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~~rvic:es ~ cl o PennyW t::1ver l.l l.l 500 lldl BcalcLng i 2f11 Montgomery s-, M°"'i,,:>n,crJtAJ.36104 ('205) ~1-0, .C.,,u, Finn.for~ Poor IN BRIEF Thearoer Alabama
November 1994 Volume 55, Number7 Publl1htd IO'IOft1 lm&s a yea, (1he June '-"o II t bat dlrootoryedi 1lon) by 1heAl abaml Sta10a. ,. ON THE COVER: P.O. Box '4156, Montgomery, A'8bama 36101·'4158. Photographed on the Mobile RiYer, the balcony of the new Mobile Convention Center Phone (206) 269• 1515 RObel1A. HuttalW ··-·--·-· ····-·-- ..CMir 6 &1,10, serves as a picturesquesetting fo r 1994,95Alabama Sta te BarPre sident Broox C. Holmes S
Billf'l1 IV.Hart"I/- --- hcM G. HOllll'ltll, McOIII JlrNtidn Jotw,A o....._T,seo,ioo,, - ,,,..,....:I -AchltdS Mnty , o.,,opoa. __ - Vet-piellMl,1 Overvlew of Alabama Taxu Ktlltl8 Hof!M'\ MOOIQOhMlit---- - ,-...,,Y 11/JRolxl rt /kllers Smilh ...... 3 69 l o•rd ol Comml•llontf"• 1,1 C~ EdwlalG P. l'UN* , Jr., ChlJIOffl• 2nd OIIWI. .IOM A, ~ luv ernit • 3rd Circuit. Lynn AobttnaonJtckton. Who Represent, the Poor? Cllt1'1:0t1, • 111C!rcu n. flii!ph N Hobbs. 58111 • 5th ClrcuH JoM Plf(y OIMt,, 11,Oldr.iht • $It. Cll'(IUit,PIIQe Ho. 1, W.11• A Loolt at Two Legal Serv ices Program s lllf P c,~. Tutelb>sa • 6tn CWCuC.P1ac.i Ho 2 J BIiAmnv w... ,..,...... 382 -_ ""°"_.., __' T.....,_ S...,.• ,r,, "-'<•IO,Cln:ul.WNCraro. Mu, 'llo. ·~ W.-o,i. Fot'I P~ • 10!,t.Oca:i1t. ,-. Nil 1 . ..,._. H. ~ ~ • l(Wtc.o&. ,- Ho 2...... W Ptu!dcnt's ~ ....- ....- ...- ...... 328 Opinions o( the Ctiw_nlCounstl ...... - ....342 ~ lid ;"'1.JR• ,omCitClillt. Pl.ct Mo l . ...,.._ s ExwitiYt Director'sR eport___ .,,_..330 UO,O .. 11410'""" • tClln~ PIia, Ho, 1MMii A CU: OpportunititJ.. -·-·- ...... - ....352 ~ .it •• wC,Wii • IOlh CwoA, ,-. HCl.$, FNdiWlck ~gula tM Wrap-Up...... 332 DisciplinaryReport ...... 3n T K~ ll. 8'.tw;.as1 • 10,.Ci,CU11,P1w ,- f. MIC a at...... ~ • 1CllbCircull. ...__ No. 1.,M:IIOA O.Yil. 81rlllfflgNm• 1Olh C.-. PilC8 No I. MM C PoPt About Members,Amo ng Fimu ...... 335 Memorials ...... 384 ...... ,,.._ · ,.., ""- ..._ ""· ,. c...r s w.,,,,, Building Alabama's Courthouses...... 337 ClassifiedN otices...... 38 7 ~ • 1CllhCmiit. Besseme,CUl..otl, C11orot Hlooi" ttoll\•m . BttJtmt, • 1tlh Chc:ull, Aobt tl M, Hill, Jt ., Bar Brie($...... 3 41 FJottn0t • lttl CfrctMI,M. Dale Mlltth. Enlft?(ltt • 131hOit , CUil.~Ke No 1. Vlcto, H Lott. .Jr.. Mo«IIM• 1,111Circuit. AI.AIINIA STATE BARHEAD QUARTERS STAPF "'- No. t. 8"' C. -. . ""°"'•131> C"- "'- No 3. CMlt O'ANr, 111, ~ • 131hCtoJ1L PIiat No ... ~ · 415 O.xttr ,\\'cnue. Montgomuy, AL36104(205) 269-15 15 • FAX12 05) 261-6310 menT ~Mobile • 141hCirwi1. R JII'/ ~ ,M1f* • t~ Cl,Qiic..,-. No I, Aidwd H. GIii, t.to, .__, f • ,Sift bl PRESIDENT'SPAGE Bar CommissionersAdopt Report Of Long RangePlanning Task Force ne of the most significant recent accomplish The entire report of the task force will not be set out here. ments of our many committees and task forces but I want to give you the followingbroad recommendations was the work of the Long Range Planning Tusk set forth in the report as the role of the AlabamaSlate Bar in l'orce in developing a long range plan for our fulfillingits obligations: bar.m The task force was appointed by President Spud Seale "'hen he look office last year. The AlabamaSlate Bar had not l. To provide leadership in enhancing the quality or justice had a true long range planning committeeand Spud •felt lhal and access lo legal services; it would be both beneficialand informative if we had a task 2. To support an independentand qualityjudicial system; force to bike a long. hard look at where we have been in lhe 3. To assure highest standards of ethical conduct and profes past and where we want to be in the future." sional compdence; The task force was very ably chaired by Camille Wright Cookof Tusc.1loosaand was made up of some 40 distinguished 4. To expand the opportunilles for women and minorities in lawyersfr om across the slate with diverse the law; practicesand viewpoints. ILincluded sev- 5. To work with the supreme court in eral appellate and circuit judges and five undertaking periodic review of bar former presidents of the slate bar. The admission and the bar examination 1vorkof the committee was divided into process; four areas for co05ideration and study. 6. To study the deliveryor legal services These were: (I) Review of the bar's role as by non-laW),-ersand make recommen a licensing and regulatory agency. dations that would best servethe pub chaired by DavidJlayd; (2) Demographics lic; of the bar (quality of life).chaired by Jim 7. To promote the use of alternative dis Barton: (3) Professionalism. chaired by pute resolution; Corman Jones and Bill Hairston;and (4) Purposesof lhe organized bar, chaired by 8. To be aware of the public perceptions AlicePruett and Tennent Lee. or th e legal profession and "'Ork The task force worked very hard in toward emphasizing the correction of developing a comprehensive plan and "erroneous perceptions" that reflect report for guidance of our bar into the unfavorably on the profession; next century. 9. To enhance the performance of all The report In ils mission statement Broox O. Holmes components of the bar organization states that "the AlabamaState Bar is dedi- and structure: and cated to promoting the professional JO. To urge that a standard policy of responsibilityand competenceof its members. impro,~ngthe inclusion be institutionalizedand communicatedto mem administra.tion of justice.and increasingthe publicundcrsland bers or the professionas the paramount response to sepa ing of and re5P«t for the law."This is an excellentand succinct ratism and fragmenlation. statementor what we should be about in the \\'Ork orthis bar. In keeping with the most imporlanl single goal for !ht bar The plan was disseminatedto )'Our bar commissionerslast of encouraging professionalism,the lask force also adopted July and at the board meeting on September23, 1994, follow the definition of professionalismrecommended by the bar's ing an excellent pres en tat ion by Camille Cook, the board Task Force on Professionalismas. "The pursuit of the art of unanimouslyadopted the plan. the law as a common calling. with a spirit of service to the While the plan is only a guideline, it does provide youx public and the client. and undertaken with competency, board or bar commissionersand the members or our bar with integrity and civility.'' direction and guidanceas w e goabout our work. 328 / NOVEMBER1994 TH~; ALABAMALAWY~R The board also voted to create a Long Range Planning Bar Leadership Conference committee. This committee will provide us with a means On September 9, 1994 the Annual Bar Leadership Con to improveand modifythe long range plan when and where ference was held al bar headquarters. The conference was the legal professionand lhe publicwill be best served. well attended by committee chairpersons and members. As a matter of Interest, Keith Norman reports that the section leaders and local bar presidents. Very informa CaliforniaSlate Bar budgeted $250,000for developmentof l ive reports were made on the work of the Alabama Stale ils long range plan and the result is likely to be similar lo Bar, and the work of the various committees serving the the excellentwork of our task force.Thanks Lo the dedication profession such as specialization, advertising and solicila· of our task force members,we receivedan excellentproduct lion and alternative dispute resolution. Also on the agen with no significantcost lO the bar. We are indeedindebted lo da were reports on programs which serve the public such CamilleCook and nil the members of the Long Range Plan· a.s the VolunteerLawyers Program. the Alabama LawFoun ning Task1:orce for this veryworthwhile accomplishment. dation and Kids Chance Scholarship Program. The con Now it is up to us-lhis year and in the future-to imple· Ference was very successful and will give us impetus in menl the plan by making the right decisionsand effort to ful carrying out the plans of the sections. committees and fill the ten stated obligationswe have formallyundertaken. task forcesthis year. • Delinquent Notice Licensing/ Special Membership Dues 1994-95 All Alabama Attorneys: The duq l Invoice for liceAses or speclol memberships was malled In mid-September an(:j wes to be paid between October 1 and October 31. If you have not purchased an occu pational license or paid special membership dues. you are now dellnquentl In Active Private Practice : Any attorney who engages In the active private practice of law in Alabama Is required to purchase an occupational license. The practice of law Is defined in Section 34-3-6, Code of Alabama . 1975,as amended (Act ~-600 was passed by the Alabama Leglsla t\Jre and amended Section 40-12-49 Code of Afobomo. 1975,effective October 1. 1992.) Oc cupational Ucense ...-$ 287.50 (Includes automat ic 15 percent late penalty ) Nol In Active Private Practice : An attorney not engaged In the active private practice of law iAAlabama may pay the special membership fee to be a member In good standing. Judges. attorneys general. United Stoles attorneys, district attorneys. etc .• who are exempt from licensing by virtue of a position held. qualify for special membership. (Section 34-3-17 & 18. Code of Alobomo. 1975.as amended) Spec ia l Membersh ip Dues... $125 (penalty not appl icab le) Direct any questions to: Christle Tarantino, Membership Services Director. at 1-800-354-6154(In-stole WATS)or (205) 269-1515 lmmedlotelyl THE ALABAMALAWYE R NOVEMBER1994 / 329 EXECUTIVEDIRECTOR'S REPORT THEFIRST MORNING OF MYFIRST DAY f I hlldany illusionsof self-importanceupon becom· hosted a group of legal scholars visiting from Nicaragua.The ing executivedirector. they were brief ones. The first bar had been selectedas a showcasefor the scholars to learn morningof my first day, l pulledup to the parking about the certificationor laW)-ers,professional standards. the deckof the bar buildingat 7:15 a.m. to disco11erthat bar examination process and other Issues pertinent to the theD entrance gate wasjammed. r got out of my CM, enteredthe organizationof the legalprofession. building through an alternate entrance, This past August, the AlabamaStale Bar and retrievedthe handle for the crank to once again seNed as host to a foreigndel manuallyopen the gate. I fiddledwith the egation. Visiting us this time were the apparatusfor ten minutes or so and was president and honorary treasurer of the ablelo gel the gate to open and closeelec Jamaican Bar Association,Dr. LloydBar tronically, as It is supposedto do. Next,l nett and Crafton $. Miller.We were also went to !he break room to make coffee. fortunate Lohost their wives who were We havean unwrittenrul e that the first to ae<:ompanylngthem. Dr. Barnett and Mr. arrive makes the coffee. Makingcoffee Miller were visiting the United Stales using pre-measuredpackets is no bigdea l, under the auspicesof a UnitedStates Aid but, as l wasopening the trash compactor Grant in an effort to strengthen their bar to disposeof the empty package,l sadly association's organizational structure, learnedthat the cleaningcrew had failed increase membershipand developa for to empty the compactor the previous mal CLE program. The American Bar eveningand the compactorbag had bro Associationhad recommendedthat they ken, spillingthe previousday's contents. study lhe programs of the AlabamaState Consequently,l had to cleanout the com· Bar in addition to those o( the Maryland pactorand put all the garbageinto a new Ke ith 8 , Norman and NewHampshire bars. plasticbag. Needlessto say.my firstday as Our guests spent the better part of a executivedirector had a rather inauspi· day talking with staff members about ciousbeginning. professional responsibility and lawyer discipline, how to This experience remindedme of somethingone of my earll• organize a mandatory CLE program and ways to enhance er mentors,Jack Smo llcn, had said manyyears before. Jack l\lllS their bar association's magazine nnd publications. ln the the general manager of WJHORadi o where in high school I process. we learned something about their professional ,11orkedpart-time se lling radioadvertising. He wasalways ready licensing and regulatory operations as well as their court and 111illinglo share his insights on topics ranging from the system. I discoveredthat as membersof the legal profession, radio business to politics. l can remember his telling me on Jamaican attorneys experienceproblems that are not unlike more than one occasionthal beinga chiefe.~ecutive officer was the ones experienced by Alabamaattorneys. Indeed, this not just sitting in an officeand makingexecutive decisions , but similarity of issues led to the initial discussion of future that it sometimesrequired getting your hands dirty and doing cooperation wit.h the Jamaican Bar Association that may things that no one else on the staffthinks is pan of his or her lead to the development o( a comparat ive law seminar job description. As l was washingmy hands after putting the for Alabamalawyers to be held in Kingston.The last compara garbageinto a new bag and cleaningout the compactorthat tive law seminar organized by the bar was almost ten years first morningof my firstday, I marveledat the sagacityor Jack's ago in Bermuda. observationsso many)'tars ago. While it was an honor for our bar to be recommendedas a model for the Jamaican l)ar Associationto study and learn lntematlonal reputation of from, more importanlly. we had the opportunity to learn the Alabema Stete Bar grows about the legal professionof another country and make new Youmay recall that in August 1989, the AlabamaSta te Bar ~en~ • 330 I NOVEMBER1994 THEALABAMA LAWYER How to AvoidMCLE Problems Stay current. The deadline for completingeach year's Cornet non-compliance at once. The MCLECom MCLE requirement is December 31. An extension mission regrets that the Supreme Court of Alabama II unUI March I may be requested if a deficiencyplan ls ha5to suspend some la"')'ers each year for not com submitted by January 31. The deficiencyplan must be pletinga MCLErequirements or not paying late fees. If this requested in writing and must state the sponsor, lllleJ I occurs, the la,,iyerloses at least one or more months of prac dale, location, and credits of the program you tice, must make up all seminar and late fee deficienciesand are planning to attend betweenJanuary 1 and - must pay a reinstatement fee. March I. Early selection of each year's Verifythe accuracy of the Annual Report of seminars enhances the opportunity to Compliance. As a service lo lawyers, the select the Ci,E that best matches MCLE Commission obtains attendance lawyers' area5 of practice. Those who II records from sponsors and lists each la,,iyer's wait until the last minute find record on the trarucript. However,each attor decreased availabilityof the seminars I ney is responsiblefor filingan accurate record they would prefer to attend. - of his or her CLE attendance. Any needed _ _ .,. correction to the Annual Report or Compli ance should be made before the attorney signs it and thereby attests to its accuracy. It is ,. the policyof the MCLECommission 10 report to ( the disciplinaryboard all instances of false affi- davits.Th e MCLECommission ls pleasedto report y that a vast majority of Alabama lawyers do comply / fully with their MCLE requirements and thereby do - , avoid the foregoing problems. • UNTILNOw, TmE ffi\1PANIESWERE ABOUI AS EASY 1D COMPARE. Thesedays. • lot of bllt c:anpanics cbim IO be financiallysound. 8111IOO oflen. w!Ul lhc) promocelll't isolaiedralios and SlalJSticsthat lll't not • IJUCll1CtillJ1' of fin3ncinls:treng!h. In f""1.they arcoften mhlcading, Al MississippiVtillcy 1i1lc. we saw lhc needfor 6Ulndardizedclaim>·paying·abllily nitin~ for 1i1leinsurers. Thnt"swhy weas ked 10 be rmedby Smndrud& Poor's. We weregiven an A+ - the highc5lmling from S&P in die dale indusuyt o daae- Olllngw ith ouraffi li111e und CO· unde1wri1er.Old RepublicNmionu l Tille lnsumncc Company,who receivedu11 A+ r111ingfor die secot ld year in orow. Askanother lialc company ror lhclr nmng from Stand:rrd & Poor's.Iflhcydoo·111:1,..,ooe . ~ why. Thenrnll MississippiVsllcy Tille. ~ . • • • MISSISSIPPI VALLEY TITLE • • • INSURANCE COMPANY •• 315Tombigbee~ P.O. Bo, 2428 Jackson.MS 39225-2428 ((,(}I)969-0222 (800)647 ·2124(AUMSITN) THE ALABAMALAWYER NOVEMBER1994 / 331 LEGISLATIVEWRAP-UP By ROBERTL. McCURLEY,JR. Un lnc:orporated Actwith changesand additionsto Proceedings by or against an unln· non -profit assoc:iation s renect Alabamalaw. corporatedassociation presented simi An Institute committee has recom• At common law an unincorporated lar problems. If it were not a legal mended to the Councilor the Alab.una association,whether non,profit or for entity, each or the members neededto Law Institute a new Unincorporated profit was nol a separatelegal entity. It be joined as party plaintiffs or deJen· Non-ProfitAssociation AcL The com· was an aggregate or individuals. In dants. Class action offered another millee was chaired by L.B. Feld or many ways it had the characteristicsor approach. Again, courts and legisla, Birmingham,while Or. Richard Thig a businesspartnership. tures, especially the latter, provided pen, retired faculty memberor the Uni• This approach obviously created solutions. "Sue and be sued" statutes versity or Alabama School or l,aw, problems. A gin of real propert)' to an round lheir way on the lawbooks of served as chair. Members or the com· most slates. In Alabama, the statute mitteewe re: providingfor actions by an unincorpo ~bk olm N. Carmichatl, rated organization or association Is at Montgomery Ala. Code §6-7-80, and the statute Mul ey L Cummins. Ul, authorizingactions ~nst, and in the Sl)llls h Port name or. an unincorporatedassociation MarieL Cainu. Birmingham is at A/a. Code§ 6-7-81(a). BIii Hind$, Birmingham Unincorporated associations , not Virglnia Hopkins. Anniston being legal entities, could nol be Mary Ellen Lamar, Deatur lliible In tort, contract, or otherwisefor Jl.m Main, Montgomery conduct perrormed in their nomes. Bob Pearson, The.odo.re On the other hand, their members Thomas D. Samford, m.Auburn could be. Courts borrowed from Lhe Loh Salise, Birmingham law or partnership the concept that At,,,• Spruoll Tuscaloosa the members or the association, like L VuUno SW>ler. Jr., partners,were co-principals.As co-prin Birmingham cipals they were individually liable. Jamu W. Webb, Montgomery Again.courts and legislatures,respond Jamu Jeny Wood, Montgomery ing to concerns of their constituents Professor Richard Thigpen, in his about th is result, modified these preface Lothe committee's drnrt. has unincorporated association failed ru les. Courts round that, ln large summarizedt he Actas follows: because no legal entity existed to membershipassociations, some mem· This Act reforms the common receiveiL For example.a gift of Black bers did not have the kind or control or law concerning unincorporated, acre to SomersetSocial Club (an unin participation in the decision process non-profit associations in three corporated, non-profit association) thot made it reasonable and fair to basic areas-authority to acquire, would fail because in law there is no view them as co-principals.Legislatures hold, and transf'erpropert)', espt· legalentity to receivetitle. Somecourts also took steps. Perhaps most striking cially real property; authority Lo in time became uncomfortable with are the statutes adoptedin many states sueand be sued as an entity; and this result Some construedsuch a girt in the last decade excusing officers, contract and tort liabilityor orn as a grant to the orncersor the associa directors, members, and volunteers cers and members or the associa tion to hold the real estate in trust and tion. It also provides a default manage it for the benent or the mem provision (or the governance or bers or the association.Later, some leg. Robert L McCurlei , Jr. such associations.It is basedgen. islatures provided various solutions, AobenL M ALABAMA DIVORCE, ALIMONYAND CITTl.OCUSTODY HORNBOOK TfDRDEDffiON by Peony A. Davis REORGANIZED FOR and FORMS CONVENIENTQUI CK Robert L McCurlcy, Jr. REFERENCE Over I 7S pages of fonns are convenientlyorganized with the busy Alabama Divorce, Alimony nnd Child lawye.rin mind. Among them are new Custody Hombook, TI1irdEdition, is New Edition of the Leading forms on postnup1inl agreements and the most comprehensive book on Refe rence relied upon by unconiestcd divorce,s. Several fonns Alnbnmadiv orce law nvnilable. It has the Alabama Bench and have been revised, IncludingLhe client been reorganized into 42 chnpters, divorce contract, ag.rcement in taking the practitioner tllrough each Bar for over ten years. contemplationof divorce and property step of the divorce process. settlement. LAWYERS EDUCATIONAL PRESS Also Avallnblt: LAW OFFICE PRACTICE OESKBOOK. Sixth Post Office Oox 1287 Editionwith suppl Please send me __ copies of ALABAMA DIVORCE, ALIMONY AND CHIL.D CUSTODY UOR.NnOOK, Third Edition, at S79.~0 ench (S70.00 plus S9.40 iax, postageand handling), All orders must be PREPALO. Make checks payable to LAWYERS EDUCATIONAL PRESS. Lfnoi satisfied you muy return the book within 10 days for a full refund. THE ALABAMALAWYER NOVEMBER1994 / 333 these three categories or unincor tion is a legal entity for the purposes or the Alabama Code beginn ing porated. non-profitassociations. Unlike that the ;\cl addresses.ll does not make October I, 1995, some state laws,it is not connnedto the these associationslegal entities for all The current code bookswill continue non-profit organizations recog purposes. It is left to the courts of in use with supplements and new nized as non-profit under§ 50l(c)(3), Alabamato determine whether to use replacement volumes after October (4) and (6) of the Internal Revenue this Act by analogyto concludethat an 1995 being suppliedby l..aW)-ersCo-op. Code. There is no principled basis for association Is a legal entity for some Currently , a full set of the Code excluding any non-profit association. other purpose. with supplements costs $638. The Thererore,the Aet coversunincorporat IL should be noted, too, that a new contract price to purchase a ed philanthropic, educational,scientif non-profitcorporation or unincorporat Code with supplements will be ic, and literary clubs; unions; trade ed, non-profitassociation is not the only S295. Current supplements are $92 associations; political organizations; choice.A labama provides by statute for per year, with lhe new price lo be cooperatives; churches; hospitals; burial societiesthrough the means or a $43 per year. Replacement volumes condominium associations; neighbor charitable trust under Ala. Code §§ 11- presently arc $30 each; they now wiII hood associations;and all other unin 16-12 through l 1•17-15. It should be be $12 per volume. Lawyers Co-op corporated, non-profit associations. emphasizedalso that this Act is needed will also be offeringthe Cede CO-ROM Their membersmay be individuals,cor for the informal non-profit organi for an initial price of S895 with porations,other legalentities, or a mix. zations thal do not have legal updates of $495 per year. The The Act is designed to cover all adviceand so may not considerwhether CD-ROMwlll also include the Adminis or these associationslo the extentpossi to incorporate. trali/Jfl C«J,. ble. To the extent that Title 10. The director of the LegislativeRefer Chapter 4 or the Code of Alabama New Alabama Code publi sher wee Service, JerryBassett. will contin and other Code provisions deal wilh Representative Jim Campbell, ue as C«JeCommissioner. special types of non-profitassociations. president of the AlabamaLaw Institute For further information,contact Bob this Act supple_mentsexisting legisla and chair of the LegislativeCouncil of McCurley, Alabama Law Institute, tion. the Legislature, announced that P.O. Box 1425, Tuscaloosa, Alabama The basic approachor the Act is that Lawyers Co-op had submitted the 35486, or call (205) 348-7411, fax an unincorporated,non-profit associa- lowest bid and will become the printer (205)348 -8411. • CONSCIENCE AND COMMAND CHAP7..13 A Motive Theory of Law DaleSegrest introduces • ... provocarive. .. Judge Segrest skillfullydraw s upon o wide mnge of humane discrplines to NewPI,AN13 addresssuch cardina I legal concepts as con• science, order, freedom, rights, faule, and TheChapter 13 Software justice.'' thatadapts to different courts. -J OHN WITI E)R., JONA5ROB rrso tERl'R ORSSOR ClFI.A w 0tll£CTOROF I.Aw ANO l\woK>Nl'R OOIIAM Makescomplete plans E.\IOllY U1m'£11Sm'SolOOL Of I.Aw in 13minutes. • ... thought-provoking._." -J . GoRJ,.WI HOUSTON, JR., JIJSTICE-~ Coo10OF Al.AaAMA CallBOO·BEST-7-13 Dale Se1,,rcstis a Circuit Judge, Fifth Judicial C,rcu11,Alaooma. Demodisk . References. Moneyback guarantee. Clolh: $39.95 Paper: $24.95 SpecialtySoftware ~ Scholars Press • 1-800-437-6692 1111S Woodward. RoyalOak, Ml 48067 .ce..f' P.O. Uox 6996 • Alpharetta , GA 30239-6996 334 / NOVEMBER1994 TMEALABAMA LAWYER ABOUTMEMBERS, AMONG FIRMS Boone, Quigley & Engelthaler an Anita Tucker Smith and Rayford L. ABOUT MEMBERS nounces that James R. Engelthaler, for Etherton, Jr. announce the formation of merly a supervisor of the child support Etherton Smith. Offices are located at Melody S. Brooks announces the unit of the Lauderdale County District 31 N. Royal Street, Suite 1506, Mobile, opening of her office at 117 S. Ross Attorney'sOffice a nd law clerk to Senior Alabama36602. Phone (205)432-1636. Street, Heflin, Alabama 36264. Phone U.S. District Judge E.B. Haltom. Jr. , Boyd F. Campbell,Patricia O. Warner (205)463-7805. became a member of the firm July J, and Roy E. McBryarannounce the for Larry R. Mann announces the reloca 1994. Officesare located at First federal mation of Campbell Warner McBryar, tion of his officeto 701New South federal Building, 102 S. Court Street, Suite 314, L.L.C. Offices are located at 4162 Building,215 N. 21st Street. Birmingham, Florence, Alabama35630. Phone (205) Carmichael Court, Montgomery,Alaba Alabama35203 . Phone(205) 326-6500. 760-1002. ma 36106. The mailing address is P.O. Joel C. March announces the reloca Tingle, Murvin, Watson & Bates Box 230238, Montgomery36123-0238. tion of his officeto 3000 RiverchaseGal announces that I. Ripon Britton, Jr. has Phone (205)272-7092, 244-7007. leria, Suite 1111, Birmingham,Alabama become a shareho lder of the firm. S. Mark Burr, formerly senior staff 35244.Phone (205)985-3696 . Offices are located at 900 Park Place attorney with Protective Life Corpora R. Stan Morris announces the reloca To1oer, 2001 Park Place, North, Bir tion, has joined Commonwealth Land tion of his office to 651 BeaconParkway mingham, Alabama 35203. Phone (205) Title Insurance Company. Offices are West, Suite 214, Birmingham, Alabama 324-4400. located at 1300 Parkwood Circle, Suite 35209.Phone (205)945-9994. Pierce, Carr & Alfordannounces that 580, Atlanta, Georgia 30339. Phone D. Charles Holtz announces the W. Pemble DeLashmet has joined the (404) 952-ll46. Burr is a 1991 admittee opening of his officeat 1506 first Alaba firm. The mailing address is P.O. Box lo the Alabama State Bar. ma Bank Building, Mobile, Alabama 16046, Mobile,Alabama 36616. Phone Law Offices of Lewis W. Page, Jr. 36602.Phone (205)431-6700 . (205)344-5151. announces that Lange Clark has become Oscar W. Adams, Ill announces a change of address to 529 Beacon Park way, West, Suite 213, Birmingham, Alabama35209. Law Offices of Marion F. Walker announces a change of address to 2000- LANDTECH86 A SouthB ridge Parkway, Suite 406, Birmingham , Alabama 35209. Phone Real Estate Settlement System (205)871-5355. ForLaser or MntrixPrinters Terri WillinghamTh omas announces the opening of her office at Suite 110, • HUD 1 Automatic Calculations Downtown Plaza, Cullman. Alabama • Checks & Escrow Accounting 35055. Phone (205) 737-9940. • Word Processor - Spell Check Donna Wesson Smalley announces Policies& Commitments the re location of her offices to 601 Deeds & Mortgages Greensboro Avenue. Suite JA, Alston • Data BaseReporting Building, Tuscaloosa, Alabama 35403. Phone (205)758-5576 . • On site Training Available • 10995 Reporting AMONG FIRMS $1,495.00 BellSouth Telecommunications an LAND TECH nounces that Michael Abbott Tanner DATA CORPORATION (800) 937-2938 has joined the company,with offices at 675 W. Peachtree Street, NE, Suite 303 Guaranty Building • 120 SouthOlive Avenue • West Palm Beach, FL33401 4300, Atlanta,Geo rgia 30375-000I. Tan ner is a 1976 admittee to the Alabama State Bar. THE ALABAMALAWYE R NOVEMBER1994 I 335 an associate. Officesare locatedal 1540 with the firm. Officesare located at 615 Otto A. Thompson, Jr. announces his AmSouth/Harbert Plaza. 1901 6th S. McDonough Street, Montgomery, reassignment in October 1994 to the Avenue, North, Birmingham, Alabama Alabama36104 . The mailing address is posit ion of counsel, Naval Regional 35203.Phone (205)324 -1800. P.O. Box 910, Montgomery36101-0910. Contracting Center, Washington, D.C. WestPointStevens announces that M. Phone (205)263-9900. Me previously served as counsel, U.S. Clayton Humphries, Jr. has been pro McDonald Land & Oil , Inc . Naval Regional Contracting Center in moted to general counsel. The mailing announces that Kelly McDonaldJordan , Singapore. Thompson was admitted to address is 400 W. 10th Street, P.O. Box formerly of Lanier, Pord, Shaver & the Alabama State Bar in 1979. 71, West Point, Georgia 31833. Phone Payne of Huntsville, has become associ Harris & Brown announces that J. (706) 645-4879. Humphries is a 1978 ated with lhe company. Offices are MichaelCooper has becomean assoc.iate admittee to the AlabamaState Bar. located al I 705 Cusmus Drive, Muscle with the firm. Offices are located at Terry Carlisle& Associatesannounces Shoals. Ala.bama 3S661. The mailing 2000ASo uthBridge Parkway,Su ite 520, a change of address to 1621 Pinson address is P.O. Box 68, Plorence 35631. Birmingham.A labama 35209. Street, Tarrant, Alabama. The mailing Phone (205)383-8655 . MichaelW . Carrolland 8. Scott Tyra, address is P.O. Box 170766, Tarrant Colquett & Associates announces formerlywith Yearout, Myers& Traylor, 35217-0766. Phone (205)841-4063. that Virginia I'. Holliday, formerlywith announce the formation of Carroll & The Trust Companyof Sterne, Agee& Woodall& Maddox,has joined the firm. Tyra. Offices are located at the Frank Leach, Inc. announces that Kathryn W. Offices are located at Chase Corporate Nelson Building,205 20th Street, North, Miree has joined as president and CEO. Center, One Chase Corporate Drive, Suite 615, Birmingham, Alabama 35203. Officesare located at 1901 Sixth Avenue, Suite 205, Birmingham, Alabama35244. Phone (205)328-2600. North, Suite 2130, Birmingham,Alaba Phone (205)987-1223. The Law Office of George A. Nas ma 35203.Phone (205)716-2680. Michael J. Gamble announces the saney, Jr. announces that Carol L. Grif Glassroth & Associates announces associationof Amy M. Shumate. Offices fith has becomean associate.Offices are that Joseph P. Van Heest , formerly Jaw are located in the Attorney Professional locatedat 145222nd Avenue,Tuscaloosa, clerk to Honorable W. Harold Albritton. Building, 200 E. Main Street, Dothan. Alabama35401. Phone (205)345-2272 . U.S. District Judge for the Middle Dis Alabama36301. Phone (205)793-2889. Hardwick,Hause & Segrest announces trict of Alabama, has become associated Hand, Arendall, Bedsole, Greaves & that Tina WhiteheadStamps. formerlya Johnston announces thal Patricia J. lawclerk for Justice Charles Thigpen,has Ponder has joined the firm. Officesare become associated with the firm. Offices MEDICAL/ DENTAL located at 3000 First National Bank are locateda t 212 N. LenaStreet , Dothan, Building, Mobile, Alabama.The mailing Alabama 36303. The mailing address is MALPRACTICEEXPERTS address is P.O. Box 123, Mobile36601. P.O. Box 1469, Dothan 36302. Phone Phone (205)432-5511. (205) 794-4144. Thomas Troy Zieman, Jr.; Jerome E. The LawOffice of Horace G. Williams Speegle; Thomas P. Oldweiler; Robert announcesthat CourtneyR . Potthoff has Gerald Jackson, Jr.; and Anthony M. become associatedw ith the firm. Offices Hoffman announce the formation of are located at 125 S. Orange Avenue, Zieman. Speegle, Oldweiler& Jackson, Eufaula, Alabama 36027. Phone (205) L. L.C. Offices are located at First 687-5834. National Bank Building, Suite 3200, Auburn Universityannounces that Lee Mobile,Alabama. The mailing address is Armstrong, a staff attorney since 1989, P.O. Box 11, Mobile36601. Phone (205) hasbeen appoi nted acting generalco unsel 694-1700. for the University, effectiveOctober I. The Universityof AlabamaS chool of The Alabama State Banking Depart Lawannounces that CynthiaLee Almond ment announces that former Deputy has been named director of Jawdeve lop Attorney General Scott Corscaddenhas ment and alumni re lations. Almond been appointed to the department as served as assistant director for annual legal counsel. Officesare located at l 01 givings ince June 1993.She was admitted S. Union Street, Montgomery, Alabama to LheAlabama State Bar in 1990. 36130.Phone (205)242-3452. McGlincheyStafford Lang announces Johnston. Barton, Proctor, Swedlaw that Elena A. Lovoyhas joined the firm. & Naff announces that Spencer A. Kin· Offices are located at 643 Magazine derman has become associatedwith the Street, New Orleans, Louisiana 70130· fir m. Offices are located at 2900 34 77. Phone (504) 596-2865. Lovoy AmSouth/Harbert Plaza, Birmingham. was admitted to the AlabamaSta te Bar Alabama35203-2618. Phone (205) 458- in 1987. 9400. 8 336 /NOVEMBERI 994 THE ALABAMALAWYER BUILDINGALABAMA'S COURTHOUSES MARENGO COUNTY COURTHOUSE By SAMUELA. RUNORE,JR. The following conlinues a history of Alabama's county courlhouse$-lh11ir origins and some of the people. ,uho contributed to theirgrowth. Th e Alabama lawyerplans to 1'!111one county'sstory in each issue of the magazine. If uouhave any photographs of early or present courthouses, please forward them to: Samuel ,I. Rumore, Jr., Niglionico & Rumore.1230 Brown Marx Tower,Binn ingham.Alabama 35203. /.IOff!:fl!JOCounrg S linh ondprf!S,fflt courthouse. located,,, Undrm , u."llsco,npleted ,'n 1968 . MARENGO COUNTY arengo County is located in west central Alabama.Like its neighboring Black Belt counties, the soil in Maren mgo is quite rich. However. unlike so many o( Its neighbors, whose begin• nings are linked to Alabama's Indian history and Anglo pioneers, the source of MarengoCo unty's name and the story of its earliestsettlers are unique. The history of MarengoCounty begins f'rench influence at Mobile,or due to with the end or the Napoleonic era. the existenceof former Frenchoutposts, Napoleon seized power in France In such as fort Tomb«bee in present-day 1799. led his men through numerous Sumter County, a detision was made campaigns.conquered much of western that the colonists could settle near the Europe, and was finally defeated and confluenceo( lhe Warriorand Tombig extledin 1815. Many of his formergener bee rivers in the AlabamaTerritory. Tlw n1111"Bluff ot Demopolis als, courtiers and politicalsupp orters Oed On March 3, 1817, Congressg ranted Prance and came to the UnitedStates in the French exiles four townships.Th e Charles LefebvreDesnouettcs, set 5ail search of a new life and lo avoidretribu Frenchmenformed a companywhich has from Philadelphia in May 1817. They tion al the handsof Louis XVIII,the new been variouslycalled lhe Societyfor lhe were almost shipwreckedin Mobile Bay, ruler. A number of these distinguished Cultivation of the Vine and Olive. the but were able to travel up to St. refugees found thernsel\-esin Philadel French Agriculturaland Manufacturing Stephen's, the territorial capital, which phiaduring the winierof 1816-1817. Society,the TombecbeeAssociation, the wasat the head of navigationduring low These French expatriates sought to French EmigrantAssociation. and. simply, water times. Then their goods were establisha French colonysomewhere in the Vineand OliveColony. Its purposewas transferredlo Oatboats. They eventually the UnitedSta tes. Theysent a represen the cultivationo( grapesand olivesal their established their settlemen t at the tative to Congressseeking a tract o( land newhomesteads in Amcric.1. White Bluff,on the eastern side of the for settlement. Perhapsdu e to lhe early The French emigrants, led by Count Tombigbee!liver. THEALABAMA LAWYER NOVEMBER1994 / 337 To say that the French settlers were land grants. Title to their lands would claimed by Americans. The set tlers unprepared for their new life in the not pass from the United States to the moved a mile to the east where they Alabama wilderness is an understate ~'rench until all contract terms by each founded the village of Aigleville.This ment. These peoplewere accustomedto sett ler had been fulfilled through the name referred to Napoleon's standard, the urban cond itions of Paris and cultivationof the grape and olive. or ensign, the eagle. Philadelphia. They had no wagons or To compound the problems or the The French were forced to move once animal teams. yet their again when it was later farmlands had to be determined that Aigleville cleared of an immense for wasstill not a part of their est. Unfriendly Indians lands as shown by draw occupied the west side of ings at Philadelphia. They the river. Despite the then moved to northern primitive conditions, they Marengo County on the cleared the land, built cab· south bank or the Warrior ins and proceededto plant Ri\>erat a placethey called their vines and olives. The Arcola.This was also the settlement at the White name of a Napoleonicvic Bluff became known as tory against the Austrians "Demopolis"-Creek for in northern Italy. "the city of the people". Arter several years it In early February 1818, became apparent that the the Alabama Territoria l Vine and Olive Colony Legislature created 13new was a failure.The soil and counties, adding these to climate were not suitable the seven existing coun lo those commodit ies. ties of Alabama that had Manysettlers were forced been a part or the Missis- Dwrthousenum/x..,r four , located ml ..indm . was destroyedbv fire in 1965. to sell their lands lo sippi Territo ry. One of Americans who brought these new counties in slaves and cultivated embraced the French set. cotton. Some of the tlement Abner Lipscomb, French left for Mobile a legislator who would and New Orleans. Arter later becomea member of the death of Napoleonin the state supreme court as 1821, some were allowed well as chief justice, sug to return to Europe. In gested the name "Maren 1823, Count Desnouettes go" for th is county. learned that his wife had Marengo was one of received permission for Napoleon's greatest victo him to reside in Belgium. ries against the Austrian On his return , his ship army.The battle had taken was wreckedoff the coast place on June 14, 1800 at or Ireland, and he was Marengoin northern Italy. lost al sea. The presence or the The direct involvement French in MarengoCoun or the French in Marengo ty led to some speculation County was short-lived. about their true purpose. Mowever, their influence Rumors circu lated that liveson todayin the names the French refugees were ThirdcourlhOUS6 localed in Demopolis of Marengo, Demopolis an advancepa rty with the and the county seat town goal or establishing a of Linden. Napoleonic Confederation. There were French settlers, an official government When MarengoCounty was created in also rumors that Joseph Bonaparte, survey establishedthat the lands which 1818, the territorial act establishing it Napoleon's brother, would one day come they had clearedand planted were locat designated the "White Bluff' or such to America with his objectiveto become ed in the wrong township.Their setlle place contiguous thereto as might be King of Mexico. None of these rumors ment was not in the French land grant deemed proper as the place for holding proved true, but Congress,seemingly in They were forced to move to the lands court. It has already been recounted reaction to them, set relatively harsh originally assigned to them, and the how the While Bluffwas later renamed terms for the French settlers in their homes they had built were quickly "Demopolis" by the early French set- 338 I NOVEMBER1994 THEALABAMA LAWYER tiers. Thus, this area became the first it was not until September 1827 that serve.s as an auditorium today. This territorial county seal . The first court the buildingwas completedand accept· building is significantin Alabamahisto washeld at the home of Samuel Easley, ed by the county. ry becauseoutside its doors the notori and was presided over by Judge John The builders for lhis first true court· ous train robber, Rube Burrows, was Lockhart of McKinley,A labama. house in MarengoCounty were Smith killedon October 9, l 890. When Alabama achieved statehoodo n and Warner. They built n two-story log For a short period or time following December 14, 1819, a legislative act structure and were paid $3,500. This the War Between the States, during also provided that the house of Mrs. building served the county for more Reconstruction , the county seat of Irby on the south side of Chickasaw than 20 years until it wasdestroyed by a Marengo County was moved to Bogue would be the temporary seat of fire in 1848. Demopolis.This took pla.ce in 1868.The justice in Marengo County under the A new building. more appropriatefor brick buildingused as a courthousewas new stale government.M rs. lrby's hus· the prosperity of MarengoCounty, was originally built in 1843 ilS a Presbyteri band, James, had been one or the origi an church. During Reconstruction, fed· nal rrench emigrants, and they had eral military authorities stationed at settled on top of a hill approximately Demopoliscommandeered the church one mile north of the present Marengo buildingfor a courthouse. County Courthouse site. Irby had died On December 4. 1869, an act of the on October10, 1819. barelytwo months Legislature again named Linden the beforestatehood was achieved. county seat. However.much controver The following year, on December 6, sy arose over the decision and an elec· 1820.five co mmissionerswere appoint· lion was held to settle the matter in ed to select a site for the permanent 1870.Three towns were considered by countyseat. The sameact selling up this the voters-Linden. Demopolis and commission prOllidedthat the "Townof Dayton.Linden won the election, again Marengo• would serve as the next tem· became the county seal, and ha.s poraryse.it of justice, and that the coun· remained the permanent county seat of ly would levya tax sufficientto purchase MarengoCounty ever since. or erect a plain log courthouse. Following Reconstruction and the The town of Marengo was centrally return of the seat or Justice to Linden, located in Marengo County, and had the "courthouse· at Demopolis was been named for the county. Abner Lip. used as a public auditorium, an opera scomb. who had originally suggested house and an officebuilding. The build the name "Marengo" for the county in ing still stands today on the northeast 1818, likewiseproposed a new French· corner of the Demopolispublic square. related name for the temporary county It is owned by the City of Demopolis, seal al Marengo. He put forth the name and is used by the fire department. "Hohenlinden", which was a battle site ..,.,,,.,. ouMk courlhous«number /u,o in Unden In 1901, the county commissioners in Bavaria not far from Munich. The decidedthat the old courthouse at Lin French general Moreau had defeated den was no longer sufficient for the Austrian Archduke John there on constructed in 1848 at Linden. This needs of the county. Theydecided that a December 3, 1800. The name or the building still stands today at the comer new courthousewould be built al a site townwas later shortened 10 Linden. of West Cahaba and Mobile streets. It to be selected. However.the site chosen On August22 , 1823, the commission was named to lhe National Register of was outside the original town limits of ers met at Linden to select the site for HistoricP laces on January 18, 1974. Linden.A lawsuit arose and in the case the MarengoCounty Courthouse.They According to the National Register of MarengoCow1/y. el al v. Malkin, 134 chose the southeast quarter of Section inventory,the old courthouse at Linden 32, Township 16, Range 3 East which is a two-story rectangular structure Samuel A. was in Linden. A legislativeact passed with a stucco fac.ideand a brick exteri· Rumore , Jr. on December 17, 1823 appointed com· or on the remainder of the building. It SanwA Rumore.Ji missionerslo sell and convey town lots has a portico featuring two Doric it a gradua,e ol tne in order lo erect public buildings at the columns. A second-story balcony con· UI\IYOrslty orNotre Oamoend u,e county seat. nects the columns with the walls, and Un.lvtrtl,Yof Alabama SCt>oolOllaw He Despitethis authorization for its con· stairs at either end of the portico lead _ .. founaw,g struction. a permanent courthouse was up to the balcony. There are three _ol... not immediately built in Marengo entrances on the ground noorunder -511:eBat's County. On May25 , 1825, a new com· the portico. The two side doors enter Fom,1y1.1w5ea,on mission met and decided to build a large rooms and the central door leads -.ndII It\ P,BCCiCGl'I 8ltm1nonem with u,e firmof M1grionco& Rumote, courthouse. Proposals were received into the hallway.The second story con· Aurrortaerv cs as I.he bat ~ lor 1ne 100, and adopted on November7, 1825, but tains the former courtroo m which ci,cu!t.pl ace numbet lour THEALABA MA LAWYER NOVEMBER199 4 / 339 Ala 275, the state supreme court he.Id the county sold the bullding for SSOOto B.B.Smith. It contained a soaring clock that any courthouse in MarengoCounty the LadlesAid and Women'sMissionary tower typical of courthouse construc must be located within the original Society or the Linden Baptist Churc.h. tion during that era. The building also town limits of Linden. The bullding was used for church ser had a basement and an attic. In 1916, The county had previouslyentered into vices for more than 30 years. In 1947, the courthouse was struck by lightning. a contract with f.M. Dodson and W.T. the property was sold to the American And. in 1924, the courthouse suffered Handof Brewton, Alaba considerable tornado dam ma for SJO, 750 for the age. But, in neither event construction of a court· were court records losL house. but the site had On October 14, 1965, dis not been chosen. Finally, aster struck the Marengo on Monday,January 13, County courthouse when a 1902, a decision had to fire gutted the old building. be made. Judge Cun 1,ortunately, most records ningham offered to were in fire-proofvau lts and donate two acres on the were saved. The county southwest corner of his received $300,000from fire lot to the county. E.C. insurance on the loss. Plans Coats also olfered a lot. were immediatelymade for a Two members of the new courthouse on the same commission voted for site. Pending construction. the Cunninghamproper the county took over a ty. Two members voled vacant building, the former for the Coats property. Linden bowlingalley, for use Probate Judge J.r. Prow as a courthouse. This build ell cast the decidingvote ing is now used for a private in favor of the Coals lot, Artist'scona,pt/on of Nar,.~lflOCwnlv ~ lirtt courthouse.The structuro. located in /.lndc,1, school. and the courthouse was """ destrovcdbv lire in JS48, The county commission built there in 1902. ers visited a number of The decisionto relocate courthouses in Alabama to Lhe courthouse site was borrow the best ideas for the significant because for a needs of Marengo County. periodor lime Lindenhad They chose Sherlock, Smith an old town and a new and Adams of Montgomery town. The conslruction to design the building. C.f. site wason the southern Halsteadof Montgomerywas limit of the original town the contractor. site.When the cour1howe This latest courthouse is a was moved. business two-story brick structure activity move.dwith it. with a basemenL It is best Perhapsthis wasa reason described as contemporary for the generousoffers by with a subdued reference to landowners whose re the traditional by the use or maining holdings would a port ico with pillars. The increase In value. The tota l cost or the bui lding nextyear the town bound was $675,000. The building ary was extended south· was dedicated on Sunday, ward.and the court.house lind....,,Sffl' 340 I NOVEMBER1994 THE ALABAMALAWYER BAR BRIEFS • The Public Service Committee Scouts ExplorerPost. The PATHassis oldest and largest professionalassocia of the Birmingham Bar Association tance programs serve homelesswomen tion of defense trial attorneys in the recen tly recognize d the firm of in transition, the Law Explorer Post is world. Balch & Bingham for excellence in the largest in Birmingham, with • Edgar J\f. Elliott, II I recently its corporate community work. The over 100 students, and the firm has was inducted as a Pellow of the Interna firm. which has been nominated by established many programs for Banks tional Academyo f Trial Lawyers.E lliott the Association for the national MiddleSchool . was nominated by William J. McDaniel Points of Light Foundation Excellence • Edward J. Rice, Jr., a partner with of Birmingham. Elliott is with the in Corporate Communi ty Service the firm of Adams & Reese in its Birmingham firm of Rives & Peterson, Award, was recognize d for its pro Mobile office, is the new president and a graduate of Birmingham-South grams with PATH, its adopted school, elect of the International Association ern College and the Univers ity Banks Middle School , and the Boy of Defense Counsel. The !ADCis the of AlabamaSchool of Law. • PositionAvailable Associate Director, Alabama Bar Institutef or ContinuingL egal Education University of Alabama School of Law The Alabama Bar lnsttMe for Continuing Legal Education (ABJCLE) provides post-grodUQte programs of continu ing legal education for members of the Alabama lega l profession. ABICLE presents app roximately 50 seminars a year and publishes a variety ot Instructional materia ls for the lega l profession . The associate directo r Isresponsible for the plann ing , development . lmp lementatlon and eva luatlon of the ABICLE's pro grams end publicatlons . The programs of the ABICLE a re presented throughout Alabama ; thus. extensive trave l Is requi red . Cand idates for the pos ition must possess a Juris Doctor Of compa rab le degree from an ABA-occre d lted low schoo l and be admitted to practice by the Alabama State Bar. This position requ ires e person with demonstrated excellence In oral and written commun ication skills. The successfu l candidate a lso must be hi9hly motivated , Innov a tive and a self-starter who hQSa talent for effec tive orga nization and pos sesses excellent human relations and creative thinking skills. The salary range Is $28,60:l to $42,990 depend ing upon ability and experience. The University of Alaba ma also offers on attractive benefits package . Send resumes. references and Social security number to; Associate Dean Steven Emens Box 870382 Tuscaloosa , Al 35487 -0382 The University of Alabama Is an Equal Opportunity / Afflrmaffve Action Employer . Women and minorities are encouraged to apply . THEALABAMA LA\WER NOVEMBER1 994 / 341 OPINIONSOF THE GENERALCOUNSEL By ROBERTW NORRIS, generalco unsel UEST.ION: "Recently, the Judges of the - cont ract amount paid by 8 to A for services rendered Judicial Circuit entered an Order gO\.-erningthe by A after the Court appoints A as the Defendant's manner in which indigent deJendants shall be representative. Assume further that B dots not file a represented by appointmenLThe prior procedure Fee Declarationwith lhe Court for approval, and A does not m utilized in lhe Circuit was on a voluntary basis. include any of B's time on A's Fee Declaration.1'he purpose of The new procedure subjected a large number of lawyers to the contract entered Into is for A to handle B's case load of these appointments who do not desire to represenl indigents, indigent appointments. and A receivesa fiat retainer from 8 to and who would like to ethically shift their responsibility to serve as substitute counsel for B, and, additionally.A receives another lawyer. compensation from the State as appointed counsel under his "Myquestion is as follows:Would it be ethicallypermissible appointment without regard to the payments paid by B under for lawyer A to enter Into a contract with lawyer B, or lhe A·B contracL law firm B, ,vhereby lawyer A would accept and agree "The provision or 1.5(0 speaks to this area, but it is not to be substitute counsel for lawyer B for a negotiated sufficiently clear for me to act on comfortably. I have had monthly or annual sum B would pay to A for A's seeking discussionso r an offer of employment such as I have described, substitution of counsel for B's indigent appointments? and both sides want a written opinion from the Bar before ven The negotiated sum would not be on a per indi vidual turing further in this regard." case basis, but would be a general contract. Assume further that A would me a Fee Declaration for work he NSWER: There do not appe.1r lo be any ethical did on the case without deduction of any or the prohibitions against this proposal provided approval of the appointing court is obtained prior to implementing the contract and prior to substi· Dtution of counsel. WE SAVE YOUR TIME ... ISCUSSION: As staled in your opinion request, the ethical considrrations imiolvedin acceptance !!,, amell Now legal researchassistance of a fee by an attorney appointed by the court lo is availablewhen you need It. represent an indigent criminal defendant are wuhout 1hene cesshy of addressedm in Rule l.S(Q of the Rules of Professional Conduct L E G A L That rule provides in pertinent part as follows: Research addinga full-umcus~ociate o r clerk. Without prior notification to and approval of the appointing court, no lawyer appointed lo represent an W11haccess 10 the Sweeuw Library and Wcs1luw.we indigent criminal defendant shall accept any fee in lhe provide fast and effic,cnt service. For deadline wort.. we matter from the defendant or an)'Oneon the defendant's cnn deliver ,nformauonto you vfa commoncarrier. behalf. Fcdeml Expre«. or FAX. The language or this rule indicates that Lheonly condition precedenl to indigent criminal defense counsel accepting F:1mell Legal Researchexami nes 1heIssue, 1horoughly a fee from a th ird party is notifica tion and approval lhrough qualily rc,carch. brief wriungond analysis. of the appointing court. It is, therefo re, the opinion of Our mies:,re S35.00 per hour, withn three hour the Disciplinary Commission that an attorney or law firm may pay an annual or monthly fee to another attorney to m1n1mum. handle all court appointed indigent criminal cases lo For Research Assistance contact: which the attorney or firm may be appointed, provided Sarah Kath ryn Farnell the appointing court gives its consent prior to execut ion or the contract between the attorneys or firms and prior 112 Moore Building to substitution of counsel. Montg ome ry, AL 36104 Please be aware that the stale bar has no jurisd iction c~u aos1211-7931 to address the question of whelher this proposal may be in violation of any statutes, procedural rules or local rules o( court relating to indigent representation and we expressly No~« maoetlvJI ~ Q<.ekydl'elega/"""""" IOoepe,b11ied make no determination In regard to such issues. • f (Fe/1/17tlmtu(µlllyd ~ S/ll'\1CC!Spe,btJ'ed t,y()(/)(Jf .11~ IR0-91-341 342 / NOVEMBER 1994 THEALABAMA LAWYER Major Medicnl. Provides personalizedcomprehensive coverage to Lawyers, employees, and eligible family members. The Southern ProfessionalTrust is totally underwrittenby Continental Casualty Company, a CNA InsuranceCompany. Life Fami ly Tenn Life. Provides benefits for Lawyers, spouses, children and employees. Coverage through NorthwesternNational Life InsuranceCompany . Disability Jncome. Features "Your Own Specialty"definition of disability with renewal guarantee and benefits available up to 75% of your Income for most insureds. Coverage through CommercialLife, a subsidiary of UNUM. Peace BusinessOver head ExpenseInsuran ce. A financial aid to keep your office running if you become disabled. Coverage through Commerciallife, a subsidiary of UNUM. from ISi If you're a Lawyer practicing in the State of Alabama, InsuranceSpecialists , Inc. offers the finest insurance coverage anywhere. We're here to help with all your insurance needs. 33 Lenox Poinle NE Allanta. GA 30324·3172 EST. 19S9 404-814·0232 aoo-241.ns3 INSURANCESPECIALISTS , INC. FAX: 404-814.0782 THE ALABAMALAWYER NOVEMBER 1994/ 343 --- ,,, by Albert P. Brewer ppropriations are essential to the dations to the legislatureare formulated requirements and the estimates of operation of Alabama state gov through the statutory budget process. income, the department of finance pre Aernment. The Alabama Constitu The Budgetand FinancialControl Act of pares a tentative budget which is sub tion states: "No moneysRall be paid out 19323requires the governor, within five mitted to the governor.' of the treasury except upon appropria daysafter the conveningof each regular The governor must then make provi tions madeby law.... "' sessionof the legislature. to transmit lo sion for public hearingson the tentative The appropriationbills enacted by the the legislature his budget for the next budget at least two weeks prior to the legislature are the culmination of a fiscalyear. • The budget consistsof three conveningof the regular session of the lengthy processthat involvesthe execu parts: (I ) the budget message in which legislature." tive and legislatiVi?departments of stale is set forth the governor'srecommended After the public hearings, the gover government. The steps in the budget expendituresand the funds from which nor finalizes his budget which is sub process are spelled out in detail in the such expendituresare to be made; infor mitted lo the legislature after the state constitution and in the statutory mation on the condition of the treasury legislatureconvenes in regular session." law of the state. and estimatesof revenuesfor the budget It should be noted that the BudgetIsola The Governor's budget year; and recommended revenue mea tion Amendment" requires the gover The processis initiatedby the executive sures if the estimated revenues for the nor to submit his proposedbudget on or department.The Constitution provides: budget year are less than the appropria beforethe second legislativeday of each tions: (2) the governor's recommended regularsession of the legislature. The governor shall, from time to appropriationsfrom each fund, general time, give to the legislature infor Th e Budget Management Act or special, for the departments, agen In 1976the BudgetManagement Actl l mation of the state of the govern cies, and institutions of state govern ment, and recommend for its undertook "to establish a comprehen ment; and (3) a proposedappropriation sive S)•stemfor budgetingand financial considerationsuch measuresas he bill and a proposedrevenue bill for the may deem expedient; and at the managementwhich furthers the capaci purpose of enacting the governor's rec ty of the governor and the legislalure commencement of each regular ommendations.• sessionof the legislature. and at the to plan and finance lhe serviceswhich The budget process begins with the close of his term of office,he shall they determine the state will provide preparationby the budgetdivision of the give information by written mes for citizens."" This statute reaffirms department of finance of a tentative the governor's responsibility for the sage of the condition of the state: budget for "every department, board, and he shall account to the legisla preparation and adm inistration of bureau, commission.agency, officeand ture. as may be prescribed by law, the state budget. for "the evaluation of institution of the state.''6 Each depart for all moneysreceived and paidout the long range program plans," and ment is required to submit an estimate by him or by his order: and at the for recommending to the legislature of its expenditurerequirements for the a ··comprehensiveprogram and financial commencement of each regular budget year to the department of session he shall present to the legis plan which shall cover all estimated finance, such information to be fur lature estimates of the amount of receipts and expenditures of lhe state nished three months before the begin moneyrequired lo be raisedby tax government"with the proscriptionthat ning of the regular session of the ation for all purposes.' "proposedexpenditures shall not exceed legislature.' The department of finance estimatedrevenues and resources.''" The Budget and is required to preparean estimate of the The responsibility for the preparation Financial Control Act total income for the budget year,• and of the budget is vested in the deparl The governor's report and recommen- utilizing the estimates of expenditure ment of finance." and the various state 344 I NOVEMBER1994 THEALABAMA LAWYER agencies and departments are directed a careful investigation and study of islative Oscalolfice, the legislature had to furnish financial informationto the the financial condition or the state, no independentsource of fiscal informa department of finance in order that it to hold budget hearings, to inquire tion and was completelydependent on may carry out its responsibility.If The into ways and means of financingstate Lhee xecutivedepartment for data relat department of finance submits lo the government. and to report its findings ing to fiscalmatters. governora summaryo f the information and recommendationst o the legislature The act creating the office further which it has compiled from the state not later than the seventh legislative provided that evel)' general bill which departments.•• and the governorformu day of each regular session.21 Thus, requires the expenditure of county or lates his program and financial plan the governor 's budget formulation municipal funds, or decreases or which he is required to present to the and hearings and the legislature's bear increases revenues to any county or legislatureon or beforethe fifth legisla ings may go on simultaneously, but municipality,must haveen dorsed there tive dnyo f each regularsession. 19 the presentationof the formal budget is on an estimate made by the director or Statutory respon~ibilityis placed on the responsibillt y of Lhegovernor." The the legislative nscal officeo r u,e amount the legislature lo consider the gover legislature may, of course, amend the of money Involvedand the effect of the nor's program and financial plan, to appropriationbills to renect some or all proposed legislation."" F'iscal notes are adopt alternatives lo the governor's of the Ondingsand recommendationsof also required by the House and Senate plan where the legislature deems such the joint legislativecommittee. rules.ll The purposeof the fiscal note is appropriate.and to adopt legislationto Legislative Fiscal Office to advisethe legislatureof the bill's fis authorize the implementationor a com cal impact. The fiscal note allows the The legislatureis aided in fiscal mat prehensive program and financial members of the legislature to make ters by the legislali\-efiscal office."' The plan.'" Each department of state gov informed judgments about passage of fiscaloffice has the duty and function to ernment Is required to submit perfor legislationrequiring the expenditure of provide the legislative members and mance reports lo the department of publicfunds or the raisingof revenues. commiuceswith informationrespecting finance for "the work accomplished the budget.appropriation bills and other The Appropriation bills and Lheservices provided," the costs legislation as well as informationwith The Constitutionsets out the limita of such. and recommendations for respect to revenues, estimated future lionson appropriations: changesin the programs." revenues,nnd changing revenue condi The Budget Management Act did The general appropriation bill shall tions.:ztPrior to the creation or the leg- not repeal the Budget and Pinancial embracenothing but appropriations Control Act of 1932 nnd thus must be considered i11pori moterio. The sub stantive change In the budget process by the BudgetManagement Act of 1976 E XCELS10R - LEGAL 'S was to effect a system of program reviewand evaluation. Budget Manageme nt ?~~~MUU/~Sf~ Improvement Act of 1992 The next governor, and subsequent governors. are required to develop a 5 four-year strategicplan for prese.ntation 239 to the legislature during Lhefirst leg Ideal for La ser Printers islativesession of each term of office.22 The plan shall include the governor's Includes: 1,000 Letterheads and Envelopes progra m, long range revenue and 500 Business Cards, 500 l>lain Second Sheets expenditurepfons for the quadrennium, Also includes dies a11da proof capital outlayrequirements, and recom 24 lb.. 25%C-0non, Laser Finish, White or Bamboo, mendations to reduce the cost of state gO\-ernment.ll Recycled Bond $239 24 lb., 50%Cotton LawBond. White, Bamboo Legislative Committee and LaserWhite $249 on Finances and Budgets Whilethe gO\lemoris formulatinghis Crane's and Gilbertpaper at additional cost budge.tproposals , the Permanent Joint Engraving p/onis in: Arlingto11, TX; Albany, N'I'; Orlando, FL LegislativeCommittee on Financesand Coll for :ramp/u and legal supply cawlog, Budgets"'ill also have conducted bud (800) 2U -2971, txt. S03. get hearings.This committeewas creat ed in 1991." This committee is authorized to meet during the interim ~slor-Legal, Inc.·· of the regular sessions of the legisla ture.t!I It has the responsibilityt o make THE ALABAMALAWVER NOVEMBER1994 / 345 for the ordinary expenses of the contain but one subject,except the gen the paymentof money... upon the executive, legislative,and judicial eral appropriationbill,3' that eachhouse state treasurer, unless there is in departmentsof the stale,for interest keep a journal of its proceedings.""'that the hand of such treasurer money on the publicdebt. and for the pub the vote on each bill be entered in the appropriatedand availablefor the lic schools.The salaryof no officer journal;'' that votes on amendmentsbe full paymentof the same." or employeeshall be increased in set out in the journal;" that the original To the extent that funds are insuffi such bill. nor shall any appropria purposeof a bill cannot be changedb)• cient to pay the appropriationsin full. tion be made therein for any officer amendment,-othat the generalappropri· the amendment providesfor prorating or emplO}'eunless his employment ation bill includeonly appropriations for the funds.SIll further providesthat at and Lheamount or his salal)• have the ordinarye xpensesof government;" the end of each fiscal year all unpaid already beenprovided for by law.All and that the presiding officer of each appropriationsbecome null and void." other appropriations shall be made house sign bills passedby that house in The Justicesof the AlabamaSupreme by separate bills, each embracing the presenceof that house." Court have stated the purpose of but one subject." The framers of the constitution did Amendment26 as follows: Appropriation bills allocate funds not prohibitappropriations to non-state The provisionsof §213 of the Con available to the state for expenditure agenciesbut did make such appropria stitution, as amended (by Amend during the fiscalyear for which appro tionssubject to the restrictionsof §73 of ment 261.are expresslyintended l o priations are being made. These avail the Constitution: preventfurther deficitsin the state able funds include revenuesfrom taxes, No appropriationshall be made to treasury. To this end, available unencumberedfunds in the stale trea any charitableor educationalinstitu fundsfor the paymentof claims, in sury, and income from other sources tion not under the absolutecontrol case of a deficit,are to be prorated, such as federalfunds. Most of Alabama's of the stale, other than normal and all e.xcess unpaid appropria re\coenueis earmarkedfor specificpur schools establishedby law for the tions are declarednull and void."' poses." Legislative appropriations of professionaltraining of teachersfor Restrictions on appropriations the publicschools of the state,ex~l earmarked revenues must be for the Questions about the construction of designatedpurposes . by a vole of lwo•thlrds of all the §71 of the AlabamaConstitution have Alabama Special memberse lectedto eachhouse. " been raisedregarding the validity of cer Educational Trust Fund Conditional appropriations tain appropriations.The first such ques The specialed ucational trust fund is a Though not specificallyauthorized in tion was posed in 1934when Governor specialfund which was created in 1927 the Constitution, the legislature fre Miller requested an advisory opinion in a general revenue bill which levied quently makes "conditional"appropria from the justicesof the SupremeCourt licenseand privilegetaxes on railroads; tions in appropriation bills. These of Alabamaon the constitutionalityof an telegraphcompanies; telephone compa appropriations usually contain termi appropriationin the general appropria nies; expresscompanies; hydro-electric nologyin substancethat "there is here tion bill from the general fund to the poy.-ercompanies: coal mines; iron ore by conditionallyappropriated from the Alabamaspecial educational trust fund." mines; quarries. sand and gravel pits; state generalfund (or the specialeduca The justices observed that the term sleeping car companies;and sellers of tional trust fund as the casemay be) the •public schools"as used in §71 means tobaccoproducts." sum of dollarsfor (nameof the systemof commonschools existing Act No. J 63" providedthat the rev department or agencyand purpose) to under §256of the Constitutionand con enues collectedfrom these taxes would be conditionedupon the availabilityof cluded that "to the extent that it (the be "sel apart as a trust fund for educa funds in the state general fund (or the tional purposeson ly, lo be designatedas special educational trust fund) and the approvalof the governor."" Such appro Albert P, are the ;\labama special educational trust AlbenP. Biawtl( Is fund... and shallbe paido ut by the trea priations are paid from surplus funds OISlfllguisnedProfes · surer on lawfulappropriations" by the upon the approval of the governor. sor of law and Gov legislature for educational purposes." Balanced budget provision emmetll at Samford Thus, the specifiedrevenues were "ear Unlwrslly where he Alabama's Constitution contains a leaChes 81 C THE ALABAMALAWYER NOVEMBER1994 I 349 Conclusion 13. 1976 Ala Acts 614 (ood•hecl a amended 63 527 So. 2d al 1313 at Ala Code §§•1-19-1 to ·12 (SU.P.P 84 374 So. 2d 258 (Ala. 1979) The budgetprocess may be summariud 1990)) 65 Id at 259 as follows: 14 Ala Code §41-19-3 (Sopp 1994) 66 The general app,opnallon bill also app,o 15.Ala Codo§41-19-4(1991) pr lates monoy from earmarked funds. I. Ninetydays before the beginning of 16.Ala Codo§41·19·5(1991) except those funds which are earmarked Lhelegislative session. state depart 17.Ala. Code§41-19-6 (1991) for lhe specf.11educatlonal IMI fund ments and agencies submit budget 18 /d 67 Oplrnon of //le Ml-" No. 325, 511 So 19.Alil. Code §41-l!H ( 1991) 2d 174 (Ala 1987) requests to the Department of 20 Ala Code §41-19-3 (1991) 88 406So.2d366(Ala 1981) Finance; 21 .Ala Code §41-19-11 (1991) 69 Suprancce37 2. The Department of Finance makes 22 1992 Ala AC1s343 (oodlfiacl as amended 70 There are a laroo number ol approp,,at,cn at Ala Code §41-19-3 (Supp 1994)) bllla including tho genera .I appropr ia tion recommendations and proposesa ten 23. ld. bill. the education appropriation bill. and tativebudg et lo the governor, 24 1991 Ala Acts 1229 (cod,lled Ill Ala. Code numerous appropriation bills to specific §§29-2,80 to -83 (Supp IQ94)) leg,sla 1ns111utlonsand agencies. separate bills 3. Afterpublic hearings on the budget. llV9 joonlconvni11ees. aull'oOnlO being req For 75 years, Alabama Certified Public Accountants have ranked high among the state's most trusted professionals. Look in the boardrooms of major corporations, small businesses, government or educat ional organizations. Or look around your neighborhood. You'll find CPAs assuming leadership roles in most decision-making processes. Alabama CPAs are vital team members in the business world. They 're called upon for tax advice, accounting services. business consu ltation, auditing services. cash management advice, and more. They are also known for their expenise as management consultants and small business adviso.rs, and in estate planning, retirement planning, pension plans. and personal financial planning . Who really knows more about your business than your CPA? The Alabama Society of Certified Public Accountants was founded to promote high professional standards. 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Medical Forum Cumberland Institute for CLE Credits:6.0 (800) 888-7454 19 Monday JURYSE LECTION(VIDEO REPLAY) Tuscaloosa,Law Center AlabamaBar Institute for CLE Credits:6.0 Cost:S 165 (800) 627-6514 All CLE credits must be earned by NEWALABAMA RU LES OF EVIDENCE(VIDEO REPLAY) December 31, 1994 Birmingham,Samford University Campus CumberlandInstitute for CLE All CLE transcripts must be receivedby Credits:6.0 Cost:$149 (800)888-7454 January 31, 1995 THEALABAMA LAWYER NOVEMBER 1994/ 353 By lra W. Harvey Y omissionfrom the UnitedStates Constitution, responsi However, this was not the interpretation of the plaintiffs.In bility for education is one of the powers reserved to the Aprilof 1990,based upon constitutionalc laims, suit was filedin Bstates under the Tenth Amendment. The financing and MontgomeryCounty Circuit Court by the AlabamaCoalition for operationsof public schoolsystems are under lhe control of the Equitywith the followingPrayer for Relief: state and its legislature, subject only to any restrictionsimposed 1. A declaration that Amendment 111 to the Constitution of by the individualstate's constitution.A state's constitutional and Alabamaviolates the EqualProtection Clause of the Constitu legislativepowers lo control public education also implies the tion of the UnitedStates; authority to raise money for education through public taxation. 2. A declarationlhal the fundingstructure for public education Whilea state may dele.gate to local school systemsor other gov in the State of Alabamaviolates Sections I, 6, and 22 of the emment;u units the power to finance public education through Constitution of Alabama, which guarantees equal protection taxation, such funds remain state, not local funds, and are there of the law; fore subject to state direction and control. There is no inherent power in local school systems to levy taxes (Gee and Sperry, 3. A declarationthat the fundingstructure for public education 1978). Acknowledgmentof these basic principleshas been slow in the State of Alabamaviolates plaintiffs' rights to equal pro in developingin Alabama. tection and due process as guaranteed by the F'ourteenth Based upon the adoption of Amendment 111 in 1956 to the Amendmentof the Constitutionof the UnitedStates ; AlabamaConstitution of 1901, §256 as amended became the 4. A declarationthat the fundingstructure for public education basis for the common argument for asserting that there are no in the Stale of Alabamaviolates plaintiffs' rights as guaran constitutionalguarantees for public educationin Alabama: teed by Sections 6 and 13 of the Constitution of Alabama, ... but nothing in this constitution shall be construed as which protects citizensagainst the deprivationof life, liberty, creating or recognizingany right to education or training or property, exceptby due processof law; at publicexpense , nor as limitingthe authority and duty of 5. A preliminary and permanent injunction enjoining defen the legislature, in furthering or providingfor education,to dants from implementing or maintaining, for any year subse require or imposeconditions or proceduresdeemed neces quent to the present fiscal year, any public school funding sary to the preservationof peaceand order. system which perpetuates the unconstitutional inequities Under this viewpoint, whateverthe legislaturechooses to pro describedherein; videfor the respectiveloca l schoolsystems of the state waspurely 6. A permanent injunction requiring defendantsto design, offer legislativeprerogative and not subject to any constitutionalstan to the Legislaturefor implementation, and maintain a consti dard. If fundingwas inadequatein any localschool system, it was tutional systemof public school financewhich assures equal due to the failureof the localgovern mental unit to l evya sufficient educational opportunities in local school systems without rate of taxation.And if this was what the localpeople wished , well regard to their wealth; and good! The state wasthus absolvedfrom responsibility . 7. The retention of jurisdiction by this Court until defendants 354 / NOVEMBER1994 THE ALABAMALAWYER have designedand permanentlyimplemented a school finance lish budgetaryand tax policyIn the first instance,and who must system that assures equal educationalopportunities in local reckonthe potentialcost o( unconstitutionalaru in that balance schoolsystems without regard to their "wth; (Orderof March31, 1993.p. 78)." Judge Rttse concludedthat 8. Award or plaintiffs'attorneys' reesand costs from appropriate the legblature cannot offer as an excusebudgmry excusesfor sources,including any state funds created,increased, protect· the failureto offera socialservice in a manner consistentwith an ed or benefittedas a result or plaintiffs'efforts; and individual's constitutional rights. Such constitutional obliga 9. Such other, further, and differentrelier as the Court deems tions cannot be avoideddue to a lack of funding. Judge Reese appropriate, necessaryand proper, including supplemental ruled for the plaintiffson all constitutional claims. and general relief(ACE vs. H1ml , pp. 28-30). SECTION 256: A Constitutional Right A similar suit was filed in January or 1991by attorneys pre Section 256, the constitutionalstatement in ArticleXIV, pro senting claims for students with disabilitiesstyled as Harpervs. vides as follows:"The legislature shall establish,organize, and Hun/. Thesetwo claimswere consc,lidated(or trial. maintaina liberal systemof public schools throughout the state Order declaringAmen dment 111 unconsUtutional (or the benefitof the childrtn thereofbetween the agesof seven Prayer for Relief lirst requested that Amendment 111 be and twenty-one years."Judge Reese agreed with the plaintiffs declaredunconstitutional, and that the languageof Section 256 that "Thisprovision is clearly mandatory.•. (Orderof March3 1. of 1901be declaredin force.On August 13, 1991, Judge Reese. 199.1.p. 81)." granted a partial judgment that Amendment 111, Section 256 The Court notes in particular that the duty imposed is a was "void ab initio and in Its entirety under the EqualProtection sla/e rather than a local duty, rendering a defendant's Clauseof the FourteenthAmendment to the UnitedStates Con argument that localitiesare responsiblefor inadequateor stitution." inequitable opportunities untenable as a matter of law The mandate of Section 256 or AlabamaConstitution of (Order of March31, 1993.p. 81). 190I is declared,and hettby is. in effectlo the extent that This discardedthe common argument of both the executi\ot it provides:'1'he legislatureshall ci;tablWi,organize, and and legislafu-ebranches to llYOidfundamental changes in Alaba· rnaintlin a liberalsystem or publicschools throughout the ma's systemof publicschools; that this is a local problemrather state for the benefit of the children thereor !).,tweenthe than a st.ateproblem. Precedent for this conclusionwas found in ages or seven and twenty-oneyears (Orderof Augusl 13, a previousAlabama court decisionin 1935:"Every public school 1991, p. 2)." is a state school. created by the state, supported by the state, Liability Order, March31 , 1993 supervisedby the state, through statewide and local agencies, Despitethe arguments or the defendantIn this case, Governor taught by teachers licensedby the state, employedby agenciesof Guy Hunt. that this litigationwas an unnecessaryintrusion or the st.ate(Order of Mardi 31, 1993,p. 82)."J udge Reeseconclud ed that "Under these circumstances,there can be no question the judiciaryinto executiveand legislativtmatters, and that the that Alabamaschoolchildren have an enforceableconstitutional issue of fundingshould not be decidedby a judge, Judge Reese concludedthat the judiciaJ}Idid have the ultimate powerin t.hb right to an educationas guaranteedby §256 (Order of March31, 1993,p. 82)." regard: This Is particularlytrue when, as in the inst\nt case,the Anothercommon argument has been that if there are funding evidenceis clear that the legislativeand executivebranches disparities,they are not the state's responsibilitybut rather the result of local mismanagement or local choice nol to fund hnverepeatedly faile d to addressthe problemsof which the plaintiffs complain despite mnny opportunities to do so schools (Ordera/Match 31, 1993,p . .17).Judge Reesewas not persl~1dedby this argument: (Orderof March31, 1993,p. 77). Thus, the Court finds that state school fundsare clearly The Court neither taxesnor spends,but si:nplydecides the part of the problem.not part of the solution,and the state case before it. declares constitutional rights and, whe_re simplycannot pin the blame for current funding inequali· necusary. enjoinstheir violation,as it must in our consti lies on localschool re'l'enues. tutional system (Order of March31, 1993.p. 77). In any case, the distinction urged by defendant between Fiscaleffects are controlledby • ..• policymakers.who estab- local and st\te funding for schools is an artificialone. By 1994DIRECTORIES ARE IN! ktfiti:•• [lliJI IJ!l i [I]~ I OF PROPERTY& ASSETS Members - $25 each WE BUY: Non-Members - $40 each • Deeds of Trust • land Contracts • MortQoges • Contracts for Deed MAIL CHECK TO : • Annurtie< • StruchJred Settlements Alabama Bar Directories, P.O.B ox 4156, • lease Poper • Business Notes • Chattel Mortgage, • lottery Winnings Montgomery, Al 36101 (314) 355.3577 Orders must be pre•pe ld 0 & A INVESTMENTFUN DING THE ALABAMALAWYER NOVEMBER 1994135 5 law, all public school taxes are state taxes,and all public (Order of March 31, 1993, p. 90)." Judge Reese concludedth e schoolfunds are state funds,whether co llectedat the state issueas follows: or local level( public schoolfunds are state fundswhether Accordingly, the Court holdsthat Alabama's presentsystem they comefrom the state treasuryor local taxation). of publicschools violates the constitutionalright of plain For this reason,the appropriatefunds to considerin evalu tiffsto equaleducational opportunity as guaranteedby Alo. ating state funds for educationare funds raisedfor schools Const.,art. XIV, §256(Order of March 31 , 1993.p. 91). from both state and local sources (Order of March 31, RightTo AdequateEducational Opportunity 1993,p. 23). Wasit the intent of the framersof the Constitutionof 1901to A finalcommon argument in this regard is that federalfunds provideadequate educational opportunity f or all students? The shouldbe used in evaluatingthe relativedisparity among school plaintiffs contended that this was the intent based upon the systems. Judge Reese accepted the testimony at trial which inclusionor the term "liberal" in §256: demonstratedthat The Court acceptsas the prevailinginterpretation of "lib ... a large portion of this aid is used for non-instructional eral" at the time of the framing of the 1901constitution purposessuch as school breakfast and lunch programs. that offeredby Dr. Harveyand Or. Flint at trial as histori Testimonyat trial showedthat much of the federalaid that callycorrect: " generous," "bountiful," and "broad-based"in is employed for instruction is categorical aid. targeted the sense of preparingone for future citizenship( Orderof towardspecific population groups (e.g., Indianeducation) March 31.1993,p. 94). or programs (e.g., ROTC)(O rder of March 31, 1993, pp. This Court finds that the "ordinary meaning" of these 14-15). words, "common to the understandingat the time of its The inclusion of such funds in any equityanalysis was further adoptionby the people,". .. is a systemof publicschoo ls that discountedby the realizationthat "... these funds may be used is generousand broad-basedin its provisionof educational only to supplement, not to supplant, the publicschools ' regular opportunityand U1atmeets evolving standards of educa program(Order of March 31 , 1993, p. 15)."Judge Reese concluded: tionaladequacy (Or der of March31, 1993, pp. 94-95). Perhapsmost importantly, the state of Alabamadoes not JudgeReese concluded that "the state of Alabamahas a strong collector. for the most part, controlU1ese revenues , which historicalcommitment to education that it has expressedwith are not availableto advancestate educational goals but increasingforce in each of its six constitutions(O rder of Morch rather serve (sometimestransitory) federal mandates. The 31, 1993, p. 97)."The text of history of §256created the opposite issuebefore the Court is whetherthe state meetsconstitu of the weak right to a education,nearly devoidof substantive tional mandatesi n providingpub lic schools,not the feder content, as suggestedby GovernorHunt al governmentAccordingly , the Court findsthat plaintiffs To the contrary, the Court finds the Alabamaconstilu · equity analysesare proper in excluding federalaid (Order tion's educationguarantee is one that accordsschool chil of March 31, 1993,p.15). dren of the state the right to a quality educationthat is Finally,Judge Reese referred to the effortplaced by the legisla generousin its own provisionsand that meets minimum ture in creatingAmendment 111. approved in 1956,which was standardsofadequacy (O rder of March31 , 19.93,p. 98). designedto modifythe originaled ucation provisionto eradicate The Court, after carefulconsideration or the text, history, any implicationof a constitutional right to a free public educa and purpose of §256, and the expert evidence and the tion: record in Ulis case. concludest hat §256's mandate of a This Court will not presume that the legislature and the "liberal system of public schools" dictates certain stan people ratifyingAmendment 111 did a futile act; clearly, dards of adequacyfor Alabamaschoo ls, as set forth in the they bel.ieved, and this court agrees,lilat §256guaranteed Court'sorder (Order of March31 , 1993,p. 100). Alabamaschoolchildren a constitutionalright lo an educa tion-a guaranteewhich is now in effect(O rder of Morch Judge Reesesummarized " that the educationprovided to plain 31, 1993, p. 83). tiffsis not adequateto meet the requirementsimposed upon the state by §256and is thereforenot in conformitywith the Alabama Right To Equal EducationalOpportunity constitution(Orde r of March31 , 1993,pp.100-101). Wasit the intent of the framersof the Constitutionof 1901to provide for equal educational opportunities for Alabama's EqualProtection schoolchildren?The plaintiffs contended this was the intent. The plaintiffsalleged that equal protection standards should JudgeReese cited a 1938American Law Reports (A.L.R.) annota apply to the state systemof public schools.The combination of tion to define public or common schools "as meaning schools §§ l , 6, and 22 of ArticleI , Constitutionof Alabama1901 , act to which are free and open to all on equal lenns." He noted "the guarantee the citizens of Alabamaeq ual protection under the fact that public schoolsare to be providedth roughout the stale laws.V/hil e Federalequa l protectionjurisprudence has tradition for the benefit of the children thereof suggests that not just ally employedthree levels or scrutiny (strict, intermediate, and some, but all childrenare meant to enjoy the advantagesoffered rational basis),Judge Reeseemployed a ruling of the Alabama by these schools(Order of March31, 1993, pp. 84·85)." SupremeCourt that states "are not compelledexactly to corre Judge Reese further noted that the state "Supreme Court in late their standards of review of the 'three-tiered scrutiny' Tuckerv. Stateex rel. Poole,165 So . 249 (Ala.1935) , reaffirmed employedby the federalcour ts... (Order of March 31, 1993,p. in a non-advisoryopinion that the systemof publicschools man 102). JudgeReese concluded: dated by §256 must operate in favor of all children equally In any event, this Court holds that the Alabamasystem o f 356 / NOVEMBER1994 THEALABAMJ\ LAWYER public schools fails to provide plaintiffs the equal protec tunity offeredschoolchi ldren in this state must be justified tion of the Jawsun der any standard of equal protection under strict scrutiny by a compelling state interest to pass review.P or the reasons set out below, the Court holds that constitutional muster( Orderof March 31, 1993, p. 109). plaintiffs are entitled to strict scrutiny of the differential As discussedsupra, the interest in local control asserted by treatment at issue here. The Court also reviewsthe chal the Governor-that is, local autonomy to secure the level lenged inequalities under the more deferential standard of of education that citizens desire for the children in their mere rationality. In each instance, the result is the same: districts-is actually defeated, rather than promoted, in the present system of public schools in Alabama cannot many poorer school systems in Alabama by differentialsin survive equal protection scrutiny (Order of March 31, schoolfund ing (Orderof March 31, 1993, p. )10). 1993,pp . 102-103). Accordingly,the Court holdsthat no matterwhat standardof Given the history and text of Alabama's education article, equal protection reviewis employed, the present system of the Court determines that the right to education in Alaba public schoolsin Alabamavio lates the Constitutionof Alaba ma is fundamental under any of these criteria (Order of ma ArticleI , §§1, 6, and 22 (OrderofMarch31, 1993,p.112). March 31, 1993, pp.103-104). Due Process Given the conclusions regarding the constitutional issues The plaintiffs further raised the issue of adequacy, claiming raised to this point, Judge Reese then addressed the claim of that inadequate educational opportunity violated due process plaintiffs that public education in Alabama is a fundamental protection. Judge Reeseagreed that a claim for due process pro right: "... the Court finds ample additional evidenceof the funda tection could be made under our state Constitution: mental character of the right to education in the constitution, laws, history, and practice of the state of Alabama (Order of lt is well-settled in this state that when the state deprives March31 , 1993,p. 104)." citizens of liberty for the purpose of ben.efitting them with An issue raised by the defendant was that public education a service, due process requires that the service be provided could not be considered a fundamental right in light of the deci them in an adequate form (Orderof March 31, 1993,pp . sion in Abramson v. Hard in 1934, in which public education 112-113). was classified as a non-essential function of state government. There was no question regarding the fact that "The state of This issue was discountedby the Court: Alabamadepr ives students of their liberty by requiring them to However, the question of whether education is constitu attend school under penalty of law (Orderof March 31, 1993, p. tionallyfundamental does not dependupon whether or not 113)." Judge Reeseco ncluded:"... Alabamaschoolc hildren have public school appropriations were held to be subject to a due process interest or entitlement with respect to public edu proration under a budget statute, in a case decided by five cation under Alabamalaw (Order of March 31, 1993, p. 114): members of the bar sitting as a special court in which nei Plaintiffs have establishedt hat many Alabama schoolchil ther §256 nor equal protection claims \vere raised (Order dren are deprived of their state Jaw entitlement to public of March 31, 1993,p. 105). education arbitrarily and without any constitutionally suf The Court concluded "that education is a fundamental right ficient justification in violation or due process (Order of under the Alabamaconstitution ( Orderof March 31 , 1993,p. 108):" March 31, 1993, p. 115). Becauseeducat ion is a fundamentalright under the Alaba SpecialEducation Claims ma Constitution, the stark inequities in educationaloppor- With regard to special education claims made by the Doe Call Now To Bedu«!e Ove 1·l1end! Did you do 129 complete closings in ...1..M onth with ...1..S ecretary using ...1..Computer? Leaaa did • •• ~ doing closings as a public service and TurbocLDsE· ~ make money with lower people. Fast~st Proa.ram for Real Estate Closings (800)741 -646S THE ALABAMALA WYER NOVEMBER1994 I 357 plaintiffsin Harper vs. Hunt, the Court emphasized• ... that (iii) sufficientknowledge of economic,social, and schoolchildrenwith disabilitieshave the same comtitutional politicalsystems generally , and of the history, right lo an equitable and adequate education as all other politics, and social structure of Alabamaand schoolchildrenin Alabama(Order of March 31, 1993, p. 115). the United States, specifically, to enable the Judge Reeseruled In favorof the these plaintiffson their two studentto makeinfo rmed choices; uniqueclaims: (iv) sufficientunderstanding to governmentalpro (I) that children with disabilitiesare deprived or their cessesand of basiccivic institutionsto enable statutoryright under Ala. Cede§§16-39-3 and 16-39A·2to the student to understand and contribute to an appr0prialeeducation and specialservices, and (2) Lhal the issues that affect his or her community, the Alabamasystem of funding for special education is state, and nntion; irrational and violatesthe due processc lause of the Alaba (v) sufficient self-knowledgeand kno,"ledge of ma constitution(Order of March31, 1993,p. 115). principles of health and mental hygiene to Conclusi.ons enablethe studentto monitorand contributeto In concluding,Judge Reeserecognized the importancein the hisor her ownphysical and mental well-being; case or the delicatebalance among the judicial,executive, and (vi) sufficientunderstanding of the arts to enable legislativebranches of government under the doctrineor separa each student to appreciate his or her cultural tion of powers.Little argument had been made betweendefen heritageand the cultural heritagesof others; dants and plaintiffsas lo whetherdeficiencies actually existed in (vii) sufficienttraining. or preparationfor advanced Alabilma'spublic school system which required additional funds. training, in academicor wcational skills.and JudgeReese concluded: sufficient guidance, lo enable each child to Thereal issuehere is whetherthese deficiencies and condi chooseand pursue lifework intelligently; tions rise to the levelof deprivationsof constitutionaland statutory rights. In the opinion or the Court. they do (viii) sufficient levels of academic or vocational skillsto enablepublic school students to com (Orderof March 31, 1993,p. 122). pete favorably with their counterparts in Therefore. ii is ORDERED,ADJ UDGED and DECREEDas Alabama.in surrounding states. across the follows: nation, and throughout the world, in aca 1. That, pursuantto Ala. Const.art I, §§1. 6, 13,22 and art. XN, demicsor In thejob markel;and §256,Alabama schoo l-age children, Including children with (ix) sufficientsupp0rt and guidanceso that every disabilities,have and enjoy a constitutionalright to attend student feelsa senseof self-worthand abilityto schoolin a liberalsystem of publicschools, established, OTga· achieve.and so that everystudent is encouraged nized. and maintained by the state, which shall provideall to liveup LOhis or her full humanpotential. such schoolchildrenwith substantiallyequitable and adequate 3. That, pursuant to Alo. Code§16-39-3 and 16-39A-2,Alabama educational opportunities; schoolchildrenwith disabilities aged 3-21 have the right to 2. 11,at the essentialprinciples and features of "the liberalsys appropriate instructionand specialservices; tem of publicschools" required by the AlabamaConstitution 4. That the present systemviolates constitutional and statutory includethe following: rightsor plaintiffs; (a)It is the responsibilityof the state to establish.organize, 5. Thal the state offia:rscharged by law with respomibilityfor and maintainthe system of publicschools; the Alabamapublic school system. are herebyenjoined to cre (b)the system or public schoolsshall extend throughout ate a system of public schools, that providesequitab le and the state; adequateeducational opportunities to all school-agechildren, (c)the public schools must be free and open to all in accordancewith constitutionalmandates of Ala. Const.art schookhildrenon equal terms; XIV,§and 256: art. I, §§1,6,13and 22; and to provideapl)ro priateinstruction and special services to childrenwith disabil (d)equitableand adequateeducational opportunities shall il ies aged three through twenty-onepursuant to JI/a. Code be provided to all schoolchildren regardless or the §§ l 6-39-3and 16-39/\-2; wealth of the communities In whichthe schoolchildren reside;and 6. That this matter Is set for status conferenceon 9th day of (eladequate educational opportunities shall consist of, at a June, 1993. at 8:30 1.m. for the purpose of establishingthe minimum, an education that providesstudents with proceduresand timetable for determinationof an apporpriate opportunityto attain the following; remedyin this case. (i) sufficient oral and written communication Wlthoutappeal, this Order wascertified as final. skills to function in Alabama, and at the RemedyOnler of August22, 1993 nationaland internationallevels, in the com· The systemor publiceducation in the State of Alabama ing>oears: shall be fundedsufficiently to enable all publicschools lo (ii) sufficientmathematic and scientificskills to fullyachieve Constilut .ionaland statutory standards of edu functionin Alabama,and at the national and cationalequity and adequacy,including all componentsof internationallevels in the coming years; this court order (Orderof August22, 1993,p. 17). 358 / NOVEMBER1994 THEALABAMA LAWYER Remedyinvolves three aspects of Alabama'sschool funding 4. Locallycollected taxes ... shall be leviedin schooltaxing d is systemwhich are listed in order of priority.The first is equity, tricts that are coextensive with entire local school systems the fundamentalbasis of the lawsuil The second is adequacy:by (p. 17); no measure are funds currentlyadequate to implementstatutes 5. Authorizationfor local school system taxes.. .shall be uni- and regulations in place or to meet regional or state funding form, so that all school systemshave equal access to their standards.The third is the new programs which are required to respectivetax bases... (p. 18); be funded by the Order. All issues ultimately revolve around 6. Defendantssha ll developa method for determining what equity,which shoul d mean adequatelyfunded programs for all. levelof funding is necessaryto providean adequate educa- Equity, unfortunately, could devolve in equalizing poverty tion ... (p. 18.); unless new revenuesources 7. ... fringe benefits for are found for publicschools state and local school (Robin Hood). New funds employees ... shall be are necessary to equalize equalized by incorpo and hold-harmless the Figure 1 ration into the foun wealthiersystems. Irrespec dation program (p. tive of the programmatic DIAGRAMOF FLAT GRANT PROGRAM 18); offerings which may be mandated in the Order or 8. ... shall use the pupil, deemed necessaryby politi rather than tne teach cians (ex., S.B. 75, Regular er unit, as the unit for Session,1994), l ittle will be measuring the fund 1ccomplishedwithout addi t ing needs of local tional resources. Adequacy State school systems and and equity are statutory Flat Grant Revenues allocating funds to issues. For the most part, Per Pupil address those needs modificationsin governance (\Veightedor Unwe'ig.nted} (p. 18); and programs can be 9. The funding system accomplishedby regulation shall take into consid and should not distract eration high cost fac attentionaway from the cru tors such as sparsity cialfunding iss ues. and geographical iso The funding deficiencies lation .. . (p. 19); found by the Court, in addi 10. A weighting system tion to inadequacy, includ shall be developedfor ed the following: ... students whose (I) the lackof a reasonable requiredlocal taxation at a standardrate; education is demonstrablymore expensive... (p. 18); (2)the creation of matching grant programsby the state which II. Transportationshall be funded as an item ... outside the rewardloca .1tax effortand wealth; foundationprogram (p. 19); (3)the lack of an adjustment for wealth in the allocationof state 12. All students in the state shall be providedwith adequate funds;and textbooks ... (p. 13);and (4) the lack of uniform access to local taxationat the maximum 13. Funds shall be provided for the ongoing soundness and rate by tax allowedin other local school systems(tax reform is adequacy of educational facilities in Alabama (Order of inevitablein a sound programof school finance). August22, 1993, p. 19). Achievingequ ity wouldbe a relativelysimple manner if the State assumed full responsibility for funding schoolsand abolished The Cummt statutes: a flat grant program? or strictly uniformly limited-ta.'<.ltionat the local level.This is The defendantargued the State operateda flat grant program as appears in Figure I; that the state was neutral in the alloca not a realisticpossibi lity as a possible outcome is overalldimin tion of state funds for public schools. The plaintiffs countered shed revenuesfor public schools. this argument by demonstratingthis to be a matchinggrant pro Whatare the required elementsof a Constitutionalsystem? gram, due to the large number of appropriationline items based The Orderdefines these elementsas follows: upon numbers of employeesrather than on numbers of students l. The State shall establish a foundationprogram that shall (see Appendix1 on page 367). These tend to rewardwealth and operate to assure all children an adequatelyfunded educa effort through a matching grant program. Lowtaxable wealth tion (p. 17); localschool systems,even with significantrates of localtaxa tion, 2. School funding, both among schools systems and among simply cannot compete for these grants. Implementing a flat schoolswithin schoolsystems, shall be equitable (p. 17); grant program which allocates only on the needs of students 3. . .. shall require a uniform local tax effort equalizedby the would be a significant first step toward equity. Allocation of State so that everyschool child shall receivean adequately fundsshou ld be based upon studentsand their needsrather than fundededucational opportun ity... (p. 17); on number of employees. THE ALABAMALAWYER NOVEMBER1994 1359 Gi\'ena flat grant program,other equityissues regarding local (or constitutionalapproval . A tolllllynew foundationprogram is taxationremain: (I) if local taxationis utilized.it must be uni not a necessity:the 1935statutes can be updated.The questionis formlyrequired at the local level;and 12) if localta.'Ciltion is uti whetheranother type of modem school financeprogram, such lized.each local school system must have the same right to levy as power equalaation.is precludedby this order. lmspecti\-eof the type and rate of ta, authorizedany other localschool system. the type of program,two policyissues must be addressedby the Theserequirements exist independently of the type offinance sys legislature: tem employedand must be accommodatedthrough a constilu· (1) What shall be the magnitudeof the foundation program? tional amendment.the linchpinor achievingequity in Alabama and for both students and for taxpayers.llcquired dispara te rates of (2) Howmuch of the costshall be assumedat the localleve l? local taxationwill be unconstitutionalunder the LiabilityOrder. Equitylncre- in a flat grant progromas the amount of per What1$ a foundationprogram? missiblelocal taxationdecreases . A tlat grant program is most A foundationprogram is a state guaranteeof equal accessto a equitable when no local taxes are permitted and the state minimum (adequate) levelof revenues for each pupil. A state assumesthe full cost (no localtax leeway). Allocationcan either could fully fund this minimum level of revenue or it could be based on an equal amount per pupil (unweighted) which imposeupon each localschool systema requiredlocal share or assumes that all educationalneeds are normallydistributed or tax effortby rate. The yieldof this requiredlocal share or effort on an equnl amount for students equallysituated (weighted). for each localschool system depends on Its ta." 360 I NOVEMBER1994 TME ALABAMALAWYER Figure 3 THEALABAMA MINIMUM FOUNDATION PROGRAM, 1935 A. B. C. . institute Attendance Financial Lists Reports Statements I TeacherUnits I ~ TransportedADA I- I VariableDi visor I . [. II. III. IV. SalaryAllotments Other andPrincipals ' Current Capital Outlay' Transportation Supplement' Expense' ' l I (+) (+) (+) (+) Total Minimum ProgramCo st Subtract (+) l Subtract PublicSchool Fund . - . RequiredLocal Effo rt () () ' (ChargebackStatew ide = $4,676,485) Note:Special Educatio n chargeback Minimum not statutorilypermitted . ProgramCost Required LocalTaxat ion equals10 mills FromASETF or its tax-basedequ ivalent. may in factbe a preferable procedureto meet student and system was and is an effectiveadjustment for problems associatedwith needs (both units are common in foundationprograms) . Cur· school size, whether a function of sparsity, geographical isola rently,any planneded ucation refom, in Alabamacontains stan tion, or density. In addition, the modification of this divisor in dards regarding class sizes.To accommodatesuch standards, it is FY 1988-89 (the Smith Bill) to vary by grade level effectively logicalto consolidate those costs associatedwith fundinga class addedgrade levelweights to our current foundationprogram. room into an allocationunit. Allocationby teacherunits is predi· Eachschool system's allocation is on a per pupil basisadjusted cated upon a student 's educationa l needs. The obvious for class size. The teacher unit consolidatescosts for salaries, mathematicalequiva lency betweena teacher unit and a per stu funds for support servicesentitled " other current expense," and dent unit is the ratio of the consolidatedcosts to the number of fundsfor capitaloutlay. These cost factors were to be adjusted by students (student/teacherratio) these costs will serve. This ratio the State Board of Education on an annual basis. l'unds for should varyby grade and so shouldrequired costs. transportation, lhe fourth cost factor, were provided for those The AlabamaMinimum F oundationProgram of 1935 schoolsystems which met state requirements to operatea t state The AlabamaM inimum Foundation Programcreated in I 935 expensea schooltransportation syste m. was basedon the factorsshown in E'igure3. Funds were allocat The determinationof the required local share or tax effort in ed on the teacher unit basis.one teacher unit for each 28 pupils the 1935statute is common today;l ocal taxeswoul d be included in averagedaily attendance statewide (Note: teacher unit implies in the foundationprogram - the ad valoremtax-and would be all costs necessaryto support the teacher unit, not just a salary uniformstatewide . Each local schoolsystem 's requiredtax effort for a teacher). The State Board of Education was statutorily was 5.0 mills of the 7.0 mills of local ad valoremtax requiredto authorizedto adjust this divisornominally for certain conditions be levied.This was each localschool system's share of one half of such as sparsity of populationwhere a remote local schoolneed one percent of total assessed state valuation (5.0 mills). The ed a teacher evenif there were fewerthan 28 pupils in ADA.This wealthindex created in I 935was the assessedva luation index. THEALABAMA LAWYER NOVEMBER1994 1361 Revisingthe~ MinimumFoundation Program facilitiesdeficiencies, and new bond issueproceeds should all be TheFoundation Program concept is still the most commonly addressedsimultaneously. and their purposes and long-term utilizedstate aid programin use today( AEl'A,1988; ECSINCSI., implicationscarefully integrated. 1988;NEA, 1 987). Yetlt may not be the only aid fonnuln in all Categorical AidPrograms casesas other components( tiers) such as a guaranteedtax yield Funding that is targeted for specificcategories or students programmay be used in conjunctionwith the foundationpro impliesfull state assumption of costs. such as transportation, gram. As educationde\'t'loped in Alabamaafter 1935, two pal outside the foundationprogram. The weightingsystem required terns developedwhich limited the equity provisions of the by Judge Reesefor specialeducation, at-risk, and vocationaledu foundationprogram. The first wa.sthe disconnectionor the cal cationmay suggest allocationas categoricalaid (Orderof August culationof the requiredl ocalsha re or effort:l he secondwas the 22, 1993, p. 18). By removing these from the roundation pro appropriation of general schoolaid funds outsideof the rounda gram, localschool systems proportionately bear only the cost of tion programas categoricalaid. Thesecategorical aid programs the generalschool aid program;programs which are not general havebeen of twotypes. in nature are best assumed 100 percentby the state. The incl· Thefirst typeconsists of componentswhich should be includ denceof such educationalneeds is directlya state problem.n ot a ed in the foundationprogram, such as teacher units to reduce localproblem ( ex., catastrophiccosts in specialed ucation). class size or funding for fringebenefits . The second consistsof Requiredlocal share or effort programswhic h are properlycategorical aid and which do not Requiredlocal effort was definedin 1935as the yield of 5.0 necessarily representa generalper pupilallocation to each local mills o f ad \'aloremtax. This has not been updatedto reflectthe (ex., schoolsystem specialeducation and vocationaleducation ). increasedlevies authorized generally or the selectivelocal levy Transportationis of this second type and should be allocated authoriutions. \Vrn!reasin 1935 the requiredlocal taxation was outside the foundation program as ordered: "Transportation 7.0 mills(the total then with statewideauthorization), the maxi shall be funded... outside the foundation program (Order of mum authorized today is approximately53 mills (with 15 mills August22, 1993,p. 19)." authorizedstatewide) . School systemsmay not levyall ad val Funding for school facilitiesis a major problem.The Mini orem taxesavailable . Af oundationprogram's equalization ls lim mum Programconcept includes capitaloutlay as a cost factor itedwhen a localschool system's total accessto localrevenues is becauseit was properlyassumed that each local school system not calculatedin the formula.The greater the variancebetween would have to bear major responsibilityfor its capital outlay the requiredlocal share or effort and the maximumloca l levy, needs and that the building program should be equalized the less the equalization. Civen that the range of ad valorem through the foundation program (statewide bond issue for leviedfor school purposeshas increasedfrom 7.0 mills in 1935 school buildingsIs a relativelyrecent phenomena).Judge Reese to approximately53 mills in 1993, the simple a\,erageof this has ruled that "Fundsshall be providedo utside the foundation range, or 30 mills, could be required of all localschool syst.ems programthat willelim inate identifiedd eficienciesin schoolfacil (requires linchpinconstitutional amendment ). As the required itieswithin ft\'e (5) )'ears . .•• This undoubtedlyrefers to past defi number of mills decreases, equitydecreases. Conversely . as the ciencies. In addition, "Funds shall also be provided for lhe requirednumber of millsincreases, equi ty increases. on-going soundness and adequacy or educational facilities Anotherdeve lopmentsince 1935has been both the statutory ... (Order of August 22, 1993, p. 19)." "On-goingsoundness" authori1.ationor the local sales tax (includingfranchise , excise requirescurrent revenues, not sporadicbond issms. and privilege license taxes) for school purposes and Its Judge Reesemay haw anticipatedtw o differentfunding mech widespreadutilization. To increasethe equalizationeffecti\'eness anismsfor capital outlay: of a foundationprogram, it must take into accountthe common The fundingsys tem for eliminating deficienciesin facili local tax base approvedto fund schools. Giventhat over 75 per ties and for new construction shall be equitableand shall cent of localschool systems today use the sales tax (averageone takeinto account:the current state of buildings,the exist cent), somestandardi1.ation of its incidenceshould be developed. ing capital debt servicesand tax capacityof localschool This couldbe accomplishedby statutorilyl"')ling a uniformlocal systems( Orderof August 22, 1993.pp . 19-20). one cent sales tax for school purposes, which becomesa part of Accomplishingthis indicatesthat equity funding,analysis of the requiredlocal share of effort.The sales tax wealth of a local TELEPHONE FACSIMILE (!OS) Jls.9111 (lOS) )26-?Jl6 RichardWilson & Associates ANNA lEE GlATII NA Registered Professiona l ATIORNEY• MEMBEROF 111.AIIAMAIIAR SINCE 1!187 Court Reporters Anni;iI.cc O Undn11.P .C. Tu. r i.,. Bulldlng o, Mal)!10I"' Offi« P.rl< 804 S. Perry S1ree1 Sull< Z 18 · Zl 12 E!• ...,,h AvcnU 362 / NOVEMBER1994 THEALABAMA LAWYER school system becomes it's share of a uniform local one cent es such as loweringstudent/teacher rallos? It will be important sales tax; for salestaxes th e measureof wealth becomesthe Sales for state lawmakersand educatorsto determine a required local Tax Index.Sho uld other wes be made availableto local school effort that is lessthan the requiredlocal taxationin order to rec systems,such as the Incometrue, a similarwealth indexcou ld be ognize the validityof any pledges and lo leavel ocal nexibility for constructed. educationalprograms or for capitaloutlay. There is difficultyin measuringthe yieldof taxesother than ad Court-orderednew programs valoremtax on the basis of ad valorem tax yields. In Alabama, Other new programsordered by Judge Reeseinclude a system propertywealth is its appraisedor fair market value. Much prop of school mYardsfor successfulperformance ( p. 7), substantial erty currently escapesthe appraisal process due to tax abate staffdevelopment (p. 9), extra staffdays. (p. 9), targetedcompen ments and Is unrecognized as wealth . Additionally by satory assistance(p. 10), a sblte plan includingfunding to mini Amendment373 (the "Lid Bill), all propertyis discountedby an mize non-schoolbarriers lo learning( p. U), an early childhood assessmentratio into four classes.The sbltewldeaverage of these dt\-eloprnentprogram for disadvantagedfour.year olds (p. 11), classes is about 17 percenl Finally, the application of exemp preschoolservices for three to fiveyear olds with disabilities(p. tions (homestead, current use) means that less than 17 ptrcent JI ), adequateinstructional supplies( p. 13), technologyacquisi of propertywealth is renectedin the tax yield. tion, support, maintenance, and staff development(p. 13), and On the other hand, taxes such as the sales taxes are based staffde\-elopment in specialeducation (Order of August22, 1993. up0n the 100percent value of the transaction,with relat:i\'elyfew p. 14). These are new costs to the State. Equity is not effected exemptionsprov ided. Whilean ad valorem tax tends to under with these programsfunded outside the foundationprogram. sblte the wealth of the local school system,measuring the yield of other taxes-particularly the sales tax- in tenm of the ad val Limitationsof a FoundationProgram as descrlbed orem tax tends to oversbllethe tax effort involved.Ci,-en Alaba · Troublesomeaspects remain in revivingAlabama 's foundation programwhich are perhapsunique to Alabama. ma's current tax system, it is difficultto fairlyequa te capacity, effort and yield. The most practicableway to do this Is through a (1) The first is thal without a statislicallys ignificantchargebac k uniformlocal tax levy. many local school systemshave built an infrastructurebased Other issuessuc h as the appropriationsto local schoolsystems upon an extra cost subsidy from the stale (e.,iample,Frin ge by their respectivecity councils and county commissions may benefits) and an assumption that everything levied at the need to be consideredin determiningr equired localshare. Taxes local levelis for local purposes.Th e concept that some or all which are uniquelyava ilable to cert;\in local school systemsa nd local revenuesco uld be subsumed by a chargeback and. in effect,captured by the state to pay for educational expcndi, denied to others such as the gasoline lllx nnd federal impact aid also require review. lures currently directlyfun ded by the state is a politically- Required local taxation\'enus required localeffort Requiredlocal taxation m eans th.it a SU1nd.1rd rate of local tax ation is required for participation in the foundationprogram. REAL ESTATE This has historically been 7.0 mills. However, the state has assumed that some or lhls required local taxation should be ATIORNEYS available for strictly local educationalpurp0Se$, pa rticularlycapi lal ouUay.Therefore, the chargebackor required local effortwas LASER SOFTWARE only determinedto be 5.0 mills.This means that only 5.0 of the A complete line of Real Estate Closing 7.0 mills thus required was consideredlo be a,-allable to fund Programs including state educationalpurposes. Stated another way, lhe only amount c.i HUD's, Buyer & Seller Statements, the Legislaturecould spend in the appropriationsbill was 5.0 Disbursement Register, Checkwriting mills of requiredlocal effort. The other 2.0 required mills were unrestrictedrequired local ta:catlonas was any additionallocal ~ Deeds, Mortgages, Notes, & Affidavits Ill levy(local leeway). l!1 Title Policies, Commitments and An imporblnlissue for carefulevaluation in any revisedor new Endorsements foundationprogram is whether the required local effortshall be (!1 FNMA and More 100 ptrctnl of the required local taxallon. If the amount is 100 One time data entry, all calculations percent, then localboards of educationhave no nexibilityin local performed , high quality printing of education matters over and abovelhe minimum (\\'hether ii is complete document, with data , generated called minimum or adequateis immaterial-ii is still lhe mini on plain paper. mum required by the state). IJ a local g011emingbody has been CALL FREE (813) 763-5555 unwillingto tax itself up to whatevershall be required as local taxation, il doesn't seem rea.lislic that once this new minimum levyis in place that U,erewill be great interest in levyingaddi tional trucesFor local purposes.particularly to pay for a building program. ln fact, many local taxes currently levied-some as school taxes,so me as city or county laxes-are pledgedor ear marked (or retiring bond issues. Howca n the tax yield of these leviesbe counted as being available for state educational purpos- Display Systems, Inc., 180 N.W. 3rd /\Ve, Okee ALABAMACENTER FOR DISPUTE RESOLUTION he AlabamaCenter for DisputeR esolution, locatedin the Al.ibamaState Bar offices, is now fully operational. fl maintains educationaland resource materialsand a roster of mediatorsfor use Tthroughout the state court system. Administeredby Jud),Ketgan (J.D. 1986,Catholic Universl · tyl, the Center is being developedinto an alternativedispute resolution management, coordination, research and developmentoffice similar to dispute centers developedin other states in recent years. 0peraling under the supervisionof the newly-createdAlabama Supreme Court Commissionon Dis pute Resolution,and in conjunctionwith the AlabamaState Bar Committeeon AlternativeMethods of DisputeResolution, the Centerwill manageand coordinateall alternativedispute resolution programs in the State of Alabama. The Center will serve as a clearing house for ADRinformation. It will providesupport to local bar a.ssociation ADRc ommittees. assist with the presentationof ADRseminars, maintain statistical data to evaluatethe effec tivenesso f ADRprograms , assist state agenciesin implementingADR concepts in the administrativeprocess. and work to prom<>teconmct resolution programs in the courts. schoolsand neighborhoods. For informationabout mediators.to register on the Center's roster as a mediator, or to obtain information about ADR materialsor educationalprograms, call the Center at (205)269 ,()409. 366 / NOVEMBER1994 THEALABAMA LAWYER Appendix1 APPORTIONMENTPROCEDURES FORSTATE FUNDS FORELEMENTARY ANDSECONDARY EDUCATION , FY1993-94 Fi.nancial Program and Line Item Basis of Item of State Appropriation Apportionment I. Financial Assistance Program Mini.mum Program And Public School Fund A. AllocationBased Upon Number of Students 1. PublicSchool Fund Basedupon 1978School Census 2. MinimumFoundation Program Basedupon AverageDaily Attendance II. Financial Assistance Program Local Boards Of Education A. AllocationBased Upon Number of Students 1. Additional Allocation for SpecialEducation Basedupon Enrollment in Grades1-12 2. Additional ElementaryTeacher Units,Grades 3-6 Basedupon Enrollment in Grades2·6 3. CareerLadder Salary Increasesfor TenuredTeachers Basedupon State Teacher Units 4. DriverEducation Teacher Units Basedupon Enrollmentin Grade 10 5. ElementaryGuidance Counselo r Teacher Units Basedupon AverageDaily attendance in Grades 1-6 6. KindergartenTeacher Units Basedupon AverageDaily Attendance in K 7. LibraryEnhancement (K-12) Basedupon Enrollment in GradesK-12 8. Maintenance Basedupon State Teacher Units 9. SpecialEducation Teacher Un its Basedupon Enrollment in Grades 1-12 + Childcount JO.Supportive Teacher Units Basedupon DefinedStale Teacher Units 11. TeacherAides Basedupon AverageDaily Attendance in GradesK -12 12. School Bus CapitolOutlay Basedupon units in servicebuilt before 1978 13. Vocational Teacher Units Basedupon Formula Devisedby SBE B. Allocation BasedUpon Number of Employees 1. ClassroomInstructional Supplies , GradesK-12 Basedupon State and LocalTeachers 2. KindergartenInstructional Supplies Basedupon State and LocalTeachers 3. Social Security-FICA Basedupon State and LocalTeachers and Employees 4. Support PersonnelPersona l Leave Basedupon all Support Employees 5. Support PersonnelSick Leave Basedupon all Support Employees 6. Support Salary Increases Basedupon all Support Employees 7. Teachers' PersonalLeave Basedupon State and LocalTeachers 8. Teachers'Sick LeaveReimbursement Basedupon State and LocalTeachers III. Payments On Behalf A. AllocationBased Upon Number of Employees 1. Public EducationEmployees Health Insurance Board Paidon Behalf of all State and LocalEmployees 2. TeachersRetirement System of Alabama Paidon Behalfof all State and LocalEmployees 3. UnemploymentCompensation Paidon Behalfof all State and Local Employees IV. Programs Of State Department of Education 1. Textbooks BasedUpon Student Enrollment 2. AdultBasic Education BasedUpon Program 3. Community Education BasedUpon Program v. Public School And College Authority 1. Proceedsof Bond Issues Basedupon AuthorizingLegis lation THE ALABAMALA\WEB NOVEMBER1994 / 367 "It, myfirst monograph alone, I've already found informationand ideas relevant to the majorityof casesI'm nowhandling." SCOTT BA LDWIN/ M A"-SHALL, TEXAS Alreadyused by select subscribersin 37 states, the IndependentCounsel Rc_sourcc s MonographSerie s is now availablefor the firsttime in widespreadrelease to Ala_bama's anorneys. Wrinenand editedb)' Francis Hare.Jr. , each)0 ro 7) page monographoffers ahausti\'e researchand analysisof a single criticalissue now current in civil litigation-and includes comprchcnsi,'!!listings of up-to-date coun opinions(both publishedand unpublished ). aswell asoaensh'!! bibliographies ofrelated reading materials . Asa subscriber, you'll receiveyour quarterly monographs in bothhard copy a11d diskette - enablingyou co instantly access and utilize the informationin a broad rangeof yourown case-preparationcffons . Ordernow, and we'll send)'OU our fim t\\'Omonographs ! nformat.ionSharing and Discovcrabilityof Computer D:11abascs-immediatcly. ror a complete list of future topics.ask for our brochureby phone 20)/ 9) 1-2400, or FAX195 1- 2404. MONE Y B ACK GUARANTEE If you arc oot completelysatisfied with the quality of )'Ourfirst rwo monographs , returnthem to us-and we'll refund )'OU1he cos, of 1-oursubscription. ALABAMA LAWYER S SHARE THEIR COMMEN TS A BOUT B ROTHER H ARE'S MONOGR APH SER IES : " / 111a1genui nelymrprired by the nu11lberof citallo,u @d quoteJI'd neverJee11 before. " KtN HOOt axes are what we pay for a civi (TJhe Commission decided it 1992,except for two bills (H. 246 and H. lized society, Oliver Wendell would formulate a system that 247)modifying the incentivesfor indus· THolmes, Jr. declared in Compa would be revenueneutral, thereby trial de-oelopmentand providinga one nia de Tabacosv. Collector,275 U.S. leaving the decision as to how time reporting requirement on users of 87. 100 (1904). Tax reform debate, as much revenue is needed to fund industrialdevelopment property. lo how our stale tax system should be governmenta l service lo those The Alabamalllx reform saga has con· struclured lo help educate and serve a who are elected to make such tinued. Adequate funding for Alabama civilized soc iety In Alnbama, has decisions. public schools is now the subject of hereto fore focused on the need for One centra l theme underpins unprecedented (in Alabama)li tigation fairness and eQuily in our state tax all of the Commission's recom regarding constitulional and due pro system. mendations; broaden the lax cess requirements for funding the 129 C. C. Torbert, Jr., chair or the Alaba baseand lowcrthe lax rate. public primary and secondary school ma Commissionon Taxand l'iscal Poli 43 Ala. L Rev. 533,536 (1992). systems in Alabama. A Montgomery cy Reform(the "Commission"),1990-91 Then GovernorGuy Hunt, in October CountyCircuit Judge (JudgeEugene W. (and former chief justice of the 1992. appoinled a Tax Reform Task Reese) has determined the present Supreme Court of Alabama, 1977-89) Force, chaired by Thomas N. Car funding method to be constitutionally wrote in the Spring 1992 issue of the ruthers, a Birminghamtax lawyer,with unfair and has calledupQn and deferred Alabamalaw Review(as part of Sym· representatives of education and busi to the legislature for remedial action. PoSium;PropOstd Tax ReformIn Alaba ness interests. to promote a compre Alabama Coalilfanfor Equity, Inc., el ma) about the unfairness of the present hensive package of lax and education al v. Jim Folsom, No. CV90-883R(Cir. Alabamalax system: reform bills in lhe Alabamalegislature, CL, Monlj!omel)•Co .. Ala., filed 1990). The Commissionfound that our The reform packageof some 33 related To date the Alabama Legislature has present tax system is simp ly bills dealing with taxes, educa tion failedlo act. unfair. It ls regressive and lacks accountability. and budgeling proce This article presents an overviewof coordination. dures died in the legislature in March the present Alabama tax system as a THEALABAMA LAWYER NOVEMBER1994 / 369 means of furthering the debate on tax vices. Personal income tax is leviedat a reform in Alabama. (See James D. The population o( Alabamais greater maximum rate of 28 percent on taxable Bryce, Tax Rdonn Issues in Alabama, than the population or about 71 or income. The corporation tax rate is 28 43 Ala L Rev. 541-599 (1992). Please toda)"s world of some 191 nations percent of taxableincome . accept as a major premise of this arti (according to the WorldAlmanac and Alabamatu burden cle, in reviewingour present stale sys Bookof Fads. 1994). Alabama'spopula tem of taxation, that an increase in tion and economy, for example. is Jarg. This year the people of Alabamawill state tax revenues of 15 to 20 percent er than Lhat of Ireland. Ireland bas a pay In tax revenues about Sl3.7 billion (in addition to the usual annual rev population of about 3.5 million and a to the federalgovernment. approximate enue Increases,which are accompanied gross domestic product (CDP)of some ly S4.5 billion to state government,and by inflation and the usual government S39.2 billion (1991). Ireland's 1991 per an estimated S 1.6 billion to local gov cost increases) is urgently, meaningful capita CDP was $11.2 thousand. ernments (citiesand counties).T he total ly, and vitally needed to provide mini tax burden of Alabamians,an estimated mum, adequate and equitable funding Compare Alabama with Norway $19.8 billion, represents 25 percent of for the public school system and gener The populntion and economy or our state CSP. or this amount the al governmentin Alabama. Alabama is comparable lo that of Nor state's share is 6 percent, the local share Alabamastale tax revenues, this year way. Norw~y'spopulation in 1992 was is 2 percent, and the federal portion is (F'Y 93-94 ), are expected to equal estimated al 4.3 million and its 1992 17 percenL (Theseestimates are derived approximately $4.5 billion. Stale tax CDP was $72.9 billion. Per capita CDP from The Statistical Abstract of the revenues (not Including local govern in Norwayin 1992was S 17.1 thousand. UnitedStale.$, 1993 -1994, and The Uni ment taxes) last year were about S4.2 The purpose of these comparisonsis to versal Almanac 1994;see also Center billion. The annual increases in state show the significant relative size and for Business and Economic Re.$earch, revenue from last year to this year will strength of the prt$CntAlabama popula AlabamaEC0110mic Ou/look (1994 )). be quickly consumed by pressing gov tion and economy. Thrre were I. 7 million federal ernment cost increases. Perceived on a worldwide basis, income ta.x returns flied by Alabama Approximately three-fourths to four Alabamais an advanced,well-develo ped. taxpayers in )990 , and presumab ly fifths or this year's slate tax revenue is industrial stale and economy.Consider about that same number or returns allocated to support public education, Liberia,for example, which had a L992 were filed with the Sl:ateDepartment of and about one-fourth to one-fihhw ill be population or about 2.5 million. The Revenue.The 1992 per capita taxes paid used lo support general state govern geographical area of Liberia is 38,250 by Alabamacitizens lo lhe federal gov ment. At least $675 to S900 million in square miles. The CDP of Liberia, in ernment was $3,177. This represented additionalstate tax revenue is neededto 1989, was about SI billion. The per 76 percent of the U.S.average. Alabama bring our schoolsand general state gov capita CDP. ln 1989, of Liberia was citizens, however, received a pretty ernment up to a,-erageamong the states $440. good deal. In 1992, lhe federal govern ment spent $4.920 per capita in Alaba in this country. About 75 percent to 80 Honduras percent would to the public schools ma. Alabamianspaid about 65 cents for go Comparison of Alabama with Hon and the remainderwould help fund gen each dollar received. duras, in Central America, for example, eral governmenLThe need is large but Connecticut, the state with the high makes the same poinL Honduras bas a not beyondour reach.A L5to 20 percent est per capita personal income, did not populationor 5.1 million (1992est. ). Its tax fare as well as Alabama.The 1992 per increase should do the job. Such geographica l area is 43.277 square investment, made now, will yield enor capita taxes paid by Connecticut citi miles, slightly smaller than Alabama. mous future economic, social, and cul zens was $6,286. That year lhe federal Honduras. In 1991, had a CDP or $2.5 tural dividendsto the peopleof Alabama. government spent $4,846 per capita in billion and a per capita CDP of $516. Alabama, loday, has a population or Connecticut. The people of Connecti about 4.l million people. Approximately Foreign tax system cut, therefore, paid $1.44 in federal 26 percentof Alabama'speople are under The total tax burden of most of the taxes for each dollar received. the age of 18 years.These. more than one industrialized world is as great or Alabamatu .es million, children represent Alabama's greater lhan that of the present system The Parca Report (a publication or greatest promise and potential new in Alabama( including the federal gov the Public Affairs Research Council of resource. Our state is blessedwith O\ler ernment's levies}. In Ireland, the maxi Alabama. Number 20 (1994)) lists lhe 51,000 square miles of beautiful land. mum income tax rate on individualsis sources of revenue for the Alabama Alabama's gross state product (CSP) is 48 percent. Graduated individual rates state gO\oemmentfor F'Y 1993-94.The estimated to reach, this year, approxi· beginal 27 percenL The corporation tax total tax revenue, as previouslystated. mately $78 billion. The total personal rate is 40 percenLThe ValueAdded Tax is estimated to be S4.5 billion. (The income of our citizens (and taxpayers) (VAT)of 21 percent is levied on many total slate revenues, including federal willreach about $71 billionthis year.Our goods and services. Capital gains are sourc.es, local sources, licenses, fees, per capita CSP will be about Sl9 thou taxedat a rate or 40 percent. collegeand universityrevenue, hospital sand,and our per capita personal income Norwayimposes a VAT at the rate of fees for services, etc., are projected al willbe about $17.1 thousandthis year. 28 percent on the sale of goods and ser- $10.2 billion). 370 I NOVEMBER1994 TMEALABAMA LAWYER The "big mules" among state taxes 16. CorporateFranchise Tax 119 through 40-18-91(1975). (each of which generates over $100 mil· 17. Documentaryor Filing Taxes 18 The Commission recommended that lion of revenue annually) are: state 18. Estate & InheritanceTu 20 the Alabama personal income tax be income tax, general sales and use taxes. 19. MedicalProviders Tax 74 conformed as closelyas possible to the alcoholicbeverage taxes, insurance pre 20. Other PropertyTaxes 2 federal income tax, with federal adjust mium tax. motor fuels and oils taxes, 21. SeveranceTaxes: ed gross incomeas a beginning poinL utility gross receipts taxes, ad valorem Coal SeveranceTax 8 The Commission also recommended (property) tax, and corporate franchise Forest Products SeveranceT ax 6 that the Alabamaco rporate income lax Lax.Abou t 90 percent of all state tax Oil & GasProduction Tax .5a be conformed as closely as possible Lo revenue is produced by th ese eight TOTALPROPERTY & lhe federal corporate income tax. and Laxes.The "big. big mules" are the sales OTHERTAXES 425 that it be extended to financial institu and income taxes, which together pro TOTALTAX REVENUES ~ tions lo replace the Financial Institu duce about 61 percent of total state rev tions' ExciseTax. enues. The state ad valorem (property) I. State Income Tax tax (not counting its importmt contri The state income tax is estimated to 2. Fin.ancial Institutions Excise Tu bution to local government) provides produce$1.5 billion in revenue for 1994 The financial institutions excise tax only about 2.6 percent of total state tax (hereafter tax revenue figures are FY (FIET)will produce revenue of approxi revenue. Basedon its state tax contribu· 1993-94 estimates). This amounts to mately $33 million this year (the actual lion, the ad valorem (property) tax "big approximately34 percent of total state estimates are for the fiscalyear). mule" is not very healthy. In fact, Alaba Laxrevenues. The lax base for the financial institu ma ranks 50th among the states in this The Laxbase for the state income tax tions exciseLax is the net income of any category. is the net income earned from all bank. banking association,trust compa· The followingtable, which appearedin oourcesby residents, non-residents,and ny. building and loan association, the summer 1994 issue of Lhe Parco part-year residents deriving income industria.lor other loan companydoing Report,supra, lists some 21 statewide from Alabama sources, and corpora business in Alabama. taxes (or categories of Laxes)which tions domiciled in or receiving income The Alabama financial institutions together will generate the $4.5billion of from Alabama. excise Lax rate is 6 percent of taxable expectedstate revenue.Each of the taxes The Alabamaincome tax rate ls: net Income. is numbered and will be discussed in Statutory author ity for Lhe Flin is (1) Single Persons, Heado( l'amily, more detail subsequentlyin L11isarticle. Alo. Code §§40· 16-l through 40-16·8 and Married Persons Filing Separate Theyare: (1975). Returns: Aspreviously stated, the Commission State of Alabama Total 2 percent on the first SSOOof recommendedthat the Alabamacorpo Tax Re.>tnues (Dollarfigures taxablenet income rate income tax be extendedto financial 4 percent on the next S2,500 For FY 1993-94 in millions) institutions to replace the financial 5 percent on income over $3,000 instltullons' excisetax. INCOMETAXES (2) MarriedPersons Filing Joint 3. GeneralSa les and Use Taxes 1. State IncomeTaxes 1,533 Return: Ceneral sales and use LaxesIn Alaba 2. Financial Inst. l~xciseT ax 33 2 percent on Lhefi rst $1,000of ma this year will produce about $1.2 TOTALINCOME TAXES 1,566 taxablenet income billion. This amounts to approximately 4 percent on the next SS,000 27 percent of t.ota,state tax revenues. SALES& CROSSRECEIPTS TAXES 5 percent on incomeover $6,00-0 The tax basefor the Alabamasales tax 3. Ceneral Salesand UseTaxes I ,221 is the gross proceedsfrom the sale of all 4. AlcoholicBe\lerage Taxes IS8 (3) DomesticCorporations 5 percent of entire net taxable taxable items to in Tra n sf er to Dlsablllty Inactive Statu s canceled and annulled Saini·s license to practice law in this • Auburn altorney AndrewJ . Gen!J)'was transferred 10dis state effectiveAugust 8, 1994.[ASB Nos. 93-107 & 94-1871 abilityinactive stalus, effectiveAugust 26, 1994.Gentry's trans· fer was orderedby the SupremeCourt of Alabamapursuant to a Suspe n sion s • Huntsvilleattorney Gary C. Huckabyhas been suspended prior order of the DisciplinaryBoard of the AlabamaState Bar. from the practice of law for a period of 45 days by the Disci IRule 27(a); Pel. No. 94 -031 plinaryBoard of the AlabamaState Bar. liuckaby'ssuspension Surr ender of Lice n se becameeffective September 3, 1994.T his action was a result of • Birmingham.ittorney Barry G. Terranova has surrendered his havingp ied guilty in lhe United St:nlesDi strict Court for the his license to practice law in response to charges broughl Northern Districtof Alabamat o lhe criminal misdemeanor of against him by the OfOceof General Counselof the Alabama fallingto file an incometax return for the calendar year 1988. State Bar.The formal chargesfiled against Terranova allege lhal [Rule22(a)(2) Pel No.92-071 he, while not authorizedto practicelaw in the State o( Alabama. Public Repri mand s held himselfout as a lawyerand accepteda feeo( SS.000from a • Gadsdenattorney Milford LeonG armon waspublicly repri client. RobertM . D.llley.Jr., to set up a corporationand obtaina mandedby the AlabamaState Baron July 17, 1994. patent of an invention.He associateda patent la\\~r to oblllin A familyof formerclients of Carmon'shad contactedanother the patent for a feeof Sl,000 lo be paid out of the SS.000fee that atlomey about pursuing a possiblemalpractice claim against he had recei,'td. Terranovafailed lo pay lhe paten! laW)U the Carmon. Carmon had received a letter from this attorney SI ,000and nolhing was done on the patenLAlthough he drew wherein the attorney instructed Carmon to have no further up some lncorporaliondocumtnts, none were filedand Terrano contactwith Carmon's former clients, and to direct any and all va retainedthe SS.000fee. In additionto this amount, Terranova correspondenceconcerning them to the newattorney's office. receivedtwo addilionalchecks from Dailey,one ln the amount Contrarylo this request, Carn1on copiedcorres pondence to of $36 made payableto the probate court and another In the the former clients. The new attorney again wrote to Carmon amount of $50 made payableto the Secretaryof Stale. Terrano requestingthat he cease any furU1ercom munications with the va altered lhe names of l) OfficeStreet Addrm (IF different from mailingaddress) ------L------~ 378 / NOVEMBER1994 THEAu\BA MA LAWYER ALABAMA STATEBAR SECTION MEMBERSHIP APPLICATION To join one or more sections, co mplete this form and attach separate checks payable to each section you wish to join. Name ______ Firm or Agency ______ OfficeA ddress ------ Office Location------ Office Telepho ne Number ______ Section Annual Dues Administrative Law ...... $20 Bankruptcy and Commercia l Law ...... $20 Business Torts and Antitrust Law ...... $15 Communica tions Law ...... $15 Corporate Counsel ...... $3 0 Corporation, Banking and Business Law ...... $1 O Criminal Law ...... $10 Environmental Law ...... $20 Family Law ...... $30 Health Law ...... $1 S Labor and Employme nt law ...... $10 if pract icing less than 5 years, $30 if practicing 5 or more years Litigation ...... $ 1S O il, Gas and Mineral Law ...... $1S Professional Economics and Techno logy Law ...... $25 Real Prope rty, Proba te and Trust Law ...... $ 10 Taxation ...... $15 Worker's Compensation Law ...... $20 Young Lawyers' ...... 0 TOTAL Reme mber: Attach a separa te check for eac h section. Mail to: Sections, Alabama State Bar, P.O. Box 671, Montgomery, AL 36101 THE ALABAMALA WYER NOVEMBER 1994 / 379 Bench& BarMid-Winter Conference Sponsoredby: Circuit & District JudgesAss ociationsand Alabama Sta te Bar Committeeon Bench& Bar Relations Joint Mid-WinterCon fe.rence Thur sday, January 19, 1995 HowardJohns on Governor'sH ouse-Montgom ery 8:00 a.m.-5:00 p.m. Featured speakers: Professor Joseph Colquitt, Broox G. Holmes, Chief Justice Sonny Hornsby, Hon.W. HaroldAlbritton, Samuel Franklin, and MarshallTimberlake 6:00 p.m. Reception hosted by lhe Montgomery County Bar Association and lhe Alabama Judicial College f'aculty Association Registration fee is $35* *Fee covers cost of conference,CLE, written materials, continental breakfast.lun ch, and reception.Co n rerence is approved for 6.0 hours of CLEcredit by the AlabamaState Bar. ------Bench& Bar Mid-Winter Conference Sponsoredby: Circuit& DistridJ udgesAssocia tions andAlabama SWt Bar Committee on Bench & BarR elations Thursday, January 19, 1995 HowardJohnson Governor'sHouse-Montgomery I will attend the conferenceand my registration fee of $35 is enclosed. (Checksfor rel(islrat1onshould be madepayable to "AlabamaJudicial College Faculty Association" or "AJCFA".J Name I Address ------I Cicy______I I I Phone!.___~------I I Retum by Janual)' 6, 1995 to: I AlabamaJudicial College I 300 DexterAvenue I Montg()mery,Alnbama 36104 I L------~ 380 I NOVEMBER1994 THE /\LABAMALAWYER ._.l ~ \...... \. \.. • .... I._ \. SHm\RD'S '-.t - ._ IIOOIJ12-IOSO- IOM+l-"''- - \,.. '- - . \.. \. F~.~.·-~ .... ·=--==- \,. • \,. \,. The Michie Company ond 1rYOur 30-D~ Hooeymoon. Shepard's• have combined their F~Training. Free Support knowledge to bring you an unprcce• Free Use Of A CD-ROMDrive. dented level of conven-icnce and We're so confident Alabama Law reliability in c=rchin_g mue law. Sean:hAnd~ On Disc, Shepai:d's Edition will [e's Alabama lnw On UisC: AlabamaLaw With One Easy make your rcsellrchti me more pro Shepard's• Edition . To-UseCD-ROM. ductive, we'll Sl!J>ply the disc and One high-speed CD-ROM con With jw.t a keystroke,you can a loaner CD-ROM drive for 30 day~ tains Michie's complete libmry of automatically Shepardize• material .It no cost or obligation. If you're Alabama law plus Shepartl5 com of interest, switching at willbe not completely .arisfied, return che prehensive citatiOJ\£coverage. rw~n the fuII cexrand ShcP!)rd's by,-cemand you'll owe 11b nothing. Shepard's covers all relevant federal Citations. Call 800/356-6847 a11das k abouc and state deciSions,allowinjl you ro: You'll save time and cost finding Alabama Law On Disc, Shepard's • undersrond the actu.al st11nasof lnw on point and validann1.1your Edition. Make this marrioge of con• your precedent resean::h.And you'll have an o(fon vcnience the perfect mac.:h for vou s1ve weapon t<>bc!tter an.,wer oppos· .md your praLtice. • find additional cases, an A Look at Two Legal Services Programs t first glance, Thomas Grady began lo think about ways of helping such as Robert Sellers Smith, who Keith and Rita Kay Lett-Dean poor people in the South. Acceptedin remains on the program's board today. A mayseem lo have litUein com 1968 al the Universityof Virginia'slaw and Glenn Manning,who stepped down mon, other Lhanlhe fact they are both school, Tom pul studies on hold after last year after more than 20 years' ser Legal Services lawyers. They differ in receivingan induction notice from the vice on the board. Their efforts to pro age, gender and race. Tom has worked U.S.Army. ror two years he Ounkedthe vide legal representation for for Legal Services for more than 20 Army'speriodic physicalexam. and his low-income cllliens predated the cre years. Kayfewer than two.But. the com tentative status forced him to forgo ation of the federal LegalServices Cor mon qualities they share are an unwa the education at UVA.He worked at poration. which was signed into law by vering commitment to community Lockheedin Atlantawnile in limbowith PresidentNixon in 1974. service and the respect of their peers. the Army and finallywas able to begin "In those early days, the staff was Both alsowere reared In Alabama-Tom lawschool at Alabama. green and had a lot of growing to do. in Fort Payne in the northeastern part "I wanted to But the young lawyers were talented, of the state. and Kay in southern Mon do something they had good rapport with the clients, roe County. As youths. neither planned sociallyuuful and great spirit and energyabounded." a career in law. from the be Tom 5a)'S. The years between 1975and "I can't think of any lawyer I've ever ginning." he the early 1980s was a lime of rapid known thal I respect more than Tom says. noting growth and outreach. During that lime, Keith.'' says I luntsville's BillBurgess, a that several the program had as many as eight class former Legal Services lawyer whose law professors actions goinR at once. Initially, local practice now is pr imarily criminal at the Unlver judges had to be educated about many defense. lie has chaired the Legal Ser s i ly encour of the poverly issues the legal aid vicesor North CentralAlabama (LSNC A) aged public lawyersbro ught before them, and some board of directors for the past eight service.Doing private lawyers fell threatened at first. years. "You couldn't ask for anyone legal aid-typt "Back then, there were lots of chal more dedicated, and that's an opinion workwas "more lenges to client eligibility. You hardly that's shared by everyone in the legal fashionable Th omas Keith ever ha\'t thal today."Tom says. Much communityhere. He is a dedicatedpub then." he says. lime was spent monitoring agencies' lic servant." Tom took part in the school's legalclin compliance with regulations and get Tom Keithjoined LSNCAin Huntsville ic, which sometimes took cases that ting them to operate under the law.The as a staffattorney in 1972,straight out of becamecontrO\'ersial al the time. number of staff lawyerspeaked at 14 in the Universityof Alabama'slaw school; Aller graduation, Tom became a stiff the late 1970s, dropping to six by the he's been the program's director since attorney in the Huntsville Legal Aid mid-1980s.The program's caseloadhas 1981.Al first Tom planned a career in office, a program founded in 1968 by remained around 3.000 closed cases a engineering,bul exposureto ideasabout local private lawyers,Including Tommy year, despite the attrition in staff attor economic development "gol me think Armstrong of Scottsboro, and promi neys. Its work has shifted from impact ing beyond what I was doing," and he nent members of the Huntsville bar, cases to more routine 1oork. 382 / NOVEMBER1 994 TIIE ALABAMALAWYER "There were a lot of big trees lo a well-established Legal Services office troubled youths and runaways in chop down then," Tom says of the in the fall of 1992, after graduating New Orleans. Her interest in helping early years . "There were lightning from Tulane University's law school. troubled juveniles continues today. bolt decisions coming down from She joined Mary Jane Oakley in the She serves on MonroeCounty's juven ile the federal courts, and we were respond Legal Services Corporationof Alabama justice coordinating committee and ing to issues never tackled before." (LSCA)office in Monroeville, where is working with the local Department These included jail conditions suits, MaryJane has practicedsince 1983. of Human Resources on develop challenges to school fees, consumer Coming to Monroeville111as coming ing alternative community servicepro class actions, and lots of due process home for Kay,who was born and reared grams for juvenile offenders. cases. "A lot of time was spent on proce there and whosefamily i s still verymuch LegalServ ices appealedto Kay, even dural issues. makingprograms work the a part of the communityfabric. Both par in law school. "I saw LegaI Services waythey were supposed to," he says. ents are retired schoolteachers who as a means of r.tlping people less The 1980swere difficultyears . Severe grew up in the Burnt Corn and Uriah fortunate than myself and because funding cuts, coup led with the areas of Monroe County . Her twin I wanted to contribute to my communi uncerta inty of Legal Services' future brother lives in Monroe County and ty. I realized that somebody along the under the Reaganadm inistration, made teaches in neighboringClarke County. way had done something that helped recruitment and retention of staff prob In her senior year at MonroeCounty make my life what it is today, and I lematic. In 1981, when the opportunity High School, a recruiter from the wanted the opportunity to repay soci came up to take over LSNCA'sdirector University of the South at Sewanee, ety,"she says. ship, Tomwasn't particularlyenthusias Tennessee, convinced Kay to choose ''The work has been hard but reward tic about assuming the role, Burgess that college.She was awardeda full aca ing," Kay says. Her casework involves recalls."He didn't want to be a manag demic scholarshipthere but only stayed mostly unemployment compensation er, but somebodyhad to step up to the two years before transferring to Auburn claims, public housing evictions and plate and do it, and he did it. His prefer University,where she wanted to become public benefitsproblems . ence is to be a courtroom lawyer, a pharmacist. "Organic chem istry "She's a real plus at Legal Services," and he continues to do courtroom work changed my mind about pharmacy says Monroe County District Court today,"Burgess says. school," Kay Judge William J. Causey, Jr. "She's in Bar relations, always strong in says, and she my court about as much as anyoneelse, Huntsville. continued to improve over earnedher de and I enjoywor king with her." the years as the program established gree in com Active in her churc h and in youth credibilitywith both judges and private munityhealth programs, "Kay is in constant demand lawyers. And over the years private instead. for speeches," says her colleague,Mary lawyersbecame more awareof remedies A career in Jane Oakley.Being so well knownin the available for poor people. They recog law was not communitydoes have its drawbacks."It nized that Legal Services helps make Kay'splan, but is nothing for the phone to ring at the system work and doesn't take away one day dur home at nine or ten at night because their business. "We are U1esafety valve ing her senior people who know me think I can do for problems in the community. We yearat Auburn something specialfor them outside the provide access for poor people seeking she decided regular channels. This can be frustrat justice through the courts," Tom says. to take the ing, but at the same time, if you can What keeps Tom from burning out LSAT.'1t asked Kay Lett-Dean help somebodyyou've grown up with, it after 20 years of poverty law practice? you to list can be very gratifying." "Seeing clients is the best thing I do. I institutions you wanted your scores Kay's husband, John Dean, works for genuinely like my clients, like helping sent to, and I put Tulane and Emory. AT&T in Atlanta, and the couple takes them, and they appreciate my work. After the results were out, I got a call turns commutingon the weekends. She "It's a lot of fun being a Legal Ser from Tulane. I still wasn't sure I wanted has no plans to leave LegalServices or vices attorney. I feel we have more fun to go to law school, but I did go to New Monroeville anytime soon. "Right now, than the attorneys we go against. It's an Orleans that spring, visited the school I'm taking one day at a time. Ultimately, intellectual luxury to do what you need and then decided to go," Kay says. I'd like to be a juvenile court judge," to do and not be guided by purse Tulane awarded her a $14.000 yearly she says. Currently, Monroe County strings. You can livewhat you believein scholarship. doesn't have this position. • and make a career of it," he says. During her law school summers, When he isn't representing clients, Kay clerked for the Pederal Deposit Penny Weaver is communicationscoord inator Tom enjoys tinkering with his three old Insurance Corporation in Atlanta , of the Alabama Consortium of Legal Services MGBsan d spending time with his wife, but she already had public interest Programs. She has previously served as a Karen, a former nuclear quality engi law in mind. Tulane's law school has free-lance photographer and writer. as dlrec· neer who now operates her own grapltic a mandatory community service tor of information for lhe SouthernPoverty Law Center. and as assistant directoro f the Atneri· design business. requirement, and she spent her time can Friends Service Committee's Alabama Unlike Tom, Kay Lett-Dean came to at Covenant House, a center for Community Relations Program. THEALABAMA LAWYER NOVEMBER1994 I 383 Julian Harris ginia Law Rl!d/'W. The summer following munlty. smte and nation. In n:cognltion ulian Harris his second year o( law school Mr. Harris of his 1>ubhcserv,ce, he was honored on or l)ocalur , passedthe Alabamobar e>U1minntion and numerous occasions. Among these hon· - Ak1harn.\a gi.'.1111 was admitted to the practice in Alabama. ors were lhe Brotherhood Awordor the J He received his law degree in and National Con(erence o( Christians and or the legalprore. .. 1928 sion o( this stale, entered law practicewith his rather. Jews, selection as the honoree of the diedon August 9, Mr. Harris waselccttd MorganCounty Dtcatur Central Hospital Foundation Solicitor in 1930 and on 1934, resigning Cala. and the naming o( a Decatur public 1994. He WllS born in Dtt.ilur on 0..: in 1936. He was appointed circuit judge school a, the Julian Harris Elementary ember 10. 1904 o( the EighthJudicial Circuit in 19-13and School.Hr was • charter member o( lh< and li\'td all orhu served until 1945. Mr. Harri5 was the Dtt3tur Rowy Club and namedas a Paul U(eIn th.\t city. ths attorney for Morgan County (or more Harris F,llow by that club. For 50 year> Cather. A.J.Hanis. and his grandfalh(r,C.C. than 20 years. Julian taught the men's Bible class at Harris, were leading lawyers in Ocelllur He served on the Decatur Board or ~·irst United Mel hodist Church. So dis· (mm the year 1872wh en C.C. H3rrls mO\>ed Education from 1943 to 196.1.H t was a tingulshed was his service that this closs front Moulton to Decalur ruid began his member or the Co,ernor's Commission bear5 his nnme: TI1eJulian Harris l.tnd n prncticeh ere. His mother. EdithWesL I tar on Higher Educ.,tionand servedas chair lla11dBible Clas.,. ris. was the daughter o( Re,·erendAnson man or the Board or Trusteu o( Athens Sur T.O. Howell, Jr. patron of Lhe Mobile Opera Guild, and a member or lhe board or the l'in e hereas, T.O. Arts Museum o( the South. Mewas also Please Help Us I lowell,Jr ., a a member o( tho Freedom Foundation, Th, Ala/xm,alawfl(lr "Memorial•" sec• Wdistin the Bothm Socitty and the Cuidad lion is designedto p1011d•mtmbers or guished memberol de MalagaOrg:aniution. as well as several the bar with lnformallon about the mysLic societies. the Alhelston Club this auociation. cle>thol thtir colleagues.Tht ~ and the Mobile Country Club. He was l"1S5td3W3)1 en M3Y Statt &r andtht EdilorialBoud ~.. the senior ~rlner in tht firm of H01-,ell, 7.1994:ond no way of k.-ng when one of our Now, therefore, Johnston & L.mg(ord. T.O. was rtcogniatd by his peers as lll 384 / NOVEMBER1994 THE ALABAMAl.AWYER Daniel A. Pike as he was offectlonately known, was a of the AL>bamaTri.ll l.a")-vs Asoociation. nati,•t of Mobile where he attended Dan >p Ern est Ray Acton John Heron Edmondson , Jr. Charles Leroy Howard, Jr . Monlgomery Tumpa,Florido Birmingham Admilled: 1950 Admilled: 1952 Admilted: 1949 Died: September2, 1994 Died: 1993 Died:September l 2. 1994 John Calvin Adams David Bernard EIJis Joseph Huntley Johnson Birmingham 1'u.~caloosa l)Qlha,1 At/milted: 1947 Admllted: 1974 Admilted: 1966 Died:August 23. 1993 OiL'li:August LO.1994 Died:June 27. 1994 William Ja ckson Allen Claude A. Gholston George Alexander Wlaistre Gadsden Jasper Tuscaloosa Admitled: 1942 AdmU/ed:1939 Admilted: 1933 Died: February22. 1993 Dk>d:May 19. 1993 Died: September26. l 994 Thomas Legrand Borom Miles Shinkle Hall Randolph A. Lurie Ozark Montgomery Montgomery Allmiflell: 1928 Atlmllted: 1934 Admitt//d: 1931 Died: February2, 1992 Died:July 29, 1994 Died:June 3. 1994 Joe T. Bums Julian Harri s Robert J\1.Jltaclaurin Wedowee Decatur Jusper Admilted: 1953 At/milted: 1927 Admifted: 1938 Died:Marth 31. 1994 Died:August 9, 1994 Died:April 2, 199-1 Hugh Franklin Culverh ouse Thoma s Orr Howell, Jr. Albert Gordon Rives Tampa,Florida Mobile Birmingham Ailmilted: 1947 Admitted: 1937 Admilted: 1925 l)ied: August25, 1994 Dlall: May7, 1994 Died: September26. l 994 THE ALABAMAI.AWYl::R NOVEMBER1994 / 385 Joe GrahamBarnard BellChoir and lhe CelebrationRingers: and, Whereas, Judge Barnard was deeply Whereas,Judge Barnard gave freelyof respected by U1emembers of this com hereas, Judge Joe Graham his time to his community. serving as munity, the bar and his colleagues on Barnard, a member of the Binn director of the Chancel Choir, the Chan the bench: and, Wingham Bar Association since cel Bell Choir, and the Youth Bell Choir Whereas, we express our enduring 1956, died al the age of 64 on July 18. al Se,•enty-Sixlh Street Presbyterian reiJardand respect for our distinguished 1994: and, Church, as leader of an Explorer Scout colle.ague\\Jho $eaved our profession,our Whereas. Judge Barnard attended Post, and as an active member of the state, and our country in such an exem Woodlawn High School, Birmlngham Warblers Club and the Birminghan, plary manner. Southem College,and the University of Metro Chapter of the Society for Preser ll is, therefore,hereby resolved,by the Alabama School of Law; a11d, vatiQnand Encouragement o( Barber~ l':xecutive Committee of the Birming Whereas, Judge Barnard served his shop Quarter Singing in America;and, ham Bar Associatio11,that this Resolu country with distinction. earning the Whereas, Judge Barnard served with tion be spread upon the minutes of this Combat Infantry Badge and the Bronze honor and distinction as Birmingham Committee, and that copies thereof be Star with Valor in Lhe Korean War, and City Court Judge (or seven years and as a sent to his wife,Betty Sykes Barna rd; his retired as a colonel from the Alabama circuit judge for 16 years;and, son, Joe Graham Barnard, Jr.: and his ArmyNational Cuard : and, Whereas,Judge Bamard ser\'ed his fol mother. Bemice Craham Bamard. Whereas,Judge Barnard was a lifelong low judges by teaching frequently in member of E:astLake United Methodist Judjcialac.ademfes and seminars, which - William N. Clark Ghurch.w here he organizedand directed ls the work in which he was engagedal Pl't$ldent the Boy'sChoir and directed the Chancel the time of his death; and, BirminghamBar Association Judge James nal. and became a nationaUyrecognized zations and ch.airman of all advisor,y aulhorily on the Jaw of evidence. He boards lo local draft boards in Jefferson Russell McElroy authored what is now known as Ne£/. County during World War II; as a co roy'sAlabama Euidence , ,vhich continues organizer of the AlabamaCirc uit Judge's hereas. Judge James RussellMcEl under the aulhorship of Dean CharlesW. Association and Its past president; as a roy. who served in JeffersonCoun Gamble, as the most widely used legal member of the board of the Birmingham Wty as an active circuit judge for treatise in the state. He was a prolific Area Educational Television Association. almost 50 y(lal's,and as a supernume.rary ,vriterand lecturer,and servedover peri• Inc.; as a staff member for BoysSummer judge for several y,,ars thereafter. died al ods o( many years as a part-time faculty Camps at Camp Winnataska: and as a the age of 92 on June 28. 1994; and, member of Birmingham School of Law, longtime member and past member oi Whereas,Judge McElroy was a native the Universityof AlabamaSchool of Law, the board of stewards of Trinity United of Sumter Coun ty, Alabama, who Samford University-CumberlandSchool MethodistChurc h; and, receivedh is secondaryeducation there., of Law,and the MedicalCollege of Alabama; Where.as. Judge McElroywas possessed and worked in the railroad industry until and, of a love of the Jaw equaled only by his he auended the University of Alabama Whereas,Judge McElroyhas been hon love of Cod, his family and his fellow School of Law (special course) and the ored by Cheestablishment of Endowed man. Jiis great intellect, high moral and Birmingham School of Law, being admit Professorships In his honor al Samford ethical standards, and his tireless efforts ted to the bar in 1924;and, University's Cumberland School of Law to contril)ute to justice, logic and good Whereas,Judge McElroywas engaged and the Universityof Alabama School of order in the rule of Jaw have indelibly brieny in private Jaw practice and as a Law, where a scholarship in his honor stamped him as a leader of the highest parl-time assistant city attorney of Birm• also has been established, and by such order and have c6ntributed immeasur ingham until he was appointed a circuit awards as the Universityof AlabamaLaw ably to the improvement of the bench judge in 1927, at age~5. in whiab p0si School Dean's "Notable Service" award and bar of this state; and, tion he sef'!ed continuously as an active tl972) and the Birmingham Bar Associa Whereas,\Vt express our enduring judge until his retirement In 1977. He tion's "Lawand Justice" award (1972) and regard and respect for this most distin• served a lenglhy tenure as presiding otber honors; and, guished colleague for his peerless and Judge of the circuit from April 1942 to Whereas. Judge Mci,lroy served his sel0essSCT\ iCe. June 1960, following which service he community, state and nation throughout elected lo return to the trial bench until his le:nglhycareer in such divtrse activi -Wlllia .m N. Clark his retireme.nt: nnd1 tie; as the YMCA. the Junior Chamber of Pn,sident Whereas,Judge McElroypresided over Commerce, as chairman of the Jefferson BirminghamBor A$sodatlon many notable trials, both civil and crimi• County Council of UnitedService Organi- 386 / NOVEMBER1 994 THE ALABAMALAWYER CLASSIFIEDNOTICES RA TES : Members: 2 free listings of 50 words or less per bar member per calendar year EXCEPT for "position want ed" or "position offered" Ifslings - $35 per insertion of 50 words or less. $.50 per additional word; Nonmembers : $35 per Insertion of 50 words or less, $.50 per additional word. Classified copy and payment must be received according to the following publrshing schedule Nove mber '94 Iss u e - deadline September 30. 1994, January '95 iss ue - deadline November30. 1994: no deadline extensionsw.11 be made. Send classified copy and payment, payable to The Alabama Lawyer, to: Alabama LBwyer Classifieds, c/o Margaret Murphy, P 0 . Box 4156, Montgomery, Alabama36101 . 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