telephonecalls, personalmeetings, or warning letters The pubhc also has an opportunityLO propose rules to Lhe may be appropriate if the violaLion is environmentally EMCpursuant to Code of Alabama,§ 41-22-8.The EMChas a insignificantor, becauseof past experience.it is believedlhat standin~ rulemaklngsubcommittee which evaluates the mer informal action will result In resolution of the problem.Possi its of rulemaklng petitions and makes recommendations011 ble formalco urses of action Include: such petitions to the full commission. Procedures for filing rulcmakingpetitions are found in AOEMAdmin. Code Chap. A Nouce of v,olallon 3.15-2-2. The NOVreferences previous informal actions. if any. states the nature of the violation.states that the violator has failed Pennlttlng ~~~~~~~~~~~~~~- to respond, establishesa dale for responseby the violator.and Although procedures may differ among the various media warns the violator Lhat mort slringenLaction may be forth and program are.u because of lhe diversifiedrequirements coming if he does not respond satisfactorily.NOVS are sent imposedby applicablestate and federallaws and regulations. certiOedmail and are approvedat lhe DivisionChief level. the purpose of permitting is uniform: lo assure that any source with the potential to have an Impact on the environ ment complies with applicable environmental statutes and /lA. C. E. FREDERICK & ASSOCIATES regulationsand has rigid controls on its operationto prevent ~ --L_E_G_A_L_1111_''_'F._.ST_1r._._"r_o_R_S_A_NO__ c_o_111_·s_u_1.r_,_,r._ ·r_s_ detrimentalenvironmental impacts. Permitting procedures are initiated when an applicant approaches AOEMregarding construction plans for a new C. £ Frederick & tlssoc,nlt·h are legal in,·estiJtntors '-(• N1n.1;ultn.,,,..r;. \f'e nre a full St-•rvice in, ·es 1ign1i, •e :,)lcury . facilityor related lo a modificationor expansionof an existing industry. The Permit Cenler Coordinatorarranges a meeting • Accidenl tnve.sti¢alion • HuMiness & In surance P'rnud of the applicantwith ADEMtechnical staff from the appropri • Divorce Cases • Pmc ..•ss Service • Ski1>1 'rncin,:, ate media. The purpose of the meeting Is twofold:to provide -- -- - • \\1nrk1n11n'sCo 1n1>cnsation----- c:v.. . FkF.IU.:kt(K M(IIJll,I l'IIONR 1uc;1rA I, lltll-:l'flk permilllnllauthorities with details relative to the scope of the !:.!03J 12t~.S7CIO t,1;(>-.:ll:i.,t t•i\1-AMr,:'i projecLin order to determine In what case permits would be THEALABAMA LAWYER January 1992/ 25 A · D · E · M B. Administrativeorder ment, and the integrity of the applicable program; the history The decision to recommend the issuanceof an Administra of the violator in terms of past violationsand good faith; the tive Order is made by the proponent division chief and nor impact on other facilities; the availablilityof resources; the mally will be considered only when less formal actions have importance of the violation in comparison with other viola failedto achievecompliance. A referral is made to the Officeof tions that must be dealt with by limited resou.rces;and consid General Counsel, and the drafting of the AOis assignedto one erations of fairnessand equity. Althoughachiev ing compliance of the OCC'sattorneys. A proposedadmin istrativeorder is sent at the lowest level possibleis the preferredcourse of action, in to the violator and a written response is requested. If the some cases the severity of the violation may dictate the alleged violator wishes, he may request, in his written issuanceof an administrative order, or even litigation, without response, an informal conference to discuss the order. The going through the intermediarysteps . informal conference is usually chaired by the attorney who drafted the AO,but in some cases by the division chief. The Administrative appeals =------violator is given the opportunity to show cause why the order Pursuant to§ 22-22A-7(c),appeals of ADEM's administrative should not be issued or why it should be modified in some actions may be filedwith the EMCw ithin 15 daysof receipt of manner.The violator may be representedby an attorney,and it notice of the action or, if no notice was provided, within 30 is strongly suggested that he be representedby a professional daysof the action. The hearing must be commencedwithin 45 engineer or other environmental consultant at the conference. days of the filing of the appeal request. Generally,the EMC The violator is given the opportunity to deny the findings of appointsa hearing omcer to c®duct the hearing and make a fact contained in the proposedorder, and he is allowedto pre recommendation.Limited discovery is available, and the hear sent any evidencehe feels is relevant to the issues. After the ing is conducted much like a non-jury trial, with the exception informal conferenceis completed,th e staff has evaluatedthe that strict rules of evidencedo not apply.Pursuant to Codeof allegedviolator's responses , and. in some cases.conducted fo l Alabama § 41-22-27((), ADEMi s exempt from the contested low-upinspect ions and/or investigations,a recommendationis casesprovisions of the AlabamaAdministrative Procedures AcL presented to the ADEMdirector who makes the final decision based upon the staff recommendationand the evidence pre Information requests ------==-=~ sented by the allegedviolator . With the increase in citizen suits, toxic tort litigation. and C. Administrative penalty other types of litigation dealing with environmental issues, Pursuant to Code of Alabama, § 22-22A-JS. ADEMm ay there has been a corresponding increase in the number of assessan administrativepena lty rangingfrom SIOOper day per information requests and file review requests which ADEM violation to $25,000 per day per violation, with a cap of must process. Increasingly,ADEM employees are being sub $250,000. In assessing a civil penalty, ADEMi s required to poenaed to testify in private litigation. These ever increasing consider the seriousnessor the violation.the standard of care demands have severely taxed ADEM's already limited manifested by the violator,the economicbenefit which delayed resources. Becauseof these demands, procedures for obtain compliance may have deferred on the violator, the nature, ing informationfrom ADEMhave been developed. extent and degree of success of the violator's efforts to mini A File reviews mize or mitigate the effectsof the violation on the environ Like most state agencies, the majority of ADEM'srecords ment, the violator'shistory of previousvio lations, and the vio lator's ability to pay the penalty.Cede of Alabama, § 22-22A- are public documents and available for inspection. Due to severe space limitations which limit the number of file re 5{18)c. Issuance of penalty orders is handled in the same views which ADEMcan handle simultaneously and because manner as non-penaltyorders. most of ADEM'sfil es are working files which may be taken out D. Litigation of the office during inspections,walk-in file reviews,w ithout When all other enforcementresponses have failed,litigation an appointment, cannot be accomodated.I f you wish lo review may be filed. Criminal violationsare referred to the Attorney files.you should make a written request addressedto the Per General's office for prosecution. Civil litigation is handled by mits and ServicesD ivision.and you will be contacted to set up ADEM's Officeof General Counsel and is filed in the county an appointment. With the exception of coastal permitting where the violation occurred or where the violator resides or records, all files are kept in Montgomery, and information does business. Where an administrativeorder with a penalty requests should be addressedto the .Montgomeryoffice. Send has been issued and the penaltyha s not been paid, the case is ing a request to a field office only slows down the process.as filedin MontgomeryCou nty Circuit Court. all file reviewand information requests, other than for coastal Generally. enforcement responses followthe six steps out records,are forwardedby the field officesto the Montgomery lined above. However,each violation is a violation for which office. Information and file review requests for coastal pro the full range of enforcementresponses is available. Determin gram recordsshould be addressed to the MobileF' ield Office.If ing the most appropriate response requires consideration of copies are desired. the reviewer may indicate which docu the severityof the violation in terms of the degree of variance ments he or she wishes copied. and copieswill be sent to the from the standard of compliance,the impact on the environ- revieweras soon as possibleal a rate of $0.40 per page. 26 / January 1992 THE ALABAMALAWYER A · D · E · M B lnforma1,onreQueslS lime. it is very important that a laW}-errepresenting a violator Requestsfor copiesof documenls must be made m writing seek lo resolve the violations al the earliest stage possible. and should be addressedto the Permits and ServicesDivision . Immediate response to violations, both to prevent the viola Such requests are honored if the written request slates a will• tion from recurring and lo minimize the impact of the viola· ingness to pay the copyingc harge and is specific enough to be tion on the environment. as well as remediation efforts, will easily ascertainable without making lengthy file reviews or have a positive impact on the agency when making enforce· making judgments about whether individual documents are menl decisions.Nol only will quick action be well receivedby wilhin the scope of the request. Thus, a request for "lhe regulatory agencies,bu t it will probably also limit the amount NPDES permit dated August 8. 1991 issued lo AlabamaDi s of environment al harm done, thereb y limiting liability. chargers. Inc.. localed In Grovers Corners. Alabama"will be Promptly responding to warning letters and notices of viola honored, while a request for "all records regarding lhe com· tions with an explanation of the cause of the violations and pllance sllltU$of Alabama Dischargers. Inc: will not. In the the response made by the violator will weigh in the violator's case of requests which are vague and overly broad, 1\DEM favor. Reporting violations to lhe agency before they are dis invitesthe reques1oreither lo specificallyidentify the particu coveredby inspectorswill also be consideredfavorab ly. lar documents he or she wishes or to conduct a file review. Conclusion C Subpoena,ngw.tnesses Given the complexityand technical detail of the environ It is the long-standingpolicy of the agency that no ADEM mental laws and regulations administered by ADEM.practice emp10)--eewill testify in private litigation without a subpoena. before the agency can seem a bewildering nightmare to the O~en.employees are subpoenaed when the onlyneed for the testi· novitiate. If you are handling an environmental case for the mony is to authenlicatedocuments. If requested,certified copies first time. or branching out into a new environmental medi of ADEM'srecords can be provided,thereby eliminating the need um or program. you may rind consulting an environmental for the employeeto 1estif'y. ADEMencourages U,e useof certified engineer or other environmental professionalwho specializes copies as the time employeesspen d testif'ying in caseswhich do in the particular medium which your case involves will be of nol involve i\OEMIs time takenfrom regulatoryd ulies. enormous benefit. Armedwith a good consultanl, some basic Often, attorneys seek to use ADEMstaff as unpaid expert knowledgeof administrativel aw and a copy of the applicable witnesses. While th ls may cut down on trial expenses. it is regulations. any lawyercan represent a client beforeADEM. • rarely In the client's best interest Although the.reis a wealth of technical expertiseamong the ADEMstaff, most employees ha,oevery spcc:iallzedknowledge and are rarely able to provide the comprehensivetestimony an expert witness is able to pro vide. Addltionall~. ADEMcannot spend its limited resources AffordableTermlife Insurance working with private attorneys lo prepare private litigation; fromCook & -\uodatcs staff time cannot be spent reviewingfiles and/or scientificlit· erature In preparation for lestirnony in private litigation. Compan:lhc:sc low non·.M1>0kcrannual mo for non~ Finally, ADEM staff "~II make no effort lo present testimony yearlyrcne:wabk tmn uu.uranor• in a lighl most favorable to the subpoenaingparty. MMIMl!iiHil l!iiii ifijjjjjjjjjiiiii!tiiliiiiii D Env,ronmenlel audits 25 248 455 345 No1vthai buyers and lenders are frequently requiring envi• 30 248 455 845 ronmental audits prior to consumating a transaction. !\OEM 35 255 460 875 is getting an increasing number of requests for certifications 40 298 545 l,045 of compliance. Frequently. ADEMreceives calls from attor -IS J48 645 1,245 neyswho state that a closing is scheduledfor the next day and 50 430 810 l.5'75 55 600 1,150 2,255 certification of compliance is needed immediately. Unfortu· 60 875 t,700 J.355 nately, ADEMdoes not have adequatestaff to providethis ser 65 L,525 J,000 5.9S5 vice. nor, as a state agency,can it assume the liability atten lksxW>bk IO"&" 100.Frnialc"""' ..,... .. m.,1c,,.. y,,m_. . dant to making such certifications.If }'OU anticipate needing AU "°'""I"pn,vldod I>) _, ... nlll"d" A+" by A.~L 8ct, Co. an environmentalaudit. you should contact a reputable env, For1"Ti1Jcn-,oamdpol k)' dompllo,..mdi-cLucoft.nh ronmental consulting firm ,-crye.irly in the process lo ensure .and.amount o( cove~ drsimf to: that all necessary file reviews,tests and inspectionsare done and an audit report is availableat the time of closing. Cool, 0 Associates Representing • cllent before ADEM ----- P.O. Box 850517. Mobil<.Al11bamn 366 85-0517 Because violations of environmental laws and regulations. (205) 34l -Sl68 1-800-239-3992 even if accidental, have the potential for almost unlimited lia bility and because lhat liability increases exponentially with THE 1\1..ABAMALAWYER January 1992/ 27 BUILDINGALABAMA'S COURTHOUSES FAYETTE COUNTY COURTHOUSE BySAMUELA. RUMORE, JR. The following continues a history of Alabama 's county courthous es /heir origins and some of the people who contributed lo their growth. The Alabama Lawger plans lo run one county 's story in each issue of the mag azine. If you have any photographs of early or present courthouses, please forward /hem lo: Samuel A. Rumore, Jr., Miglionico & Rumore, 1230 Brown Marx Tower, Birmingham. Alabama 35203. Fayette County uring 1824 and 1825, Gen eral Lafayette. lhe French hero of the American Revo lution, made a triumphant mnati onal tour and "Final Farewe ll'' through the United States. Wherever he went, he was met by local officials and greeted by large admiring crowds. It Fay ette Co unty Courthou se was reported that many babies were named for U1evenerable general. Also. many place names were selected to Motier the Marquis de Lafayette. Even second is believed to have been a log honor him. In Alabama alone there are more remarkable is the fact that the structure that burned in 1854. It is Fayette County, and the towns of county seal of Fayette County has had known that on May 30, 1854, the Fayette. Fayetteville and Lafayette, the more names. At various times il has Fayette County Commission awarded a county seat of Chambers County. been called Frog Level, because of the contract lo John J. Spain and Ira D. Fayette County was created Decem swampy land where the town was locat Parmer to build a new cou.rthouse on ber 20, 1824 dur ing the time of La ed; Alfreda, in honor of the wife of the lhe site of the burned structu re. This fayette's tour. It was made up of territo first postmaster; Icy, in honor of the building likewise burned on April 14. ry taken from Tuscaloosa and Marion daughter of the second postmaster; 1866. probably as the result of arson. coun ties. The Alabama Legislature Fayette Courthouse; Fayetteville; La Most of the records in the courthouse acted to honor Lafayette who was to tona; Depot Town;a nd. finally, F'ayette. were destroyed. visit Alabama in April 1825. Local tradition claims that Fayette On Jun e 11, 1866, a bu ilding was It is remarkable to note that La County has had seven courthouses. Lit rente d for use as the fourth Payette fayette, in true aristocratic fashion, had tle is known of the first two except that County Courthouse. This building was seven names. His full appellation was the first court was located in a hatter's John C. Robertson's Lavern for which Marie Joseph Paul Yves Roch Gilbert du shop called "Van Hoose's store," and the the county paid $200 in rent. Later, in 28 / January 1992 THE ALABAi"IALAWYER 1867.Robertson was awardeda contract and build a courthouse. The commis PAY $1,000 RETAIL to build a fifth courthouse. The contract sioners decided that the ~ople should FOR THIS LEATHER price was S4.000and the structure was vote on the location. The choices were completed on November23. 1868.This the old location of the courthouse at EXECUTIVE CHAIR building was described as brick with F,1yelteville, the new DcPotTown near lnr,ie 1vhite columns supporting an by. or the geographic center of the ~ extended portico. and surrounded by a county called "Center". In the first l fence and hitching posts. This firth election. no choicereceived a majority. courthouse remained in use until 1892. In the second election held in July, On February 4. 1867, a significant Depot Town won. The old town soon event In the life of the county took passed from imPortance.and in J 898 by place: Jones County was created from popular vote the citizens finally decided the western portion of l'ayette County. to name their cily l'ayelte, and il Jones County was abolished later that remains l'ayetle to this day. same year. but was re-established as The sixth structure to serve as Fayette SanfordCounty on October8 . 1868.On County Courthouse was compkled in 1892 at a site near the depOLEJ. Ostting February 8, 187i. the name was OR $599 * DIRECT! changed to Lamar County. In any event. of Montgomery was the architect. In ·111Aaw.n.. .. ,,, l'ayelte was signiflcantly reduced In 1906an annex was added to the court· roi,u ,aat 1ealher,n M.dn1oh1 Blue.Royal Bu,gundyor Fo,es1G ,een. Sul)lfbcrafts area. and it no longer bordered the stale house,and Ostling also designedit. n,an1hlpIIUll one 01 Nori h C.Vo1ini·, lead,1111 or Mississippi. On l'riday, March 24, 1911, Payette olloceluml ture""" ulodure,s Otherc ha.rs In 1833. another significant event suffertd its worst disaster. A fire spread w sofasal !lefl!Id._.nb Brodlu By H. THOMASWELLS, JR. and JARRED0 . TAYLOR, Ji ~ Not so many gears ago, real estate sales, asset purchases, and other business transactions were conductedwith little or no concernfor environmentalliabilities associated with the deal. The passage of Superfund and its broadliability provisions, and the even broaderinterpretation given it by our federal court system, have caused environmentalconcerns to be expressedbefore, during and after such transactions. Environmental issues now not only constitute a threshold hurdle for the imaginative lawyer,more often they are becoming the fatal blow to many business tra11Sactions. his article assumes the reader has some familiarity even if there are others "more liable" (joint and several liabili ,vith the primary sources of statutory and com ty), and even if the disposal occurred many years ago, even mon law liabilityfor businessesand financial insti before CERCLAwas enacted (retroactiveliabil ity). It is merely DJtutions , including federal and state environmental his status as current owner that grants him full CERCLAli a statutes and common law causes of action. The impact or bility. these environmental laws and liabilitieson real estate, bank Congress, however,recognized the unfairnessof this liabili ing, and other business transactions is the subject of this arti ty, particularly with regard to undetectable contamination. cle. Congress, therefore, exempted a purchaser of property from cleanup liability if he could establish that he did not con REAL ESTATE TRANSACTIONS tribute to the contaminationand that he did not know or had no reason to know of any contamination. 42 U.S.C. § A. Due diligence and the innocent purchase~ 9601(35).I n order to fulfill this condition, a prospectivepur defense chaser must make some effort to determine if any contamina UnderCERCLA . the current owner of real estate potentially tion is present on the propertybefore consummating the pur has liabilityfor cleanup of contamination chase. This investigationis commonly referred to as ''due dili even if he did not cause or contribute to the contamination, gence". or even if the disposalwas legal at the time (strict liability), Due diligence is defined under CERCLAas "all appropriate THE ALABAMALAWYER January 1992/ 3 l inquiry into lhe previousownership and uses or the property The hazardouswaste regulations h, Alabamn require notice consistent with good commercial or customary practice in in lhe real estate recordsof a specifict ype or hazardouswaste an effort lo minimize liability." 42 U.S.C. § 9601(35). In activity.ADE M Admin.Code R. :J35-14-6•.07(10)(b). This reg order to determine if a purchaser hns met lhe requirements ulation requires that no later than 60 days followingcertlnca , for lhis defense.CERCl..A requires the fact finder lo consider lion of closure or a hazardouswaste unit, an owneror opera· how much eKperienceo r knowledgehe has. if lhe purchase tor must record a notation on lhe property's deed that will price for the propert}•in an uncontamonaled slate is too notifyany potential purchaser that the land has been used to small, common or ascert'linablei nformation about the prop manage hazardouswaste and that its use is therefore reslricl erly and its past uses. the obviousness of lhe presence of ed. Id. For lhe olher requirements or this regulation please contaminants. and the ability lo detect such contamination. refer lo the regulationitself . 42 U.S.C.§ 9601(35). These factors, at a minimum. require some sort of im-esligalionof lhe property.c ommonlyknown C. Environmental Issues In contract as a "Phase I" assessment. Accomplishment of such an negotiation assessment is achieved through an Independent environ Nowhereis lhe la1,yer's imagination and creativity called mental consultant This consultant typically revi~'S public upon more lhan in contract negotiationconcerning the pur records relevant to the site and conducts an actual investiga chase or sale of real eslale or assets, and this is doubly so tion of lhe site. when environmentalissues exist.Th is p;irt of the article iden If lhere is any indication of an environmental problem in tifies potential areas for negotiation and identifies environ· Phase I. the innocent landownerde(ense may well requirt par mental issuesin conlract negotiation. ties to the transactionto Ulkefurl her steps. includingphysical Assumeyou representthe potenliaJbuyer of a pieceo f prop. samplingof lhe air, land or water. This may resull in renegoli· erty. You will advise your client that an assessment or the ation of lhe terms of the transaction or abandonmentof the propertyby a qualifiedconsu ltant is required.I low do the sell· transaction itself. If contaminants are discoveredbefore sale er and potential buyer agree on who performs the environ and the pL1rchaser proceedswith the sale, he no longer will be menUll assessment?It seems wasteful to have two performed. ''innocenl" as to those contaminants discovered at the site since they often cost $5.000-SlO.OOOeach . Perhapsyou allow beforesa le. the broker or nnancer lo choose. Oncea consultant Is select Nol only have cnvironmenllll lnws had an Impact on what ed, it is best lo specifically identify In the purchaseagreement parties may do before a sale, lhese lawsalso have had an effect or closing document lhe consultant and exactlywhat the con· on the way business is conducted after the sale. This is true sultant is to do. You obviously will want to stale whc111aysfor because landowners must also take cerlllin action after pur lhe assessment. Should the buyer pay for it since it benenl!I chasing property in order to maintain their qualificationfor his innocent purchaser defense, or is it a cost that should be lhe innocent landowner defense. 1'hese actions include not borne by lhe seller as a cost of selling lhe property?l.ike many causing any contamination )'Ourself, exercisingdue care if you of lhese issues. it is simplya matter of negotiation. learn or contamination.taking reasonableprecautions against Whal if lhe assessmenl cannot be compleledpr ior lo clos foreseeable acts of third parties, and when )IOU sell lhe proper ing? Can you close the deal wilhout knowing whether a ly you must discloseall knowledgerelating to any contamina cleanup must be conducted,how much it will cost and who is tion. 42 U.S.C.§§ 9601(35).9607(b)(3)(a). (b) . going to pay for il? You can close but you must provide for lhese unknownsor else lenglhy and expensivelililfillion will B. Notice to deed ensue - good for lhe lawyers.bad for the clients. Takecare of lhe contingenciesahead of time. Prior to closing, you may know some sort of cleanup i$ H . Tho,,,.•W elle required, )'OU just do not know howexpensi, -e ii will be. You HT-\ ', .... .>, •on--d could negotiatea maximumsel figure for the seller to bear. or w,eu,,._o1-..-o11.aw ...... _. ___ ., .. £_ providethat the seller willpay for a certain percentageo r the _ l.JOOll!...,CcmMeeo1... u.v-, cosL You could also instr! a provisiongivmg seller or b~r Slct,on ol ... ~ BatAeeoe It Ci t Ind II a lhe right to 110idthe transaction in the C\'ent the proposed ...... - ., ... A8ASl,,cJ,ng ec,,.,,.... on~U >NHeca"""*-'octne cleanupexceeds a certain sum. ~~dl,IAyNldC:00,,.,Fhl',on 6 0... Indemnitiesare commonplaceand fully enforceableagainst the olher party. However.private indemnities are not enforct able against EPA.Thus, a purchaser cannot rely on an mdem• nily from its buyer as a defense to a CERCLAclaim by EPA. The purchaser still has current ownerliability nod will have lo J•....S o. Ta ylor, II Jar,ooo Toylo,, 11ia ,,, none,,, Ql'IIOJ1•.e ol 1."'le sue the purchaser under lhe indemnityagreemenl for recov l.lnl•11 Alabama36652. Phone (205)433 ·8100. McCord, Feld & Hoffman an • :. I Thomas, Meam & Cillla announces nounces the relocation of Its offices to that Donald Maurice Ja ckson has The MasseyBuilding, 290 21st Street. D~ L. Smlth announces that ht becomeassociated with the firm. Offices North, Suite 500. Birmingham.Alabama is no longer associatedwith the firm of are locatedat 3121 ZeldaCourt. and the 35203.Phone (205) 252 -2100. Cullahorn & Hare of Albertville. His mailingaddress is 1'.0.Drawer 5058, M ont Eseun,do, C~ , Pen,z de Varga, officesare now locatedal 20 I NorthMain gomery, Alabama 36103-5058. Phone & Vtllanue11aannounces that Wllllam Slnet, Suite I, Boaz. Alabama35957. (205) 270.1033.The firm also has offiO?S 8. Oli11erhas become a member. The Phone(205) 593-4009. in Birmingham. address is Cl Jose Abascal58, Madrid, Le1lie R. Barlne au announces the Rivet & Peterson announces that Spain 28003. opening of her officeat the TiUeBuilding, Eugenia Hofammann McCIII, Rua Leitman , Siegal, Payne & Camp 300 21st Street, North, Suite 502, Bir· aell Q. Alllion, Susan Scott H'1U, bell announcesthat SUADDeJohnson , mingham, Alabama35203. Phone (205) Valrey w. Early , m, Peggy C. Hook K. Phillip Luke and Daniel R. 254-9200. er, Fl'anlc L Brol9tl, Charles J. Kel· Waten, Jr. ha,oebecome assoc iated with D. Coleman Yarbrough announces ley, Elizabeth H. Shaw, Cleon £, he the firm. Officesa re locatedal The Land the relocationof his officesto 2860Zelda Iarul , Julia Jordan Weller, and LeJgb Title Building, 600 North 20th Street. Road, Montgomery. Alabama 36106. N. Batdln havebecome associates of the Suite 400, Birmingh.lm.Alabama 35203. Phone (205) 277,9559. firm. Officesare locatedat I 700 Plnancial Phone(205) 251·5900. Daniel E. Boone. formerly of llill, Center. 505North 20th Street, Birming. Robert P. Reynold,, Christopher Young & Boone,announces the opening ham, Alabama35203,2607. Phone (205) L,yleMcllwaln and W. Marcua Brah · of his officeat 102S. Court Street, Suite 323-8141. field, formerlywith Hubbard.Waldrop. 414, Florence. Alabama35630. Phone Pittman cli: Pittman announces the Reynolds.Davis & Mcllwain,announce (205)760·1002. relocation of its Mobile office to 1lll the formation of Hubbard , Reynolds, Roland L. Sledge announces the Dauphin Street, 36604. The firm also McJJwaln & Brakefield. Officesare opening of his officeat 4002 20th Ave· announces that Rkhard Puquay has located al 808 Lurleen Wallace Boule· nue. Suite B, Valley. Alabama 36854. becomean associate.The mailingaddress ,,ard. North. P.O. Box 2427. Tuscaloosa. Phone (205)768-4026. is P.O. Box40278, Mobile, Alabama 36640. Alabama35403. Phone (205) 345-6789. E. The rmn of W. Eugene Rutledge an 0278.Phone (205) 433-8383. Kenneth A.,icoclcan d R. Cooper Shat· nounces the relocation of iLsoffices to Vowell & Meelhelm announces that tuck havebecome associates of the firm. 1901Sixth Avenue,North. Suite 1540, James £, Vann, formerlyof Morris & Blume & Blume announces that AmSoutM-larbert Plaza. Birmingham. Vann, has joined the firm and that C. Chayl L. Blume hasbecome associated Alabama35203. Phone (205)254,.0050. Stephen Alexander has becomea mem· with the finn. Officesare located at 2300 ber of the firm. The name of the firm has East UniversityB oulevard. Tuscaloosa. changedand is nowVo-U , Mtelheim Alabama3540-1-4136. Phone (205) 556- & Vann . Offices are located al 1900 6712. Carclntt , Micldlebroob & Fltmlni SouthTrust Tower. Birmingham,Alaba Maumenee & Latour announcesthat announce$ the relocationof ilS officesto ma35203,3200. Phone (205)252-2500. James C. Powell is now an associate. 64 North Royal Street. The mailing The firm of Domlnlclc , Pletcher , Officesare located al 23 North Section address is P.O. Drawer 3103, Mobile, Yelldlni , Wood & Lloyd announces Street, Pairhope, Alabama 36532. The that Victoria VanVallcenbu~ Norris mailingaddress is P.O. llox966, Fairhope hasbecome an nssociate.Offices nre locat· 36533. Phone (205) 928-1492. ed al 2121 Highland A,enue, Birming Clifford lit. Spencer, Jr. announces Richard Wilson ham, Alabama35205. Phone 1205)939· the association of Jennifer Bishop . 0033. OffiO!Sare localedat JOJOCommerce Cen· & Associates Mark C. Monllel and Algert S. Agri ter, 2027 first Avenue, North, Birming. Registered cola , Jr . announce the relocation of ham. Alabama 35203. Phone (205) 322- their lirm. Montiel & Agricola , to 4477. Professiona l Interstate Park Center, 2000 Interstate Wabon, Cammona & Fees announ· Court Repo rters Park Drive,Suite 204, Montgomery,Ala· ces that Charlee B. Pullen, formerlaw bama36109. Phone (205)272-3003. They clerk and staff attorney to Alabama 17 Mildred Street also announce that Daniel B. Autny , SupremeCourt Justice Reneau P. Almon, Montgomery.Alabama 36104 former staff counsel to U.S. Representa· and Brent E. Bierol\YDUha,'I? become tiveSonny Callahan in Washington.D.C., associatedwi th the firm.Offices are local· 264-6433 has becomeassociated with the nrm. ed al 200 Clinton Avenue, West, Suite THE ALABAMAu\WVER 36 /January 1992 800, Huntsville.A labama 35801. Phone & Johnston announces that Henry T. Suite 804. Birmingham.Alabama 35203. (205)536-7423. Morriuette , Allen S. Reeves and J. Phone(205 ] 252-7115. Lovelus & Banks announces that Stephen Harvey havebec ome associated Lang e , Slmpaon , Robinson & Beth Marletta-1.yons has joined the with the firm. Offices are located in Somervllle announces that Nancy C. firm. which will nowbe knownas Love· Mobile, Alabamaand Washington,O.C. Hullh u, Robin W. Andre>11 and lea, Banks & l.yons. Offi~ are locat Martinson , Beaton & Hooper an Nancy A. Davit have becomeassociated ed at 28 North Florida Street. Mobile. nounces that A. Mac Martinson has with the firm at its Birminghamoffice , Alabama36607. N. Bruce Moseley has joinedthe firmas an associ'lte.Offices are 1700 First Alabama Bank Building, becomeassociated with the ftnn. locatedat 115North Side Square.Hunts 35203.Phone (205 ) 250-5000. Stile, & Harbison announcesthat J. ville, Alabama35804. Phone (205) 533- Fann er, Price, Smith, Homaby & Scott Greene has joined the firm as an 1666. Weatherford announces lhat D. Lewis associate In the l,ou isville, Kentucky Andre M. Toffell announces that Terry, Jr. has becomean associate.T he oCfice. Me was formerly associatedw ith Martin S, Lewla has becomeassoc iated mailing address Is P.O. Drawer 2228, Cordon.Silberman. W1ggins & Childsand with his fim1.Offices are locatedat Brown Dothan, Alabama 36302. Phone (205) Bishop. Colvin & Johnson in Birming Marx Tower.2000 First Avenue.North, 793-2424. • ham. Stites & Harbison has offices in Louisville.Lexington and Frankfort.Ken tuckyand Jeffersonville,Indiana. Hut,ert Corporation of Birmingham anl10Wl«$that William w. Brook has Joined the finn as vice-presidentand gen eral counsel. Baker & Jttt announces the reloca tion of its Huntsvilleoffice to 300 E. Clin ton A"enue.Suite 4, 35801.The finn also announces that David L, Rawls has become an associate. Tanner & Guin announcesth e associa tion ofJ. Marland ~ and Herbert £. Browder. Officesare located at 2711 Uni· versltyBoulevard, Suite 700. Tuscaloosa, Alahama35401.Phone (205)349-4300. Booker & Laulter announces that Kevin T. Green has becomean associ ate. with officeslocated at 105South Sec tion. Fairhope. Alabama32532. Phone (205) 928-2658or 1-800-544-3568. Ligh tfoot , Franklin , White & Luca• announces that Sarah Bruce Jacbon , fonner lawc:lerk for JudgeSa.m C. Pointer, Jr., William H. Broob , former law clerk for Judge Truman M. 1-lobbs.S. Dou l(laa Williams, Jr .. former law clerk for Judge R. Lanier Anderson.111 and Joh n Banks Sewell, m, former law clerk for Judge Boycef. Martin. Jr .. have joined the firm as associates. Off1cesare located at 300 FinancialCenter. 505 20th Street, North, Birmingham, Alabama 35203-2706. Phone(205) 581 -0700. Najjar , Denabur11 announces that Jennifer P. Dent. fonner deputy clerk for the U.S. BankruptcyCourt, Northern Districtof Alabama,has joined lhe firm as an as.soclale.Offices are locatedat 2125 Morris Avenue. Birmingham. Alabama 35203.Pho ne (205)250-8400. Hand, Arendall, Bed1ole, Greaves THEALABAMA l..A\\!VER January 1992/ 37 A. Silviculture exemption under Clean Water Act : For the private landowner to fully uti lize property for the production of forest products., an understanding of the Clean Water Act is imperative. Section 404 of the l'ederal Water Pollution Control Acl (known as the Clean Water Act), 33 U.S.C. § 1344, prohibits the discharge of dredged and fill material into "navigable waters,"defined as "waters of the United States", without a permit from the Unit ed States Army Corps of Engineers. The Environmental Protection Agency has genera l oversight authority. In 1977, Congress amended the Clean Water Act to exempt Lhe discharge of dredged and fill material associated with normal sil viculture activities from permit require ments: .. . The discharge of dredged or fill material ... from norma l farming, siJviculture, and ranch ing act ivities such as plowing, seeding, cultivating, minor drain age, harvesting for the production of food, fiber, and forest products, or upland soil and water conserva tion practices . ... 33 u.s.c. § 1344(0(1). The silviculhtre exemption is subject to a recapture provision. found al 33 U.S.C. § 1344(1)(2), which states: Any discharge of dredged or fill material into the navigablewaters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously sub ject. where the now or circulation of navigable waters may be im paired or the reach of such waters be reduced, shall be required to have a permit under this section. For a discussion of the legislative his tory of 33 U.S.C. § 1344(1)(1) and (2), see Sara Schreiner l(endall. The Silvi cullura/ Exemption oiler Bayou Mar cus, 5 Natural Resources and Environ ment, pages 13, 58 (winter 1991). The exempt activities, including nor- THEAI..ABAMALAWYER mal silviculture operations, have been 1344(()(1) normal farming operation construction of permanent roads. The construed to include activitieswhich are exemption, UnitedStates v. Larkins, 852 Court found BayouMarcus to be in viola part of a continuous, ongoing and estab F.2d 189 (6th Cir. 1988), cert. denied tion of 33 U.S.C.§ 1344 by determining lished operation which (a) do not con 109 S.CL 1131 (1989); UnitedStates v. that (a) the operationsd id not qualifyas vert wetlands to dry land, (b) do not Akers, 785 F.2d 814 (9th Cir. 1986), normal silviculture operations because convert wetlands to a new use, (c) do cert. denied,479 U.S.828 (1986);United BayouMarcus failedto show any history not impair the flow of waters of the States v. Huebner, 752 F.2d 1235 (7th of planting. site preparationor other sil United States or reduce the reach of Cir. 1985), cert. denied, 4 74 U.S. 817 viculture activities, and failedto conduct such waters, a.nd (d) do not modify the (1985), there has been litt le judicial any investigationof prior use, suitability hydrology of the land although the interpretation of the exemption relating or site conditions of the property, and property may, as part of a conventional to normal silviculture operations. The therefore, the operationswere not part of rotation cycle, have lain idle or fallow first and. to date , the only op inion an established, ongoing tree farming for a time. 40 C.F.R.§ 232.3; 33 C.F.R.§ examining the scope of the silviculture operation; (b) even if the exemption 323.4. Other activities which are inci exemption was made in Bayou Marcus applied, the operations, clear-cutti ng dental to or part of an established silvi livestock & Agricultural Company v. timber to establish an even-agedpl anta· culture operation are also exempt. These U.S. EnvironmentalProtection Agency lion, constituted a new use prohibited activities include (a) construction and & U.S. Army Corps of Engineers, No. under the recapture provision of 33 maintenance of forest roads ut ilizing 88-30275 {N.D. Fla. 1989). U.S.C. § 1344(()(2)(see also 40 C.F.R. § best management practices, (bl cultiva In Bayou Marcus the Court rejected 232.3and 33 C.F.R.§ 323.4) which had a tion and soi l treatment to improve claims of Bayou Marcus that its opera substantial effecton the wetlandhydro lo gro1vth, quality and yield, (c) certain tions were entitled to exempt status. gy and adjacent navigable waters;and (c) harvesting methods, (d) minor drainage Bayou Marcus purc hased property in the activities altered the flowof the chan which is incidental to planting, cultiva Florida and conducted certain operations nel of navigable waters of the United Lionor harvesting operations, and (e) on the property including the clear-cut States without a permit in violation of plowing which does not redistribute ting of timber, the fillingof wetlands,the Section 10 of the Riversand HarborsAct, surface material. 40 C.F.R.§ 232.3(c). installation of drainage ditches and the 33 u.s.c.§ 403. Although there have been several decisions construing the 33 U.S.C. § The Prepare simple or complex will s in Neil C. Johnston Alabama 1ninu1es h1i1hA1ton1e ys' Co,nputerNet Nod C. JohnslOl'lIS a work software . The stwe -specifi c partner In the firm ol progmms ask mrdfi/1· Hand. Atcnda!I. B9d mullip/e -choice sole, Greaves& John W~i~rary i11-1he-l>lt111kquestions , 1he11comp ose ston in Mobde. He tailored darnmellfs which can be et/it· receivedhis law oeg,oo lrom the Urv Expert-S1stems ed with your IBM-compatiblewort! vers!tyol Alabama To~mble pro cessing sojiw,1re.User friendly, no School ol Law. He I$ conunands 10 learn. LhOp t&Sentc hairper Doc®}ents son ol lhe Envitc,n. Ti it- \\'ills Lihn1ry's-wide n.triety of 1>rov~ions men1AJLa w Sectiono l lndu des: lhe Alabama Staie Sar, e member oCine Alabama Fo,cstry Associationand u,e author of the Alabama • Scpura1cd1 sposit1ons or • Gran1ing and exer~isc o( • ~loriml deduction trusts Section for the EO'\llcorwnent&lPractice Gvldo, pcrsonul cff,"('ts and reuhy powtrs ofa ppoin1mcn1 with QTIP pl't)Visio~ Manhew Bonde, & Co. (1992) • Cash be QY-eSL'i • Crcxli1 equiv:dency trusts • Pun:hasc of a.nnui1ies • Othc.t' typesof diSPQ$ilions.. Harry Searing 111, progra,ns also prtp ~lrc: Pond • Uvlng willd o:l11r.11ion.-. • F,1mily Irte affidavits • Execu1ion checl:11.sb Harry Searing Pond, • Pov,'(!r.io f auorncy • As..~e, sun1mar'ie~ • Client in1ervicw qucslionnajrcs IV Is an as.socla1e v.,lh: the firm of Hand, TilC Wills L.abr.uy is only OllC'or I.Ss 1at~·~ tlic 1ibr:ttlC$by ACN. including: Inctr Vl\'OSTrusts: Arendall, 8edsole, I louse, Condo ond Con,1 Real Estate S:.ilcs Con1racts; Otrtee und Storr l,.C?asrRiders : Net Greaves & Johnston Leaws : l.imitNI Partnersh ips: Com11\1ortgagesll>eeds of Trus1; Business Si*lt~;Stparn· In MObile. He tlon Agrt~1ntn1S: Sh:irtholder A~rttmtnl..'i: and murt. recelvod his law deg,ee, cumiaude. Only $200 each , with free updates for the first year . ffom Tu!aneUfll vo,si ty He Is a member of C"II Bcrn,cc Williams at 800·221-2972. Specify 5%" or 3'/t" disk. 1/>eM ooll THE ALABAMALAWYER January J992 I 39 The Bayou Marcus Court suggested bottomland or mixed hardwood/pine 1344(0(2), (b) that land clearing and site that the recapture provision, 33 U.S.C. areas and replantingp ine only. The prac preparation methodsand use of bedding § 1344(0(2), would apply, and. there tice usually requires some drainage of constit ute un lawful discharges of fore, a discharge permit would be waler, bedding and other actions which dredgedand fill by redistribution of sur required for any new or additionalactiv may "affect"U,e now of waters.Mowe~r . iace materials (see also REGULATORY ity that affected, as opposed to "im an activityis still exempt if it elevatesthe GUIDANCELETTER U.S. CORPS OF paired," the waters of the United States. bottom of the waters without converting ENGINEERS, land ClearingActivit ies The court apparently failed to realize the wetland to dry land and does not Subject to Section404 Jurisdiction.No. that both elements of the recapture pro alter the flow or circulation of the 90-5 (July 18, 1990)), and (cl that the vision, changes in use and impairment waters.40 C.1'.R.§ 232.3. Some support conversionof a hardwoodor mixedhard of the Oowof water, must be present to for cultivationof pine plantations in wet wood/pines ite to a pine plantation does trigger the recaptureprovision. land areas is gi,-enby EPA Region rv in not constitute an exempt normal silvi The requirement that both elements its draft guidance letter on silvicullure culture operation. be present has been previously noted by exemptions. Draft,Region IV Guidance If the court determinesthat Weyerhaus one commentator: 011 SilvicultureExemption of§ 404(/) of er's operationsare not exempt,restorat ion the CleanWaler Act . and/or mitigation for current and past To trigger the recapture clause, activities may be ordered. Weyerhauser an activity must (1) involve dis maybe ordered to pay the plaintiffs'attor posal of dredged or fill material, The limited applicability neys' fees and restrictions on the use of (2) into navigable waters, (3) for given the silviculture the evenaged regeneration may be made. the purpose of bringing the site into a new use, (4) wiU, the effect exemptionin Bayou Marcus Such restrictions appearto contradictthe Congre.ssional intent behind the silvicuJ of impairing the Oowand circula shouldcause specialconcern ture exemption. SeeKendall. supra, 5 Nal tion or reducing the reach of navi for landownersharvesting Res.an d Envir., al 15. gablewaters. timber in hardwood We have not discussed the definitions Kendall, 5 Nat. Res. and Envir., al 58. bottom/andor mixed of '\vaters of the UnitedStates" or ''\\lel Likewise. the fact that both require lands". or the delineation process for ments must be met for the recapture hardwood/pineareas and wetland classification.Each term is now provisionsto applyhas been recognized replantingpine only. the subject of review and Congressional by the Corps of Engineers. MEMO OF debate. It is expected that lhe statutory GENERALCOUNSEL, EPA , Issues Con silvicu lture exemption will remain cerning the Interpretation of 404(0 of Although no reportedcases havedea lt unchanged through the Clean WaterAct the Clean Water Act, February 1985; with the exact issue mentioned above, reauthorization process,and, therefore, REGULATORYGUIDANCE LET TER there is at least one case presently in lit any evolution of the scopeof the exemp CORPS OF ENGINEERS,Section 404 igation where the central question is tion will be made by administrativeand (f)(J)(C)Statutory Exemptio n for Drain whether a conversion from hardwood judicial interpretation. age DitchMaintenance No . 87-7 (August bottomland and mixed hardwood/pine 17, 1987). site to a pine plantation is an exempt B. Endangered Spec ie s Act Bayou Marcusd irectly affects private activity. Environmental DefenseFund, Private, as well as federal, timber sales silviculture operations by implying a el al v. Tidwell,el al, Case No. 91-467- and silviculture activities can be severely requirement of substantial investigation Civ-5-D (E.D.N.C. July 22, 1991). In Tid limited by the prohibitions of the of the operational history of property and well, a citizen suit filed by environmen Endangered Spec ies Act, 16 U.S.C. restricting any operation different in tal organizations, lhe plaintiffs chal· § 1531, el seq. The ESAi s designed to degree from the historical use or uses lenged an EPA determination that protect listed endangered and threat which existed prior to 1972. BayouMar ongoing silviculture operations of Wey ened speciesan d their ecosystems. Id. al cus may also be read as requir ing a erhauser, involving such a conversion, § 153l(b) . Two sections of the ESA dredge and fill permit for incidental constitute exempt activities.The plain cause particu lar concern for private activities sucJ, as construction of roads, tiffs claim that the Weyerhauser's silvi landowners and timber operations, (I) drainage, bedding, siie preparation, culture activities are not exempt and 16 U.S.C. § 1538(a)(I )(8) which pro even-aged cultivation and use of fertiliz. thus constitute the unlawfuld ischarges hibits the taking of protected speciesby ers and herbicides, which may be con of dredged and fill material. The plain private action; and (2) I 6 U.S.C. § strued as "new" or "additional"ac tivities. tiffsclai m (a} that the harvestingof tim 1536(a)(2)which requires federal agen The limited applicability g.iven the sil ber in lhe privately owned East Dismal cies to insure that their actions, and viculture exemption in Bayou Marcus Swamp and the planting of pine planta those of private parties whose activities should cause special concern for land tions constitute a new use subject to the depen d on federa l action (per mits, owners harvesting timber in hardwood recapture provision of 33 U.S.C. licenses, funding, easements. etc.). are 40 I January 1992 TMEALABAMA LAWYER nol likely to jeopardize the continued Sumner Tract, lhe USF'WS made refer Region I, July 1990. which suggested existenceof a listedspec ies. ence to draft guidelines stating, in part: procedures that rederalan d private par "Take"is defined in the ESAas: ties could utilize to avoid prosecution ••. A landownerwho hasa plan for the unlawfultaking or habitat modi To harass. harm, pursue- hunt, or project that may affect an lkation of the northern spotted owl. shoot, wound, kill, tnp, capture, endangeredspecies has a responsi Thue guidelines were challenged or collect. or to attempt to engage bility to have a qualified person because USFWSfal led lo comply with in any such conduct. document its presenceor absence. regulatory procedures such as proper In this case the speciesis the red notice and public comment rulemaking. 16u.s.c. § 1532(19). cockaded woodpecker. Curren t Sweet Home Chapter of Communities Regulatory definitions of "harass" and guidelines, based on scie ntific for A Creal Oregonv. Turner,Civil No. "harm" include intentional or negligent researchon the species,have deter 91-2218 (D.CL D.C. Aug. 30, 1991). ln acts or omissions, annoying wildlife to mined that fiveyears of document· response to the suit, USFWS rescinded suchan extent that their normal behav ed inactivityis netded to show that the owl guidelines. ior patterns of breeding, feedingo r shel red-coclcadedwoodpeckers have Similar guidelines have been pro tering are disrupted, and acts which sig abandoned the colony site. Then posed by EPARegion IV and are no\\/ in nificantlymodify or degrade their habi we would revisit the site and make draft. These draft guidelinesadd ress the tat in a manner which actually kills or a final determination for the red-cockaded woodpecker and provide injures the wildlife.50 C.F.R.§ l.7.3. lando\\lner ... . suggested silviculture procedures (best Judicial construction of the words management practices) for federal and "harm" and "harass"have broadenedthe Pursuant to the ESA. "any person" private landswhich may host red-cock ~ of "take". The injury need not be found in violationwill be subject to civil aded woodpeckercolonies and habitaL direct or necessarily cause death or and criminal penalties and proserotion, In light of potential ESAviolations, a injury to a listed species,but may mere including citizen suits. 16 U.S.C. § 1540. landO\\lnermay consider defensivealter ly affect the species' habitat. Sierra Club ''Any person"i ncludes individuals.part · natives such as implementing a conser v. Yeuller,926 F.2d 429 (5th Cir. 1991); nerships, corporati ons, associations, vation plan and applyingr or an inciden Pali/av. HawaiiDept. of land and Nat trusts and any other private entity, as tal taking permit. An application is ural Resources, 649 F. Supp. 1070 well as any officer.employee or agent of made by showing the impact on the (D.Ha. 1986). alfd 852 F.2d 1106 (9th federal,state and municipalagencies. 16 species, steps taken to mitigate such Cir. 1988). In shooting actions, courts u.s.c.§ 1532(13). impact, and alternative actions consid have held that actual knowledge or An example of the broad definition of ered by the appli cant. 16 U.S.C. § Intent lo injure a listed species is not "any person" is found in USFWS v. 1539(a). While conservation plans can necessary. UnitedStales v. St. Onge, 676 James M. Vardaman& Co.,fn c. and The be utilized as a defense to a takings F. Supp. 1044 (D. Mont. 1988); United Water Works and Sewer Board of the action. the process can be very time States v. Billie,667 F. Supp. 1485(S.D. Cltv of Birmingham , Alabama, !NV consuming and expensive. Fla. 1987). In a pending case, Sweet 7997AF (U.S. Office or Solicitor. S.E. Enforcementof ESAprovisions, in the Home Chap/er of Communities for a RegionMay 1988)where civil penalties context of privatesilvicullure operations, Great Oregon u. Lujan. Civil No. 91- were assessed against a limber consul hasbeen the subjectof very little judicial 1468, (D.Ct. D.C., June 14, 1991). pri tant who directed and supervised har inlerpretation. However, it should be vate Individuals. communities and tim· vesting operations in an area known, noted that actions to enjoin and restrict ber industry organizations have filed arguably, to contain a red-cockaded logging and timber harvesting opera suit against the U.S.F ish & WildlifeSer woodpeckercolony. Although the action tlons may constitute unlawfulregulatory vice challenging the regulations which brought against the consultant wasulti takingsof privateproperty for which the extendedlhe definitionof "take" lo habi mately settled. it appeared that the par landowner is entitled compensation. tat modificationand to all specieslisted ties with potential liabilityincluded not Nol/an v. CaliforniaCoas tal Commis as lhreate_ned,SO C.F .R. § 17. only the consuHant, but also the sion, 483 U.S. 825 (1987):Florida Rock The U.S. Fish & Wildlife Service has landO\\lner and the logger. Industries, Inc. v. U.S.,21 Cl. Ct. 161, 31 appl!ed the ESApro hibitions to actions The USl'WS,as the primary enforce ERC 1835 (Cl. Ct. 1990); and laueladies which affect species whose presence is ment agency for the ESA.is considering Harbor, Inc. u. U.S., 21 Cl. CL 153, 31 only suspected. For example, timber the adoptionof managementarea guide ERC 1847(Cl. Ct. 1990). harvesting operations on the Sumner lines for use on federal and private Tract in Emanuel County, Georgia, a lands. Cuidelines were adopted for the C. Sllviculture best privately held t:ract, have been delayed northern spotted owl, entitled Proce ~nagement p,. c tlc es and to investigatethe suspected presence of dures leading to EndangeredSpecies water quality red-cockaded woodpeckers. In a letter Act Compliancefor the NorthernSpot The Alabama Porestry Commission written by the USFWS referring to the ted Owl, U.S. Fish & Wildlife Service present ly has in effect two manuals THE AU.SAMALAWYER January 1992/ 4 l describing Best Management Practices Water Pollution Control Act and ADEM require loggers,dealers and other wood for silviculture operations: Admin. Reg. 335-6-6. In recent adminis sellers to implement and utilize pre-har I . Alabama's Handbook of Water Quali trative actions, ADEMh as claimed that vesting and post-harvesting BMl's as a ty Best Management Practices for certain logging acllvllies violated the requisiteto doing buslnes.swith the chip Siluiculture. ALABAMA FORESTRY CleanW ater Act, the AWPCAand AD&M mills. Although the EIS is at present COMMISSION0989 ); and regulations by failing to utilize BMPs, under consideration by EPAand in draft 2. Water Quality Nanagement Cuide causing erosion and sedimentation,the form, the situation illus trates the li1111sand BestManagement Practices wrongfulp lacing of tree tops in adjacent increasedfocus on BMPs. for Alabama Wetlands, ALABAMA streams, and the wrongful use or stream The use of BMP s will be used more PORESTRYC OMMISSION(198 9). crossings. See In the Ma/fer of Capital frequently in contracts between land (Collectively referred lo as ''AF'C VeneerWo rks, Inc., Taffadega Collllfy , owners and lessors, loggers, consultants Guidelines"). Afobama. ADEM Order No. 91-040-WP and mills. Closeattention to operations The 1991 redraft of the AFC Guide (January 31, 1991); Notice of Violation and contractual drafting must consider lines dtfines lhe parties responsiblefor issued March 26, 1991lo U.S. Steel Cor these issues. the implementationof BMPsas includ poration, Georgia Pacific, Tuskaloosa ing those parties involved in the "autho Forestry Services. Inc. by AOEM; Notice D. Pesticides and herbicides ri1.ation, planning and implementation" of Vlolation issued July 3. 1991 to Forest Pesticides and herbicides are part of of a forestry operation. This may include Managers and Consultants, Champion normal silviculture operations. Their landowners,pr ofessional forestry practi and ll. E. Blankenship by ADEM. use, registration and application is sub tioners, forest resource managers, tim Up0n finding such a violation, ADEM ject to the provisions of the F'cderal ber purchasers. loggers, vendors.forest has required, in addition to monetary Insecticide. Fungicideand Rodenticide engineers and "others". See a/so, Don fines, that (a) a stream cleanoul and Act. 7 U.S.C. § 136, et seq.. and stale Burdette.Clean Water and ForestMan restoration plan be prepared and certi statutory requirementsunder the AJaba. agemrnt, Alabama's Treasured Forests, fied by a registered licensed forester, and ma PesticideA ct of I971, AlabamaCode spring 1991, at 9, 11. (b) ab BMP plan e prepared and certified § 2-27-1 (1975). Localgove rnments may BMPs are emphatically described and by a registered professional forester to now regulate the use and application of distributed as voluntary guidelines and permanently control non-point source pesticides and herbicides. including recommended procedures for certain pollution from silviculture activities by those uUliud in silvicullureoperations. silv!culture operations pertaining to revegetatingbanks, establishingstream WisconsinPublic lnte,vmor 11. Mortier, stream management zones , stream side managementzones, and pre"enting 59 U.S.LW. 4T:,5 (1991). ln Mortier.the crossings,r oad construction,ha rvesting discharges of pollutants into wale.rsof U.S. Supreme Court held that PIFRA and site preparation. Historically. BMPs lhe state. The plans must be submitted does not preempt local pesticide ordi have related to voluntary, practical and to ADEM for approval and must be nances. Although the preemption issue economicallyf easible silviculture prac implemented within the lime deter is presently being debated in Congress, tices. Whilethe emphasisand use of the mined by ADEM. landowners.co nsultants and applicators BMPs remain voluntary , the use of The revisions to the AFCGuidelines should be aware of any state or local BMPsis increasinglybeing mandatedby presenlly under consideration may be laws.ordinances or regulationspertain · statute, administrative actions, court considered , in the future , a part of Ing to the use or application of pesti orders and privatearrangements . AOEM's non-point source pollutionpro cides and herbicides.One such local act Certain provisions or the Clean Water gram (which has not yet been developed prohibits aerial spraying of timber in Act require BMPs as a part or state waste or approved). Although the guidelines Shelby County, Alabama. .1971 Ala, Acts treatment management programs, 33 will remainvol untary as far as lheAFCis No. 39, p. 4173, as amended by 1986 U.S.C. § 1288, non-point source pro concerned. the guidellnes may become Ala.Acts No. 86-204. p. 268. gTalll$, 33 u.s.c.§ 1314and 33 u.s.c.§ mandatory pursuant to AOEMr egula Application of pesticides and herbi 1329, and dredge and fill permitting,33 tions. ll is also probable that programs cidts by aerial sprayingis a p0pular and U.S.C. § 1344. Likewise. federal water implementedby the Corpsof Engineers, economicalmethod utilized in silvicul p01lutlon regulations, 40 CS.R. § 232.3 the EPA and the U.S. F'ish & Wildlife ture operationssuc h as site preparation and 33 C.1'.R. § 323.4, require lhe use of Service wlll increasingly mandate the: of clear-cut areas. The method is both BMJ>sfor the construction and mainte useofBMPs. cost-effective and alleviates soil distur nanceof forestroads sµecifying U ,e mini BMl's are being considered as a part of bance. Utilization of aerial spraying is mum baselinecriteria to achie\.'t!exemp t the Environmental Impact Statement not without risk. lt is important to note status under33 US.C.§ 1344(1)(] ). prepared pursuant to an applicationby that common law causes of action exist Failuret o implement BMPs has been private parties for the construction of in cases involving aerial spraying and cited by the Alabama Department of chip mill terminals on the Tennessee drift of the chemicals. In fad , most Environmental Management as a viola River. In this particular case. the EIS reported Alabama cases Involving aerial tion or lhe CleanW ater Act, the Alabama states that the chip mill operator will pesticide application have involved com- 42 / January 1992 THE ALABAMALAWYER mon Jawtheories of recovery for injuries Don't Risk A Valuation allegedlycaused by the drift of pesticides and herbicides from agricultural aerial Penalty . Introduce spraying operations. Cooper v. Peturis, 384 So. 2d 1087 (Ala.1 980):Boroughs v. Your Clients to Business Joiner, 337 So. 2d 340 (Ala. 1976).Fo r a general discussion of pesticidelitiga tion and liability, see Johnson & Ware.Pesti Valuation Services. cide litigation Manual, (New York: John H. DavisUI, PhD, MAI, SRPA, ASA, president of Business Clark Boardman 1991); and Annot., lia Valuation Services lnc., is the only designacedASA Business Val bility for Injury Causedby Spraying or uation appraiserin Alabama. Business Valuation Servicesprovides Dusting Crops, 37 ALR3d 833. Those consulration by the how-,appraisa l reportsa nd expert testimony principles and liabilities relate directly in casesof: to silviculture opera tions in which spraying is conducted. Common law, as 0 Estate planning D Bankruptcy proceedings well as statutory causes of action. exist D Esratesettlement D Mergersor acquisitions in cases involving aerial spraying and D Marica!dissolutio ns D Buy-sellagreements drift of the chemicals. 0 Recapicalizations D Dissident stockholder suits Asdiscusse d elsewherein this article, D Employeestoc k ownership a private timberland owner is prohibited plans from taking, harming, killing, injuring. or harass ing a listed endangere d or Contact John H. Davis al , PhD, MAI, SRPA, ASA threatened species. The prohibition has 4 Office Park Circle • Suite 305 • Birmingham, Alabama 35223 not yet been used to restrict private use P.O. Box 530733 • Birmingham, Alabama 35253 of ~stic ides or herbicides, but was effec (205) 870-1026 tively used to restrict the EPA's approval of a pesticide registration for use on fed eral lands. Defenders of Wildlife v. EPA, 882 F.2d 1294(8th Cir. 1989). Althoug h pest icide regu latio n is enforcedby the Alabama Departmentof Agricultureand Industries, surface and grow1dwater pollution from pesticides is regulated by ,\DEM. Federal and state point source and non-po int source statutes and regulations apply to the use and misuse of pesticides.herbicides and fertilizers in conjunction with silvicul ture operations. Responsible parties may include the landowner, forest consul tant, logger and the applicator. Conc lusion The discussion has touched on several areas of environmental law which affect private timberland owners, silviculture operations and the general practice of At Union Bank, Trust Is Our forestry. While some of these laws are subject to pending litigationand admin Middle Name. istrative interpretation, several major federalacts which will directly affectsi l Offering Solid T rust Ser vice Since 1901 viculture may be changed through the JamesG . Hawthorne.Jr • • Executive VicePresitleni pending Congressional reauthorization process including the Clean Water Act, the Coastal Zone ManagementAct and I UNION BANK& TRUST COMPANY the EndangeredSpec ies Act. • 60 COMMERCE SlllEET I MOf,,'J'GOMERY,AUJ3AM .A/ 205-2402265/ MEMBERrn ,c THE ALABAMALAW YER January 1992/ 43 I OPPORTUNITIES The following programs have been approvedby the AlabamaMa ndatory Continuing legal Education Commission for CLE credit. For information regarding other available approvedp rograms, contact Diane Weldon, administrative assistant for pro grams, al (205)269-1515, and a complete CLEca lendar will be mailedto you. MORTGAGE FORECLOSURES FORECLOSURE & REPOSSESSlON JANUARY Birmingham Birmingham Alabama Bar Institute for CLE Lorman Business Center, tnc. 17 Friday Credits: 6.0 Credits: 6.0 I Cost:$ 105 INSURANCELA W (205) 348-6230 (715) 835-8525 Birmingham Cumberland Institute for CLE BANKRUPTCYLITIGATION rN (800)888- 7454 ALABAMA FEBRUARY Birmingham 18 -25 NationalB usiness Institute, lnc. ANNUAL SKI TRIP/SEMlNAR 14 Friday Credits: 6.0 I Ccst:$108 Steamboat Springs, CO WORKMEN'S COMPENSATION (715) 835-8525 Cumberland Institute for CLE Birmingham (800)888-7454 CumberlandI nstitute for CLE 21.22 23-25 (800)888-7454 BRIDGE THE GAP MrDWTNTER CONFERENCE Birmingham Bim1ingham, Wynfrey HAZARDOUS WASTE IN AlabamaBar Institute for CLE Alabama Trial Lawyers Assoc.iation ALABAMA Credits: 12.0 (205)2 62-4974 Mobile (205)348-6230 National Business Institute, lnc. 24 Friday Credits: 6.0 I Cost: $108 LABOR AND EMPLO\'J\IENT LAW (715)8 35-8525 27 Thur sday Mobile, Admiral Semmes Hotel ALABAJ\tA LABOR AND Cumberland Institute for CLE EJ\tPLOYJ\lENT LAW Credits: 6.0 I Cost: $125 19 Wednesday Birmingham (800)888 -7454 BANKRUPTCYLIT IGATION LN NationalB usiness Institute, Inc. ALABAMA Credits: 6.0 I Ccst:$108 30 Thursday Huntsville (715)835-8525 HAZARDOUS WASTE National Business Institute, lnc. Birmingham Credits: 6.0 I Cost:$108 National BusinessI nstitute, Inc. (715)835 -8525 28 Friday Credits: 6.0 I Cost:$108 ALABAMA LABOR AND (715)835-8525 EMPLO\'J\IENT LAW 21 Friday Huntsville 31 Friday J\IUNICIPAL COURTP RACTICE National Business Institute, Inc. NURSING HOME LAW AND PROCEDURE Credits:6 .0 I Ccs/:$108 Birmingham Birmingham (715) 835-8525 Cumberland Institute for CLE Cumberland Institute for CLE (800)888-7454 (800)888 -7454 BANKINGLAW Birmingham Alabama Bar Institute for CLE Credits:6.0 (205)348 -6230 PLEASE HELP US •.. We have no way of knowing when one of our membership is deceased February 29 • March 7 , 1992 unless we c1renot ified. Do not wail tor someone else to do it: if you know SKI SEMINAR of the death of one of our members, please let us know. Snowmass, CO Alabama Trial LawyersAssociat ion (205)262- 4974 • 44 / January 1992 THE ALABAMALAW YER HONOR ROLL BetweenNouember 2 and December13 , 1991the followingattorneys made pledges to the Alabama Stale Bar BuildingFund. Their names will be induded on a UJQ]f in the portionof lhe buildinglisting all contributors. Theirpledges ore acknowledgedwith gratefulapp reciation. (Fora list of those makingpledges prior lo November2, pleasesee previousissues of The Alabamalawyer.) EberhardE. Ball James RayOwen PamelaWillis Baschab FurmanMichael Haney LittleDick Owen , m WadeHampton Baxley GeorgeR. Irvine, Ill John MalcolmPatterson GeorgeLamar Beck, Jr. John MannJ ohnson RoyHarding Phillips BaylessEdward Biles. Jr. RichardCobb Lacey Lee McWhorterPope William MarionBowen, J r. James Patrick Logan MaxC levelandPope , fr. Jesse NormanBradley, Jr. TimothyB. Loggins Joel WardlawRamsey LoriStutts Collier Charles H. McDoug ie, Jr. DennisRichard Sand lin ElizabethD. Eshelman John C. H. Miller, Jr. Sam W. Taylor PhilipAloysius Pa.ix , Jr. JamesWilson Mitch ell RobertAlan Wills WilliamHenry Filmore BettyCorina Moore William C. Younger GeorgeBrady Cordon Lany WadeMorris Lee H. Zell THEALABAMA LAWYER January 1992/ 45 Expensive, Confusing .And Possibly Jail Time Introduction This article is designed to facilitate pitfallsi n the nev.•law , and il is difficult Allo( us ha,,e heard or the Clean Air that processby presentinga broad over Lounderstand any Portion of the new Act. and some o( us are even familiar view o( the impactof the 1990Amend law without a thorough knowledgeor with the Clean Air Act Amendmentsof ments in Alabama. This article will the entire CleanAir /\ct. 1990 ("1990 Amendments"). Por the assist those attorneys who are some Much of the criticism surrounding most part. however.the general percep what unfamiliar with the law's provi the new legislation Is centered on the tion of this lawhas been lhat it is or con· sions by providing a read)•-mademm resulting costs imposed on an already cern only to the steel companies, utili· mary of its general application. Prom weakenedUn ited States economy.The ties and manuracturing operations and lhal starling point, those of us who will 1990 Amendments will impose enor their attorneys. Unfortunately, under have to confrontthe complexitiesor the mous costs on businesses and con the recent t 990 Amendments,this is no Clean Air Acl, to keep our ·•momand sumers. and, when fully implemented, longer the case.Any attorney represent· pop"'(and larger)clients out or jail, will will cost businesses an estimated $20- ing clients such as dry cleaners, print be. it is hoped, aided in attempting to 35 billion annually. In turn. affected shops. funeralhomes and bakeriesmust resolw specificair qualityissues. businessesin Alabama,, •ill be forcedto now be sensitiw io the impact or this pass this expens, on to customers legislation. Unfortunately, the CleanAir Background concoming Clean lhroug)lhigher prices for goods and ser Act is much more difficult to under Ai, Act Amendments of 1990 vices. While large companieswill face stand than manyother statutes. Indeed, Recent amendmentsto the Clean AiT the agonizing.but unavoidable.process getting a grip on the basic require Act represent the most complicatedand of passingon these costs to consumers, ments of the 1990 Amendments re far-reaching environmentallegislation a number o( small businesseswill not quires sheer hard work. F'irstand fore ever enacted. President Bush signed be able lo absorb the initial cost of most, the praclilionermust understand into law the Clean /\ir /\ct Amendments meeting the compliance requirements the overallsta lutory scheme,as well as of 1990on November15. 1990.Pub. L. for the new legislation, and may be the interrelationshipor the variousseg No. 101-549, 101st Cong.. 2d Sess. forced either out or business or into ments or the statute. (1990).There are manyrestr ictions and bankruptcy. 46 / January 1992 Tl IE ALABAMALAWYER THE CLEAN AIR ACT AMENDMENTS OF 1990 Supporters of the l 990 Amendments nessestha t havenever before had signir plement the operating permit program claim that despite the S20-35 billion icant emission concerns. Moreover. mandatedby the 1990 Amendments. annual cost. the nation's health-care numeroustypes of businessesthat prob costs will be ewn higher if the existing ablydo not view themselvesas tradition· TITLE V air qualityis not improved.At the same al "air polluters• nowwill be requiredLo Permit provisions lime,however, lhe publiczeal {Qr "clean obtain operating permits. For e.' sions. Title I also contains stringen t such other amount determined by EPA TITLE I Attainment and maintenance permit requirements (or sources regu lo adequate ly renect the reasonable lated by the nonattainmenl provisions costs of the pem1itprogram. of national ambient air quality which are in addition to the general D Earty pt,rrr t fees proposed tor alandarda permitting provisions of the 1990 In resp0nselo the failureof certain ur Alabama Amendments. An affected source may ADEMrecently approveda system of ban areas lo meet the 1970 and 1977 also fall under additional regulations if clean air feesto be paid in ad\'3flceor the Clean Air Act's national ambient air it expandsor modifies its existing 01>tr· requirementto obtain an operatingper· quality standards. Tille I of the 1990 ations due to the new source review mil under Title V of the 1990 Amend· Amendments mandates the control of regulationsbeing triggered. In addition, ments. The early permit fees will raise criteria pollutants, which are emitted each state in which a nonattainment approximately $12 million between from numerous and diverse mobile and area is located will also be required to 1992-1995 to enhance lhe resources stationary sources. Pub. L No. 101-549. submit SIP revisionsto complywith the available to AOEMf or implementation 101-111 (1990). The six criteria pollu· requirements of the 1990Amendments. of the permit program in Alabama.The tants for which EPA has established Tille I also contaim numerous other early fees will be based on actual emis NAAQSare ozone. lead, sulfur dioxide. control measures mandated for specific sions of regulated p0llutants and will be particulates, nitrogen dioxide,and car nonattainmenlareas. These controls in· phased in over the three-year period. bon monoxide. Each air quality control elude tighter standards on motor vehi Larger sources emitting 1,000 tons per region must be classifiedas a nonattain cle emissions, additional industrial )'ear or more. per p0llutant, will be obli ment areaif a violationor the air quality source controls, use of alternativeclean gated lo pay the early lees beginning in standards occurs within the region. fuels, and other control measures de 1992and all sources emitting 100 tons States arc required to developSta le Im pending on the severityo f the problem. per year or greater, per pollutant. will be plementation Plans to control sources Por example. in areas ranked serious, obligatedto pay beginning in 1993and emitting the p0Uutantswithin the des· severeor extreme,gas stations must in 1994. lgnatedareas. stall hose and nozzle controls on gas Title I establishes the framework for pumpsto capture fuel vapors. E ProposedEPA permit regulations addressing 01.0ne nonattainment by EPAhas alreadyreleased its prol)()Sed creating fivep0llution categories:mar TITLE Ill permit regulations designed lo imple ginal. moderate. serious. severe. and Hazardous air pollutant• ment the permitting provisions of the extreme. with attainment deadlines of Tille 111of the 1990 Amendments 1990Amendments. 56 Fed. Reg. 21.712 three, six, nine, 15, and 20 years, re· focuses on hazardous air p01lutants,or (May 10. 1991).The regulationsaddress spectively. Birminghamis the only non air toxics, as opp0sedto the six criteria the specific:sources that will be required attainment area in Alabamaand is clas pollutants regulated under Title I. Pub. to obtain an operatingpem1il under the sified as a marginal nonattainment L. No. 101-549, 301-306. Toxic pollu requirementsof the 1990Amendments. area. The required air quality standard tants controlled under this section tend It should be nol"edlhal under the pro for the Birmingham area must be to be less widespreadthan the six crite posed regulations, 1::PAis considering achieved by November 15. 1993 or the ria pollutants contro lled under lhe deferingthe requirement for most non area will have to satisfy the more strin nonattainment provisions,but often are major sources to obtain a permit for five gent requirements for a moderate associated wilh more serious health )'tats from lhe effectivedale of the per· nonattalnment area. Nearby.Atlanta is issues such as cancer, neurologicaldis mit program. EPAbased its decision lo listed as a serious nonattainmenl area. orders and reproductive dysfunctions. providefor such a deferment,in part, on The primary goal or Title I is to ror uample. according to Its sp0nsors the fact that it did not believe the state reduce urban smogwhicll is formed in in the Congress.a study by Tulane Uni permitting programs would initially be the atmosphere from a reaction caused versitywhich dealLwith p01lutant-relat· able to handle the task or issuing per by emissions of volatile organic com ed health problems reported the lung mits ror both major and non-major pounds ("VOCs") and oxidesof nitrogen cancer rate for residents living within a soura.s. Moreowr, EPAdoes not believe ("NOx") . Under the 1990Amendments , mile of major chemical plants is four the deferment will have a substantial smaller sources,emitting as Jillie as ten limes the national average. impacton air quality progressinitially. tons per year of a VOCor NOx,wil l be By virtue of their emission or Lhefol r Add,tl0'1al more stringer" state required to install stringent controls. lowing hazardousair pollutants. se\'eral petM11tt,ngrequirements Specifically, in a marginal nonattain common industries will be affected by TitleV specifica lly providesthat a state ment area such as Birmingham, any the limiting provisions of Title Ill : can establishadditional, m ore stringent. source actually emitting or having the p0tential to emit more than I 00 tons • printing shops (Tolueneand Xylene) permitting requirements. Any require • dry cleaners (Telrachloroe-thylene ments that a state develops, however, per year or a voe or NOx will be required to install reasonably available and Perchloroethylene) must be consistent with the national • gasolinestations (Benzene) permittingrequirements of the Act. control technology to reduce its emis- THE ALABAMALAWVER 48 / January l992 THE CLEAN AIR ACT AMENDMENTS OF 1990 • fUMralhomes (rormaldebyde) taken by EPA, many industries within ensure that sources that account for at • hospital and laboratory sterilizers Alabama may fall under these new least 90 percent of the aggregate emis (Ethyleneo xide) stringent regulations ~n though Ibey sions of each pollutant are subject to • metal nnlsht rs (Chromium com e.mitconsiderably less thanten tons of a technology-basedstandards by Novem pounds) particular pollutant. ber 15,2000. • bakeries( l-lydrocarbonethano l) • auto body finishersand painters, fur C. I.Jstol source caregor,es D Area SOIJrceprograms niture painters (Hydrocarbons) In addition lo the list of 189 pollu Under the act, special attention is to tants, EPAmust publish a list of all cat be given to area sources of hazardous The low thresho ld on emissions of egories of sources of the listed pollu air pollutants present in urban areas. these substances and others ensures tants that will be subject to the Title !Tl EPAmust conduct a study to identifyal that many small businesses now will be regulations. EPAproposed to publish a least 30 hazardous air pollutants that forced lo address clean air limitations final list of source categoriesby Novem present the greatest health hazard in with an unprecedenteddegree of speci ber 1991, but as of this writing, £PAhas the largest urban areas and ensure thal ficity. One exampleof an industry that not done so. £PA also must list cate those industries representing 90 per may face enormOu.\costs foTinstalling gories of seven specific p0llutants to cent of the area emissions of the 30 compliance equipment is the automo bile body shop industry. where compli ance costs for individual body shops may be as high as SI 00,000. McKee, ·Clean-Air Rules Affect Small Firms; Nation'sBusiness, July (1991). A Regulated pollutants The act establishes an initial list of HELPING Hl9 hawrdous pollutants for regulation through technology and health-based standards. EPAls required to periodi cally reviewthe list, publish the results NESSES of the review. and revise the list by adding pollutants, when appropriate. Pollutants that may be added to the list include those that present a threat of adverse effectson humnn health or the enviTonment. The 1990 Amendments mandatea two-phasestrategy for reduc tions in emissions of hazardous pollu tants, involving the use or Maximum Achlevnblc Control Technology and For 50years al1orneys. mortgagele nde1's,builders and additional health-based emission stan rcnltorshave called on us lo helpclose on their re1des tate dards. transactions-commercialor residential. Somesay it's becausewe're prompt.0 1herssay it's B Ma101siwrce det,nmon The ad definesa major source of air becausewe're dependable. Mos!.how ever, say it's because toxie5as any stationary source or group with 50years in the business, we know what we're doing. of stationary sources located within a Iryou're in need of title insurance in the next 50years contiguous area and under common or so. callus. \Vc'IIbe here. control thnt emits or has the potential to emit ten tons per )'tar or more of any hazardous air pollutant. or 25 tons per year or more of any combinationof haz· ardous air pollut,nts. EPA may recog Mlulssippl Valley TIHelnsuronce Company nize a threshold lower than ten tons if a 1lllrnr, Ofli-.e: J;icksoo. ,\hssi.ss1pp1 , .ii~ Tumb1ebN•, 1>.Q l lra\\'t•r2428 particular pollutant is deemed extraor 1-601.'.lt,q.ont dinarily hazardous In smaller amounts. Therefore. depending on the approach THE ALABAMALAWYER January 1992I 49 THE CLEAN AIR ACT AMENDMENTS OF 1990 hazardous pollutants are subject to involvementin enforcement and admin violations. The criminal sanctions that regulation no later than NovemberI 5, istrativedecision-making. All or the new can be handed down by EPAare sepa 2000. Therefore. numerous businesses penaltiesare designed to make noncom rated into five categories under Section not regulated under the other provisions pliance with the 1990 Amendments 701(c) based upon whether the criminal of the 1990 Amendments may faceaddi much more expensivet han compliance. actions were knowing or negligent vio tional regulations if they fall under the Administrative penalties have been lat ions. The government also has area source controls. An "area source" is increased to $25.000 per day (with a enhanced authority to impose adminis basicallyany sourceof hazardousair pol limit of $200,000per violation), but this trative, civil or criminal sanctions for lutants, excluding automobiles, that is cap does not precludeEPA from seeking the failure to pay a required fee due not a major source. Preliminaryresults recovery orany economic benefit that under the 1990Amendments. of research on area source controls are may havebeen realizedas a result of the Section 707 of Title VII also revises to be reported by EPA no later than violator's failure to comply with the Section 304 of the 1977 Clean Air Act November15 , 1993, and a comprehen Clean Air Act. For sources that fail to with respect to citizen suits. Citizen sive national strategy for control of area comply with the 1990 Amendments' suits are now expressly authorized to source emissions of hazardousair pollu provisions. the severity of penalties enforcea 1v ide range of actions required tants in urban areas based on informa available to the government has been under the new 1990 Amendments.For tion gathered through the research pro increased significantly (particularly for example, citizen suits may now be uti gram is to be submitted to Congressno offensesdeemed to be "knowing"), and lized to enforce the provision which later than November15, J 995. requires a person to obtain an operating permit under Title V of the 1990 Title IV By any estimate, the Amendmentsand can also be utilized to Acid deposition control 1990Amendments will be enforce compliancewith the conditions Acid deposition, or acid rain, is cov or an operatingperm it. Citizen suits are ered in Title IV of the bill. This title sig the most sweepingand also authorized to compel EPA to take nificantly limits emissions of sulfur costlyset of environmental action when the suit alleges that an dioxide (S02) which is a precursor of action has been "unreasonably delayed". acid rain. Title IV provides for an inno laws the United States Additionally, beginning in November vative "market-based'' approach to allo has ever adopted. 1992,penalties may be imposedfor past cating and enforcing the acid rain violations if it can be shown that U1e reduction program through the use of the allowable fines and prison terms violations have been repeated. Citizen an allowance trading program recom double after the first orrense. Even suits may no,~a lso be brought in the mended by President Bush. An allow rep0rting and recordkeepingviolations federal courts of appeal to challenge ance is a federal authorization to emit are included in the broader range or deferrals of action "where a final deci one ton of S02 in a specified calendar activities now subject to criminal sanc sion by the EPAAdministrator defers year or a subsequent year, if it is not tions. Other new administrative penal performance of any non-discretionary used in the specified year. Holders of ties include a "field citation" program statutory action to a later time". the allowances are prohibited from that will allowEPA to issue a "ticket" for emitting S02 unless they hold an equiv Conclusion minor violations of the 1990 Amend alent number of allowances. By any estimate, the I 990 Amend ments. Each ticket will be in the ments wiII be the most sweeping and Title VII amount of S5,000 per day for each costly set or environmental laws the Enforcement minor violation, and a hearing, if United States has ever adopted. Esti Title VU includes a number of provi requested, will be an informal hearing mated annual costs do not even begin sions that significantly increase the before the EPArather than an adminis to take into account the costs that com enforcement authority of the federal trative record reviewable by a court. panies may face in providinginput into government under the Clean Air Act. Further, Section ({) of Tille Vll, often the regulatory process. In addition. if Pub. L. No. 101-549,701 -711. This title called the "bounty hunter provision", experienceis any guide, there will also strengthens the available criminal and states that an award of up to $10,000 be tremendous costs for judicial regula civil sanctions and enhances EPA's will be paid to anyone who furnishes tory challenges. The tremendous costs existing authority to imposeadministra informationthat leadsto a conviction or associated with the J 990 Amendments tive penalties for violations of Clean Air civiI penalty under the 1990 Amend will cause an increase in the cost of Act provisionsor State Implementation ments. This award does not apply to goods and services across the country, Plans. The new sanctions include: reports by governmentemp loyeesacting along with a reduction in numerous longer jail terms for company officials, in the course or duty. typesof jobs. In all, there is probablyno greater authority to assess administra Title VJI also provides for stringent segment or the economy that will nol tive penalties, widerapp lication of avail criminal penalties, including fines and bear some direct or indirect cost of the able sanctions, and increased citizen jail terms up to 15 years for a range of J990 Amendments. • 50 /January 1992 THE ALABAMALAWYER ACCESSTO JUSTICE - Establishinga Pro Bono Project By MELINDAM. WATERS uring the past two years. Lhe prO\lisionof pro bono civill egal services to the poor has becomea high priority issue for the AlabamaS late Bar. In m1989. the boardof bar commissioners,In cooper ation with the Alabama LawFoundati on and Legal Services Corporationo r Altlbam,1,comm issioned a surveyo f the legal needs of indigent Alabamians. This survey revealed that though feder.illyfunded legal services programs do much to help, the need for civillegal services still existsamong some of our low-incomecitizens. In responselo the sul'\,eymults. the board of bar commis sioners created the Volunteer Lawyers Program during the stale bar presidencyof Judge W. HaroldAlbrilton, Ill. Its pur· pose is twofold:first. and most important, to assist local bar associationswith establishing well--0rganizedpro bono pro jects through whichattorneys can volunteertheir professional Hon. /faro/d Albrillon.immediate past pmid"1lt of the Alabama Slate Bar,and Phil Adams.lite curr"1llpresident . wereamong the services lo meet the needs of less fortunate Alabamiansfor firs/ bar members lo enroll In the Vo/uniter lawyers Program. civil legal services; and, second, to determine with some Both are shOUITIhere as they umclalluvo /11ntcered for the project degreeo f accuracyth e present levelo f pro bono activityln our duringthe Annual Convention in July. state. There are currently fewer than ten programssponsored by gram. Through the resourcu of lhe AlabamaSlate Bar, the local bar associationsin Alabamathro ugh whichattorneys rep VolunteerLawyers Program can providetechnical assistance. resent indigent clients. However,a number or local associa recruitment and enrollment materials. information on sue· tions are nowconsidering organizing a project for their mem· cessful pro bono projects, speakers, certificates. and other bership.Establishing such a programis not a difficulttask. All items for recognitionof volunteers,and publicity. that is neededis a moli\'atedbar association, a pro bono com· Additionalassistance is a,oailablethrough local officesof a mittee from that bar, and a small amount of lime. There are federallyfunded legal servicesprogram. Relyingon legalser man)•options for delivering pro bono legal services to the vices personnel to administer a portion of a project enables poor; decidingwhich format "'Ouldbe most appropriatefor a the bar membershipto devoteits ,•aluabletime lo policy.mak particularlocal bar associationand surroundingcommunity is ing and actual representationof indigents.For example,client probablyt he mosl lime Reinstatement his client. On demand of his client. Coke October 3, 1991. suspended from the • WUUamDa vid Vaughn, formerlyof filedn motion lo set aside dismissal. The practice of law RussellviJle lawyer H. Birmingham, Alabama.now residing in court gave Coke ten days to life "a suc Ne11Tll.)llor, Jr. for a period or 91 d~ys. Jacksonville.rl orida, was reinstated lo cinct statement as to the nature of each lhe practice of law by order of the Su Taylor was found guilty by lhe Disci claim against each party". Coke did not plinary Board of the AlabamaState Bar preme Court of Alabama,effecti\'e Octo complywith this order and the motion of violating Disciplinary Rules J. ber 28. 1991.IPet. No.91-071 to reinstatewas denied. 102(A)(4), DR 1- 102(A)(6), DR 2· In AS6 No. 90-34(8), the circuit court 1 ll (A)(3). and DR 2-111(8)(2) or the Disbarment s clerk was ordered to pay an Individualall Code of ProfessionalRespon sibilll,11o f • Birmingham lawyer Edward Minor funds held by lhe court belongingt o that the AlabamaState Bar.Said suspension Cob wasdisbarred from the practice of individual, an amount in excess of lo become effective October 3, 1991. law by order of the Alabama Supreme $36.500. Coke obtained this check and IASB No.89-366 (Al & (B)I Courteffective October 3.1991. Cokewas refusedto tum it 0\--er the individual.He, previouslysuspended from the prnclice lhereaner, negotiated the check without • On November 6, 1991, the Supreme of law for a period of six months effec the authority or consent of the client. Court of Alabamae ntered an order sus· tive January29, 1990. Coked eductedo ne-third of the proceeds pending Eutaw lawyerWilliam Sidney Coke \\•as found guilty on April 5, as his fee but l'alledto immediately pay Underwood, Jr , from the practice of 1991 by the Disciplinary Board of the the remainingamount to the Individual. law effecti\oeJuly 15. 1991.for noncom Alabama State Bar of 11 complaints This was done only after the Individual pliance with the Alabama State Bar involving 39 charges of violationsof the obtained the servicesof another lawyer. Rules for Mandatory Continuing Legal Qxle of Professional/?esponsibility. Coke also failed to cooperate with the Education.(C LE No. 91-38) In ASBNos. 89- 103, Cokerepr esented investigationof this complaint. plaintiffs in a civil suit filed September In ASB No. 90-261, Coke. while SUS• Public Reprimands 29, 1987.Subsequent to the filing,Coke pended from practice, became in'"'Ol'"'ed • On November 15, 1991, Wul ey failedto appear in court for a number of in a divorcemat ter on behalfor a client. Thomas Neill of Birmingham was scheduled hearings which resulted in Coke also failed to cooperate with the giwn a public reprimandwithout gener the dismissal of all six defendants. In BirminghamBar Association in investi a I publication. The reprimand was the another case,Coke filed an appealt o the gating this complaint. result of Neill's engaging in conduct Alabama Court of Civil Appeals and, ln ASB No. 89-869. Coke, while sus that adverselyreflects on his fitness lo thereafte r, failed to file an appellate pended from practice, accepted a fee to practice law under former Disciplinary brief. thus causing the appeal to be dis, obtain a divorcefor a client and, there Rule l-102(A)(6)lnow Rule 8.4(g)I. Neil missed. In addition, Coke was found after, performedno legal service for the wasrepresenting a femaleclient during guilty or failing lo cooperate with the client. Cokealso failedt o cooperate with 1990. On September 19.1990, he showed Birmingham Bar Association Grievance Uieinv estigation of this complaint. up at her home In an intoxicatedcondi Committee in their Investigationafter In ASB No. 90-920, Coke, while sus tion. He told the client that his own wife being requested10 do so on liveseparate pended from practice. assisted a client had thrown him out of their home, and occasions. in the prep;iration and filing of a civil that he needed a place to spend the In ASBNo. 89-326.a client paid Coke complaint. night. The client allowedNeill to stay in $500 lo file a civil section. Summary In ASB No. 89-309. Coke failed to her basement. The following morning judgement was granted for the defen. appear before the board or bar commis Neill bought beer with money he had dants,and Cokefailed to informhis client sioners lo be disciplined after being borrowedfrom the client. He stayed at of this fact.Thueafier. Cokeinformed his ordered to do so. (ASBNos . 89-103.89 . her home drinking and talking on the client that ti)e casewas still pendingand 326. 89-643/A), 90-34(8), 90-261, 89- telephone most all the morning. The he would notify her when a court date 869, 90-920,and 89-309) client's daughter was also al home. When the client got home from work was set. Coke also foiled to cooperate • Former Bim1ingham lawyer William with lhe Birmingham Bar Association's she found Neill asleep in his car. Ulti• Sidne}, Underwood, Jr. consented to invest.igation in this matter. mately, another lawyer represented the disbarment.which was effecLiveOc tober client at trial (ASBNo . 91-164) In ASB No. 89-643!A), a client paid 2. 1991. Coke S500 to me a civil action. Subse • On October 4. 1991, Mobile attorney quent lo filing this action. Coke filed a William Edwin JII-.,,was publicly rep motion lo dismisson behalfof his client Su.spenslons ri inanded by the bar for engaging in 1vithout approvalo r prior knowledge of • The Supreme Court or Alabama, on conduct involving dishonesty, fraud, THEALABAMA LAWYER January 1992/ 53 deceit, misrepresentation, and willful flicts betweenr espectiveclients, thereby under DR7-10l (A)(2). The clients' com misconduct, which conduct adversely causing prejudiceto certain of the mul· plaint arose out of Norman's failure to reflected on his fitness to practice law. tiple clients being represented by Sweet. follow through with completion of the Maywas advanced an attorney's fee to IASB No.89-8371 client couple's uncontested divorce for handle a matter for a client. However, five months. Norman ceased communi· • On October 4, 1991, the AlabamaState prior to May'sconclusion o f representa eating with the clients and would not Bar publicly reprimanded Birmingham tion, the client terminated him, where refund their money.The clients went to lawyer Charles E. Clark for willfully upon May promised to return a portion another attorney and had their divorce neglecting a legal matter entrusted to within three weeks.I ASBNo. 90-8681 of the unearned fee. However,May failed him (DR 6-lOl(A)), for failing to seek lo make such refund.IAS B No.87-539) the lawfulobjectives of his client (OR7 - • On October 4, 1991.B irmingham law· • On October 4, l 991, Centre lawyer IOJ(A)(J)l,a nd for prejudicing or dam yer Richard Larry McClendon was Gary Edwin Davis was publicly repri aging his client during the course of the publ icly reprimanded for willfully manded by the Alabama State Bar. Davis professional relatio nship (OR 7- neglecting a legal matter entrusted to was retained to represent the interest of 101(A){3)). Clark filed a lawsuit on him in violation of DR 6-JOl(A). Mc a certain client but failed lo keep that behalf of a client. However, due to Clendon agreed to file an act ion on client informedas to the status of those Clark'sfail ure to attend scheduled dock behalf of a client in January 1990. He matters for which he had been hired. et calls in this matter. the case was dis did not file the complaint until Septem The client filed a complaint against missed for ,vant of prosecution. IASB ber 1990. In the interi m period, Davis who failed to respond to the No. 90-9731 McClendon was not responsive to his request of the bar concerningsaid com client's request for information about plainL Davis' conduct was found to have • On October4, 1991,Montgomery law the status of the case and, at times, led constituted a violation of DR 6-IOl(Al, yer Jesse Eldri dge Holt was publicly the client to believe that certain actions will fully neglecling a legal matter reprimandedby the bar for engaging in had been taken 1vhe11,in fact. they were entrusted to him, DR 7-lOl(A)(J),fa il conduct that adversely reflectedon his not. The client (who was out-of-state) ing to seek the lawful objectivesof his fitnessto practice law. Aformer client of had a lawyer there try to obtain infor client, and DR 7-IOl(A)(3),prejud icing Holt's filed a complaint against him. mation and documents from McClen or damag ing his clien t durin g the Holt's failure to cooperate wiU1 the don. That lawyeralso had no success in course of the professional relationship. grievance committee's investigation of dealing with him. McClendon had no IASBNo. 91-0 1] the complaint was found to haveconsti · contact with his client after July 1990, tuted a violationof Disciplinary Rule J. but did not withdraw. The first lime the • On October 4, 1991, Albertvilleattor 102(A)(6). IASBNo . 89-4921 client learned Lhat his case had been ney Jame s Radford Berry was pub· filed was when the General Counsel's licly reprimanded for making threaten • On October 4, 1991, James Arthur Office provided the information. I.ASB ing statements to witnessesand/or com Tucker, Jr . of Jackson. Alabama was No. 90-9501 plainants who were opposed to Berry's publicly reprimanded for engaging in client. It was found that Berry's actions conduct which adversely reflectedon his served merely to harass or maliciously fitness to pract ice law under DR l- injure another, were prejudicial to the 102(A)(6). Tucker handled a sale for Transfer to Disability administration of justice, and adversely division and deposited SIS,785 in pro· Inactive Status reflected on his fitness to practice law. ceeds to his trust account. He failed to • Huntsvilleattorney William R. Self, (Discip linary Rules 7-102(A)(l). l- make disbursement of U1esale proceeds n has been transfe rred lo disability 102(A)(5)and l-102(A)(6),respectively). for several weeks, despite frequent inact ive status pursuant to Rule 27, IASBNo . 90-9461 demandsthat he do so. When he did dis Rules of Disciplinary Procedure (inter burse the proceeds,so me of the checks im), effective September 3, 1991. • On October 4. 1991, Daphne lawyer were dishonoredby his bank for insuffi James Harold Sweet was publiclyr ep cient funds in his trust account. He ulti rimanded by the Alabama State Bar for mately borrowed money and paid the havingengaged in conduct that adverse checks. Tucker also failed to cooperate Petitions for ly reflected on his ritnesslo practice law with the Officeof the Ceneral Counsel Reinstatement Denied in that he continued multiple employ during the period when the matter was • On November 15. 1991, the Disci ment wherebyt he exerciseof his inde being investigated. lASBNo . 88-2721 plinary Board of the Alabama State Bar pendent professiona l judgement on denied the pelition for reinstatement of behalfof nis client was adverselya ffect • On October4 , 1991, Camella Greene Cecil Wilbur Elledte, Jr. [Pet. No. ed by his representation of another Norman of Birmingham , Alabama 91-041 client, thereby involvinghi m in repre receiveda public reprimandfor willfully senting differing interests. Sweet, in neglecting a legal matter entrusted to • On October 24, 1991,the Disciplinary handling certain matters for a client. her under DR 6-IOl(A) and for inten Board of the AlabamaS tate Bar denied failed to disclose to other clients he was tionally failingto carry out a contract of the petition for reinstatement of Lloyd representing at that same time of con- employment for professional services Earl Taylor. ll'et. No. 91-03) • 54 / January 1992 THE ALABAMALAWYER UniformGuidelines for AttorneyFee Declarations Recommendedby the Indigent DefenseCommittee of the AlabamaState Bar Preface Activities are to be separate ly listed The followingguidelines were promulgated by _ All activities for which compensation ls lhe Indigent Defense Committee of the Alabama ======claimed shall be separately listed on conlcmporn State Bar, and adopted by the Board of BnrComm issioners of ncous time records. In order lo receive payment, activities the Alabama State Bar on November 2, 1990 to assist and must be listed in the appropriatespace.~ in the Fee Declaration guide lnW)lersthroughou t the state with respect to billing pro Form or. if contemporaneous time records are kept in n man udures in casesin which they are appainted by the court to ner that conforms lo the Fee DeclarationForm , the contem represent personsaccused of crimes who have also been deter· poraneous records themselves may be attached to the Fee mined to be indigenl It is the hope of the AlabamaState Bar DeclarationF orm. that these guidelines will provide guidance to lawyers and serve u a standard by which questionable conduct can be _ _ Standard t ime reporting judged. All time shall be declared increments of 0.J Those lawyers who follow the letter and spirit of these hour (six minutes). Counsel may bill for lime guidelines will be protected from charges of impropriety: spent under six minutes at a minimum rate ofO.l. those who do not will have no added protection from charges lo the contrary. In short, these guidelines, though designed = Telephone calls chieffyto aid and assist members of the bar, also stand as this The purpase. not subs/once.of telephone c.ills associalion's self-policing mechanism for questionable fee - should be brieny specified, for example. "Tele practices. phone call to ddendanrs brother re: raising ball" or "Tele The AlabamaState Bar expr~s its sincere appreciationlo phone call to defendantre: trial date." those who dedicate themseh."eSto the representation of those Eachcall should be separately listed (on the contemporane who do not have the means to hire a laW)ltr. At the same time, ous time records, not on the FeeDeclaration Form ). it cautions anyone who attempts to take advantage either of their clients or the State of Alabama (by practicessuc h as dou Mileage ble bllli11g),that abuses of this honorable system will not be The rate for mileagesha ll conform to § 36-7-22, tolerated. Codeof Alabama 1975 . Thisrate is 25 centsper mile. THE Al.ASAMAL<\WYER January 1992/ 55 Expenses defendants or cases directly related lo your clients should be Certain expenses must be approved by the billed as out-of-court time, and your attendance should be ~ appointing judge prior to the time they are justified by an attachment to the declaration. However, in incurred. Section 15-12-21( .... n:_vr .JQ cw~ ·... --~...utt 4NO ClfllC\JI..A1lOfl NOTICE JUDICIAL AWARD OF MERIT NOMINATIONS DUE The Board of Commissioners of 1he Alabama State 8,,r , ,._ :-,, I ... l !_ ~ \.?.}' I .._. , ~J..-t~ , Af~ .. V illj(jl will receive nomlnotlons for the Slate bar's Judicial Award of .~ • • tt, A. h,u--r Ht , _._._.~. n onw-p• rt. ~ ~·, Merit lhrough May IS. Nominations $hould be prepared ..._..'-~---..;;:.- ,,nd mailed to Rq;inald T. Hamner, Secrelary, Board of Bar ·:....:-._:_..__ , -=-- :~:.=::..=.~1!-·---- Commissioners, Alabama State Bar, P.O. Box 671, Mont · - _.. - ·--··----- ..· ----- ..·-··------·---- ..- - -..·-· ·- - -- .. gomery, Alabama 36 101. -- The Judicial Award of Merit ,....,, established in 1987, and - the first recipients were Senior U.S. District Judge Seybourn H. Lynne and retired Circuit Judge James 0 . Haley. ·------·-·-·'"-·--~-- --·..·- -- - The award is nOI necc=rily an annual award. It may be ·-- p,esen1ed to a judgt' whe1her Slate o, l..clcral court, 1rial o, appellate, who Is determined to have contrib uted signlli· ,... .., , _____.. ______cantly 10 the admlnistra1ion ol ju~tlce in Alabama . The t ·- .. -· - - ·-- - - __• ,,_ rcclpienl is presentedwith a cryS1algave l bearing 1he slate _ , _ ·------___ ..l---'--_ b.,r seal and the year of presenl'1Uon. --_..-·--- ··---·..... - Nominations are considered by a 1hree-membe< commit· ...... tee appointed by lhe president of lhe state b;,r which makes ·-----------a recommendation 10 1he board ol commissioners wilh ------rl'Specl IO a nominee or whether the award should be pro _ ..!l!!.- -_-·-~·-..... -- .....-- .. -... scn1ed In any given year. ..-·-· _ ---·--. ...___ --+" !l • .. Nominations should Include a de1ailed blographlc,11 pro ··--- ...... =i= file of the nominee and a narrative oulllnlng the significant ·~-·-·, .. ..ill. ------____ concributionls) the nominee has made10 the admin1s1ra1lon - ol justice. Nom inatio ns may be supported with leucrs of ~ - cndor5emenL .... - •- • - ·- _Ml,--·--·- ...... ---·----...... __ .._ - THE ALABAMA1../\\VYER January 1992/ 57 RECENT DECISIONS By WllBURC. SllBERMAN assessed approximately $90,000 in the benefits offset the harm. The Court BANKRUPTCY unpaid employment (trust fund) taxes, adopted the standard that the proponent plus interest and penalties. The sale of must show substantial identity between New value exception to assets by Kare Kemicals did not bring the debtor and that consolidationis nec preference claim-evidence enough to pay the tax debt in full, and essary to avoid harm or lo realize bene- required the debtor sought approval of a liquida 11!,but, once this is shown, the burden In r11Arrow. Inc., Debtor: Official tion plan requiring the lllS to nrst satis shifts to that of the objectingcreditors. fy principal of the taxes and. thereafter, UnsecuredCfl!ditors ' Commilleeu. Air Obligation of debtor to port Auiation Services, Inc.. 940 F.2d the interest and penalties. Upon ap proval by the bankruptcy court, the continue to pay health 1463 (I Ith Cir. September 4. 1991). 22 UnitedStates appealedand the Eleventh benefits to retirees after B.C.D. 131. The debtor made nine renl termination of wage Circuit reversed. stating that lhe hold payments to Airport ,\viallon Services, agreement Inc. in the 90-day period before bank Ing In In re Energy applies only Lo Chapter II reorganization cases. The In re Chateauuo.1/ Corporation, ruptcy. The Eleventh Circuit overruled Debtor; I.TV Steel Company, Inc. u. the bankruptcyand district courts' find Eleventh Circuit stated thal the reasons for allowing payment allocation in United/tfine Workersof America. f .2d, ings that the paymentswere contempo 22 B.C.D.149 (2nd Cir. September 17. raneous exchanges for new value. The Chapter I l reorganizations. regardless of whethtr such payments are properly 1991). The debtor was obligated to pay appellate court said that as there were health benefits to retirees as long as the substantial balanceswhich had accrued characterized as ·voluntary ". are not present In liquidationc.1ses. wage agreements remained effective. prior to the payments being made dur These agreements terminated after the ing the 90-day period, the Creditors' debtor filed its petition. The SecondC ir Committee had not met the contempo Substantive consolldation of Chapter 7 cases cuit afl1rmedthe lower court's holdings raneous--exchangefor new "alue excep that the Bankruptcy Protection Act is tion which is an affirmative defense to Eoslgroup Properties u. Sou/hem Nola/ Association, Ltd.. 935 f.2d 245 not applicableif the wageagreement has §547, and that the case would be re expired. However. the court did hold (I Ith Cir. July 11. 1991). The appellants manded. thal the Pension BenefitTrust then be It held that a party relying upon the contended that the bankruptcy court and distr ict court erred In a factual comes responsible for the continued exception must prove with specificity provision of these health benefits. the measure of new value given the finding for consolidation of two entities, debtor in the exchangetransaction, and and. further, that there was no legal Right to seek hazardous the challenged payment is protected basis for consolidation . One of the waste cleanup cost s against onl)• to the extent of the specific mea debtors was a limited partnership reorganize d debtor sure of new value shown. formed for holding title and leasehold Motterof PennCentro.I Transportation interest in motel propertie$. The other Compm1g.f 2d. 22 B.C.O.154 (3rd Cir. Bankruptcy court 's authority debtor was a corporation formed to Ct. App.September 19, 1991).Under the to treat tax payment as trust operate the motel. The debtors were old Bankruptcy Act. a consummation fund payments commonly owned; the appellants order had been entered In 1978. In 1986, In re Kare Kemicol, Inc.: U.S.A. u. claimedlhal the unsecuredclaims would under CERCLA,there was a suit brought KoreKemicol. Inc ,. 935 f.2d 243 (11th not be paid if the estates were consoli by the UnitedStates for cleanup of a rail Cir. Jul)• 10, 1991). This was a Chapter dated. The appellate court held that the yard. The U.S. District Court held that 11 liquidation proceeding.The IRS had purpose of substantive consolidation is the 1978 order and applicable bank "lo ensure the equitabletreatment of alI ruptcy law would not. after consumma creditors". It involves the pooling of Wilbur 0 . tion, allow CERCLAto be later asserted Silb e rman assets and liabilitiesof the related enti agninstU1e debto r. The Third Circuit re· \Y1!b1,,tG S,1borm&r1.ol ties, and in a Chapter 11, creditors are versed, stating that lhe consummation tNt 81rm.nghaml:tm of combined for the purpose of voling on order was not a bar becauseCERCLA did w_ ,o.i.... reorganizationplans. not exist at the lime of the order. 1-10\\oev· -- · The Ele-.>enthCircuit concluded that the er , the court did distinguish between basiccriterion is to determine1,i,ether the reorganization and liquidation, and '-"'-""Uruvtfs,ty d Alabama.... ·--· economic prejudice of being separate appearedlo hold that if there had a been end u rned- his law C10Q108 lrom lho Un;. outweighs lhe economic prejudice of a liquidation, its determination would v<1r1lry'1 ScllOOIol Low consolidation- in other words. whether havebeen d ifferent. 58 / January 1992 THEALABAMA LA WYER Imputation to innocent partner the Court concluded that the statute As to the second issue above, the of fraud c ommitted by law firm e.xempting retirement benefits from Fifth Circuit agr«s with the Eleventh In re Calhoun, (1991) WL 191303, creditors was not subservient lo ERJSA Circuit holding in In re lichslroh/, 150 Bky. 01$trict of Columbia.In all probll· but that the pension plan was exempt P.2d 1488. 1491(1985), that the ERISA bility, this casewill be appealed,but the for the bankruptcycsliite. (Actually,two anti-alienation provision is not •other bankruptcy court followed the U.S. cases with similar facts were appealed federallaw". Supreme Court in /n re S/rung v. to the Piflh Circuit). Issues raised in As to the third issue above,lhe Court Braudncr, 114 U.S. 555, 5 S.Cl. 1038 the appeals were: first said lhal ERJSAwill not preempt (1884) which held that fraud of one I. Whetherthe anti-alienation provision unless lhe stale law referslo an employ partner could be imputed to another of ERISAis "applicable bankruptcy ee benefitp lan, but that in In re Shaw v. partner on the issue of dischargeability. law" under §54 l(c)(2) of the Bank DeltaAirlines. 103 S.Ct. 2890, 2900,it regardlessthat the other partner had no ruptcyCode. washeld there is enough relationship"if knowledge of the fraud. The debtor 2. Whether the anti-alienation provi it has a connectionwith or referenceto basedhis defenseon the 8th C.C.A.case sion of ERtSAIs "other federal law" such a plan", and lhal ERISApreempts of Maller o/ lValker,726 P.2d 452. hold· under §522(b)(2)(A) of the Bank the stale law "insofar as" the lawapplies ing Lhatunless the other partner knew ruptcy Code (§522 is the exemption to benefitplans in particular cases,thus or should have known of the fraud. sectlon in the BankruptcyCode). unless there be an applicable exception. fraud could not be charged against him. 3. Whether ERISA preempts the Texas The Fifth Circuit then held that EIUSA The bankruptcyj udge held that the lan exemption statute. does not exempt slate laws which ( I) guage of the U.S. Supreme Court con· As to the first Issue above, the Piflh assist In the implementation and en trolled, and there was no reason to Circuit panel determined that the forcementor other federallaws. and (2) believeCongress intended to make sul> ERtSAanti-alienation provision does are consistent with other federal laws: s1.1nti,-echanges in the 1978Code. not seclude pension funds from the the Texas statute assists in the Imple bankruptcy estate unless lhe pension mentationand enforcementof the spirit Bankrupt c y judge allow s plan qualified under state law as a of the BankruptcyCode Logive a debtor c urrent rather than billing "spendthrift lrusl ". and thal under a fresh start, and, thus, ER/SAdoes not rate s at time of performance Te~s law.il "'ould not so qualify. preemplit. (emphasissupplied) • of s ervices In re C-OmmarcialConsortium of Cal· ifomiu, Bankr. No. L.A.86-l0794 (Octo ber 22. 1991). Legal services were incurred during the first four years of the case. The attorney for the trustee had been paid nothing. Regularbillings al the time of performance"-ere approx· imately$3.000 less than al the time of LANDTECH86 the application. The bankruptcy judge Real Estate Settlem ent System in nn extendedopinion relative lo fees, parllculnrly Interim fee applications.in For Lasero r Matrix Pri11ters which she said the four-month intervals are unfair to attorneys as being unrea sonably long intervals. held lhal when • HUD 1 Automatic Calculations there is a delay in payment. counstl • Checks & EscrowAccounting should not have to bear the full brunt or • Word Processor - Spell Check lhe resulting financialimpacL One 1,-ay Policies & Commitments to prevent this is to allow current Deeds& Mortgages hourly rates. As a basis for her holding, • Data Base Reporting (SQL) she cited /11re Pennsylvania u. /)(d/1/IJ(JTI! Valley Citizens CouncH for Clean llir, • On Site Training Available 107S.CL. 3078 (1987)an d /11re law/er. 807 P.2d 1207, 1212 (5th Cir.1988). $1,495.00 State exemptions laws are not preempted by ERISA In /ht Maller of Marshall J. Dyke. LAND TECH P.2d B.C.D. 233 (5th Cir. October 15, CORPORATION (407) 833-0454 1991). The U.S. Supreme Court un· doubtedly musl solve the legal question 303 Guaranty Building • 120South Olive Avenue • West Palm Beach, Fl. 33401 o( stale exemption statutes and their te11sio11swi th federal law. In this case, THEALABAMA LAWYER January 1992/ 59 Consultant's Comer The followingis a rwiew of and commentaryon an officeautomation issue that has currentimportance to the legal community, preparedby /he office automation consultant lo the state bar, Paul Bornstein, whoseuiews a re not necessarily/hose of the state bar. This is the 23rd article in our "Consultant's Comer· series. We would like lo hear from you. both in critiqueof the articlewritten and for suggestionsof topicsfor future articles. Strategy for the '90 s tive are not one and the same. Another be as rigorous as that of billable time. As the '90s come of age, the question view is that of a strategy as a set of be Utilization, the ratio of billed hours to naturally arises: "What is the strategy, if haviors that can lead to certain rewards. hours worked, must be 80 percent or any, for the '90s?" I feel very strongly better. Howcan you pace yourself if you that Focus do not record all your hours? -Everyone must have some strategy, Except for urban mega-firms and Firm meetings for purposes of deci and rura l sole practitioners, no one these sion-making and mutual enlightenment -Every viable strategy must include days should attempt to represent him must be rigorously controlled. Mutual focus, efficiencyand a wary approach to self as a generalist in the classic tradi enlightenment meetings (everyone pres expansion. tion. Law has become increasingly com ent) can be controlled by the use of plex, and the spectre of certification agendas and scheduling them for 7:15 Need for strategy looms as an uncertain cloud. Will lay a.m. ,11itha planned end time of 8:45 Strategy is not just for soldiers, politi people seek to identify with only certi a.m. Decision-making can be simplified cians and corporate moguls. It even fied practitioners, as they generally do by assigning various functional areas to applies to law firms; in fact, it applies with doctors? different partners who are authorized to particular ly to law firms since so few The prudent strategy would seem to make decisions within certain parame have a well-defined strategy. Consider suggest that small- and medium-sized ters. A decision once made can be the followingdefinition of "strategy" as firms seek to focus their practice. The announced to the other partners with a it applies to law firms: focus need not be limited to a single memo of the form " I have directed". "Strategy is the sum of the prac practice area, such as patent law or Partners objecting, or seeking amplifica tice-sensitive decisions i.ntended labor law. The focus, however,ought to tion. can meet with the action partner to insure that the firm reaches the be on a group of related practice areas prior to the effectivedate outside of nor end of the decadeas a viable entity that at least have the appearanceof syn mal working hours. in a posture at least as healU1yas ergism. There is a payoff in this strategy the firm's posture at the begin beyond mere client identification. Think ning of the decade." Expansion of the economies of library purchases, The uncertainties of U1eeconomy, the Do not mistake strategy for goals. associate cross-training, secretarial uti- such as make more money, have a more overcast of further state and federal 1ization, business development. and involvement in law practice. and the enjoyable life-style, spend more time marketing. Lay people have a primary with my family, etc. These are laudable continuing oversupp ly of law school care physician. yet regularly see other graduates to the private sector all sug in themselves, but they are not a strate· specialists. Lay people (and corpora gy. A (well-developed) strategy merely gest extreme caution when it comes to tions) may well be on the way to a simi the significan t growth. This applies enables one to have a chance at reach lar set of relationships, and on ly the ing one's goals. In a sense, a strategy is a equally to internally generated growth. megas and the solos will have exclusive as well as to merger. The caution applies road map laying out the route to one's ··ownership" of clients. objective, but the route and the objec- both to professionaland support staff. Havingto lay off someone (generally a Effic ienc y person with a family to support) is No matter your focus, even if you much more painful than passing on that BARDIRECTORIE S have none, all lawyerswi ll have to learn person in the first place. Beforeco nsid to practice more efficiently. This effi ering any expansion, make sure every Bar directories will be mailed this cienc-ym ust be reflected in both individ one is at or near capacity and the monlh. Exira co pies are $15 each. ual practice and firm management. The prospects for future work are at least Sendchecks or money orders 10: key to individual efficiencyis lime man modest to good.By capacity. the profes Alabama Bar Directory agement and the key to time manage sional staff, on average, should have a P.O. Box 4156 ment is thorough, scrupulous-to-a-fault utilization factor of 80 percent and a Montgomery, Al 36101 recordkeepingon a daily basis. The doc realization factor (ratio of effectiverate umentation of non-billabl~ time must to budgeted rate) of 90 percenL • 60 I January 1992 THEAI.ABAMALAWYER I Request for Consulting Services Office AutomationConsulting Program SCHEDULE OF FEES, TERMS ANDCOND fflO NS Finn Size• Ountion .. FH Asg. Cost/lawyer I I day $ 500.00 $500.00 2-3 2 days $].000.00 $400.00 4-5 3 days $1,500.00 $333.00 6-7 4 days S2.000.00 $307.00 8-10 5 days $2.500.00 $277.00 Over10 $250.00 •Numbtrof la\\')'elS only(excluding ol ctHm.Se/) .. Durationrtftrs to the plannedon-prtnust timt and doesnot includetime SJ)tntby the consultantin his ownoffice while preparing documentation and recommendlltions . ------REQUESTFOR CONSULTINGSERVICES OFFICE AUTOMATION CONSULTINGPR OGRAM Sponsored b)' AlabamaStale Bar THE FIRM f'irm name______Address______City ______ZIP_____ Telephone#______Contaclperson______Title______Numberor lawyers__ paralegals__ secretaries__ others Officesin olhercities?______ ITS PRACTICE PracticeAreas (%) Litigation Maritime Corporate RealEstate Collections Esl.'llcPlanning L.lbor Tax Banking Numberof clients handled annually Numberof matters presenllyopen ______Numberof matters handled annually Mow often do you bill? EQUIPMENT Word processingequipmmt (ii any) ------ Data processingequipment (if any)------l>icla!lonequipment (if any)______Copyequip ment{i Fany>------Telcphoneequ ipment______ PROCRAM % of emphasisdesired Admin.Audit WPNeeds Analysis DPNeeds Analysis __ _ Preferredlime (l)W/E ------(2)W/E ------Mailthis request for servicelo the Alabama State Bar for scheduling. Sendto the attention of Margaret Boone. executive assistant, Alabama Stale Bar, P.O.Box 67 1, Montgomery,A labama 36101. THE ALABAMALAWYER January 1992/ 61 SUMMARIES OF GENERAL LAWS ENACTED AND CONSTITUTIONAL AMENDMENTS PROPOSED by the Legislatureof Alabamaat the FIRST SPECIAL SESSION, 1991 September 9 through September 24, 1991 PreparedBy lEGISlATIVEREFERENCE SERVICE AlabamaState House• Montgomery.Alabama 36130 • (LRS91-1725A) INDEX of Summari es of General Law s Enact e d and Con stltutlonal Amendment s Proposed by the Le gislature of Alabama at the FIRST SPECIAL SESSION, 1991 Act No. BIii No. Act No . BIii No. Act No. BIii No . Act No. Bill No . Act No. Bill No. 91-734 II. 18 91-786 H.47 9J-i93 S.46 91-805 H.37 91-818 H.36 91-735 H.53 91-788 H. 76 91-794 S. 62 91-807 S.43 91-814 H.6 91-736 S.12 91-789 S.35 91-795 S. 52 91-808 s. 4-1 91-815 H. 16 91-737 s. 13 91-790 S. 55 91-797 H. li 91-809 S.2 91-82-1 H.38 91-738 H. 8 91-791 S. 60 91-798 H.62 91-811 S.47 91-828 H. 10 91-750 S.3 91-792 s. 70 91-804 S. 59 91-812 II. 75 SENA TE BILLS HOUSE BILLS S.2 91-809 S.43 91-807 S.59 91-804 H.6 91-814 H.JS 91-734 H.47 91-786 S.3 91-750 S.44 91-808 S.60 91-791 M.8 91-738 H.36 91-813 H.53 91-735 s. 12 91-736 S.46 91-793 s. 62 91-794 1-1.10 91-828 H.37 91-805 H.62 91-798 s. 10 91-828 s.n 91-811 s.70 91-792 H.16 91-815 11.47 91-81I H.75 91-812 s. 13 91-737 S.52 91-795 H.17 91-797 H.52 91-795 H.76 91-788 S. 35 91-789 S.55 91-790 Act No. 91 · 734 , H. 18 , proposes tion 36-15·5. Codeof Alabama1975. re Act No . 91 • 738 , H. a, is the general an amendmenl lo the Constitution re lating lo the Officeof Deputy Attorney fund budget. It makes appropriationsfor lating to the compensationof the judge General. It provides for addjtional per the ordinary expensesof the executive, of probate and other county officers of sonnel and further duties of the Officeof legislative and judicial agencies of the MaconCounty . Attorney General and establishes an state. additionalmeans of fundingsuch office. Act No . 91- 735, H. 53, prop0ses Act No. 91 · 750 , S. 3 , amends sec an amendmenl to the Constitution to Act No. 91 -737, S. 13, providesfor tion 9-11-236, Code of Alabama 1975. provide for the election of the members the app0inlmentof investigatorsfor the relating to the hunting or taking of cer of the Board or Education in the City of Officeof the AllomeyGenera l. It alsopro tain protected birds or animals during Tallassee. vides for the hiring, salaries, expenses, closed hunting season, so as to prohibit Act No . 91 · 736 , S. 12 , repeals sec- authorityand dutiesof such investigators. further the possession thereof and pro- 62 / January 1992 THE ALABAMALAWYER SmowuES OF GENERAL LAwsENACTED AND CONSTf1U110NAL AMENDMENTS PROPOSED = vide further for certain prohibitionsand Act No. 91 · 794 , S. 62, amendssec Act No. 91-809 , S. 2, proposesan penalties. It also repeals section 9-11- tion 32-6-150. Qx/c of Alabama 1975. amendment to the Constitution to pro 239, Codeof Alabama1975. relating to the issuance of personalized vide that t.-ery ma)'Or,sheriff and elect· Act No . 91 -786 , H. 47, providesfor license plates for collegesand universi ed county official shall be entitled to a transfer or funds from the Abandoned ties, so as to include Athens College participate in the Employees· Retire PropertyTru .st ~'undto lhe state general within the colleges and universities ment System. authorized to havesuch licenseplates. fund. Act No. 91-8 11, S. 47, makes an Act No. 91 · 788, H. 76, amends Act No. 91 · 79 5, S. 52, reopens the appropriation from the general fund to sections 35-12-22. 35-12-23, 35-12-25. judicial retirement fund to allowcer tain the Department orConservation and 35-i2-27.35 -12-29,35- 12-31 and 35-12- active and contributing circuit judges to Natura l l~esources, Alabama Animal 39. Codeof Alabama1 975, the "Uniform claim and purchase credit for certain DamageContro l Program for the fiscal Dispositionor UnclaimedProperty Act." service in the executive department of yearending September30. 1992. the state, as a full-timeassistant district so as to reduce lhe st\'l!n-yeardormancy Act No. 91,812, H. 75 , makes ap attorney, deputy district attorney or as period to a live-year dormancy period. propriationsfrom the SpecialEducation an assistantattorney general. providefor a single additionalreporting al Tru5t Fund (or certain public educ:a and remitting date, and providefurther Act No. 91-797 , H. 17, amendsAct tion (unctions performed by the State for the deposit or funds to the general No. 91-252. H. 556, 1991 Regular Ses· DeJ)ilrtmentor Education for the fiscal fund. sion. relating to an annual appropriation year ending September30, 1992.The ap Act No. 91 · 789, S. 35, amendssec from the Public Road and Bridge F'und propriationsare conditionedon determi tion 36-27-15.2,Code of Alabama1975, or the HighwayOep.irtmenl to the De nation by the court$ lhat the attempted relating to credit for out-of-stateservice partment or Public Safety for the pur line-item veto in Act No. 91-732. 1991 in the retirement systems,so as to pro chase or eQuipmenl for traffic law en RegularSess ion, is constitutional. forcement,so as to providethat for fis. vide further for the cost of purchasing Ac t No . 91 ·813 , H. 36, makes an c:al year 1991-92, the purposesf or which such credit. appropriation from the general fund to said appropriation shall be expended Act No. 91·790, S. 55 , amendssec· the Alabama'sYoung Woman of the Year shall be the enforcement of state traffic lion 34-3-2.I, Codaof Alobama 1975, Progrnm and to the America's Young and motor vehiclelaws. re lating to graduates or certain law Womanof the YearProgram for the fiscal schoolsbeing authorized to take the bar Act No. 91 · 798 , H. 62, amends year endingSeptember 30. 1992. sections 40-20-4.40-20·5 and 9- I 7 -26, examination,so as to change the name Act No . 91-814, H. 6 , makes an Codeof Alabama 1975, relating to the or Jones L.lwInstitute to Jones School appropriaHon from the Special Educa filing oil and gasprivilege tax returns, o( Lawand to provide(urtm r for teach or tional Trust Fund to the Attalla City soas lo providefurther for such filing. ers at such lawschools. Board or Education for the rlScal>>ear Act No. 91 · 791, S. 60, amendssec Act No. 91,804, S. 59, repeals Act ending September 30, 1991.for repairs tion 34-3-3,Coda of Alabama 1975, relat No. 631,S. 722, 1977Regular Session, re to an>•city school oomaged by lire. lating tu lhe compensationof lhe Direc ing to admissionfees for applicants to the Act No. 91-815, H. 16, makes an tor or Legislative ReferenceService. state bar, so as to increasesuch fees. appropriation from the general fund to Act No. 91 -792 , S. 70, amendssec Act No. 91-805 , H. 37, amends the Shools lintrepreneural Centerfor the tion 36-6-1 l , Codaof Alabama 1975. section 4 1-9-249, Code of Alabama fisc:alyear ending September 30. 1992. 1975, relating to the oowersand dulies relating to longevity pay for stale Act No . 91 ·824, H. 38, amendssec or the Alabam.iI HsloricalCommission. employees,so as lo clarifythat longevity tions 12,19-171, 12-19-172. 12-19-179. so as Loprovide further therefor. pay shall be paid on the first paydayin 12-14-14and 32-S.313, Codeof Alabama Dece.mberor each year. It also repeals Act No. 91-807 , S. 43 , makes an 1975,re!Ming to court costs.so as to in section 36-21·3,Code of ,llabama 1975. appropriation from the Special Educ:a crease certain costson trafficinfractions relatingto lump sum paymentsmade to tional Trust Fund lo the Blackbelt and to providefor the distributionor the law enforcement o(/icers which are in Human Resources for the fiscal year increase. conflictwith this act. ending September30. 1992. Act No. 9 1-828, H. 10 , gives cer Act No . 91 ·793, S. 46, nmendssec Act No. 91 -808 , S. 44, makes an tain former employees or the Depart tion 22-20-3, Codeof Alabama 1975. appropriation from the Special Educ:a ment or PublicSafety all rights. benefits providing for neonotal testing for cer· tiona l Trust l'und Lo lhe Alabama and privileges given lo other retired taln diseases,so as to authorize certain Leaguefor lhe Advancementor Educa state law enforcementofficers includ ing olher tests and the colleclion or a fee for tion for U1e fiscalyet ir ending Septem a retired badge, a retired commission the newbornsc reening [)rogram. ber 30. 1992. card and a pistol. THEALABAMA LA WYER January 1992/ 63 SUllOWUES OF GENERAL LAwsENACTED AND CONSTllUllONAL AMENDMENTS PROPOSED INDEX to Summaries of General Laws Enacted and Constitutional Amendments Proposed by the Legislature of Alabama at the REGULAR SESSION , 1991 Act No. BIii No. A.ct No. BIii No. Ac t No . BIii No. Act No. Bill No. 91-94 H. 144 91-323 S.459 91-557 H.419 91-602 H.330 91-120 s. 79 91-324 11.55 91-559 H. 593 91-614 H.579 91-121 11.466 91-347 H.389 91-560 H. 870 91-615 H.580 91-122 s. 110 91-356 II. 597 91-561 H.412 91·6!6 H. 287 91-124 II. 374 91-4.,12 S.27 91-562 H. 694 91-617 H.324 91-125 H. 375 91-433 H. 736 91-563 H. 959 91·618 H.231 91-126 H.376 91-438 H.27 91-564 H.109 91-619 H.251 91-127 H. 3n 91-439 11.85 91-565 H. 136 91-620 H.233 91-129 II. 145 91-440 H. 423 91-566 H.380 91-621 H.243 91-152 H. 159 91-441 II. 34 91-567 H.572 91-622 H.244 91· 153 H.547 91412 H. 748 91·568 H.295 91-623 H.416 91-154 H.63 91-443 II. 678 91-569 H.488 91-624 H.857 91· 155 H. 130 91-444 H. 706 91-570 H.477 91·625 H.211 91-157 H. 160 91-445 H. 11 91-571 H.258 91-626 H.234 91-162 II. 14 91-446 H. 29 91-572 H. 266 91·627 H.246 91-163 H. 687 91-447 H. 35 91-573 H. 265 91-628 H. 281 91-164 H. 162 91-448 S. 534 91-574 H.267 91-629 H. 653 9 1-165 H. 163 91-460 S. 629 91•575 H.370 91·630 H.227 91-169 11.428 91-4-66 H.31 I 91-576 H.371 91-631 H.228 91-171 H.429 91-470 H.279 91-577 H.372 91-6:12 H. 672 91-187 H.366 91-471 Ii. 509 91-578 H.217 91-633 H.752 91-196 H.164 91-472 H. 658 91-579 H. 84 91·634 H. 141 91-197 H. 161 91-473 Ii. 280 91-580 H. 794 91-635 H. 367 91-198 H. 165 91-474 H. 183 91-581 H. 79 91-637 H. 194 91-199 H. 166 91-475 H.292 91-582 H. 197 91·638 H. 548 91-209 S. 40 91-476 H.326 91-583 H. 352 91-640 S. 343 91-210 s.44 91-478 I I. 170 91-584 H. 180 91-641 S.412 91-211 S. 81 91-479 H.325 91-585 H. 469 91-642 S.558 91-212 S.82 91-480 H. 420 91-586 H. 584 9 l-652 S.535 91-217 H. 833 91-481 H. 819 91-587 H.356 91-654 S.96 91-218 H. 956 91-482 H. 132 91-588 H. 392 91-655 S.512 91-219 H.301 91-483 11.57 91-589 H. 155 91-656 s. 193 91-223 II. 789 91-545 H.396 91-590 H.314 91-657 s. 75 91-250 H. 135 91-546 Ii. 596 91-591 H.505 91-658 S.51 91-251 II. 555 91-547 H. 319 91-592 H. 440 91-659 S.400 91-252 H. 556 91-548 H. 95 91-593 H. 787 91-660 S.466 91·254 H.907 91-549 11. 146 91-594 H.88 91·661 S.443 91·255 Ii . 72 91-550 H.458 91-595 H.296 91-662 $.97 91-268 S.321 91-551 H. 953 91-596 H.497 91-663 S.47 91-319 H. 294 91-552 H.99 91-597 H.531 91·664 S.508 91·320 H. 664 91-553 H. 100 91-598 H.128 91-665 s.684 91-321 H. 120 91-554 H. 153 91-599 H. 357 91·666 S.333 91-322 11.348 91-556 H. 401 91·600 H. 437 9] -667 S.432 64 /January 1992 THEALABA MA LAWYER ll SUMMARJESOF GENERAL LAwsENACTED AND CoNsnnmoNAL AMENDMENTS PRoPOsED Act No. BUI No. Act No. Bill No, Act No, Bill No. Act No. BIii No, 91,669 S.29 91-680 H. 239 91-691 H. 242 91-716 H.463 91,670 H. 117 91-681 H. 64 91-692 H. 208 91-717 M. 238 91-671 H. 333 9 1-682 H. 537 91-693 H. 271 91-718 H.439 91-672 H. 354 91-683 H. 700 91-694 H.659 91-720 H.12 1 91-673 H.237 91-684 H.347 91-697 H.645 91-721 H. 911 91-674 H.646 91-685 H. 785 91-707 H.282 91-722 H.830 91-675 H.506 91-686 H.247 91-709 H.101 91-725 H.248 91-676 H.250 91-687 H.872 91-712 H. 253 91-726 H. 264 91-677 H. I 10 91-688 H.240 91-713 H.232 91-730 S.505 91-678 H.235 91-689 H.270 91-714 H.272 91-731 s.411 91-679 H.261 91-690 H.219 91-715 H. 241 91-732 11.203 Act No . 91-94 , H, 144 , amends Act No. 91-125 , H. 375, establish lain real estate operations and transac section 5-13A-3,Codi! of Alabama 1975, es the AlabamaHealth Care Trust Fund tions in the county. relating to the acquisition of an Alaba in the state treasury for the purpose of ma bank holding company or an Alaba providing further for I.he operation of Act No . 91-154, H. 63, proposesan ma bank by a regional bank holding the Medicaidprogram and the mainte amendment ID the Constitution relating company. so as to provide further for nance and expansionof medicalservices lo Escambia County, so as lo provide any such acquisition. availablethereunder. further for the distributionof oil and gas severancetax revenuesin the county. Act No. 91-120, S. 79, establishes Act No. 91-126 , H. 376, imposes a I he requirements for informed consent privilegetax upon certain nursing facil Act No. 91-155 , H. 130 , proposes for human immunodeficiency virus ities to provide further for the availabil an amendment to the Constitution to (MIV) test.Ingand provides for counsel ity of indigent health care; the opera allow the Legislatureto provideby local ing. referral to health care services and tion of the Medicaidprogram; and the atl for the election of the members of an CXJ>lanalionof individual responsibili maintenance and expansion of medical the Board of Education of the City or ty for any individualtesting HN positi\'e. servicesthereunder. Attallain E'°"'3h County. Act No . 91 · 121 , H. 466 , amends Act No . 91-127, H. 377, imposesa Act No . 91-157, H. 160, continues sections 24-7-2 and 24-7-3,Code ofJ1/o privilegetax upon everydisproportionate the existence and functioning of the bama I 975, providing for the Mowa share hospitalin the state to providefur Board for Registration of Architects. It Choctaw !lousing Authority, so as to ther for the availabilityof indigenthealth also amends sections 34-2-33, 34-2-34. provide further for the appointment of care: the operation of the Medicaidpro 34-2-39 and 34-2-40, Code of Alabama members of the Authority and for the gram; and the maintenance and expan 1975, soas to provide further for such duties and pow,?rsof the Authority. sion of medicalservices thereunder. Board. Act No. 91-122, S. 110 , amends Act No. 91-129 , H. 145, requires Act No . 91-162, H. 14 , proposa an sections 34-2-i-80and 34-24-83,Code of timely investment of idle funds by bank amendment ID the Constitution relating Alabama 1975. relating to the evalua and trust companyfiduciaries. to Geneva County, so as to require or tion by the State Board or Medic.1JEx authorize the county commission lo aminers of colleges of medicine located Act No. 91-152, H. 159, continues levy additional county license taxes and outside of lhe United States and the the existence and function ing of the registration fees on motor vehicles and District of Columbia. so as to provide Boardof Examinersof L.indscapeA rchi to provide for the distribution of the lurther for such evaluation and lhe tects. ll also amends sections 34-17-5, proceedsof such taxes. licensingof graduates of such schools. 34-17-20. 34-17·21 and 34-17-25,Codi! of Alabama 1975. so as to provide fur Act No . 91 -163, H. 687 , proposes Act No . 91-124, H, 374, imJ)OSesD ther for such Board. an amendment t.o the Constitution re privilege tax upon certain providers o( lating lo Class2 municipalities,so as lo pharmaceutical services to provide fur Act No. 91-153, H. 547, proposes authorlze certain investments of the ther for the availabilityof indigentheallh an amendment to the Constitution assets of any Class2 municipalitypolice c.1re;the operation of the Medicaidpro relating to Jefferson County, so as to and firefighter pension plans. gram; and ihe maintenance and expan, provide furt her for the collection of sion of medicalservices thereunder. municipalbusiness Ilc ense truceson cer- Act No . 91-164, H. 162 , continues THE ALABAMAlAWYER January 1992/ 65 SUMMARIESOF GENERALLAws ENACTEDAND CoNSTn"OTIONAL AMENDllfENTSPROPOSED II the existence and functioning of the 34-8-4 and 34-8-25. Codeof Alabama dam constructionand reservoirdewlop Polygraph Examiners Board. It also 1975,so u to provide further for such menl, for industrial dewlopment, flood amends sections 34-25-36 and 34-25- Boord. contTol, navigation, irrigation, public 29, Codeof Alabama1975, so as to pro recreationand relatedpurposes. videfurther for such Board. Act No . 91•198, H. 165, continues the existence and functioning of the Act No . 91-218 , H. 956, proposes Act No . 91-165, H. 163, continues HearingAid D ealers LicensingBoard. fl an amendment to the Constitution to the existence and functioning of the also amends sections 34- 14-1 through providefo r the election of the members Stale Board of Occupational Therapy.l l 34-14-4,34 -14-6 through 34-14-11and of the Boardof l~ducallon in the City of also amends sections 34-39-14, 34-39- 34-14-30,CodeA of labama L975.so as Decatur. 16 and 41-20-3. Codeof Alabama 1975, to provide further for such Board. so as to providefurther for such Board. Act No . 91-219, H. 301 , proposes Act No . 91·199, H . 166, continues an amendment to the Constitution to Act No . 91-169 , H. 428 , amends lhe existence and functioning of the providefor the acquisition,maintenance section ll-43C-52, Code of Alabama State Board of Registrationfor Profes and protectionof lands and water areas 1975, relating to certain procedures sional Engineersand LandSurveyors . It having unique ecologicalsystems, plant under the mayor-councilform of gov also amends sections 34-11-8, 34-Jl-9 and animal life, geologicalformations, ernment for Class 5 municipalities, so and 34-11-36, Codeof Alabama 1975, wildlifehabitats. recreationalvalue and as to provide further for the vote to so as to providefurther for such Board. scenic beauty. It also establishes the overridea line Itemveto of the mayor. AlabamaForever W ild LandTrust. Act No . 91-209, S. 40, authorizes Act No . 91 -171, H. 429, amends municipalitiesand counties to provide Act No. 91-223, H. 789 , makesan section J l-43C-21. Codeof Alabama assistanceto the governingbody of any appropriationfr om the general fund to 1975, relatin g to the powers of the olher municipality or county when the Board of Pardons and Paroles for counciI under lhc mayor-councilform such municipality or county has been the fiscal year ending September 30, of governmenl for Class 5 municipali declareda disasterarea b)•t he Governor 1991. ties, so as to provide that the council or the PresidcnL may appoint certain employeesto serve Act No . 91 -250 , H. 135 , amends the council. Act No . 91,21 O, S. 44, allows cer section 1-3·8, Codeof Jl/obomo 1975, tain handicappedpersons lo use cross relating to legal holidaysin the state, so Act No. 91 -187, H. 366, amends bowsfor hunting gameand unprotected as to provide that national Memorial numerous sections of chapter 65 of wildlife. Day shall be a legal holiday; Thomas Tille II, Codeof Alabama 1975, relat Jefferson's birthdayshall be observedin ing to horse racing and pari-mutuel Act No . 91-211 , S . 81, amends conjunction with GeorgeWashington 's wageringthereon in ClassJ municipali sections 28-3-1and 28-3-187.J,Code of birthday; MardiGras shall be a holiday ties, so as to provide further for horse Alabama 1975, relating to alcoholic in Mobile and Baldwin counties; and racing and greyhoundracing and pari beverages, so as to define the term certain state employeess hall be granted mutuel wagering thereon. It a lso "brandy" and to exempt brandy from one personallea ve day each year. repeals sections 11-65-45 and 11-65-46, certain l~bellngr equirements. Code of Alabama 1975. Act No . 91-251 , H. 555, amends Act No . 91-212, S. 82, amends section 23-6,8, CodeA of labama 1975, Act No 91-196, H. 164 , contin sections 8-20-4, 8-20-5, 8-20-7 and 8- relallng lo the bonds of the Industrial ues the existenceand functioningof the 20-9,Code of Alabama1975. r elating to AccessRoad and BridgeCorporatio n. so Board of Funeral Service. lt also the Motor VehicleFranchise Act, so as as to increase the amount of bonds such amends sections 34-13-70 and 34-13- to providefurther for unfair and decep corporation can have outstanding at 90, Code of Alabama 1975, so as to tive trade practices, terminations and any one time. authorize the Board to establish a rea nonrenewalsof franc.hist relationships sonable examination fee for preparing and the wamnty obligationsto dealers. Act No . 91-252, H. 556 , provides and administeringexaminations of the for an annual appropriation from the Board'sapplicants. Act No . 91-217 , H. 833 , proposes Public Road and Bridge f und of the an amendment to the Constitution lo HighwayDepartment to the Department A.ct No . 91 -197, H. 161, continues authorize the Incorporation of the Tom of Public Safety for the purchase or the existence and functioning of the Bevill Reservoir Manageme nt Area equipment for trafficlaw e nforcement. State Licensing Board for GeneralCon Authority in FayetteCou nty ror the pur tractors. It also amendssections 34-8-2, poses of water conservation and supply, Act No. 91 ·25 4, H. 907, proposes 66 /January 1992 THE ALABAMALAWYER SUMMARIES OF GENERAL IAws ENACTEDAND CONSTlltJTJONALAMENDMENTS PROPOSED an amendment lo the Constitutionpro Act No . 91-323, s. 459 , is "The immunity from civil liability while in viding for lhe electionof lhe members AlabamaEducation lmpro1,ement Act of volunteerservice without compensation or the Boardof Educationin the Cityoi 1991".It also amends sections 16-23-3, for a nonprofitorganization or corpora Tallassee. 16-3-16, 16-23-14. 16-23-15, 16-3-15. tion or a governmentalentity. 16-35-l and 16-28-4,Code of Alabama Act No . 91 ·255, H . 72 , is lhe 1975, relating to schools and certifica Act No. 91-440, H. 423 , amends "AlabamaSafety Be lt UseAct of 1991''. tion of teachers and it specifically sections 22-52-2, 22-52-3,22-52-4 , 22- repeals sections 16-40-2, 16-40-3, 16- 52-6, 22-52-7, 22-52-8, 22-52-9, 22-52- Act No . 91 ·268, S. 321, amends 40·4, 16-40-5.1, 16-40-5.2, 16-40-5.3, ll. 22-52-12, 22-52-13 and 22-52-15. sections4 -3-41,4 -3-45, 4.3.47 and 4-3- 16-40-5.4, 16-40·6 and 16-40-7,Code of Codeof Alabama 1975,relating to men 59, Code of Alabama l975. relating to Alabama 1975,effective August l, 1992. tal health and mental retardation,so as airport authorities, so as lo providefor to provide further for the involuntary the reincorporation of existing airport Act No . 91 ·324 , H, 55 , e~empts commitment,discharge and transfer of authorities. certain rescue service organizations persons in state institutions. It also from all state, county and municipal specificallyrepeals sections 22-52-1 and Act No. 91-319, H. 294, amends salesand use taxes. 22-52-10.Codeo/Alabama1975. sections IJA-9.-13.J. llA-9-13.2,8-8-15 and 12-17-224,Code of Alabama 1975. Act No . 91-347 , H. 389, amends Act No. 91 -441 , H . 34, is the relating lo restitution for the negotia section 29-2-51,Code of Alabama 1975, •Alabama Community Punishment and tion of a worthlesscheck or other nego relating to the Permanent Legislative CorrectionsAct of 1991". It providesfor tiable instrument. so as to increasethe Committeeon Reapportionment,so as community punishment and correc service charge on such worth less to providefurther for additionalal-large tions programsand proceduresas alter checks or instnunenls. members. native punishment for eligible offend ers. Act No. 91 ·32 0, H. 664, amends Act No . 91-356, H. 597 , provides sections 8-6-10, 8-6-11 and 8-7-6, Code for the employment,powers and duties Act No . 91-442, H. 748 , prohibits of Alabama 1975,relaling lo the Alaba of police ofncers of the University of the Library EnhancementFund in the ma Securities Commission, so as to Montevallo. education appropriations from receiv providefurther for funding said Com ing less than 70 percent of its appropri missionand to providefor an appropri Act No. 91 -432, S. 27, amends ation in any fiscalyear in which prora ation to the AlabamaSecurities Com section 33-4-38,Code of Alabama 1975, tion is declared. mission from monies deposited in the providingfor lhe levy,payment and dis AlabamaSecurities Commission Fund. positionof ship pilot's liQnse tax, so as Act No. 91 ·4 4 3, H. 678 , allows Act No . 91 -321, H. 1 20 , amends lo increasethe amount thereof. all full-time employeesand executive sections40 -1-33, 40-12-390. 40-12-391. officers or the Developing Alabama 40-12-392, 40-t2-394, 40-12-396. 40- Act No . 91 -433, H. 736 , amends Youth~·oundation to becomeeligib le to 12-398 and 40-.12°414, Codeof Alaba section 32-5-313. Code of Alabama participateIn the Teachers' Retirement ma 1975. relating Lo aut.omotive vehi 1975. relating to penalties for traffic System. cle dealers, so as to exclude certain infractions to provide funding for the license informationfrom general confi driver education nnd training fund, so Act No . 91 •444 , H. 706, expands dentialityprovisions and to providefur as to Increase the penalty and provide lhe purposes for which the Alabama ther for such automotivevehicle deal further for distributionof the fundscol Youth Services Board may expendcer ers. It also repeals section 40· 12-52. lected. tain funds appropriatedin Act No. 90- Codeof Alabama 1975, which requires 764, 1990Regular Session. a privilegelicense for automobilesales Act No. 91-438 , H. 27, amends men. sections 12· 19-171, 12-19-172,12-19- Act No . 91-445 , H. 11, repealsAct 175, 12-19-178and 12-19·179,Code of No. 81-153, S. 392, 1981 RegularSes· Act No . 91-322, H. 348, proposes Alabama 1975,relating to fees in traffic sion {Acts1981. p. 176),which consoli an amendment LOthe Constitution infraction and misdemeanor cases in dated the administration of Athens authorizinglhe tax assessors,tax collec district and circuit courts, so as to State College and John C. Calhoun tors. revenue commissioners. license increasethe fees and to providefor dis· CommunityCollege. This act re-estab commissionersand other ad valoremtax tributionof the fee increase. lishes two autonomous administrations officialsto elect to participate in the State and provides for the appointment of Employees' Retirement System or the Act No . 91 -439 , H. 85 , is "The presidentso( the colleges,the jurisdic countyretirement syste m, ifavai lable. Volunteer Service Act". It provides tions and operations. THE ALABAMALAWYER January 1992/ 67 SUMMARJESOF GENERAL LAwsEMCTED AND CONS'll 'luf(ONAL AMENDMENTS PROPOSED Act No. 91-446 , H. 29, providesa "Alabama Preschool Special E;ducation section ll -43C-35, Code of Alabama means whereby any insurer organized Act." It establishes special education 1975, relating to the compensation of under the laws of any 0U1erstate may servicesfor children ages three through the mayor of Class 5 municipalities, so becomea domestic insurer. livewith disabilities. as to increasethe compensation. Act No. 91-447, H. 35 , amends Act No . 91-475, H. 292, amends Act No . 91-482, H. 132, amends section l 3A-l 2-23l. Codeof Alabama sections 34-23-I and 34-23-32.Code of section 11-81-21. Code of Alabama 1975,relating to the offenseof traffick Ala/Jama1975, relating to the annual 1975, relating to investment of munici ing in illegal drugs, so as to include registrationof drug manufacturerswith pal or county funds. so as to permit amphetamine and methamphetamine the State Board of Pharmacy, so as to municipal and county funds to be within the offense. require wholesale distributors of drugs invested in certain open-end or closed to register annually_with the Board and end investment trusts which are invest Act No. 91-448 , s. 534, autho to increase the fee for permits and ed in direct obligations of the U.S. or rizes certain state instrumentalities or renewals of permits. repurchase agreements respectings uch agencies to purchase and pay for group U.S. obligations. health. accident or hospitalization Act No . 91-476, H. 326 , prohibits insurance coverage for its officersand nonresident fishing pursuant to sport Act No . 91-483, H. 57, amends employees and to contract with the fishing licenses providedfor in sections section 27-8-10, Codeof Alabama 1975, State Employees' Insurance Board lo 9-11-55 and 9-11-56, Codeof Ala/Jama relating to life and disability insurance provide such insurance coverage. 1975, from taking or attempting to take representatives. so as to reduce the fish from the public waters by means of waiting period for a person who failed Act No. 91 -460, S. 629 , relates to one or more trotlines having a combi to pass two examinations for licensing Class 2 municipalities and provides for nation of more than 100 hooks. as a life or disability insurance agent the paymentof assessmentsto any such and for a person being examined for municipalityfor local improvements. Act No. 91-478, H. 170, amends licensing as a property and casualty agent. It specificallyrepeals section 27• Act No. 91-466, H. 311, proposes section 40-16-6, Codeof Alabama 1975, relating to the payment and distribu· 7-16, Codeof Alabama 1975,re lating to an amendment to the Constitution to reapplication or reexamination upon authorize U1eoperation of bingo games tion of financial institution exciseta~es, so as to permit all incorporatedmunici denial for licensing as a property or by certain nonprofit organizations for casualtyinsurance representative. charitable or educational purposes in palitiesto levy privilegelicense taxes on financialinstitutions. St. Clair County. Act No . 91 -545, H . 396 , is the Act No. 91-479 , H. 325 , amends "Council-Manager Act of 1991 ". It Act No. 91-470 , H . 279 , is the sections 12-17-220aad 36-26-10. Code authorizes and provides the procedure "Alabama Act Regarding Liability for of Alabama l 975, relating to certain for any Class2, 3, 4, 5. 6. 7 or 8 munici Persons Responding to Oil Spills". It employeeswithin the district attorneys' pality operating under a council-man provides immunity for certain persons offices and the Merit System, so as to ager form of government, or under a respondingto certain oil spills. provide that assistant district attorneys, mayor-council-city manager form, to investigators, clerical, secretarial and establish a council-manager form of Act No . 91-471 , H. 509 , amends other personnel employed in a district government. section 12-17-8 1, Code of Alabama attorney's office serve at the pleasure of 1975, relating to salaries of the circuit the district attorney and are in the Act No. 91-546, H. 596, amends clerks and registers. so as to increase exempt service of the state. The provi sections 40-23-2, 40-23-4, 40-23-61 and the amount of the annual salaries. sions of this Act are retroactive to May 40-23-62.Code of Alabama 1975, relat Act No. 91-472, H. 658 , autho 18, 1977. ing to exemptions from sales and use rizes certain employers to purchase taxation,so as to providefurther for tax workers' compensation insurance with Act No. 91-480 , H. 420, amends e~emptionson certain ships and vessels a deductible provision. section 40-18-19, Code of Alabama and commercial fishing vessels of over 1975, relating to exemptions from state five tons load disp lacement. It is Act No . 91-473 , H. 280, requires income taxes, so as to exempt all pay retroactiveto August l , 1987. an additional fee for licensure and re ments made to a retiree or beneficiary newal of licenses as a general contrac of a "defined benefit plan" as defined Act No . 91-547 , H. 319 , provides tor. under the Internal RevenueCo de. for the appointment of a private non profit corporationby the courts to serve Act No. 91-474 , H. 183, is the Act No. 91-481, H. 819, amends as guardian or conservator or both for 68 / January 1992 THE ALABAMALAWYER [i UMMARIEsOF GENERAL LAws ENACTED AND C0Ns-n10110NAL AMEND!lfENTSPROPOSED I\ persons who are developmentallydis licensed pharmacist to refill a prescrip Act No . 91-563, H. 959, autho abled. tion for up to a 72,hour supply when rizes the governing body of a munici unable to obtain refill authorization pality to exempt the homesteadsof resi Act No . 91-548, H. 95, amends from the prescriber. dents over 65 years of age. or who are sections 22-21-20 and 22-21-27,Code of retired due Lopermanent and total dis Alabama J 975. relating LO licensing of Act No. 91 °556, H. 401, amends ability, or who are blind, from any ad hospitals , nursing homes and ot her section 2-27-9, Codeof Alabama 1975, valorem tax Increase levied for public health care Institutions. so as to include relating to the registration of pesticides. school purposes. hospices and to provide Further for the so as lo raise lhe annual registration fee compositiono r the AdvisoryBoard. from $50 to $100. Act No . 91-564, H. 1 09, amends sections 36-7-20 and 36-7-22, Codeof Act No . 91-549, H. 146 , relates to Act No . 91-557, H. 419, makes a Alabama 1975.relating to per diem and motor vehicles and provides that a supplemental appropriation from the mileage allowancefor persons traveling transaction does not create a sale or Farmers' MarketAuthority Fund to the on state business. so as to provide fur security interest merely because the Farmers' MarketAuthority for the 6sca1 ther for such allowance. transaction provides that the rental >-earending September30, 1991. price may bt adjusted by reference to Act No . 91-585 , H. 136, autho sale the amount reallzed upon or other Act No . 91-559, H. 593, amends rizes and provides the procedure for dispositionof the motor ~hide. sections 30-3-61 itnd 30-3-62, Codeof certain full-time employeesof Soil and Alabama 1975,relating to child support Water ConservationDistricts to be cov Act No . 91-550, H. 458, amends withholding orders, so as to require the ered under the Slate Employees' Health further section 11-3-4, Codeof Alaba employer to remit the child support Insurance Plan. ma 1975, relating to the compensation withheld within ten days of the date the of county commissioners, so as to obligor is paid and to provide for with Act No . 91-566, H. 380, amends change the amount allowedfor mileage holding by employers. It also amends Section 2C, item I ti, of Act No.90-764, to the amount allowed by the Internal section 30-3-94,Code of Alabama1975. 1990 Regular Session, relating to tbe Revenue Code for income tax deduc relating to the Interstate Income With general appropriations,so as to provide tions. holding Ad. so as to providefor imme for the retention of inspection and diate wage withholding on interstate supervision fees to meet the financial Act No. 91-551, H. 953 , autho child support cases. responsibilities o( the Public Service rizes each public cof1l()ralionwhich is Commission. authorized by law to operate a water system and to borrow money for use for Act No . 91-560, H. 870, makesan Act No . 91-567, H. 572, provides one or more of its cof1l()ratepurposes appropriation from the Agricultural that all procedures, protections and to seJI and issue bonds of such public Fund to the Department of Agriculture corporations; specify the use of pro and Industries for the fiscalyear ending remedies afforded to a motor vehicle ceeds of such bonds and the source or September30 , 1991. dealer shall also be available to a motor payment thereof; and to make other vehicle distributor whose distributor provisions For S(1ch bonds. Act No . 91 -5 61, H. 412, is the agreement Is terminated. canceled, not "Alabama State Employee Combined renewed, modified or replaced by a manufactureror an importer. Act No . 91 -552 , H. 99, amends Charitable Campaign Act". It provides section 22·21-5,Code of Alabama 1975, further for payroll deductionsfor public relating to hospitals and other health officers and employees. ILalso specifi Act No . 91-568, H. 295, amends care facilities. so as to provide further cally repeals section 36· l-4.1, Codeof section 36-21-8,Code of Alabama 1975, for the powers of health care authori Alabama 1975. relating to local United relating to certain lawenforcement offi ties. Wayagencies and certain other health cers retaining their badge and pistol as charities and payrolldeductions. part of retirement benefits. so as to in Act No . 91 -553, H. 100 , adopts clude certain officerswho are employ and incorporates into the Code of Act No . 91-562, H. 694, provides ees of the ForestryCommission. Alabama 1975 lhose general and per for a "pilot project"for the Secretary of manent laws enacted during the 1989 State to establish specifications for a Act No . 91-569, H. 488 , amends Special Session and the 1990 Regular uniform system of electronic votingand seclions 36-21·60,36-2 1-61 and 36-21- Session of U1eLeg islature. for the electronic transfer of election 63. Codeof Alabama 1975, relating to totals from counties to the Secretary of U1e Peace Officers' Annuity and Benefit Act No . 91-554 , H. 153 , allows a State's ofnce. Fund, so as to provide for additional THEALABAMA LAWYER January I 992/ 69 \I SUJ11MARJESOF GENERAL LAws ENAC1'ED AND CoNsn1onoNAL AMENDMENTS PROPOSED II members to the Board and to provide 1975, relating to use tax, so as to re Act No. 91-584, H . 180, provides further for a quorum. quire out-of-state businesses wilh Ala· that persons who are required to regis bama nexus to collect and report Alaba ter with the U.S. SelectiveService Sys Act No. 91-570 , H. 477, autho ma use tax on their sales to Alabama tem may not enroll in institutions of rizes state agencies an administrative customers. higher learning nor be offered employ option lo require Lhe timely electronic ment or advancemento r promotion by remittance of immediately available Act No. 91 ·577, H. 372, provides the state unless such persons offer funds by any person, corporation or a statuto ry basis for the recovery of proof that they have so registered. partnership required to satisfy an obli· unclaimed property from out-of-state gation due any agency of th e state holders when such holders did not orig Act No. 91 ·585 , H. 469, provides amounting to $100,000 or more effec· inate the unclaimed property and are thal certain membersof the Retirement tive January l, 1992; $50,000 or more merely intermediaries. Systems may purchase credit for up to effectiveJ anuary I. 1993; and $25,000 eight years of previous service rendered or more effectiveJ anuary l, 1994. Act No . 91-578, H. 217, makesan as a county solicitor. appropriation from lhe Special Educa· Act No . 91-571, H. 258, makes an tional Trust F'undto the Department of Act No. 9 1-586, H. 584, amends appropriation from the general fund to Youth Services for the fiscal year end· sections 37·2·41, 37-4-23 and 37-4-116, the Retired Senior Volunteer Program ing September30, 1992. Codeof Alabama 1975, relating to the for the fiscal year ending September inspectiona nd supervision fees paid by 30, 1992. Act No . 91-579 , H. 84 , amends transp0rtation, utility and radio utility sections 32-6-270and 32-6-272, Code of companies, so as to provide further for Act No. 91 -572 , H. 266, amends Alabama 1975, relating to motor vehi· such fees. Act No. 90-556, 1990 Regular Session, cle licenses and registration. so as to concern ing the repayment of funds define further "firefighter" and to pro Act No . 91·587, H. 356, allows transferredfro m f'und No. 305735. vide further for firefighters distinctive employeesof regional and local legisla motor vehicle license plate. tive delegation offices to participate in Act No. 91-573 , H. 265 , amends the Employees·R etirement System. section 41-4-17, Code of Alabama 1975, Act No . 91 ·580, H . 794, amends relating lo rent in state-owned build· sections 9-11· 141, 9-11-142 and 9-ll- Act No. 91-588, H . 392, permits ings, so as to eliminate the State Capi 143, Codeof Alabama 1975. relating to a domestic lim ited partn ershi p to tol building from exceptionof rent commercial fishing, so as to provide merge with one or more domestic lim· further for the regulation of commer ited partnerships, corporations or cer Act No. 91 ·574, H. 267, amends cial fishing. tain other business entities. Section 2C. item 52, of Act No. 90· 764, 1990 Regular Session, relating to gen Act No. 91·581, H. 79 , amends Act No. 91-589, H. 155, requires eral appropriations, so as to eliminate sect ion 11-43-80. Code of Alabama that the State Board of Pharmacyestab the requirement for a transfer to the 1975, which authorizes a municipaJ lish and periodicallyu pdate a published general fund from U,e Capitol Compl.ex governingbody to employ the mayor as list of precursor chemicals which are Maintenance and Repair Fund. superintendent of the municipal utility essential to the manufacture of unlaw system. so as to authorize the munici ful controlledsu bstances. Act No. 91-575 , H. 370 , amends pa I governing body to establish the ·sections 40-18-52and 40-1-33, Codeof mayor's compensation for serving in Act No . 91 ·590, H . 314, amends Alabama 1975, and repeals sections 40- such position. section 11-45-2, Codeof Alabama 1975, 23-29. 40-23-84, 40-14-57 and 40-17· relating to ordinances and resolutions, 202, Codeof Alabama 1975, relating to Act No. 91-582 , H. 197, amends so as to providet hat in all towns and in the RevenueDepa rtment, so to provide section 34-32-9, Code of Alabama 1975, cities of less than 12,000, no ordinance further for crimes and offensescommit relatingt o the qualifications for registra· or re.~olution, intended to be of perma ted by employeesfor violations of rev lion as professionalso il classifiers.so as nent operation shalll be valid unless, on enue and taxation statutes, regulations to provide further for such qualifications. its final passage, a majority of the mem and procedure requiring confidentiality bers elected to the council, including of information and certain exclusions Act No . 91 •583 , H. 352, amends the mayor,sha ll vote in its favor. therefrom. section 17-8-25, CodeA of labama 1975. relating to the number of ballots to be Act No. 91-591, H. SOS, amends Act No. 91-576 , H . 371, amends provided for each voting place, so as to sectio n 9-11-244, Code of Alabama sect ion 40-23-68, Code of Alabama decreasethe required number. J975. relating to the taking of certain 70 I January 1992 THEALABAMA LAWYER SUMMARJES OF GENERAL L.\ws ENACTED AND CoNsnnmoNAL AMENDMENTS PROPOSED protected birds or animals by bait, so as Act No. 91·5 99 , H. 357 , amends lie Accountsto establishprocedures for to provide for an exception for certain section 11-88-5,Code of Alabama1975. the prepayment of travel expenses of hunting of migratorybirds. relating to the authorization and proce stale officersand employees. dure for amendment of the certificate Act No. 91-592, H. 440, makes an of incorporationof water, sewerand fire Act No . 9 1·61 6, H. 287 , provides appropriationfrom Lhe general fund to the protection authorities with a service for loans for books. tuitions, fees and State HighwayDepartment for the opera area that lies solely wilhi11one deter other educationally-related expenses tions and maintenanceor the Gulf Breeze mining county. so as to permit changes Incurred by em1>loyees of the Depart Amtrak PassengerTra in Service ror the in the number or directors. to provide ment of Public Mealth attending nurs fiscalyear ending September 30, 1991. the minimumand maximum number of ing school on a part-time or rull-time directors allo,•ed and to validate the basis. fl allows forgiveness or some Act No . 91 ·593 , H. 787 , amends membership of all boards presenUy in loans and guarantees employment for section 7-9'403. Codeof Alabama1975, existence. recipientswhile attending schooL relating to the filing of financingstate ments under the Uniform Commercial Act No. 91-600 , H. 437 , requires Act No. 91 ·6 17, H. 324 , amends Code. so as to providefurther for such all persons16 years or age or older to section 36-26-36.1, Codeof Alabama filing. present certification of completion of 1975, relating to sick leave for state an approved hunter education course employeesand teachers,so as lo provide Act No . 91-594 , H. 88 , creates the prior to obtaining a hunting license. further for the accumulationand use of Catastrophic Trust Fund !or special such sick leave in determining}-ears of education to be administered by the creditable service in the Employees'or Act No . 91 ·602 , H. 3 30, autho State Depnrlmenlof Education for the Teachers'Retirement System. purpose or assisting local education rizes and providesfor lhe establishment agencies in providingspecial ed ucation of watershedmanagement authorit ies. Act No . 91 -618 , H. 231 , makes an and related services lo children with appropriationfrom the general fund to disabilities 111catastrophic cases. Act No . 91,614 , H. 579, autho· the Lighthouse Counseling Center for rizes state departments and agencies to the fiscal year ending September 30, Act No . 91-595, H. 296 , requires prepaylo officersand employeesneces 1992. any insurance company.health mainte sary tra,oelexpel\$t$ for authorized offt nance organization. employeror other cial state business. Act No . 9 1-6 19 , H. 251 , makesan organization that provides a pharma appropriationfrom the general fund to ceutical program to their employersor Act No . 91 ·615 , H. 580, autho the AlabamaCouncil for Parenting and members to obtain written proof that rizes the State Comptroller with the Protecting Children, Inc. for the fiscal the pro,~der pharmacies are registered approvalof the Chief Examinerof Pub- year endingSeptember 30 , 1992. with the State Boardof Pharmacy. Act No . 91 ·596, H. 497, autho rizes the Medicaid Agency to make ALABAMA BAR DIRECTORY financing available for addressing liabil ity insurance costs ror family practi tioners, pediatriciansand obstetricians The 1991-92 Alabama Bar Directory who provide obstetrical services in will be mailed within the next month. rural or under servedareas. Each member in good standing Act No . 91·597, H. 531, autho rizes the Secretary of Stale to employ of the Alabama State Bar will receive one free copy. an additionalemployte. Additional copies are $15 each. Act No . 91-598, H. 128, requires persons engagedin the businessof pur Please mail checks, made pay able to chasing and receiving or collecting waste grease and animal by-products Alabama Bar Directory , to P.O. Box 4156, for rendering or recycling from busi Montgomery, AL 36101. nesses located In various cities to pay a licensetax in each such city. THEALABAMA l.AI\IVER January 1992/ 7 l fl SlJM!IIA.RIESOP GENERALLAWS ENACTED AND CONSIIIUUONAL AMENDMENTSPROPOSED ~ Act No. 91•620, H. 233 , makes tional Trust Fund to the State Depart Act No . 91-635, H. 367 , aulho· an appropriation from the general fund ment of Education for the fiscal year rizes the State Industrial DevelQPment to the Elylon Recovery Center for the ending September30. 1991. Authority to sell and issue from time to fiscalyear ending September30 . 1992. time its bonds. Act No . 91-629 , H. 653, is the Act No. 91-621, H. 243, makesan "Alabama Public Livestock Marketing Act No. 91-637 1 H, 194 , amends appropriation from the general fund to BusinessAct". ft establishes a board to section 14-9-41, Codaof Alabama1975, the Commission on Aging for the Care promote the marketing of livestock. relating lo lhe computation of incentive Assurance System for the Aging and time deduction(s),so M to allow an in Homebound for the liscal year ending Act No. 91 •630, H. 227, makes an mate who h;,s been sentenced to a term September30. 1992. appropriation from the Special Educat of JS years or less in the state peniten JonalTrust Fund to the UnitedCerebral tiary to earn correctional incentive Act No . 91 -622 , H. 244, makes Palsy o( Alabama, LhcUnited Cerebral time. an appropriation from the gtneral fund PalsyDevelopment Center for EastCen to the BeaconHouse-Jasper for the fis tral Alabama. the Simpson-MayCere Act No. 91-638 , H. 548, amends cal year ending September 30. 1992. bral Palsy Center. lhe Ce_rebralPalsy Section2C, item 113.of Act No. 90-764. Housing Foundalion, the United Cere 1990Regular Session, the general fund Act No. 91-623 , H. 416 , amends bral Palsy of Mobile and the United budget, so u to increase the appropria section 40-23-2.Code of Alabama1975. CerebralPalsy o( Hunts,,illefor the fis tion from the "Earmarked Funds~ to relating to truceslevied on certain gross cal year ending September 30, 1992. the Departmentof Revenueand to pro receipts, so as lo provide that athlelic vide for a transfer or funds from the events conducted by a primary or sec Act No. 91°631, H. 228 , makes an Department of Revenue to the Depart· ondary public school shall be exempted approprialion from the Special Educa menial Emergency Pund for the liscal from said tax but shall continue to be tional Trust Fund for the support and year ending September30, 1991. collectedand retained by the collecting maintenance of the SpecialSchools for school. Special Educalion for the fiscal year Act No. 91-840 1 S. 343, creates ending September30. 1992. and providesfor new circuit judgeships Act No. 91-624, H. 857, amends in the tenth. 15th, and 19thjudicial cir section 40-23-68, Code of Alabama Act No . 91-632, H. 672, amends cuits. 1975,relating to use taxes.so as to pro numerous sections of chapter 25 orTiUe vide that the use taxesshall be paid on a 2 of the Cedeof Alabama 1975, relating Act No. 91 °641 , S. 412, amends monthly basis beginning October l, to insect and disease control of plants section 12- 18-87. Code of Alabama 1991. and trees, so as to provide further for 1975, relating to probatejudges' retire such control. It also repeals sections 2- ment benefits, so as to provide further Act No. 91 -625 , H. 211, makesan 25-7, 2-25-17 and 2-25- 19, Code of for such benefits. appropriation from the Special Educa Alabama1975. refaling to such control. tional Trust J'und to the Departmentof Act No. 91 ·642 , S. 558 1 amends Education for the fiscal year ending Act No. 91 -63 3, H. 752, amends sections 24·5·3 I, 24-5-32 and 24-5-33. September30, 1992. section 22-306-2, Code of Alabama Code of Alabama 1975. relating to 1975, relating to fees paid by operators anchoring of mobile homes and manu Act No. 91-626, H. 234, makes an or commercial sites for the disposal of factured buildings, so as to providefur . appropriation from lhe Special Educa hazardous wastes or substances, so as lher for anchoring such structures. tional Trust Fund to the East Alabama to extend the time period in which Child DevelopmentCenter for the fiscal exempted businesses may petition the Act No. 91-652, S. 535, creates a year ending September30, l 992. Department of Revenue to qualify for Permanent Joint LegislativeCommittee such exemptedstatus. on Finances and Budgets to study the Act No. 91-627, H. 246, makes an financialcondition of the state. appropriation from the Special Educa Act No . 91-634, H. 141, amends tional Trust Fund for the support and section 12-15-61, Code of Alabama Act No. 91 -654 , S. 96 , amends maintenance of Camp ASCCAin Jack 1975, relaUng to certain facilitiesused sections 7-1-20 I. 8-25-1 and 8-25-3, son Cap for the fiscal year ending for detention and shelter care of chil· Code of Alabama 1975, relating to September30. 1992. drcn, so as to provide further ior such rental-purchase agreements under the detention and shelter care and to pro Uniform Commercial Code. so as to Act No. 91-628, H. 281, makes an vide for subsidy by the stale of certain excludesuch ngreements from coverage appropriation from the Special Educa- costs. of the UniformCommerc ial Code provi· 72 / January 1992 Tl IE ALABAMALAWYER SUMMARIES OF GENERAL LAWS ENACTED AND CoNsnnmONAL AMENDMENTSPROPOSED sions relating to ucurity interests and other necessary services for special duty o( care owed personson premises to authorizecertain practicesby rental needschildren. for sportingor recreationalpurposes, so purchasemerchants. as to provide further that sporting or Act No . 91 ·663, S . 47 , amends recreationalactivities include elCJ)loriog Act No. 91-655 , S. 512, amends sections27 -26-5 and 34-24, 56, Codeof cavesand rockclimbing. section 36-27-23, Code of Alabama Alabama 1975.relating to the reporting 1975.relating to the Board or Control of medical malpracticejudg ments and Act No. 91-667 , S. 432, provides of the Employees' Retirement System, setllements.so ns to providefurther for for lhe organl1.atlonand operation of a so as to providefor representation from the reporting of judgments and settle public corporation to be known as the localunits. ments entered against professional cor· AlabamaInternational Airport Authority. porations. Act No. 91 -656, S. 193 , autho Act No . 91 -664 , S. 508 , amends Act No. 91 ·669, S. 29, establishes rizes football coaches of public four section 36·27A•4, Code of Alabama and providesfor lhe AlabamaLegisla year institutions of higher learning to 1975,rclaUng to the investmentsoi the tive CompensationCommission. parhcipatl' in the American Football Public Employees' Individual Retire CoachesRetirement Trust 40)(K) plan. ment Account Fund, so as lo provide Act No. 91-670 , H. 117 , amends that all investmentsshall be made pur sections9 -13-196and 9.13-197. Code of Act No. 91 -657, S . 75 , amends suant to the same authorityand restric Alabama 1975, relating to failureto pay sections 32-6-250,32-6-251 and 32-6- tions that govern the investment of certain assessmentson forest lands, so 254, Codeof Alabama 1975.which pro fundsoflhe RetirementSystems. as to providefurther for the sale and re vide distinctive motor vehicle license demption of said land and to provide plates for Medal or Honor Recipients Act No. 91,665, S. 684 , exempts further for the retroactiverepeal of cer and Prisonersof War, so as lo include all Class2 municipalitiesfrom the pay tain looil lawslevying an acreageasses recipientsof the PurpleH earl Medal. ment of any and all oil, gasoline and sment diesel fuel taxes. Act No. 91-658 , S. 5 1, providesfor Act No. 91 °671 , H. 333 , amends the sale or disposalo f tangiblepersonal Act No. 91-666 , S. 333 , amends section 38-2-6, Codeof Alabama 1975, propertyond standinglimber ownedby sections 35-15-1. 35-15-2 and 35-15-3, relating to the duties. powers and the Alabama Institute for Deaf and Codeof Alabama 1975, relating to the responsibilities or Lhe Department of Blind. Act No. 91-659 , S. 400 , is the ·AJa. bama Pair !lousing Law". It prohibits discrimination In the selling. renting. SIMPLE LOGIC, INC. leasingand financingor housing. CIDLD SUPPORT CALCULATOR Act No . 91-660 , S. 466 , amends SOFTWARE FO R IBM COMPATIBLE COM PUTERS sections38 -10·9 and 38, 10-12, Codeof Alabama1 975, relatingto child support, Calcu lates child support per ARJA R ule 32 Tab les, Federal Child so as to authorl1.ethe Department of Care Credit, and OHR Day Care Cost Guidelines. Huma11llesources lo conduct investiga tions to locate absent parents and to Prints Rule 32 forms with information filled in on plain white paper. excludefederal and state offset collec tions and disregardpayments from the Supports laser, dot matrix, daisey wheel, ink jet and other printe rs. requirement that child support collec tions be disbursed within five days of Easy to use menus. Context sensative help screens. receipL 14 day free trial . lf not completely satisfied, return the software at Act No. 91 -661 , S. 443 , provides no charge. certain remedies for courts exercising juvenile jurisdiction in dependency $99.50. Call, write or fax your order . Inquiries arl' welcome. cases. Other software for attorneys available. Act No. 91-662 , S. 97, authorizes P.O. Box 1200 Oneonta, AL 35121 lhe Departmentof Human Resources to Phone: (205)625 -4821 Fax: (205) 274-0178 enter Into lntcrslntcadopt ion assistance compacts to provide for medical and THEALABAMA LAWYER January 1992/ 73 S1JllllllARIES OF GENERAL LAwsENACTED AND CONST11UDONAL AMENDMENTS PROPOSED Human Resources.so as to provide for Act No. 91-686 , H . 247, makes cationa l Trust Pund to the Walker establishing rules and standards for an appropriation from the Special Edu· County Junior College for the fiscal inspection and approval of adult foster cational Trust fund to the Children's year ending September30. 1992. care homes and adult day care centers and Women's Hospitalin Mobilefor the and homes. fiscalyear ending September30 , 1992. Act No. 91-692 , H. 208, makes an appropriationfrom the Special Edu Act No. 91-672, H. 354, amends Act No. 91-687 , H. 872, makes cational Trust Fund to the Children's sections 40-17-31 and 40-17-240. Code an appropriation from the Special Edu Hospital in Birmingham for the fiscal of Alabama 1975. relating to gasoline cational Trust Fund to LheHelen Keller year ending September30, 1992. and oil taxes,so as to providean exemp Eye Research foundation for the fiscal tion for gasoline, motor fuel and oil year ending September30, I 992. Act No. 91-693, H . 271 , makesan purchased by city and county boards of appropriation from the Special Educa education, the Alabama Institute for Act No. 91-688 , H. 240, makesan tional Trust Fund to the Coosa Valley Deafand Blind, and the Departmentof appropriation from the Special Educa MedicalCenter School of Nursing for the YouthServices School District. tional Trust F'undto TuskegeeUniversi fiscalyear ending September30, 1992. ty for the fiscalyear ending September Act No. 91-673, H. 237, makesan 30, 1992. Act No . 91-694 , H . 659 , amends appropriation from the Special Educa sections 40-7-1. 40-12-255, 40-12-252, tional Trust Fund to the Marion Mili Act No . 91 -689, H. 270 , makes 40-11-1, 40-8-l and 32-8-2, Code of tary lnstitute for the fiscal year ending an appropriationfrom the Special Edu· Alabama 1975. relating to mobile September30, 1992. cational Trust F'und to Lyman Ward homes, so as to redefine mobile homes Military Academy for the fiscal year as manufactured homes and to provide Act No. 91-674, H. 646 , makes an ending September30, 1992. for registration and issuance fees for appropriation from the Special Educa manufacturedho me decals: provide fur tional Trust Fund to the Commission Act No . 91 ·690 , H. 219, makes ther for ad valorem taxes on manufac on Physical F'itness for the fiscal year an appropriation from the Special Edu tured homes; provide penalties for cer ending September 30. 1992. cational Trust F'und to the Central tain violations: provide for distribution Alabama Opportunities Industrializa of the fees and provide for certa in Act No. 91 ·685, H . 785 , provides tion Center for the fiscal year ending exemptionsfrom the registrationfees. for the reopening of the Employees' September30, 1992. Retirement System for certain active Act No. 91-697 , H. 645 , makes a members who had employment with Act No . 91-691 , H . 242 , makes supplemental appropriation from the the Legislature prior to 1979. an appropriation from lhe Special Edu· Alabama Liquefied Petro leum Cas Board F'und to the Alabama l.iquefied Petroleum GasBoard for the fiscalyear ending September30, 1991. ALABAMA BAR DIRECTORY Act No . 91- 707, H . 282, amends section 2-5-14, Code of Alabama 1975, relating to the Farmers' MarketAuthor The 1991-92 Alabama Bar Directory ity, so as to authorize such Authorityto make grants for the benefit of agricul will be mailed within the next month. tural markets and other agricultural Each member in good standing oriented facilities. of the Alabama State Bar will receive one free copy. Act No. 91 · 709, H. 101 , amends section 29-1-18, Code of Alabama 1975, Add itional cop ies are $15 each. relatingto legislativeaffairs , so as to pro vide further for the number of members on a standingco mmitteeof the Housefor Please mail checks, made payable to Lhequadrennium ending January 1995. Alabama Bar Directory , to P.O. Box 4156, Montgomery, AL 36101 . Act No. 91 · 712 , H. 253, makes an appropriation from the general fund to the Alabama Travel Council for the fiscalyear ending September30. 1992. 74 I January 1992 THEAl.ABAMA LAWYER SUlllMARIES OF GENERAL LAWS ENACTED AND CONSIIIUfiONAL AMENDMENTS PROPOSED ll Act No . 91·713 , H. 232, makes facturers. distributors , wholesalers. Act No. 91-730 1 S, 505, amends an appropriation from the SpecialEdu dealers and their rtpresentati.oes.It also section 37.3.32, Codeof Alabama1975. cational Trusl Pund to the Exploreum repeals sections 8-21-l through 8-21- relating lo motor carrier fees paid to Museumof Discoveryfor the fiscalyear 14. Codeof Alabama1975. the Public ServiceCommission, so as to ending September30. 1992. providefurther for such fees. Act No. 91-722 , H. 830, provides Act No . 91 -714 , H. 272 , makes an exemption from the certificate or an appropriallon from the Special Edu need requirement for an)' kidney dis Act No . 91 -731, S. 411, amends cat ional Trusl f'und to the Alabama ease treatment center that is located in section 2-3-22. Codeof Alabama1975. YMCA Youth and Covemment and the a Class 4, 5. 6. 7 or 8 municipalilyand relating to agricultural markets, so as Cleveland Avenue YMCAfor the fiscal that contains no more than ten hemo to allow the Commissioner of Agricul year ending September30, 1992. dialysisunits. ture and I nclustrieslo employ one per son in the unclassified service of the Act No . 91 -715 , H. 241, makes Act No. 91 -725 , H. 248, makesan state for each market owned. con an appropriation from the Special Edu appropriation from the general fund to trolled or managed by the Department cational Trust Fund to the Alabama the CoalitionAgainsl Domestic Violence or Agriculture and Industries. Humanities foundation for the fiscal for the fiscal)'Ur ending September30, )"earending Sep1ember30 , 1992. 1992. Act No . 91 · 732, H. 203, is the education budget. 11makes appropria Act No . 91 · 716, H. 463 , makes Act No. 91 -726, H. 264, makes an tions for the support. maintenance and an appropriation from the Special Edu appropriation from the Special Educa development of public education and cational Trust Fund to the BevillCenter tional Trust Fund to the Departmentor for debt service and capital improve for AdvancedM anufocturlng Technolo Public Heallh for the fiscal year ending ments for the fiscal year ending Sept gy in Cadsden and to the Bevill September30 . 1992. ember 30, 1992. • AdvancedEl ectronics Center at Sparks Technical College for the fiscal year ending September30 . 1992. HEALTH CARE AUDITORS , INC . Act No. 91-717 , H. 238 , makes an apprOl)riationfrom the Special Edu cational Trust ~·undto the Kate Duncan Smith DARSchool for the fiscal year ending September30, 1992. Act No. 91 -718, H. 439, makes MEDICAL& DENfALMAIPRAcnCE EXPERTS an appropriation from the Special Edu • GRATISMEDICAL TEAM PREVIEW Of YOURCASE cational Trust f'und lo the Constitution Mall Village al lluntsville for the fiscal • GRATISconsultation bycllnlcal rep INYOUR OFFICE year ending Scplember 30, 1992. • GRATIScourt room assistance by our clinical reps Act No . 91- 720, H. 121, amends 11th HOURNOTARIZED AFFIDAVITS : SUPERRUSH sections 5-21-2, 5·21·3, 5-21-4 and 5- Signed written opinions from $295 21-11. Codeof Alabama1 975, relating to the George Wallace, Jr .. linked • We are NOT simply a referral service. We work deposits plan. so as to expand the plan closely with you to BURD YOURCASE to include discrelionary emergency • All medical experts are actively practidng · interim deposits to support loans made for property loss due to natural or man BOARDCERTlf1ED · NO RETIREDEXPERTS made disastersand to extend the plan to • H your case has no merit we will document such Sep1ember30, 1995. for your firm GRATIS! Act No . 91 · 721, H. 911, is ·Toe • FlnanclaJ plans tailored to your exact needs Tractor, Lawn and Carden and Light HCA! MEDICAL l.111GATION SUPPORT l1:.AM Industrial Equipment Franchise Act".I t P.O. Box22007 St Petersburg. Fk)rkla 33742 provides for lhe fair regulation of trac 813•579-8054 tor, farm equipment, lawn and garden For S~ll Service: FAX(8 13) 573-13.'13 and lighl industrial equipment manu· THE ALABAMALAWYER January 1992/ 75 • M·E·M·O·R·l·A·L·S • ALABAMASUPREME COURT his career in Alabama government, beforeh im played no role in his deci sions at all. When the Judge authored JUSTICE ROBERT 8. HARWOOD until I becamea member of the bar. There cannot be many public careers an opinion reversingan early success (1902-1991) to match Judge Harwood's: high aca ful verdict in a case of mine, r may demic honors in college and law have been "surprised'' lo lose on the I have. on sev school, private law practice, assistant law (since, like all trial attorneys, I eral occasions. U.S.Attorney, professor of law (Uni had no clients or victories that were recounteda story versity of Alabama), Attorney Genernl not "right"), but I was not at all sur from the time of of Alabama.major in the U.S.Army in prised that Judge would simply call it my initial appli WW LI. and judge on the cour t of as it fell out, and that no degree of cation to takettie appeals and Alaban1aSupreme Court. affectionand friendship would affect Alabamabar e.' 76 / January 1992 THE ALABAMA LAWYER Judge lived a long and immensely ALI\BAMASUPREME COURT Justice Merrillentered the teaching successful lire, saddened in his last JUSTICE PELHAMJ. MERRILl. profession in 1926. He served as )'ears only by the loss of MaryLee, and teacher and coach al West Bloctonin by illness. Typicalof him, as long as (1907-1991) Bibb County. llis first team, with 13 his health would allow, he devoted a players,had not won a game the pre "Heis the tgpe of voung man who great deal of Hme and caring in his will undoubtedlyachieve high suc vious year. That team would lose a relirement, ulterl)' without bother or cess.· single game and win Lhe county self-inlere~l.to continue to help oth championship. I le was always"Coach -George I{ Denny ers through the Soup J(itchen pro Merrill" In Bibb County. He uiughl gram in Tusc.,loosa. I le lived to see five ye.'lrsand subsequently served as his son become a judge, and I know These words principal of the Junior high and ele what Bernard meant when he said at were penned in mentary schools al Blocton. An ac his invesli lure, that , while he was 1924 when Pel complishmentin which "Judge" took proud to have his father's robe to ham Jones Mer great pride was his work in the Oppo wear,it was a wry largejob to think of rill was 16 years rtunity Schools which taught adults filling it. t suspect that many Ala old and well into to read. Ill\ school was the largest in bamianstoday do not know the extent his second year the state in 1929-30. the length and the quality of service of study at the His legal studies began in 1931and Judge rendered to this state, but the Uni\-ersityof Ala he received h,s law degree in 1934 los.\of this quiet, wise and honorable bama. which he had entered at 14 and from the Universityof Alabama.He man is a verygreat lo$$indeed. from which he was graduated with workedhis way through lawschoo l by He would think that a eulogywas a the A.B. degree in 1926 at age 18. working in the dining hall and serv lot of undeserved fuss, and would, I Presidenl Denny's prophesy was in ing as a dorm monitor. He entered think, be content lo have left behind deed correct when he endorsed a the practice of law in Hemn, Alabama some of those who kilCwhim as a scholarship applicatio,, of this Cle in January 1934 and practiced there teacher, a father, a grandfather, a burne County native. Pelham Jones until 1953 when he moved to Mont Judge or a friend as having gained Merrill did achieve high success-as gomery to serve as an associate jus something in the qualityof their lives teacher, lawyer, soldier, and jurist. tice of the Supreme Court of Alaba and character so as not to need any RetiredAs.sO<:iatc Justice PelhamJ. ma. He had previously served as one to have to perjure himselfon our Merrilldied sudden()•at his home in deputy district attorney for Cleburne behalf. MontgomeryNOVtmber 5. 1991.Jus Countyfrom 1935until 1942. RichardH. Gill tice Merrill served 24 years on the Judge Merrill was elected three Copeland,Franco, Screws & Gill state's highest court and was the sen limes to represent Cleburne County Nontgomf!1'/I, Alabama ior associateJUSlice when he retired in the Stllte Houseof Representatives. in 1976.Justice Merrillhad been 11ery first serving in 1936. He was nomi active in the judicial improvement nated a fourth lime in 1942, but He..,..,, of o6Urs.t." Justict.. H~•ood, but ..,.,u.always rt:ftrrtd co by us as "Judge... His movement in Alabamaand had key resigned lhe nomination lo enter the ~,re.M•,y L<•, In • wond MERRILI.,PEUIAM J ONES Montgomery DAHi.£,LAURA ANN M CDONALO Admitted: J934 SEARCY,EVERF.'li 8RINNON Fairhope Died:November 5, 1991 Birmingham Admilled: 1987 Admitted: 1968 Died: September 17, 1991 CARRISON,ROBERT CARLTON Died:October I, 1991 Birmingham Mmilfed: 1926 EMERSON,RI CHARDBAILEY Died:October 25. 1991 SIMMONS,IRA F'RANK Anniston Birmingham Admilled:19 39 GRIPFITI I, JOHNIK E .4dmit/ed:1966 Died:Se ptember IS. 1991 "1ounlainBrook Died:September 23. 1991 Admilled:1937 Diec/: October 14. J 991 THE ALAl3AMAl.AWYER January 1992 / 77 Memorials and the University of Alabamaschools late mother. l,illa Jones Merrill, was of law. He was also honored by Jack Alabama's 1951 Mother of the Year. sonville State University and the Uni The Montgomery, AlabamaChapter and re-elected in 1950. He resigned vers ity of Monteva llo. His civic of the Universityof AlabamaNat ional his legislative seat in 1952 following involvement included Lions, Civitan Alumni Association named its en his election to the state's highest and Exchangeclub memberships. I-le dowed scholarship in honor of Judge court. He was tleice elected speaker was a longtime supporter of YMCA Merrill. In lieu of flowers, memorials pro tern of the House of Representa work, having first been elected presi weresuggested to the PelhamJ. Merrill tives and honored as its most effective dent of the YMCAat the Universityof EndowedScho larship, P.O. Box 1928, member in 1951. Alabama.I-le later served as chairman Tuscaloosa,Alabama 35486-1928. Judge Merrill remained active in of the YMCAY outh Legislature Board Judge Merrill concluded his 1966 the United States Air FQrce Reserve of Directors. He also helped organi~ keynote address on Alabama courts as following his release from active duly and was the first secretary of the follows: as a major in 1946. He was retired Alabama-Georgia BaseballLeague. "I shall be conten t, if, when my with the rank of colonel in 1967. Judge Merrill is survived by his days are numbered. it can be truthful Judge Merrm was a leading Baptist wife of 55 years, the former Glady.s ly said of me lhal with such ability as layman in Alabama.He was ordained Morrison of West Blocton. Also sur l possessed,and wheneveroppor tuni a de~con in the Calvary Baptist viving are three brothers: Walter J. ty offered, I labored faithfully to build Church while a student in college. He Merr ill, an Anniston attorn~y; Carl this temple (of justice) in my time." was an active Sunday School teacher H. Merrill, an attorney in lienin; and The respect and esteem in which for over 60 years and asked to address F'red L. Merrill of Anniston. He is Justice Pelham J. Merrill was held for the AlabamaState Baptist Convention also survived by his sisters: Mary his many contributions to the justice in 1962. He was a frequent lay pulpit Prances Oursl, of Columbia, South system of the State of Alabama is guest throughout the state. Carolina: and Mrs. Clyde M. Maguire proof PQsitivehe was a laborer of infi Judge Merrillwas inducted into the and Pearl M. Burns, both of Jack nite worth. AlabamaAcademy of Honor in 1978. sonville, Florida. J-lis father was the I-lewas honored by both Cumberland late Judge Walter B. Merrill and his -Reginald T. Hamner NOTICE To Member s of the Bar and the Public Concerning Public Hearing Notice is hereby given that a public heMing will be conducted by Chief ludge Gerald Bard TjoOat, United Slates Court or Appea ls for the Eleventh Circuit, on Monday, January 20, 1992 at 9 a.m. ln Courtroom A or the United States Courthouse, 611 Nort h Florida Avenue, Tampa, Florida for the purpose of receiving suggestions, proposals and comments concern ing the appl ication or enforce ment of Eleventh Circui t Rule 46- l(d)( 1) and or Section (d)(2) or the Eleventh Circ uit Plan under the Crimina l JuS1ke Act (CJA). (These provisio ns became effective April 1, 1991 afu,r public notice and an oppo rtunity 10 comme nl had been given In 1he foll of 1990 and wi nier of 1990-9 1, as required by 26 U.S.C. §207 I (b).) Eleven1h Circuit Ruic 46-1 (d)( I) states: Appellate Obliga1ions of Retained Counsel: Retained co unsel for a criminal defendant has an obliga tion 10 continue 10 represent 1ha1defendant until successor counsel either enters an appearance or is appo inted under 1he Criminal Justice Ac~ and may not abandonor ceaserep re$entation of tl defendant except upon order or1he courc. Seclion (d)(21of the Circuit's CJA plan Slates: If a party was represented in the district court by counsel appoi nted under the Acl , such co unsel shall be mindfu l of the obligation and responsibi lily to continu e representation on appeal unti l eit her successor cou nsel is appointed unde r the Act or counsel is relieved by order or this court • •• Retained counsel for a crimina l defendant has an obliga tlon 10 continue to represent I.hat defen dant until successor counsel either enters an appearance or is appoin ted under the Act, and may not abandon or cease represent•· tion of a defendant except upon order of this cour t. Unless approved in advance by 1his court , the discrict cout1 is not au1hori1.ed to appoint counsel on appeal co represent a defendant who was represented in the diS1rict court by retained co unsel without first co n ducting an In c•mem review of the financial circumstances oi the defendant and of the iee arrangements between 1he defendant and retained trial co unsel. ,\ ppointment of counsel on appeal may be reques1e 78 / January 1992 THE ALABAMAl.<\WYER CUMULATIVEINDEX 1986-1991 Volumes 47-52 Adams,Phillip E. Jr. "President'sPage" 52:236 , 52:304 "Courtingthe IdealLawyer" Charley Reese 52:361 "HandlingClient Fund$ in the IOLTAEra " AlexW. Jackson ADMJNI STRATIV £ LAW 49:7 "AlabamaAdministrative Procedure Act: The Venue "LegalAssist.ants: A CrowingRole in the Practiceof Lawin Issue Resolved" Helen Currie Foster 48:275 Alabama"Ka thleenA, Rasmussen52 :214 ''An Introduction to l'edernl Administrative Law Part 1: ';Pro BonoP ublico Service In Alabama" 52:357 The Exerciseo f AdministrativePower and JudicialReview" "Scopeand Application of the Attorney-Client Privilege-an WilllnmL. Andreen50:322 Overview"Lee H. Zell47: 100 "An Introductionto FederalAdministrative Law ·sta tute or LimitationsUnder the AlabamaLegal Services Part I: The Exerciseof Administrati\-ePower and Judicial I.JabilityAct" Jonathan Ii. Waller52:276 Review"50:322 "The Lawyeras a Lobbyist" Luther J. Strange 11149:14 "An Introductionlo FederalAdministrative Law "TheWo rk Product Doctrine"Lee H. Zell 47:142 Part II: The Availability of Judicial Review·•William I.. "The llewards of Professionalism-An Interviewwith Chief Andreen 51:28 Justice Harold C. Clarke" 52:347 ADMlff£ES 13.idham,Walker Percy , Ill "YoungLawyers· Section" 51:3 16. Fall 198547:25, Spring 198647:206. 51:364,52:62 , 52:160, 52:209 Fall 198648:35,Spring 198748:223, ~'ell, DavidA. "EconomicExperts for Reductionto Present Fall 198749:34 . Spring I988 49:274. Valueof Future Lost EarningAwards" 48:84 , "Nonpartisan Fall 198850:25 , Spring 1989 50:218, Judicial Electionsand the State Bar" 52:156 l~all1989 51 :15. Spring 1990 51:203, Bnlske, Dennis N. "An Urgent Plea for Help from the Alabama Pall 19905 2:21, Spring 1991 52:211 State Bar: 47:14 Albritton,W. Harold.Ill "President'sPage" 51:248, 51:320, BANKRUPT CY 52:4.52:68. 52:116. 52:180 "AutomaticStay Litigation:a Primer"E. Terry Brown47:319 AlcXllnder,James P. and Hargrove,John W." DrugTesting in "Comfort Orders.Legal Tille and the Conslitution--Should Employment:a LegislativeProposal for Alabama" 50:70 Salesby the Trusteebe JudicialSales?" li on. StephenB. Coleman 47:208 ANTITRUST "rarm Bankruptcy:Th e NewCha pter 12" Tazewell T. Shepard, "TheStale Action Immunity Doctrine:a Reassessment"J ohn Ill 48:10 r. Mandt47:136 "InvoluntaryBankruptcy-Unknown and Llttle-lhed Remedy" M. DonaldDavis. Jr . 49:10 APPE LLATE PRACTI CE "LlligationAlter Bankruptcy or Reliefis Onlya Court (or Tu'O "Correctingthe Recordon Appeal:A Primer" C. Houston Away)" RomaineS. Scott. Ill 50:248 Howard,II 49:212 "Failure to Read This Article May Result In the Dismissal of BANKS AND BANKING Your Appeal" Kerry R. Caston and Celeste W. Sabel 52:252 "Alabama'sInte rstate BankingLeg islation" John A. Nathan "PossibleAppellate Court Restructingin Alabama"Bert S. 49:80 Nettles52:77 "BankCustomer Privacy in Alabama"Byrne, Bradley R. 52:40 "Bew.ireof ColombiansBearing Gifts" Robert F' . Clarkand W. ARBITRATION LloydCopeland 49:350 "Arbitrationof CommercialDisputes: An Emerging "Introductionto Lenderl.lability " GregoryH. Hawley48:214 Alternativein Alabama"John M. Heacock. Jr. 48:20 Barnard,H ollinger I'. "JusticeH ugo Black and the l'irst ATTORNEYS Amendment: an AlabamaConnection" 49:220 "ASurvey of AlabamaLawyers: 1 986" SamuelH . Pisher. 111, Battles,Kenneth W .. Sr. "Assessingthe LegalNeeds of the James C. Stovall& PatrickR. Cotter48:160 Poor. Buildingan Agendafor the 1990s"51:354 "AttorneyDiscipline and the Roleof the LocalCrie-oance Black.Claire A. "YoungLawyers' Section" 47:285. 47:326. Commillee"Alex W . Jackson48:155 -t8:48,48:105, 48:173 , 48:234 "AttorneyLiability Under the Pair Debt CollectionPractices Bonnell,Craig S. and Weller,Christo pher W."Alabama Act" William S. Shulman 48:134 Wrongful DeathDamages No Longer Taxable"4 7:272 "Avoiding Malpractice and Client Complaints" Alex W. Jackson Brndford,R obert W., Jr. "The Mini-Trial and SummaryJ ury 47:269 Trial" 52:150 THEALABAMA LAWYER January 1992/ 79 Braswell,The lma "VideorecordingCourt ProceedingsComes Clark, Robert F. & Copeland, W. Lloyd" Beware of Colombians to Alabama"52:92 BearingGifts " 49:350 Cole, Randall"Video Court Reporting: WhatJudges and BOOK REVIEWS LawyersT hink" 52:95 "Alabama CivilPrac tice Porms'' reviewedby Greg Ward48:356 Coleman, Hon. Stephen B. "ComfortOrders, Legal Title and "ConsumerLaw: Sa les Practicesand Credit Regulation" LheConstitution-Should Sales by the Trustee be Judicial reviewedby Greg Ward48:98 Sales?"47:208 "Handling Automobile Warrantyand RepossessionCases" Colquitt, Joseph A." Should AlabamaAdopt the Pederal Rules reviewed by Greg Ward47 :72 of Evidence?"49:72 Bornstein,Pa ul "OfficeAutomation Consult ing Program·· CONSUMER LAW 47:146, 48:50, 48:96,48: 126, 48:359, "Alabama Deceptive Trade Practices Act"Michael A. Bownes 49:25,49:89, 49:218, 49:368 . 50:78 50:159,50:200 , 50:276, 51:56,51:84, 51:170, 51:207. 51:258, 51:332, CONTRACTS 52:100, 52:228,52:290 "By the Lawyersand for the Judges: An Irreverent Historyof Bowdre,Karon 0. "Immigration Law:What You Do Not Know the Bill of Rights" Michael E. Tigar 51:78 Can Hurt You-and Your Client'' 50:234 "Due ProcessRights of Students in Public School or College Bownes,Mic hael A. "Alabama DeceptiveTrade PracticesAct " DisciplinaryProceedings" A lbert S. Miles48:14 50:78 Bradford.Robert W .. Jr. "The Mini-Trial and SummaryJury CONSTITUTIONAL LAW Trial" 52:150 "Justice Hugo Black and the Pirst Amendment:an Alabama Brannan.J. Bernard, Jr. ''YoungLawyers' Section" 47 :21. Connection"Ho llinger P. Barnard49 :220 47:97,47:141, 47:2 19 Brasw~II. N. T. "Alabama Poets" 47:94 CONSTRUCTION LAW Brown, E. Terry "Automatic Stay Litigation: a Primer"47:319 "Building Contractor's Recoveryfor Incomplete Performance" Bucy, PamelaH . ·White Collar Crime and the Roleof Defense Christopher LyleMc ilwain 51:230 Counsel"50 :226 "Mechanic'sand Materialman's lien Law"J. Lister Hubbard Bucy,Pa mela H. and Marshall, Steven T. "AnOverview of 49:202 RlCO"51:283 Byrne, BradleyR. ''BankCustomer Privacyin Alabama"52:40 Copeland.W. Lloyd& Clark,Robert~ -. "Bewareof Columbians Byrne,David B. , Jr. "RecentDecisions" BearingGifts" 49 :350 47:54, 47:105, 47:214, 47:273,47 :335, 48:52,AS:99,48:147, 48:230 , 48:304,48:345 , CORPORATIONS 49:49,49:111, 49:169, 49:237 , 49:303,49:369, "Issues in the Sale of a SmalI BusinessUnder the Alabama 50:42, 50:92, 50:142.50:187, 50:255, 50:333, BusinessCorporat ion Act"M ichael D. Watersand Daniel B. 51:47,51:101, 51:175, 51:237. 51:307, 52:51, Graves51:338 52:109, 52: 168 52:222, 52:363 Cotter, Patrick R., Stovall,James C. and Pisher. Samuel H.. Ill Caine,A lva C. "President's Page·• 50:204, 50:288, 51:4, 51:68, "ASurvey of Alabama Lawyers:1 986" 48:160 51:132,51:196 Campbell,Andrew P. "Interferencewith BusinessRelat ions: COURTS the Unified Tort since Grossu. LowderReolty" 50:86, "Nonpartisan Judicial Elections and the State Bar'' David C. 50:128. "RICOin the I 1th Circuit after HJ., Inc." 51:272 Bagwell52:156 Carr, Davis" PunitiveDamages and Post-Verdict Procedures: "UnnecessaryDelay in Our Courts ReducesRespect for the WhereAre We Nowand WhereDo We Go from Here?" Rule of Law" Chief Justice Sonny Hornsby51:74 51:90 Clarke, Jack "AlternativeDispute Resolution: An Introduc Crane. E. Lanny' 'Of Interest- IRS Reporting of RealEsta te tion" 52:126 Transactions" 48:303 Crawford,Lloyd V. '; The RevenueAct of 1987-Selected Provi CIVIL PROCEDURE sions'' 49:94 "Serviceby Publicationu nder Rule 4.3" Jerome A. Hoffman Crawford.Vernon Zionch eck. Sr. "Memorials" 47:230 49:18 COURT REPORTING CIVIL RIGHTS "Court Reporting in the 1990s"Jenny Dunn 52:98 "Age Discrimination and Reductionsin Force" Richard E. ,;Videotaping of Court Proceedings"Associate Justice Hugh Neal 47:86 Maddox52:9 I "VideorecordingCourt ProceedingsComes to Alabama" Clark,Wi lliam N. "Whata CivilPract itioner Needsto Know ThelmaBraswe lI 52:92 About the Defenseof White CollarCrime" 47:250 "Videotapeas the Official Recordof Trial" Stuart Leach52:94 80 I January 1992 THEALABAMA LAWYER "VideoCourt Reporting;What Judgesand LawyersThink" "Professional Etiquette, MobileSty le" J. E.Thornton 47:301 RandallCole 52:95 ·secretarial Subservience.Birmingham Style" Lindsey R. Gravlee48:7 CRIMINAL LAW EDUCATION "An Overviewo( RICO"Pamela H. Bucy& Stewn T. Marshal 51:283 "The Due ProcessRights of Students in PublicSchool $. "An UrgentPlea for Helpfrom the AlabamaState Bar"Dennis or CollegeDisciplinary Hearings " Albtrt Miles48: 144 N. Balske47:14 "Passthe Torch" MargaretL Lalhumand Jan Loomis51 :356 "Bewareor ColombiansBearing Gifts" Robert I'. Clark & \V. EMPLOYMENT LAW LloydCopeland 49:350 "AgeDiscrimination and Reductions-in-Poree"Richard E. ·Emphasisand Integrity:Frank Johnsonand lhe Administra Neal47:86 tion or Criminal Justice" by BryanA. Stevenson52:338 "DrugTesting in Employment: a LegislativeProposal for "Whata Civil PractitionerNeeds to KnowAbout the l)efonse "Alabama"James P. Alexanderand John W. Hargrove50:70 or White CollarCrime" Wi lliam N. Clark47:250 "Sexual Harassmentin the Workplace"E. WraySmith and "WhiteCollar Crime and the Roleof DefenseCounsel" Pamela Shirley DarbyHowell 52:194 K Bucy50:226 "EmploymentTorts" GeorgeM. Walker49: 148 Croom.Stephens C. "A Bit of Relief' 48:128 ENVIRONMENT "Em•ironmentalLiability for Vendw and Lenders·T. Bruce DAMAGES McGowin49:264 ·DamagesReco\'erable for WrongfulDe.ath in AlabamaUnder "The HawkOutside the JudicialBuilding: Reant Environ the f'ederalTort ClaimsAct" Dexter C. Hobbs48:16 mental Casesin Alabama"Ray Vaughan 51:220 "Profit Recoveryfor the Newor UnestablishedBusiness " MichaelI~ Roberts48:78 ESTATES "PunitiveDamages- A HistoricalPerspective• Corman "EstatePlanning for lhe ModeratelyWMlthy " Leonard Houston52:262 Wertheimer.LIi and Louis13. Feld 47:74 "PurritiveDamages and Post-VerdictProcedures: \\ 'here Are "Lawyersas Executorsand Trustees:Snakes and Ladders" We Nowanti Where DoWe Co from Here?" DavisCarr E:dgarC. Gentle, IU48:94 51:90 EVIDENCE "EconomicExper~ for Reductiont o PresentValue of Future "Sco pe and Applicationof the Attorney-ClientPrivilege-an Lost EarningAwards" David A. Bagwell48:84 Overview"Lee H. Zell47:100 "Offering and Objectingto Evidencein Alabama"Jerome A. Davenport.Ronald C. "UnderinsuredMotorist Coverage: Hoffmanand WilliamA. Schroeder47:305 WhereDid it ComeFrom? Where is it Going?"49 :284. "ShouldAlabama Adopt the FederalRules or Evidence?" "UnduinsuredMotorist Co..-erage • an Update·50:306 JosephA. Colquill49:72 Davis.M. Donald,Jr. · InvoluntaryBankruptcy-Unknown and Little UsedRemedy" 49:70 FAMILY LAW "AntenuptialAgreements" Herndon Inge,Jr. 48:140 DEBTOR-CREDITOR "Retirement Plansand Divorce:Some Considerationsin "AlabamaSelf-Help Repossession· Greg Ward 47:8 PlanningSettlments" William B . Sellers51:150 "Attorney LiabilityUnder the Fair DebtCollect ion Practice$ "Termination or ParentalRights " GregWard 49: 143 Act"\\ ~lliamS. Shulman 48:134 "llule 32, AlabamaRules or JudicialAdministration. Child "Evictionor t:jectment:How Doesthe Mortgagee Take Support Guidelines·•Judge Richard1 1. Dorrough51:34 l'os.sesslono( MortgagedProperty After Default" Romaine "The Relationship13etween Divorce and Bankruptcy'' S. Scott, 1114 7:188 Inge, Herndon, fll 51:142 "Introductionto LenderLiaibility" Gregory H. Hawley48:214 "ModifyingCh ild CustodyDecisions Because or Indiscreet SexualBehavior • ChangingTimes and an Elusive Dole,Elizabeth "Princi pal Address-AlabamaSlate Bar"48:265 Standard"Randall W. Nichols.52:36 Donaldson,F'rnnk W . "SocialSecurity Disability Act-Feed back"47:95 Feld.Louis B. & Wertheimer.Leonard "Est,te Planningfor Donley.Craig A. and Lazenby,R. Blake"The SecondIn jury the ModeratelyWealthy" 47:74 Trust Fund and Alabama'sWorker's Compensation Act" Fisher,Samuel H. rn.Stovall, James C. and Cotter, PatrickR. 51:110 . "A Surveyor AlabamaLawyers: 1986" 48:160 Dorrough,Richard Ii. "Rule32. AlabamaRules of Judicial Foster, HelenCurrie "A labamaAdministrati,·e Procedure Act Administration· Child Support Guidelines·51:34 the VenueIssue Resolved" 48:275 Dunn. Jenny "Court lleporling in the 1990s"52:98 Foy.Stanley W. "TruckingRegulation and Exemptionsfrom R Regulationin Alabama"49:290 EDITORIALS Puhrmeister.Patricia Yeager "Assessing the LegalNeeds of "ABil or Relier·Stephens C. Croom48:128 the Poor: Buildingan Agendafor the I 990s"5 1: 162 "OpenLelter to Jimmy Clark" Harry I.yon 48:323 Fuller, W. Sidney' 'AlabamaPoets" 47:94 THEALABAMA LAWYER fanuary 1992/ 81 Funderburg, J. Noah and Watkins,l Tl-tEAI.AIIM1A ST A TE BAR SPECIALMEMBERSHIP CARD 1991· 1992 ~ 1,,,.~roaanrv,..,., ~~~f~ UNW S t ~,8C!UHW lXl'UW ~p tt.'fflber lO, 1992 Sptdal M•mber (paid di=lly to tht Al•ba= State Bari Speclnlmembers hip sllltus is acquired pursunnt to Section 3~-3-17 or Section 34-3-18.Code olillobama (1975)• .s amended. Federaland state Judges. district attorneys, United Statu allomeys, and other go.-ernm•nt attomeys who an, prohibited from practicillll pri,..,tely b)• vlrt~ or their po$itionsare tligiblc for this membership stalU$. license Likewise. persons admltttd to the bar or i\labama who not (purchase through the art engaged In the practice of lnw or are em1>loy~dIn a position not county of prim•ry practice) otherwise requiring a license are eligible to be special members. Ir you art admitted to tht Alabama Stnte Bar and eng;,ged in the Attorne)'Sadmit ted to the bar or A1abamilwho rwde outside the stllte pn.:tke oflaw. )'OU art required to purchast an annual occupational of Alab.lmawho do not practice in the stat< of Alabama also are llcenso. Section40 -12-49. Codeof A/a/>(lmo(1975 ). as amended.Th is eligible for this stalus. With the exception or state attomeys and license gives you the r,ght to practice l•w in the st.lie of Al•bama district attorneys. and those who hold a license al any time during through September 30. 1992. The costor lhc licenseis Sl50, plus the the bar )'tllr, special members are exempt from mandator)' continu county's nomirml issuance fee. a.nd is purchased from the probate ing legal education requlr cments; howev~r.th is annual exemption Judge or license comm,uioner (where applicable)i n the county in mwt b THEALABAMA LAWYER January 1992/ 87 CLASSIFIED NOTICES RATES: Membert: 2 hoe lisbngs por oarmecnber oer celencSaryear EXCEPT !or ~POSit,onwanted" 01 -position offered" listings - $35 por 1nse,tionof 50 "'-otds o, lass. S.50 ooradditionru word ; Nonmember s: S35 per m,ortton oi 50 woros OI loss S.50 por a!ld11.LOnal1,\'0fd Classlfled copy a1'd paymen1mus: 1ce received ooco,o lng to the lollO'MngpubilshlOg schC to P.O. Box 671 , Montgomery , Position Offered: Atlorney-co llec FOR SALE Alabama 36101 Pre·paymenr re tlon A progressive auto nnance company quired. is seeking an attorney with experience In For Sale: Save 50 percent on your For Sale: Federal 2nd 790-933, all collection and bankruptcy law 10 handle tawbooks. Call National Law Resource. new: West Federal Practice o,ges1 3rd its caseload on retainer In Alabama . America's largest lawbook dealer Huge and 4th through completion or series. Please send resume to Attorney, Inventories. Low prices. Excellent quality. Contact Jean Dobbins, (205) 322· P.O. Bo .x 513, Southfield, Michi• Your sallsfaction absolutely guaranteed. 0616. gan48037. Also, call America's largest lawbook deal· Position Offered: Allorney position er when you want lo sell your unneeded available. Personal injury, wor1 NOTICE PARTICIPATE: JOIN A SECTION OR RENEW YOUR SECTION MEMBERSHIP! TOJOiN ONE 0A MORES~TIONS 0A RENEWYOUR S~TION l,l"cMWISH!P, COMP\.ETE 11<1$ FOAM ANO ATTACH SEPAAATE CHECKS PAYABI.E TO EACH SECTlON. Name------Firm or Agency ------Office Address Office Location------Office Telephone Number------Annual Annual Section Duos Section Dues __ Administrative Law ...... $20 __ Litigation ...... $ 15 __ Bankruptcyand Commercial Law ...... $20 __ Oil. Gas and Mineral Law ...... $ 15 __ Business Torts and Antitrust Law ...... $15 __ Real Property, Probate and Trust Law ...... $ 10 _ _ commu nications Law ...... $15 __ Taxation ...... $ 15 __ Corporation, Banking and Business Law ...... $10 Total__ __ Criminal Law ...... $10 __ Environmental Law ...... $20 Remember to auach a separate check for each section . __ Family Law ...... $30 Mall to: __ Heallh law ...... $15 Sections, Alabama State Bar __ Labor law ...... $10· P.O. Box 671 ·11practloillQ less than 5 years-$30 Ii practk:ing5 01 more yea,s Montgomery,A labama 3610 1 88 / January 1992 THE ALABAMALAWYER lhrooghout the U.S. and abroad. 50().60() Cl Laboratories. Hans Mayer Gldion, poor, we will also provide a free wrnlen new jobs each issue. $34-3 months: $58· 218 Merrymont Drive, Augusta , report State affidavits super -rushed . 6 months. Fede ral Reports, 101 O Georgia 30907. Phone (404) 860. Please see d isplay ad on page 75. Vermont Avenue, NW, #408-AB , 4267. Health Care Auditors, Inc ., P.O. Box 22007 , St . Petersburg , Flori Washington , DC 20005 . Phone Service: Securities experl witness . da. Phone (813) 579 -8054 . FAX (202) 393-3311. VISA/MC. Will testify to suitability and churning. Fif teen years' experience in securities busi 573 -1333. SERVICES ness. Arbitrator for National Association Service: San Antonio . Texas CO· of Security Dealers. Ame,ican Arbitration counsel available ,n stale and federal Association. American Stock Exchange. Service: Traffic engineer, consultanV matters. Licensed and expenenced in liti Can assist In court or arbitration hearing. expert witness. Graduate. registered . gation in Alabama since 1978 and Texas Member National Forens ic Center . professional engineer. Forty years' expe· since 1984 W. Stephen Graves , Chuck Schildhauer , P .O . Box rlence . Highway and c ity roadway 6838 San P e dro, Sa n Antonio, 3033 , Gulf Sho re s , Aalbama design. traffic control devices. c,ty zon Texas 78216. Phone (5121 826· 36542. Phone (205) 968-8191. ing. Write or call for resume, fees. Jack 0409 . FAX (512) 826-1047. No rep• W . Chambliss , 42 1 Bellehurst Se rvic e: HCAI will evaluate you r resentation is made about the qualily of Drive , Montgomery , Alabama cases gratis for merit and causa110n. Clin the legal services lo be performed or the 36109. Phone (2051272-2353 . ical reps will come lo your office gratis. If expertise of the lawyer perfonnmg such your case has no merit or II causation Is services. • Service : Legal research help. Experi enced auorney . member of Alabama Slate Bar s,r,ce 19n . Access 10state law library. WESTLAW avallab le. Prompt ,------, deadline searches . Sarah Kathryn ADDRESS CHANGES Farnell , 112 Moore Building , Montgomery , Alabama 36104. Pleasec heck your listi ng in the current 1990-91Alaba ma Bar Direclory and Phone (205) 277-7937 . No represen complete the form below ONLY if there are any changes to your !isli ng. tation is made aboul the quality of the Due to changes in the statu te governing election of bar commissioners, we legal services to be performed or the now are required to use members' office addresses, unless none is available or a expertise of the lawyer performing such member is prohibited from receiving state bar mail at the office. Additionally, services. the Alabama Bar Directory is compiled from our maili ng list and it is impor Service: Certified Forensic Document tant to use businessaddre sses for U1at reason. (These changes WLLL NOT Examiner . Chief document examiner, appear in the 1991-92 edition of the directory. The cut-off date for the directory Alabama Department of Forensic Sci informat ion wasSep tember l, 1991.) ences. 1elired. B.S., M.S. Graduate. uni NOTE: If we do not know of a change in address, we cannot make the neces versity-based resident school In docu sary changes on our r ecords, so pleasenotify us when your address changes. ment exam1nallon. Published nationally and internationally. Eighteen years· trial . . Member Identificatio n (Social Security) Number experien~ state/lederal courts of Alaba ------ma Forgery. alterations and document Choose one: Mr. Mrs. Hon. Miss Ms. Other__ _ authenticity examinations. Criminal and n r D O D D non-criminal matters. American Academy Full Name------of F0