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Alabama LawyerTh
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J U L Y 2 0 2 0 | V o L U m e 8 1 , N U m b e r 4
Service to theFamily: The Military Member’sObligation to Support Their Dependents
Page 270
PracticingLaw at theSpeed ofWar
Page 266
� � �� �
M I L I TA R Y L AW I S S U E
IntroductionTo the Military Law Edition
Page 268
In Defense of Our Veterans and Servicemembers: The Honoring AmericanVeterans in ExtremeNeed Act
Page 284
�Citizen-Soldier Lawyers:The Lawyers of The Alabama National Guard
Page 290
An Overview of the Servicemembers Civil Relief Act and the Uniformed Services Employment and Reemployment Rights Act
Page 276
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c o L U m N s
President’s Page256
Executive Director’s Report260
Important Notices262
Memorials264
Legislative Wrap-Up303
Opinions of the General Counsel
306
The App ellate Corner308
About Members, Among Firms
318
Alabama LawyerTh
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J U L Y 2 0 2 0 | V o L U m e 8 1 , N U m b e r 4
facebook.com/AlabamaStateBar
@AlabamaStateBar
@AlabamaStateBar
youtube.com/TheAlabamaStateBar
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F e a T U r e a r T i c L e s
W. Gregory Ward, Lanett.......................................Chair and [email protected]
Linda G. Flippo, Birmingham...............................Associate [email protected]
Wilson F. Green, Tuscaloosa .................................Associate [email protected]
Jonathan C. Hill (Rudy), Montgomery......................Associate [email protected]
M I L I TA R Y L AW I S S U EPracticing Law at the Speed of War
By Lt. Gen. Charles N. Pede, Judge Advocate General, U.S. Army, and Maj. Gen. Stuart W. Risch, Deputy Judge Advocate General, U.S. Army
266Introduction to the Military Law Edition
By Col. Charles A. Langley268
Service to the Family: The Military Member’s Obligation to Support Their Dependents
By Maj. Bryan M. Taylor270
An Overview of the Servicemembers Civil Relief Act and the Uniformed Services Employment and Reemployment Rights Act
By Capt. James R. Houts and Maj. O. Scott Hewitt276
In Defense of Our Veterans and Servicemembers: The Honoring American Veterans in Extreme Need ActBy Jay R. Bender, Capt. Amy Q. Glenos and Capt. John C. Hensley
284Citizen-Soldier Lawyers:
The Lawyers of the Alabama National GuardBy Lt. Col. Thomas J. Skinner, IV
290
Overview of State and Local Government Powers During the COVID-19 Pandemic
By Phillip D. Corley, Jr., April B. Danielson, and Gabe M. Tucker296
On The CoverNothing could be a moreappropriate cover for thisedition than Old Gloryfestooned across the sky,just as it is at everyAmerican military base.
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The Alabama LawyerG R A P H I C D E S I G N
The Alabama LawyerP R I N T I N G
BOard Of Bar COmmissiOnErs 1st Circuit, Halron W. Turner, Chatom • 2nd Circuit, J. Levi
Nichols, Luverne • 3rd Circuit, Elizabeth C. Smithart, Union
Springs • 4th Circuit, Jana R. Garner, Selma • 5th Circuit, Larry
W. Morris, Alex City • 6th Circuit, Place No. 1, Terri O. Tomp-
kins, Tuscaloosa • Place No. 2, Scott B. Holmes, Tuscaloosa •
7th Circuit, William H. Broome, Jr., Anniston • 8th Circuit,
Emily L. Baggett, Decatur • 9th Circuit, Dana J. Grimes, Ft.
Payne • 10th Circuit, Place No. 1, James M. Terrell, Birming-
ham • Place No. 2, John A. Smyth, Birmingham • Place No. 3,
Barry A. Ragsdale, Birmingham • Place No. 4, S. Freddy
Rubio, Birmingham • Place No. 5, LaBella S. Alvis, Birming-
ham • Place No. 6, Michael D. Ermert, Birmingham • Place
No. 7, Allison O. Skinner, Birmingham • Place No. 8, Brannon
J. Buck, Birmingham • Place No. 9, Erik S. Heninger, Birming-
ham • Bessemer Cut-off, Kenneth Moore, Bessemer • 11th Cir-
cuit, Ralph E. Holt, Florence • 12th Circuit, Carmen F. Howell,
Enterprise • 13th Circuit, Place No. 1, C. Zackery Moore, Mo-
bile • Place No. 2, Frederick G. Helmsing, Jr., Mobile • Place
No. 3, William R. Lancaster, Mobile • Place No. 4, Bryan E.
Comer, Mobile • Place No. 5, James Rebarchak, Mobile • 14th
Circuit, Charles C. Tatum, Jr., Jasper • 15th Circuit, Place No. 1,
George R. Parker, Montgomery • Place No. 2, Pat Sefton,
Montgomery • Place No. 3, Joel D. Connally, Montgomery •
Place No. 4, C. Gibson Vance, Montgomery • Place No. 5, Jef-
frey C. Duffey, Montgomery • Place No. 6, David Martin,
Montgomery • 16th Circuit, Bradley W. Cornett, Gadsden • 17th
Circuit, T. Thomas Perry, Jr., Demopolis • 18th Circuit, Place
No. 1, W. Randall May, Birmingham • Place No. 2, Mark S.
Boardman, Chelsea • Place No. 3, Anne Malatia Glass, Birm-
ingham • 19th Circuit, Robert L. Bowers, Jr., Clanton • 20th Cir-
cuit, R. Cliff Mendheim, Dothan • 21st Circuit, J. Kirkman
Garrett, Brewton • 22nd Circuit, Manish H. Patel, Andalusia •
23rd Circuit, Place No. 1, Tazewell T. Shepard, III, Huntsville •
Place No. 2, John A. Brinkley, Jr., Huntsville • Place No. 3, Re-
bekah K. McKinney, Huntsville • Place No. 4, M. Clay Martin,
Huntsville • 24th Circuit, Amanda W. Porter, Fayette • 25th Cir-
cuit, Chrissy L. Riddle, Haleyville • 26th Circuit, F. Patrick
Loftin, Phenix City • 27th Circuit, Clint L. Maze, Arab • 28th
Circuit, Place No. 1, J. Lynn Perry, Gulf Shores • Place No. 2,
J. Langford Floyd, Fairhope • 29th Circuit, Sarah Clark Bowers,
Sylacauga • 30th Circuit, Erskine R. Funderburg, Jr., Pell City •
31st Circuit, H. Thomas Heflin, Jr., Tuscumbia • 32nd Circuit,
Jason P. Knight, Cullman • 33rd Circuit, Robert H. Brogden,
Ozark • 34th Circuit, Jeffrey L. Bowling, Russellville • 35th Cir-
cuit, Clinton H. Hyde, Evergreen • 36th Circuit, Christy W. Gra-
ham, Moulton • 37th Circuit, Andrew D. Stanley, Opelika • 38th
Circuit, Deborah L. Dunsmore, Scottsboro • 39th Circuit, Don-
ald B. Mansell, Athens • 40th Circuit, Gregory M. Varner, Ash-
land • 41st Circuit, Brett A. King, Locust Fork
aT-LargE BOard mEmBErsDiandra S. Debrosse, Birmingham • Raymond L. Bell, Jr.,
Mobile • Latisha R. Davis, Chattanooga • Judge Charles Price, II,
Birmingham • Karen Laneaux, Montgomery • Kira Y. Fonteneau,
Birmingham • Jeanne Dowdle Rasco, Huntsville • Richard M.
Kemmer, Jr., Centreville • John T. Stamps, III, Bessemer
The Alabama Lawyer (USPS 743-090) is published six times ayear by the Alabama State Bar, 415 Dexter Avenue, Montgomery,
Alabama 36104. Periodicals postage paid at Montgomery, Ala-
bama and additional mailing offices. POSTMASTER: Send ad-
dress changes to The Alabama Lawyer, P.O. Box 4156,Montgomery, AL 36103-4156.
The Alabama Lawyer is the official publication of the AlabamaState Bar. Views and conclusions expressed in articles herein are
those of the authors, not necessarily those of the board of editors,
officers or board of commissioners of the Alabama State Bar. Ad-
vertising rates will be furnished upon request. Advertising copy is
carefully reviewed and must receive approval from the Office of
General Counsel, but publication herein does not necessarily imply
endorsement of any product or service offered. The AlabamaLawyer reserves the right to reject any advertisement. Copyright2020. The Alabama State Bar. All rights reserved.
ALABAMA STATE BAR STAFF415 Dexter AvenueMontgomery, AL 36104 (334) 269-1515 • (800) 354-6154www.alabar.org ADMINISTRATIONPhillip McCallum..................................Executive DirectorJustin Aday ............................Assistant Executive DirectorMelissa Warnke .....................Director of CommunicationsMegan Hughes .........................Content/Outreach ManagerHunter Harris .....................Information Systems ManagerMargaret Murphy ........................Director of Publications
ADMISSIONS & ATTORNEY LICENSINGJustin Aday ............................Assistant Executive DirectorSonia Douglas...............................Administrative AssistantAngie Fuqua .................................Administrative AssistantMorgan Lott .................................Administrative AssistantCathy Sue McCurry ....................Administrative Assistant
CENTER FOR PROFESSIONAL RESPONSIBILITYRoman Shaul ............................................General CounselMelissa Lawson ....................Paralegal to General CounselJeremy McIntire ................Deputy Chief General CounselMark Moody .............................Assistant General CounselDawynrico McCain ..........................Paralegal/InvestigatorCarol Mott ........................................Paralegal/InvestigatorStacey Moseley.......................................Disciplinary ClerkLaurie Blazer ...........................................CSF CoordinatorJulie Lee ...........................................................Receptionist
ETHICS DIVISIONTripp Vickers...............................................Ethics CounselAutumn Caudell ..........................Assistant Ethics Counsel
PROGRAMSAshley Penhale ..................................Director of ProgramsRobyn Bernier..............................Administrative Assistant
ACCOUNTING/TRAVELMerinda Hall ........................................Director of FinanceKristi Neal .............................................Financial Assistant
LAWYER ASSISTANCE PROGRAM(334) 269-1515 • (334) 834-7576
Jeremy Rakes............Director of Lawyer Assistance ProgramShannon Knight ...........................................Case ManagerJoycelyn Hill.................................Administrative Assistant
LAWYER REFERRAL SERVICEJohn Dunn ...........................................LRS Representative
RECEPTIONISTStephanie Oglesby...........................................Receptionist
VOLUNTEER LAWYERS PROGRAMLinda Lund ..........Director of Volunteer Lawyers ProgramHilaire Armstrong ................................ABAP CoordinatorDebbie Harper .................................................Intake ClerkDoris McDaniel................................................Intake Clerk
a d V e r T i s e r s
ABA Retirement Funds....................261
Alabama Court Reporting, Inc.........251
Alabama Legal & Investigative
Services, Inc. ................................263
Attorneys First Insurance .............257
Attorneys Insurance Mutual
Of the South..................................250
Cain & Associates Engineers........269
Davis Direct......................................287
J. Forrester DeBuys, III ................299
The Finklea Group ...........................288
Insurance Specialists, Inc.................320
Stewart Y. Johnson,
Financial Advisor .............................317
LawPay .............................................252
National Academy of
Distinguished Neutrals .................255
Veritext..............................................319
Vocational & Rehabilitation
Consultants, Inc. ...........................307
BOard Of EdiTOrs: Marc J. Ayers, Birmingham •Robert C. Crocker, Cullman • Aaron L. Dettling,
Birmingham • Jesse P. Evans, III, Birmingham • Linda G.
Flippo, Birmingham • Kira Y. Fonteneau, Birmingham •
Lloyd W. Gathings, II, Birmingham • Gregory H. Hawley,
Birmingham • Sarah S. Johnston, Montgomery • Jacob J.
Key, Lanett • Margaret H. Loveman, Birmingham •
Allen P. Mendenhall, Montgomery • Keith S. Miller,
Montgomery • Anil A. Mujumdar, Birmingham • Sherrie
L. Phillips, Montgomery • Christopher E. Sanders,
Prattville • Allison O. Skinner, Birmingham • Marc A.
Starrett, Montgomery • David G. Wirtes, Jr., Mobile • Barr
D. Younker, Jr., Montgomery
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When i was originally planning myfinal “President’s Page” for The AlabamaLawyer, i had envisioned this as a funny,engaging article that would detail allthe adventures i have had in my year asstate bar president. and, to be sure,there have been plenty of adventuresthis year. i made it to all four corners ofthe state with visits to our bar membersin Jackson county, houston county, mo-bile and Florence, and many places inbetween. i had the pleasure of welcom-ing hundreds of new admittees to ouralabama state bar. i brought greetingsto the alabama Lawyers association andmet inspirational figures who were on
the front lines of the civil rights move-ment. i have been blessed to get toknow a lot of new people, from themembers of our appellate courts to themembers of the smallest circuits in thestate. i thought that by the end of myterm as president i would be able to usethe words of Johnny cash, “i’ve beeneverywhere, man.”
in spite of the carefully-laid plans andprogramming we had lined up for therest of my term as your bar president, thecoronavirus had other ideas. What wehad envisioned for the spring and sum-mer fell apart. When Things Fall Apart au-thor Pema chodron reminds us that:
P r e s i d e N T ’ s P a g e
Christina D. [email protected]
a Year in the Life of abar President
Things falling apart is a kind of testing and also akind of healing. We think that the point is to pass thetest or to overcome the problem, but the truth is thatthings don’t really get solved. They come together andthey fall apart. Then they come together again and fallapart again. it’s just like that. The healing comes fromletting there be room for all of this to happen: room forgrief, for relief, for misery, for joy.
as my plans fell apart for the end of my term, i grieved theloss of the presidency i planned. but, as i was grieving the lossof what i had planned, i continued serving the presidency i had.
and what a spring it was! With the help of the amazingstaff at the alabama state bar and the support of our mem-bers across the state, we continued to serve our membersand the people of alabama. over the course of march, apriland may, we:
• Presented 11 webinars on managing during the pan-demic, working remotely, keeping the courts open, well-ness during stressful times and more;
• held our first ever virtual board of bar commissionersmeeting in may with over 90 percent of our commission-ers attending virtually;
• Presented the big ideas campaign from the diversity & in-clusion in the Profession committee (thanks marcusmaples and Judge Kelly Pate);
• Premiered a documentary on Women’s suffrage in ala-bama (thanks Jenna Bedsole, Tom Heflin and allisonskinner);
• Provided information to teachers around the state onWomen’s suffrage for a Virtual Law day celebration(thanks felicia Long and the Judge frank m. Johnson, Jr.institute);
• Welcomed our spring 2020 new admittees (virtually, ofcourse!);
• helped the alabama state bar Young Lawyers’ section setup a disaster hotline (thanks robert shreve, ryan du-plechin, Linda Lund and the Volunteer Lawyers programs).
• started a Wills for heroes for the new heroes of the pan-demic–the health care workers around our state (thanksTom ryan and Linda Lund);
• offered three free virtual cLes on health and wellness thatcounted for your annual ethics cLe and had a virtual Well-ness challenge for the month of may (thanks BrannonBuck, susan Han and Emily Hornsby);
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P r e s i d e N T ’ s P a g e
• Kicked off our sponsorship for our association health carePlan so that our members can purchase health insurancethrough the bar from blue cross/blue shield of alabama(thanks manesh Patel, Brian murphy and davis smith);
• had a virtual Legal Food Frenzy and raised over $32,000,which translates to 160,000 meals for alabama families(thanks andrew Blake, Courtney morman, Jeanne riz-zardi, Jordan Jenkins, matthew Parten and all of the al-abama state bar members and firms that participated);
• Worked with the court system on a coVid-19 bench & barTask Force to make recommendations on how to navigatecourt appearances and trials post pandemic; and
• Planned a virtual annual meeting offering significantly dis-counted cLes to our members, which hopefully a lot ofyou attended and enjoyed (thanks asB staff, Kitty Brownand all our presenters).
The list could go on and on. it also does not include themany amazing things we accomplished prior to the pan-demic. i celebrate and am grateful for what we were able toaccomplish together, even when it didn’t line up with ouroriginal plans.
so, after i made room to grieve what i had planned for thespring, i made room for relief. relief that i was able to spendmore time with my family and work at my firm and–quitehonestly–relief that i was spending less time on the road. ialso made room to sit with pain. Pain of those who are vic-tims of the pandemic and its associated economic after-math, pain of all of those who are suffering in our world andpain of our divided and hurting country.
Now, i am also making room for joy. While there is much inthe world to mourn, i am taking this moment of personalprivilege to share my gratitude and joy for all the good ifound during my year as your bar resident.
Thank you to the hundreds of people who give of theirtime to ensure that the alabama state bar works hard for allof its members. While i cannot list them all here, i give a spe-cial thanks to my executive council for all their hard work:
• rebekah mcKinney, VP extraordinaire, who was alwayswilling to kick her boys out of their bedroom so i couldhave a place to stay in north alabama;
• diandra debrosse, who i always want to have with me inthe trenches;
• george Parker, who can pinch a penny until it squeaks,and who put together more member benefits for the barthis year than ever before;
• Cliff mendheim, the voice of reason in the group, even ifthat voice comes with a musical beat;
• robert shreve, YLs president and most grateful person tobe at the ec retreat because it meant he could sleep throughthe night without his young babies waking him up; and
• glenda freeman, alabama Lawyers association immediatepast president and hostess of one of the most meaningfulevents i attended this year, the aLa hall of Fame dinner.
i thank sam irby, immediate past president, and all of theasb past presidents i have called on for advice and guidanceduring the last few months, although many of them startedby saying, “Wow! We had some strange things happen dur-ing my year but this….” i knew when i became president thati would need advice and guidance from those who servedour bar before me, and i appreciate each of you who so gra-ciously provided a listening ear and sage advice.
i also thank Bob methvin, who will have been installed asthe 145th president of our state bar by the time this article isprinted. helping our members navigate through a pandemicwas not what bob had planned for his presidency either, buthaving worked closely with him throughout my career, i knowhe will bring an energy to this position and a passion for ourmembers that will shine through in everything he does.
Finally, thank you to all our members for the honor of al-lowing me to serve as the 144th president of the state bar. ithas been an incredible and extremely rewarding experiencefor me, and, at times, a lot of fun. For those who watched ourFacebook Live videos, shared our social media posts, sup-ported our communication efforts and provided feedback, ihope it made you feel more connected to the alabama statebar and its many wonderful members.
most of all, thank you to my husband and children, my lawfirm, the co-counsel and opposing counsel who workedaround my schedule this year, the members of the board ofbar commissioners, and the staff of the alabama state barfor their support and wisdom throughout this journey.
i look forward to continuing the good work we have all donetogether this year and for remembering that we are always:
s
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facebook.com/AlabamaStateBar
@AlabamaStateBar
@AlabamaStateBar
youtube.com/TheAlabamaStateBar
flickr.com/AlabamaStateBar
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on st. Patrick’s day this year, we madethe decision to close the bar building tothe public and send our employees hometo work remotely. Law firms throughoutthe state were making similar decisionsamid the concerns over the spread ofcoVid-19.
This worldwide pandemic affected allindustries, and the legal profession is nodifferent. some lawyers found them-selves working around the clock to helpclients navigate the new and unchartedlegal waters. others were grapplingwith the substantial decrease in theirworkload and livelihood.
on top of all that, attorneys took onthe challenge of serving clients re-motely, implementing new technologyto meet with and respond to clientsthrough video-conference.
Through it all, our staff worked hardto keep the business of the bar on track.We immediately developed a coVid-19webpage to keep alabama attorneys in-formed of the rapidly changing situa-tion. our page featured continuousupdates from the supreme court as wellas an interactive map which allowed at-torneys to view local orders from everyjudicial district.
bar leadership regularly met with judi-cial leaders to address questions andfind solutions to keep cases moving for-ward and the court system open, eventhough the courthouses themselveswere closed to the public.
alabama already had a state-of-the-artelectronic filing system, and the courtsadded the ability to use Zoom video-conferencing within the same platform.
e x e c U T i V e d i r e c T o r ’ s r e P o r T
New Normal
Phillip W. [email protected]
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alabama’s attorneys and courts sys-tems stepped up to the plate and usedinnovative solutions to allow legal pro-ceedings to continue despite the nec-essary precautions put in place.
if there was one thing we learnedfrom coVid-19, it’s that the urgencyfor modernization has never beengreater. Today, the building is backopen, as are many law firms, but i be-lieve the legal landscape has beenchanged forever.
bar leaders are focused on workingwith the courts to identify the needsarising from the pandemic, make rec-ommendations to address those needs,and determine solutions to safely andfully re-open the courts.
We have many hurdles to cross, butthe alabama state bar is committed toproviding continued assistance andservices to our members as we all navi-gate this new normal. s
harold albritton Pro bonoLeadership award
The harold albritton Pro bono Leadership award seeks to identify and honor indi-vidual lawyers who through their leadership and commitment have enhanced thehuman dignity of others by improving pro bono legal services to our state’s poor anddisadvantaged. The award will be presented in october, which has been officiallydesignated Pro bono month.
To nominate an individual for this award, submit no more than two single-spacedpages that provide specific, concrete examples of the nominee’s performance of asmany of the following criteria as apply:
1. demonstrated dedication to the development and delivery of legal services to per-sons of limited means or low-income communities through a pro bono program;
2. contributed significant work toward developing innovative approaches to de-livery of volunteer legal services;
3. Participated in an activity that resulted in satisfying previously unmet needs orin extending services to underserved segments of the population; or
4. successfully achieved legislation or rule changes that contributed substantiallyto legal services to persons of limited means or low-income communities.
To the extent appropriate, include in the award criteria narrative a description ofany bar activities applicable to the above criteria.
To be considered for the award, nominations must be submitted by august 1. Formore information about the nomination process, contact Linda Lund at (334) 269-1515or [email protected]
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i m P o r T a N T N o T i c e s
� Harold albritton Pro Bono Leadership award
� notice of and Opportunity forComment–amendments to therules of the United states CourtOf appeals for the Eleventh Circuit
� Position available–attorney-27a,Judge advocate general Corps,alabama army national guard
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Notice of and opportunity forcommentamendments to the rules of the Unitedstates Court of appeals for the EleventhCircuit
Pursuant to 28 U.s.c. § 2071(b), notice and opportunity forcomment is hereby given of proposed amendments to therules of the United states court of appeals for the eleventh cir-cuit. The public comment period is from august 5 to september4, 2020.
a copy of the proposed amendments may be obtained onand after august 5, 2020 from the court’s website at http://www.ca11.uscourts.gov/rules/proposed-revisions. a copy mayalso be obtained without charge from the office of the clerk,U.s. court of appeals for the eleventh circuit, 56 Forsyth st.,NW, atlanta 30303 (phone 404-335-6100).
comments on the proposed amendments may be submit-ted in writing to the clerk at the above address, or electroni-cally at http://www.ca11.uscourts.gov/rules/proposed-revisions,by 5:00 p.m. eT on september 4, 2020.
Position availableAttorney-27A, Judge Advocate GeneralCorps, Alabama Army National Guard
starting date for position is flexible based on processingtime as an applicant to complete vetting through the U.s.army. applicants must be members of the alabama statebar with an undergraduate degree of 120 semester hours inany discipline and a Juris doctorate from an aba-accreditedinstitution. applicants must be under 33 years of age at thetime of commissioning, within U.s. army height and weightstandards and able to obtain a security clearance. requiresno additional experience other than a desire to serve the10,000 soldiers assigned to the alabama army Nationalguard. The Jag is a part-time employee under Title 32 Uscand serves the alabama army National guard. Unit of assign-ment can be geographically close to the applicant’s resi-dence. starting salary for this position is $505 per individualdrill-training weekend and $1,767 for two-week annual train-ing period. While on active duty orders for training and serv-ice, salary is increased to $3,787 per month.
Judge advocates (Jags) are responsible for offering legalsupport that involves military operations. They primarilyfocus on the areas of criminal law, legal assistance, civil/ad-ministrative law, labor/employment law, international/oper-ational law, intelligence law, and contract/fiscal law. dutiesfor the National guard Jag include prosecution of criminalcases under the Uniform and state codes of military Justice,providing legal advice to soldiers and their families, offeringlegal reviews, ethics opinions, and advice to commandersand their staff, and representing soldiers at court-martialsand before administrative separation boards. interested indi-viduals should contact ch(cPT) gary riddle with the ala-bama army National guard Jag recruiting office at (334)590-1587 or [email protected]. s
(334) 478-4147 • www.alis-inc.com
Statewide Process Serving >Skip Tracing >
Tag Registration Searches >Vehicle Lien Searches >
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m e m o r i a L s
arnold charles Freemanarnold charles “charley” Freeman, supernumerary district at-
torney from Tuscaloosa county, passed away on december 26,2018 at the age of 80. charley served as the district attorney forthe sixth Judicial circuit from 1980 until 1997. he was a memberof the alabama state bar for over 50 years.
charley attended howard college (now samford University)before graduating from the University of alabama with a b.a. de-gree and a Juris doctor degree, class of 1967. he was inductedinto omicron delta Kappa for outstanding alumni in 1994.
charley married annette smith while they were in college, and they were marriedfor 57 years until his death. charley was born in Lamar county, and he graduatedfrom Kennedy high school in 1956. annette was a native of Fayette county, butmoved to birmingham in 1956. charley and annette were active members in themethodist church and were members of Forest Lake United methodist church andlater First United methodist church, both in Tuscaloosa.
after graduation, charley joined the Tuscaloosa firm of dominick, roberts & david-son, and later served as a deputy district attorney for district attorney Louis Lackeyfrom 1969 until 1974 when he was appointed assistant attorney general for the stateoil and gas board and geological survey of alabama. he served in that office until hewas elected district attorney in 1980. charley was elected d.a. three consecutiveterms, running unopposed in the second and third elections in 1986 and 1992.
When charley ran for d.a., his campaign motto was “Firm but Fair.” For charley, thatwas not just a motto, but a mantra that guided his career and service to the people aswell as to the legal profession. charley worked tirelessly to hold those who commit-ted crimes accountable for their actions. but, he also worked just as tirelessly to im-plement programs designed to help both the victims of crime as well as defendantsto give them a fresh start and fight recidivism.
charley taught his assistant district attorneys that we were the attorneys for the peo-ple, but also we were there not only to convict the guilty, but to exonerate the innocent.We were there to do justice, but also, as he often said, “remember to add some mercy.”charley was a tough prosecutor who fought tirelessly for victims and their rights, but hewas never overzealous with the power the office gave him. he was a man of great com-passion and integrity. he had the strength to make the hard decisions, but he showedgreat compassion for people. charley Freeman stood for whatever was the fair and hon-orable thing to do, even though it may have been very difficult on him personally or inthe office he so honorably served. he never lost sight of the humanity of the people onboth sides of the cases he and his office handled. charley first sought what was right,and then never gave up until the right thing came to pass.
Freeman
� arnold Charles freeman
� Judge roger dale Halcomb
� Judge george s. Wright
Bradley, marc Edmundmobile
admitted: 1977died: march 15, 2020
Hull, daniel Talmadge, Jr.birmingham
admitted: 1973died: march 15, 2020
Perloff, mayer Williammobile
admitted: 1957died: april 5, 2020
Wiseman, Holly Leemobile
admitted: 1979died: april 17, 2020
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charley Freeman was instrumental in forming and imple-menting several innovative programs for Tuscaloosa county, in-cluding the children’s center, crime stoppers Program, drugcourt, and Worthless check Unit. he was a member of the Fra-ternal order of Police, served on the executive committee ofthe alabama district attorneys association, and the advisorycommittee of the alabama Law enforcement academy, andwas a graduate of the Fbi National academy in Virginia. charleyalso served on the board of directors for Turning Point andchild abuse Prevention services (c.a.P.s.). he hired the first vic-tim service officers in Tuscaloosa county who helped victimsobtain restitution and other services needed by traumatizedvictims and sent notices for court appearances to victims andwitnesses. charley was active in many professional, civic, andcharitable organizations, including the Jaycees, Kiwanis club ofTuscaloosa county, United Way, and advisory boards for the sal-vation army and american red cross.
charley was recognized for his leadership and accomplish-ments by several organizations, including the appreciationaward by V.o.c.a.L., the Victims’ advocate award for “out-standing service to victims of domestic violence” by TurningPoint, and the appreciation award by the alabama coalitionagainst domestic Violence for “compassion and contribu-tions on behalf of battered women and children.” in 1993, hewas awarded the bishop barron award for outstanding com-munity service by the alabama state employees association,and in 1994 he received the Volunteer of the Year award byUnited Way. in 2007 he was named a “Pillar of the commu-nity” by the community Foundation of West alabama.
charley loved being of service to others. he was a real per-son. We remember as much as anything charley’s greatsense of humor, as well as his unselfish giving of himself topublic service–a true calling. We will miss charley, and weare all so much the better for his having served Tuscaloosacounty, the state of alabama, and our legal profession.
–Former assistant district attorneys Tommy smith, clarksummerford, dennis steverson, and daniel Lemley
Judge roger dalehalcomb
Judge roger halcomb passed awayThursday, February 13, 2020 at the age of75. roger was born to clements Leonand Johnnie hortense halcomb. he waspreceded in death by his brother, LionelJudson halcomb (Kay). he is survived bythe love of his life of 50 years, charlottemann halcomb; two children, John Forrest halcomb (suzanne)and sally halcomb mizell (James); his two treasured grandchil-dren, Jackson and Julianna; his sister and brother, Karen hal-comb sanders (Fred) and Larry Leon halcomb (marilyn); andmany nieces and nephews.
he was born in birmingham on November 2, 1944. de-spite having contracted polio at the age of two, he went onto have a successful career and an exceptional life. he grad-uated with honors from hueytown high school in 1963,where he was also the senior class president. he then grad-uated from the University of alabama and obtained his lawdegree from cumberland school of Law in 1974. he dedi-cated his life in a career to public service, serving as an assis-tant district attorney, district court judge, and circuit courtjudge until he retired in 1997. after retiring, he continuedhis public service as municipal judge for both hoover andPleasant grove, as well as a legal mediator to help others re-solve their disputes outside of court.
roger worked hard for his family, a tireless provider whoalways put them first. as a judge, he was approachable andkind while being just and fair. he loved the law, but aboveall loved helping others. To know roger was to know strongcharacter, honesty, and integrity, and to always feel wel-comed. he brought so much joy and laughter to those whoknew him and heard his stories. he will be greatly missedand forever remembered.
Judge george s.Wright
retired U.s. bankruptcy Judge georgeWright passed away February 10, 2020.Judge Wright, a Tuscaloosa native, wasgraduated from the United states Navalacademy in 1948. after 10 years of ac-tive duty, he returned to Tuscaloosa toattend the University of alabama schoolof Law. Judge Wright was a founding member of the rosen,Wright & harwood firm. he continued to serve his country inthe Naval reserve and retired as a commander.
in 1961, Judge Wright was appointed as a bankruptcy ref-eree to the United states bankruptcy court for the Northerndistrict of alabama. in 1979, he was appointed as the firstUnited states bankruptcy Judge for the Western division ofthe Northern district of alabama. he served as chief bank-ruptcy Judge for 10 years. Judge Wright was a five-yearmember of the National conference of bankruptcy Judgesand served on the board of governors. The alabama statebar awarded him the eugene carter medallion as a judge inrecognition of his public service. he was also named as a Pil-lar of the bar by the Tuscaloosa county bar association.
While serving on the bench, Judge Wright taught bank-ruptcy law from 1973 to 1996 as an adjunct professor at theUniversity of alabama school of Law. Judge Wright was alsoan educator in the courtroom. he taught many a creditor’sattorney how to be a graceful loser.
Judge Wright retired from the bench on december 31,1994. s
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we have the honor of leading a regi-ment of over 10,000 of our nation’smost dedicated professionals– judgeadvocates, paralegals, legal adminis-trators, civilian attorneys, and para-professionals. Every day, theircommitment to selfless service–whether in response to the COVID-19 pandemic, natural disaster relief,prosecuting cases before court-mar-tial, advising and protecting therights of sexual assault and domesticviolence victims, providing counsel
to commanders in the field on com-plex targeting decisions, or defend-ing soldiers facing trial beforecourt-martial–never ceases to im-press and amaze us. Members of thenation’s oldest law firm are tena-cious, driven, and experts in theircraft.Whether serving on active duty,
in the Reserves, or as members ofour National Guard–whose workis featured in the pages of thisjournal–the members of our Corpsstand ready to serve. We wereeach called to service and are hon-ored and privileged to serve thegreatest clients in the world. We
Practicing Law at the Speed of War
By Lt. Gen. Charles N. Pede, Judge Advocate General, U.S. Army, and Maj. Gen. Stuart W. Risch, Deputy Judge Advocate General, U.S. Army
H H H M I L I T A R Y L A W I S S U E H H H
As the Judge Advocate General and Deputy JudgeAdvocate General for the United States Army,
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provide premier legal advice and principled counselto commanders, soldiers, and family members.And we do so at the speed of war.We are everywhere commanders and soldiers can be
found, assisting them in making split-second and com-plex decisions, always with an eye toward getting itright. For us, there is no other way, particularly when itcomes to the Law of Armed Conflict. The principles ofthe Law of Armed Conflict are easy enough to under-stand; they are intuitive and reflect our values andideals. However, it is one thing to read the Geneva Con-ventions, for example, in a classroom or in a discussionwith colleagues while enjoying a cup of coffee. It isquite another to apply it in a tent, standing next to acommander with decades of combat experience whiletroops on the ground are in contact with the enemy, andcivilians may be vulnerable to the conflict ragingaround them. We are there to calmly, coolly, profession-ally assess the situation and provide precise legal ad-vice–in the moment. There is no practice of law onearth like it.Similarly, there are few responsibilities more solemn
than representing the United States government, as aprosecuting attorney (called “trial counsel” in theArmed Forces), litigating a case before court-martial.We prosecute and defend everything from desertion todrug use to sexual assault and murder, anywhere aroundthe world, including in combat zones.On one side of the courtroom stand our prosecuting
attorneys with the awesome responsibility of protectingthe soldiers in the unit from harm, as well as protectingthe community that surrounds and supports that forma-tion of soldiers.On the other side of the courtroom, we have the best
trained, most dedicated, courageous, and talented de-fense counsel anywhere in the world. We are proud toprovide them, free of charge, to our nation’s sons anddaughters who find themselves accused of a crime.And we have always had the most portable system
of justice in the world–by necessity. It must go whereour Army goes–to right the wrongs closest to wherethe wrong occurred and to defend those accused, zeal-ously, and effectively.
The court-martial–which is a federal criminal trial–is the more visible reminder that the Army and its sol-diers are not perfect, but we are accountable for ouractions.As different as our military culture may be, we remain
a microcosm of society; we see the best and the worst ofthe human condition–on and off the battlefield. So theJAG Corps plays a key role in the Army’s ability to en-sure a disciplined and well-ordered fighting force.Simply put, we are extraordinarily proud of our sys-
tem of justice–a system rooted in the Constitution anddriven by George Washington’s belief that “disciplineis the soul of an Army.”For those of you who have served our great nation,
we thank you. If you have read this and see yourselfjoining our team, or know someone who is up to thechallenge, visit us at www.goarmy.com/jag. s
Lt. Gen. Charles N. PedeLt. Gen. Charles Pede graduated from the Universityof Virginia receiving a commission throughR.O.T.C. He then attended the University of VirginiaLaw School. Lt. Gen. Pede holds an LL.M in mili-tary law and a master’s degree in national securityand strategic studies. He attended the Judge Advo-
cate Officer Basic and Graduate Courses, the Army Command andGeneral Staff College, and the Industrial College of the ArmedForces. Lt. Gen. Pede most recently served as the Assistant JudgeAdvocate General for Military Law and Operations at Headquar-ters, Department of the Army in the Pentagon, Washington, DC.
Maj. Gen. Stuart W. RischMaj. Gen. Stuart Risch, a native of Orange/West Or-ange, NJ, was initially commissioned a second lieu-tenant in the field artillery in 1984. He served as aplatoon leader, executive officer, and company com-mander in the 78th Infantry Division, U.S. Army Re-serve, while attending law school. He entered active
duty and the Judge Advocate General’s Corps in 1988. Prior to as-suming duty as the Deputy Judge Advocate General on August 2,2017, Maj. Gen. Risch most recently served as the Commander,United States Army Legal Services Agency and Chief Judge, UnitedStates Army Court of Criminal Appeals, Fort Belvoir, Virginia.
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to the staff of The AlabamaLawyer, on behalf of the AlabamaMilitary Law Committee of theAlabama State Bar, for dedicatingan edition of this publication tofocus on the unique aspects of mil-itary law. I hope the following ar-ticles provide each of you avaluable reference tool that willhelp prepare you should you en-counter issues involving militarypersonnel. The topics selected–theServicemembers Civil Relief Act(formerly the Soldiers and SailorsCivil Relief Act), the UniformServices Employment and Reem-ployment Rights Act (USERRA),the Honoring American Veteran’s
in Extreme Need (HAVEN Act),and military members’ family sup-port, child custody, and paternityobligations–discuss legal issuesthat are likely to be implicatedduring almost any attorney’s ca-reer, but especially those in gen-eral civil or family law practices.The use of the description “mili-
tary law issue” is a bit of a mis-nomer. To use a military idiom, theappropriateness of the descriptiondepends on the view from yourfoxhole. Most of the articles in thisissue are meant to familiarize civil-ian practitioners with federal lawsenacted to make service to ourcountry less burdensome on thosewho join the military. For example,employment and economic protec-tions were provided to protect ser-vicemembers ordered to leave their
Introduction to the Military Law EditionBy Col. Charles A. Langley
I write to express my appreciation
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homes, and their loved ones, to de-ploy to a foreign land. Violationsof many of these laws carry crimi-nal or civil sanctions, enforceableby federal agencies. On the otherhand, military regulations werepromulgated to protect the childrenand dependents of servicemembersfrom being financially abandonedby a parent or spouse (who mightbe serving in a foreign county withno readily ascertainable address).A failure to meet these familial-support obligations can carry crim-inal or civil sanctions for theservicemember.So, just as the laws discussed in
this issue provide protections to,or place obligations on, membersof the military, they likewise pro-vide protections to, or place legalobligations on, civilian individualsand businesses. It is for this reasonthese topics are timely and rele-vant for members of our organiza-tion, even those who have neverbeen affiliated with the military.In addition to these substantive ar-
ticles, we have included profiles ofsix members of the bar who serveproudly as judge advocates in theAlabama National Guard. Thesemen and women live out the statebar’s motto, “Lawyers Render Serv-ice.” When these judge advocatesare in uniform, they practice inone of six functional areas of mili-tary law: military justice, nationalsecurity law, administrative law,claims, legal assistance, and con-tract and fiscal law.The Army Judge Advocate
General’s Corps (JAG Corps) hasa storied history; it is, in fact,America’s oldest law firm. Lt. Col. William Tudor was appointedas the first Judge Advocate fourweeks after Gen. George
Washington took command of theContinental Army. Today, in Ala-bama, there are 45 Alabama Na-tional Guard judge advocates,while there are more than 4,439Army judge advocates serving inan active or reserve capacityworldwide. For more informationabout the JAG Corps, or how youcan serve as a judge advocate orparalegal, please feel free to contact me.Finally, this issue is heading to the
printer as our nation grapples withthe issue of the use of federal andstate military forces to maintainpeace in our communities. The deci-sion to employ military forces at thestate or national level is made bycivilian leaders who, hopefully, seekadvice from their civilian counseland military commanders, who willseek advice from the servicing judgeadvocate. In April 2011, I had theprivilege of serving as the commandjudge advocate for the task forcecommander in charge of AlabamaNational Guard’s response to thedevastating tornado in Tuscaloosa.The extent of the damage necessi-tated the use of armed soldiers toman traffic-control checkpoints andto enforce curfews. The fact thatthere was not a single incident in-volving the use of force by a soldieragainst any citizen speaks to theprofessionalism of Alabama’s citi-zen-soldiers and to the intense, fo-cused training provided by ourjudge advocates. The active and re-serve components of the militaryneed future generations of lawyerswilling to carry out “Lawyers Ren-der Service” in order to ensure thatour civilian and military leaderscontinue to receive sound, profes-sional, and conflict-free legal adviceduring these times of crisis.
I hope our efforts in this issueare helpful to you and your practice.In the future, if you have a clientwith an issue that touches on mili-tary law, please reach out to ourjudge advocates or members of theMilitary Law Committee. s
Col. Charles A. LangleyCol. Charles Langley is theStaff Judge Advocate forthe Alabama NationalGuard. He practices lawwith Holder, Moore,Lawrence & Langley inFayette.
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to provide financial support fortheir family members. Their obliga-tion to provide familial support ex-ists even in the absence of a divorcedecree or other child support order,1
and while each service maintains itsown regulation, a failure to meet theobligations of an applicable regula-tion can have dire consequences.Such consequences even includecriminal prosecution under theUniform Code of Military Justicefor failure to obey a lawful orderor regulation; more commonlyknown as a court-martial. To pro-vide competent representation, a
lawyer should possess familiaritywith these military regulations priorto representing a client in a divorceor child-custody matter where one of the parties is a military servicemember.This article discusses the family-
support requirements imposed byArmy Regulation (AR) 608-99,which may apply to Army re-servists and National Guard per-sonnel in some instances.2 Whilethis article does not specifically ad-dress the Air Force, Navy, MarineCorps, and Coast Guard regulationsrequiring family support, familiar-ity with the Army’s regulations willfacilitate an understanding of thecorresponding provisions in eachArmed Service’s regulations.
S E RV I C E T O T H E FA M I LY :
The Military Member’s Obligation toSupport Their Dependents
By Maj. Bryan M. Taylor
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H H H M I L I T A R Y L A W I S S U E H H H
Military members have a unique obligation under service regulations
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What obligations does asoldier have to support hisor her family?Active-duty soldiers are legally required “to provide
financial support to family members.”3 The soldier’sobligation to support their family is such that they areexpected to keep “reasonable contact with familymembers, as well as others who have a legitimateneed to know” to resolve family-support issues with-out command involvement.4 “Allegations or evenproof of desertion, adultery, or other marital miscon-duct, or criminal acts on the part of a [current]spouse” do not excuse a soldier’s obligation to pro-vide support to their family.5
In the Army, AR 608-99 provides the regulatorymechanism for determining, calculating, and enforc-ing this support obligation; not just in the context ofdivorce, paternity, or child support proceedings, butwhenever a dispute arises–typically between spouses–as to whether the servicemember has failed to providefinancially for their family. Under this regulation, asoldier cannot fall into arrears on financial support totheir family without violating AR 608-99.6 And whena soldier fails to meet their obligation to financiallysupport their family, their military commander is re-sponsible for directing and enforcing compliance, in-cluding the use of punitive disciplinary action ifnecessary.7
In cases where children are involved, the obligationof financial support terminates on the child’s 18th
birthday unless a written agreement or court ordermandates post-minority support.8 In cases involvingfinancial support for a prior spouse, soldiers are notrequired to provide support unless mandated by afinal divorce decree or other court order.9 In certaincircumstances–usually when spouses have been sepa-rated for more than 18 months or when a child isplaced in the custody of a person who is not the law-ful custodian of the child–a commander can release asoldier from a support obligation that exists solely byvirtue of regulation.10
A lawyer representing a soldier’s family members,including a guardian ad litem appointed to represent adependent child, should understand that a complaintof nonsupport may be lodged even when divorce is
not contemplated (for example, when a soldier is de-ployed overseas and cuts off financial support to hisfamily for any reason). A lawyer advising a soldiershould understand their client’s obligations underArmy regulations in order to protect them from finan-cial hardship and adverse personnel actions.
How do I calculate theamount of financial support a solider is required to provide?In cases involving a soldier, the amount of financial
support owed to their family will be determined by acourt order, a written agreement, or a regulation.11
Where a court order exists, the provisions of AR 608-99 do not replace, and cannot reduce, the family-sup-port obligation imposed by the court.12 Soldiers, liketheir civilian counterparts, must follow court orders.In the absence of a court order, any specific amount
of financial support contained in a written agreementcontrols.13 Written agreements can include a signedmarital-settlement agreement awaiting court approval,an informal separation agreement between spouses, ora stand-alone agreement between unmarried parentswho have worked out a child support plan withoutcourt involvement. If a written agreement betweenspouses establishes an agreed-upon amount of finan-cial support, Army commanders are obliged to enforceit “without making interpretations that depart from theclear meaning of the agreement.”14 Keep in mind,however, that parties cannot “revise” a court orderthrough prior or subsequent written agreement. In suchcases, a commander would be required to enforce thecourt order, rather than the written agreement.Finally, where no court order or written support
agreement exists, soldiers must provide financial sup-port in an amount determined by a relatively simpleformula contained in AR 608-99. The Army’s formulais based on a monthly allowance known as the BasicAllowance for Housing, or BAH. A soldier’s BAH isbased on their geographic duty location, pay grade, andwhether they have dependents. For purposes of deter-mining the amount of family support owed in the ab-sence of a court order or written agreement, AR 608-99
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uses a derivative rate referred to as “BAH II-WITH,”which is the BAH rate for a soldier with dependentsand without regard to duty location. Fortunately, sol-diers, commanders, and lawyers caneasily determine the applicableBAH II-WITH amount by using aone-page chart maintained by theDepartment of Defense’s travel of-fice: https://www.defensetravel.dod.mil/Docs/perdiem/browse/Allowances/Non-Locality_BAH/2020-Non-Locality-BAH-Rates.pdf (last accessedMay 11, 2020).Once the BAH II-WITH amount is
determined for a soldier, the amountof the required financial support obli-gation is reached by dividing theBAH II-WITH amount by the totalnumber of family members sup-ported by the soldier. In other words,each family member is entitled totheir pro-rata share. If a soldier’sfamily members reside in military-provided housing, however, no addi-tional financial support is required.15
Additionally, a former spouse is notcounted as a “family member” forpurposes of this calculation, even ifthe soldier is providing financial sup-port pursuant to a court order or writ-ten agreement.16 Finally, a spouse onactive duty in an Armed Service isnot considered a “family member”for purposes of this formula.In the simplest case, a single-fam-
ily unit living apart from the soldierand not in military-provided hous-ing, the soldier’s monthly support obligation would bethe entire BAH II-WITH rate. Other cases may beslightly more complicated. For example, if a soldier isseparated from her spouse and their only child residestemporarily with a grandparent, the soldier’s monthlyobligation would be to contribute one-half of the BAHII-WITH amount to her spouse and the other half to thegrandparent, on behalf of the minor child. A more com-plex example involving multiple family units would bepresented where a deployed soldier’s minor child re-sides with a prior spouse, the soldier has remarried and
had another child, and does not live in military-pro-vided housing. In that case, the soldier would be obli-gated to financially support three family members (the
current spouse and the two minorchildren), with the financial supportobligation consisting of the court-or-dered child support amount for theminor child residing with the priorspouse, payment of one-third of theBAH II-WITH amount to the currentspouse, and one-third of the BAH II-WITH amount to the current spouseon behalf of the minor child.17
As noted earlier in this article, asoldier’s family-support obligationunder AR 608-99 continues even incases of alleged desertion, adultery,or marital misconduct, unless theobligation is terminated by an ap-propriate officer. Thus, in a casewhere a divorce decree requires asoldier to pay $100 per month inchild support for each of his threechildren from a prior marriage (atotal of $300), and where his cur-rent spouse abandons him and thechild they share, the soldier wouldbe obligated to pay the $300 permonth in child support, plus one-fifth of the BAH II-WITH amountto his current spouse. The financialobligation to the current spousewould continue until superseded bya court order or written agreement,or until the soldier’s battalion com-mander releases him from the re-quirement (typically, after 18
months).18 While it is not possible to cover all of thepossible scenarios, the rules contained in AR 608-99are straightforward and Appendix B of the regulationcontains a number of helpful examples.Unless otherwise required by a court order or written
agreement, monthly support obligations are due nolater than “the first day of the month following themonth to which the financial support payment per-tains.”19 For example, a support payment for the monthof July would be due by August 1. For a partial month–for example, where the spouses separated on June 15–
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For example, if asoldier is separatedfrom her spouseand their only child resides temporarilywith a grandparent,the soldier’s
monthly obligationwould be to con-tribute one-half ofthe BAH II-WITHamount to herspouse and theother half to thegrandparent, on behalf of the minor child.
the BAH II-WITH amount is pro-rated according to thenumber of days the family was separated. For example,a married soldier without children would be required topay one-half of BAH II-WITH to her estranged hus-band on July 1 for the 15 days of June that he lived out-side of military-provided housing.20
Representing a FamilyMember in a NonsupportClaimOne important goal of Army Regulation 608-99 is
having soldiers manage the financial support of theirfamilies in a manner that does not bring discreditupon the United States Army and avoiding having thefinancial needs and welfare of military dependents be-come official matters of concern.21 When a complaintis lodged that a soldier is failing to provide support totheir family, however, the financial needs and welfareof the military dependents become official matters ofconcern and Army commanders must get involved.22
While commanders have no power to collect arrear-ages or to order soldiers to pay arrearages, command-ers must take action to require compliance with theregulation from the date of the complaint.There is no specific format for a complaint. A lawyer
representing a family member who is not receiving therequired financial support should initiate a complaint byletter or email to the soldier’s immediate commander or,if unknown, to the first higher-level commander knownto be in the soldier’s chain of command. If necessary, acomplaint can be sent to the installation commander orthe staff judge advocate’s office.An inquiry, or complaint, is “any telephone call, let-
ter, facsimile transmission, e-mail, or other form ofcommunication from, or clearly on behalf of, an af-fected family member” that requests information,makes a claim for money, or asks for other relief aboutfinancial support involving a soldier.23 As a matter ofbest practices, a complaint should provide the namesand addresses of the family members entitled to sup-port, a statement of the monthly amount to which theyare entitled, and the basis for the claim. Additionally, ifthe basis of the financial support owed is a court orderor written agreement, a copy of the relevant documentshould be attached. Where the basis of the financial
support owed is AR 608-99, a complaint should ex-plain how the calculation was made, including theBAH II-WITH amount relied upon. Finally, a com-plaint should state a request for a particular method ofpayment (e.g., personal check, money order, or volun-tary allotment (similar to payroll deduction)).A commander is required to investigate an allega-
tion of nonsupport and respond directly to the familymember or their attorney within 14 days of receipt ofthe complaint.24 If the soldier is unable to substantiatecompliance with their support obligations (for exam-ple, by cancelled checks, bank statements, etc.) andthere is no legal basis for the soldier to be relieved ofthe support requirement, then a commander mustorder the soldier to begin complying with the regula-tion and to make payment no later than 30 days fromreceipt of the complaint.25
Lodging a complaint with a military commanderdoes not affect any other legal recourse that a familymember may have. For example, a soldier’s pay canbe garnished for failure to pay court-ordered alimonyor child support. An involuntary allotment can be ad-ministratively initiated if a soldier is behind in childsupport or spousal support payments. Initiation of agarnishment or an involuntary allotment requires ac-tion by a court or an administrative agency, such asthe Defense Finance and Accounting Service (DFAS).
Representing a Soldier inA Nonsupport ClaimAs indicated previously, a claim of nonsupport can
have a significant impact on a soldier’s military career.A lawyer whose military client has been the subject ofa nonsupport complaint must be knowledgeable of thesoldier’s obligations, must communicate them clearly,and should explain the range of potential conse-quences of noncompliance. If the soldier raises miti-gating circumstances, the lawyer should understandthe available, though limited, avenues for relief pro-vided by regulation.While soldiers in this position are entitled to free
legal counsel from their serving judge advocate’s of-fice, judge advocates cannot represent soldiers in civil-ian court proceedings. Consequently, there is a greatopportunity for cooperative representation between asoldier’s civilian and military attorneys to provide
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maximum legal protection while reducing the financialburden on the servicemember/client. Civilian attorneysshould not hesitate to encourage their military clients toform an attorney-client relationship with a judge advo-cate and to authorize a joint representation arrangement.When a soldier is informed by his
or her commander that an allegationof financial nonsupport has beenmade, the commander must notifythe soldier of their rights–similar toa Miranda warning–under Article31 of the Uniform Code of MilitaryJustice.26 Because of the potentialcriminal penalties for violating AR608-99, it is usually wise to advisethe soldier to exercise their right toremain silent, unless the soldier canclearly substantiate their compliancewith supporting documentation. If asoldier admits that they have vio-lated a court-ordered support obliga-tion, a written agreement, or theregulatory requirements for support,the commander may charge the sol-dier with a criminal violation of theUniform Code of Military Justice,administer non-judicial punishment,issue a reprimand, or subject thesoldier to other adverse administra-tive action. In the vast majority offirst-time cases, however, a com-mander will simply order the soldierto bring themselves into compli-ance. The best advice for soldiers in that situation is toacknowledge the commander’s order, salute, and startmaking payments as required.Under certain circumstances, soldiers may request
relief from their family support obligations. The cir-cumstances include: (1) that a court order was issuedby a court without jurisdiction; (2) that a court orderis silent as to the soldier’s obligation to provide finan-cial support; (3) that the income of the spouse exceedsthe military pay of the soldier; (4) that the soldier hasbeen the victim of a substantiated instance of physicalabuse by the spouse; (5) that the supported familymember is in jail; (6) that the supported child is in thecustody of another who is not the lawful custodian; or(7) that the soldier has provided the support required
by regulation to an estranged spouse for at least 18months.27 Requests for relief can only be granted by aspecial court-martial convening authority, a battalioncommander, or higher level of command.
ConclusionFamily law practitioners have
many legal options to secure finan-cial support for family members invarious domestic relations scenar-ios. An understanding of the variousmilitary regulations requiring ser-vicemembers to support theirspouses and dependent children, in-cluding AR 608-99, adds an addi-tional option whenever aservicemember’s family is involved.Conversely, lawyers representingmilitary clients in the domestic rela-tions context must understand theextra-judicial requirements of sup-port imposed by military regulation,to protect their clients from the ad-verse administrative or criminalconsequences that can result fromnonsupport. Considering the large(and growing) number of militaryinstallations in and aroundAlabama,28 knowledge of these re-quirements is critical to those in thedomestic-relations field. s
Endnotes1. See, e.g., Air Force Instruction (AFI) 36-2906. Personal Financial Responsibility, 9 July 2013;
Army Regulation (AR) 608-99. Family Support, Child Custody, and Paternity, 29 October2003; Coast Guard Commandant Instruction Manual (CIM) 1600.2. Discipline and Conduct,October 2018 (Chapter 2.E, Support of Dependents); Marine Corps Order (MCO) 5800.16-V9. Legal Support and Administration Manual, 20 February 2018 (volume 9, DependentSupport and Paternity); Naval Military Personnel Manual (MILPERSMAN) 1754-030. Sup-port of Family Members, 26 April 2006.
2. AR 608-99 applies to members of the Reserve Component (including members of the Na-tional Guard) on active duty orders of at least 30 days or while mobilized on Title 10 or-ders. AR 608-99, p. i. Whenever a member of the National Guard serves on Title 32 orders,the punitive provisions of the AR 608-99 do not apply.
3. AR 608-99, para. 2-1a. As to members of the Army Reserve and National Guard, see noteii, supra.
4. AR 608-99, para. 2-1c.
5. Para. 2-6a.
6. Id., at para. 2-5c.
7. Id., at para. 2-5b.Th
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A lawyer whosemilitary client hasbeen the subject ofa nonsupport com-plaint must be
knowledgeable ofthe soldier’s obli-gations, must com-municate them
clearly, and shouldexplain the rangeof potential conse-quences of non-compliance.
8. AR 608-99, Glossary, Section II, Family Member.
9. Id., at para. 2-3b(3)(a).
10. AR 608-99, para. 2-14.
11. AR 608-99, para. 2-5a.
12. Id., at para. 2-4a. In very limited circumstances, a military commander may release a sol-dier from compliance with an order issued by a court without jurisdiction. AR 608-99,para. 2-14b(1). Even then, the soldier would be required to comply with the order untilreleased from the obligation.
13. Id., at para. 2-3b. If a written agreement does not contain a specific amount, the supportobligation will be determined under paragraph 2-6, as if there was no written agreement.
14. Id., at para. 2-3b(2).
15. Soldiers are not required to provide support for family members who are still living ingovernment housing. AR 608-99, para. 2-6d(2).
16. Id., at para. 2-6c.
17. See generally AR 608-99, Appendix B-5a.
18. Although a special court-martial convening authority, or battalion commander, can re-lease a soldier from the regulatory requirement imposed by AR 608-99, this authority islimited, and requests are subject to legal review by a judge advocate. AR 608-99, para. 2-12. In cases of spousal separation, release of a soldier from providing support to a spouserequires the provision of support for 18 months. Id., at para. 2-14b(6).
19. AR 608-99, at para. 2-9b.
20. Id., Appendix B-4c.
21. Id., at para. 1-5.
22. Id., at para. 2-1b.
23. Id., at para. 3-1a.
24. Id., at para. 3-5.
25. Id., at para. 3-6.
26. Id., at para. 3-3.
27. Id., at para. 2-14.
28. Alabama is host to Coast Guard Sector Mobile and the Coast Guard Aviation Training Centerin Mobile, Fort Rucker near Enterprise, Maxwell Air Force Base in Montgomery, the Annis-ton Army Depot, and Redstone Arsenal in Huntsville, while portions of Fort Benning, Geor-gia, cross into our state. Additionally, full-time, active duty soldiers and airmen areassigned to National Guard bases at Fort McClellan in Anniston, Sumter Smith Air NationalGuard Base in Birmingham, and Dannelly Field Air National Guard Base in Montgomery.
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Maj. Bryan M. TaylorMaj. Bryan Taylor is a JAG Corps officer in theAlabama Army National Guard and serves as thechief of military justice, 167th TSC. As a civilian,he practices with Bachus Brom & Taylor LLC, thefirm he co-founded in 2013. He served as generalcounsel to Gov. Kay Ivey and is a former state sen-ator. He graduated from the University of Texas
School of Law in 2001 and the University of Alabama in 1998.Following the terrorist attacks of 9/11, he served four years onactive duty, including a combat tour in Iraq, for which he re-ceived the Bronze Star Medal. In 2004, he received the AmericanBar Association’s Young Military Lawyer of the Year Award. Heis licensed in Alabama and Texas.
Practice Pointers1. Encourage your client to speak with a legal assistance attorney in the military installation’s Staff
Judge Advocate’s office. Form a cooperative relationship and consult often with your client’s mili-tary attorney to take advantage of their specialized legal and military expertise. In cases involvingthe Army, both servicemembers and dependents are entitled to legal assistance.
2. Determine the servicemember’s BAH II-WITH rate. Armed with that amount, you can determinewhether any proposed written support agreement or the regulatory financial support obligation imposed by Army Regulation 608-99 would be in your client’s best interests.
3. When a court requires child-support payments, but not spousal support, in a pendente lite order, the non-military spouse can seek the amount of financial support owed by AR 608-99.
4. Familiarize yourself with the range of consequences in each branch of service for a violation of the servicemember’s family support obligations. Your knowledge can be used to obtain the requiredamount of financial support, if you represent the family member, or to protect the financial interestsand military career of the servicemember.
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has approximately 27,000 uni-formed servicemembers residingwithin its borders at any time. Ad-ditionally, each year between2,000 and 3,000 Alabamians jointhe Armed Forces. These factorsmean that many Alabama lawyerswill encounter legal issues that areimplicated by an individual’s mili-tary service at some point in their
practice of law, whether thelawyer represents the servicemem-ber (or veteran) or another party.Two federal laws enacted to pro-
tect members of the Armed Forcesare the most likely to be encoun-tered at least once during alawyer’s career. They are the Uni-formed Services Employment andReemployment Rights Act(“USERRA”) and the Service-members Civil Relief Act(“SCRA”). The intricacies of theselaws cannot be conveyed in a sin-gle article, but this should be agood starting point.
An Overview of the Servicemembers CivilRelief Act and the Uniformed Services
Employment and Reemployment Rights ActBy Capt. James R. Houts and Maj. O. Scott Hewitt
Alabama, home to three active-duty militaryinstallations, an Army depot, and a robust
structure of National Guard and Reserve units,
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ServicemembersCivil Relief ActThe SCRA provides certain legal
protections to servicemembers “toenable such persons to devotetheir entire energy to the defenseneeds of the Nation” and “to pro-vide for the temporary suspensionof judicial and administrative pro-ceedings and transactions that[might] adversely affect the civilrights of servicemembers duringtheir military service.”1 Due to thescope of the protections providedby the SCRA–impacting debt-col-lection practices, contracts, andcivil procedure–civil practitionersshould have some familiarity withthis law.
SCRA’s Rights,Protections, AndApplicabilityThe SCRA allows servicemem-
bers to cap interest rates,2 to avoiddefault judgments,3 to avoid non-judicial foreclosure,4 to cancel in-stallment contracts,5 to stayjudicial proceedings,6 to avoid re-possessions,7 to terminate leases,8
and to prevent enforcement ofstorage liens9 under certain cir-cumstances. For members of theNational Guard and Reserve com-ponents, the servicemember mustbe on Title 10 orders, orders forfull-time training duty, annualtraining duty, or attendance at aschool designated as a serviceschool activated under 32 U.S.C. §502(f) (2018), for a period of 30consecutive days or more.10 Any
person who enlists or accepts acommission for service in theArmy, Navy, Air Force, MarineCorps, Coast Guard, or for “activeservice” in the Public Health Serv-ice or the National Oceanic andAtmospheric Administration isprotected upon entry into suchservice.11
As to default judgments, plaintiffsare required to file an affidavit stat-ing that the defendant is either not inthe military service, is in the mili-tary service, or the plaintiff, aftermaking a good faith effort, does notknow the defendant’s status.12 Thisrequirement is reflected in item 7 ofthe Unified Judicial System’s FormC-25, Application and Affidavit forEntry of Default. Plaintiff’s counselcan satisfy this requirement, as tomilitary servicemembers, by using aDepartment of Defense website es-tablished for this purpose.13 Wherethe servicemember has notice of theaction and is serving on active duty,or is within 90 days of release fromactive duty, they are entitled to astay.14 Upon application by theservicemember, or on a court’s ownmotion, a court must stay a legalaction for not less than 90 dayswhen the servicemember submits aletter explaining why military dutyrequirements materially affect theirability to appear and state when hemay appear along with a letter fromtheir commanding officer statingthat the servicemember’s dutyprevents their appearance and thatthey are not authorized leave.15
Installment contracts and leasesare another area where the SCRAcan have significant application.Cell phone contracts, apartmentleases, automobile leases, gymmemberships, and similar contrac-tual relationships can be terminatedby a servicemember upon entry
into qualified service.16 In additionto residential leases, the SCRA alsoapplies to a lease of premises “oc-cupied, or intended to be occupied”by a servicemember for “profes-sional, business, agricultural, orsimilar purpose[s].”17 A service-member’s dependents may alsoenjoy the SCRA’s rights and pro-tections as to installment contractsand leases, although this typicallyrequires an application to a courtfor relief.18
In order for a contract or lease tobe unilaterally terminated under theSCRA, the contractual relationshipmust have been entered prior to theservicemember’s entry into quali-fied service. Of importance, the av-erage National Guardsman orReservist does not enter into a pe-riod of qualified service simply byvirtue of their military membership.It is only upon receipt of orders forqualifying service–such as an activeduty deployment to Kuwait orAfghanistan–that the servicemem-ber is considered to have attained“entry” into military service. Busi-nesses and individuals who engagein “self-help” against a service-member, contrary to the terms ofthe SCRA, are subject to criminalprosecution.19
Although a servicemember maywaive any of the SCRA’s rights andprotections, any such waiver is ef-fective only if it is (1) in writing,(2) is executed as an instrumentseparate from the obligation or lia-bility to which it applies, and (3) isin at least 12-point font.20 Addition-ally, in the case of waivers of rightsinvolving (1) the modification, ter-mination, or cancellation of a con-tract, lease, or bailment; (2) anobligation secured by a mortgage,trust, deed, lien, or other security inthe nature of a mortgage; or (3) the
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repossession, retention, foreclosure,sale, forfeiture, or taking posses-sion of property that is security forany obligation, or was purchased orreceived under a contract, lease, orbailment, the waiver will only beeffective if the written agreement isexecuted during or after the quali-fying period of military service.21
Finally, the SCRA provides someprotections in child-custody cases.A thorough discussion of the practi-cal application of those provisions,however, would exceed the limitedpurpose of this article. Family lawpractitioners are encouraged to be-come familiar with the SCRA’schild-custody protections whenfaced with “best interest of thechild” determinations predicated ona parent’s military service.22
Enforcement ofSCRA’s ProvisionsThe United States Department of
Justice’s Civil Rights Division istasked with enforcing the SCRA.The United States Attorney Gen-eral is authorized to file a federallawsuit against any person or en-tity who engages in a pattern orpractice of violating the SCRA, orwhere the facts in a case raise “anissue of significant public impor-tance.”23 These lawsuits may seekmonetary damages for a service-member, civil penalties, equitablerelief, and/or declaratory relief.24
Examples of federal enforcementagainst those who have violated
the SCRA’s provisions can befound on the Department of Jus-tice’s SCRA website.25
State-Law SCRAProtectionsAlabama law provides SCRA-
like protections to members of theNational Guard who are orderedinto active military service by thestate governor, who performhomeland security operationsunder 32 U.S.C. § 502(f), or whoperform state active duty for 30days or more.26 In such cases, statelaw incorporates the provisions ofthe SCRA and USERRA (dis-cussed below).27
H H H M I L I T A R Y L A W I S S U E H H H
Hire a PrivaTE JUdgEto hear any case assigned a Cv or dr case number by the alabama administrative Office of CourtsQualified, former or retired alabama Judges registered with the alabama Center for dispute resolution
Hon. robert E. [email protected](205) 274-8255
Hon. s. Phillip [email protected](205) 987-8787
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Hon. suzanne s. [email protected](205) 908-9018
Hon. r.a. “sonny” [email protected](205) 250-6631
Hon. Jill [email protected](205) 616-7237
Hon. arthur J. Hanes, [email protected](205) 933-9033
Hon. david a. [email protected](256) 390-3352
Hon. Charles “Chuck” r. [email protected](205) 349-3449
Hon. Christopher m. [email protected](256) 644-5136
Hon. Julie a. [email protected](205) 616-2275
Hon. James gary [email protected](205) 999-3092
Hon. Eugene W. [email protected](334) 799-7631
Hon. James H. reid, [email protected](251) 709-0227
Hon. James H. [email protected](256) 319-2798
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Hon. Edward B. [email protected](205) 586-0222
Hon. J. scott [email protected](205) 214-7320
fasT • Easy • aPPEaLaBLE aL acts No. 2012-266 and 2018-384For more information, search “Find a Private Judge” at www.alabamaADR.org
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Uniformed Services Employment and ReemploymentRights ActThe Uniformed Services Employ-
ment and Reemployment Rightsprovides certain employment andreemployment rights to those whohave served satisfactorily in theArmed Forces or who are currentlyserving in the National Guard orReserve components of themilitary.28 USERRA arose out ofthe Selective Training and ServiceAct of 1940 and the Universal Mili-tary Training and Service Act of1951.29 The United States SupremeCourt, describing the purpose of theoriginal 1940 legislation, wrote thatthe law protected “[h]e who wascalled to the colors” such that theservicemember would not “be pe-nalized on his return by reason ofhis absence from his civilian job.”30
The veteran was “to gain by hisservice for his county an advantageto which the law withheld fromthose who stayed behind.”31 Ac-cording to the Court, such protec-tions were “to be liberally construedfor the benefit of those who left pri-vate life to serve their county in itshour of great need.”32
In 1994, Congress codified theseprotections for veterans and service-members by enacting USERRA.The specific purposes for the laware set forth in the act itself; namely,“to encourage noncareer service inthe uniformed services by eliminat-ing or minimizing the disadvantages
to civilian careers and employmentwhich can result from such service,”“to minimize the disruption to thelives of persons performing servicein the uniformed services as well as
to their employers, their fellow em-ployees, and their communities, byproviding for the prompt reemploy-ment of such persons upon theircompletion of such service,” and “toprohibit discrimination against per-sons because of their service in theuniformed services.”33As federallaw has evolved from the SelectiveTraining and Service Act of 1940 toUSERRA, the Supreme Court hasconsistently required liberal con-struction of federal employment andreemployment rights in favor of vet-erans and servicemembers.34
USERRA’s Rights,Protections, AndApplicabilityUSERRA prohibits discrimina-
tory hiring practices against per-sons who serve in the uniformedservices. Servicemembers or vet-erans cannot be denied initial em-ployment, reemployment,
retention, promotion, or other ben-efits on the basis of their status.35
An employer is considered to haveengaged in prohibited actions if anemployee’s membership, applica-tion for membership, service, ap-plication for service, or obligationof service in the uniformed serv-ices is a motivating factor in theemployer’s action, “unless the em-ployer can prove that the actionwould have been taken in the ab-sence of such” service.36 In a 2011opinion in a “cat’s paw” case, theSupreme Court held that “if a su-pervisor performs an act motivatedby antimilitary animus that is in-tended by the supervisor to causean adverse employment action,and if that act is a proximate causeof the ultimate employment ac-tion, then the employer is liableunder USERRA.”37
Although the demands caused bythe part-time military service of anemployee can be difficult on bothemployer and employee, the “tim-ing, frequency, and duration of theperson’s training or service” or thevoluntary nature of such service,“shall not be a basis for denyingprotection” if the servicemembercomplies with USERRA’s require-ments.38 Those requirements includethe servicemember’s having givenher employer advance written orverbal notice of the required ab-sence for uniformed service, apply-ing or reporting for reemploymentwithin the statutorily-imposed pe-riod (based on the length of uni-formed service), and having notbeen cumulatively absent from thatemployer for uniformed service inexcess of five years.39 The pre-ser-vice notice requirement can bewaived if provision of notice wasprecluded by military necessity or
H H H M I L I T A R Y L A W I S S U E H H H
USERRA prohibitsdiscriminatory hiringpractices againstpersons who servein the uniformed
services.
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was impossible or unreasonable.40
Similarly, the five-year limit on cu-mulative length of service-con-nected absence is not absolute, asnumerous types of uniformed serv-ice are excluded from consideration,such as mobilizations in times ofwar or national emergency, or forcertain operational support mis-sions.41 Most notably, the “oneweekend a month, two weeks ayear” periods of service associatedwith the National Guard and Re-serve are also excluded from thefive-year limit.Depending on the length of the
employee’s uniformed service, theemployee has between eight hoursto 90 days to report to their em-ployer and seek reinstatement.42 Anemployee’s notice or application canbe oral or written.43 The employermust provide “prompt reemploy-ment,” which can range from “thenext regularly scheduled work day”following weekend National Guardor Reserve duty to several weeks“following several years of activeduty” when the employer has to “re-assign or give notice to another em-ployee who occupied the returningemployee’s position.”44
Employers are permitted to re-quire those seeking reemploymentunder USERRA to provide docu-mentation that the person’s appli-cation for reemployment is timely,that they have not exceeded thefive-year limit on absences foruniformed service (or, that certaintime in uniformed service was ex-empt from the limit), and that theyremain eligible based on theircharacterization of service or dis-charge.45 Employers, however,cannot delay prompt reinstatementof an employee by requesting doc-umentation that does not exist or isnot readily available.46 The United
States Secretary of Labor hasspecified certain types of docu-ments as sufficient to satisfy anemployee’s obligation to providedocumentation to her employer.47
Employers are not required toreemploy a servicemember if theemployer’s circumstances changedduring the servicemember’s absence
such that reemployment would beimpossible or unreasonable.48 Forexample, if the manufacturing plantwhere the employee had workedwas closed during her military serv-ice, and the employee would havebeen terminated from employmentwith the other plant employees, theemployer is not required to grant herreinstatement.49 Further, if a service-member was injured and disabledwhile performing uniformed serv-ice, an employer is not required totrain or accommodate the service-
member if doing so would imposean undue hardship on the em-ployer.50 Finally, reemployment of aservicemember is not requiredwhere the previously employmentwas for a brief, nonrecurrent periodwhere there had been no reasonableexpectation that the employmentwould continue indefinitely or for asignificant period.51 These excep-tions, however, are affirmative de-fenses that must be raised andproved by the employer.52
A significant protection offeredby USERRA pertains to a service-member’s right to seniority, andcertain other benefits, upon theirreemployment; seniority and bene-fits sufficient to restore the em-ployee to the position they wouldhave been in but for military serv-ice.53 While the scope of the rightsand seniority protections requiredto be accorded to the servicemem-ber vary based on the length of theuniformed service and whether in-jury or disability to the service-member occurred,54 the SupremeCourt’s “escalator” principle pro-vides a basic understanding ofUSERRA’s requirements. A reem-ployed servicemember or veteran“does not step back on the seniorityescalator at the point he steppedoff. He steps back on at the precisepoint he would have occupied hadhe kept his position continuouslyduring the war.”55 Today, the esca-lator principle applies to USERRAclaims through the Department ofLabor’s rulemaking authority.56
Thus, as a general rule, an em-ployee “is entitled to reemploymentin the job position that he or shewould have attained with reason-able certainty if not for the absencedue to uniformed service,” includ-ing pay, benefits, seniority, andother job perquisites “that he or she
H H H M I L I T A R Y L A W I S S U E H H H
A significant protec-tion offered by
USERRA pertains toa servicemember’sright to seniority,and certain otherbenefits, upon theirreemployment; sen-iority and benefitssufficient to restorethe employee to theposition they wouldhave been in but formilitary service.53
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would have attained if not for theperiod of service.”57 Such benefitsmay include entitlement to FMLAcoverage,58 bonuses or leave timebased on longevity or length ofservice,59 merit-based pay increases(based on the employee’s pre-ser-vice work history),60 and pensionplan contributions and servicecredit.61 Although the “escalatorprinciple” generally results in fa-vorable treatment for an employee,some adverse results are possible.For example, if the employee’s sen-iority and job classification placesthem in a category of workers cur-rently laid off by the employer, theemployee can be reinstated into alaid-off position.62
USERRA does not automaticallyrequire the grant of non-seniority-based benefits to reemployed ser-vicemembers. In the case ofnon-seniority-based benefits, anemployer must only provide thosebenefits or privileges that aregiven to similarly-situated em-ployees who are on furlough,leave of absence, or similar leavestatus.63 For example, accrual ofvacation leave is a non-senioritybenefit that must be provided to anemployee returning from a mili-tary leave of absence only if theemployer provides that benefit tosimilarly situated employees oncomparable leaves of absence.64
Where an employer has multiplecategories of furlough or leaves ofabsence, a USERRA-covered em-ployee is entitled to the most fa-vorable treatment accorded underany comparable form of leave.65
Once reemployed, USERRAprovides the employee protectionfrom discharge. If an employeeperformed uniform service morethan 30 days, she cannot be dis-charged, except for cause, for 180
days.66 If she served more than180 days, the protection from dis-charge grows to one year.67
The protections provided byUSERRA supersede state and locallaws and ordinances, or any “con-tract, agreement, policy, plan, prac-tice, or other matter that reduces,limits, or eliminates in any mannerany right or benefit” providedunder the statute.68 For example, apolice department’s “return-to-work” policy cannot be used todelay reinstatement of a returningservicemember, even if the policyapplies to all the department’s em-ployees.69 Similarly, an employ-ment contract basing senioritycredit on “actual days of work inthe place of employment” would besuperseded by USERRA, due tothe fact it requires seniority creditfor periods of absence due to uni-formed service.70 Most courts tohave addressed the issue, includingthe Eleventh Circuit, have foundthat arbitration clauses are not su-perseded by USERRA and can beenforced.71
USERRA applies to almost allpublic and private employers, in-cluding federal, state, and local gov-ernmental bodies without regard totheir size or overall number of em-ployees.72 Foreign businesses withphysical locations inside the UnitedStates must comply with USERRAas to any employees inside theUnited States.73 American compa-nies operating in foreign countriesmust comply with USERRA for alloperations (domestic and foreign),unless compliance would violate thelaw of a foreign country where theworkplace is located.74 USERRAalso applies to successors-in-interestof a servicemember’s employer.75
Although USERRA does not applyin the student-educational institution
context, practitioners should notethat USERRA-like protections areavailable to post-secondary studentswhose educational studies are inter-rupted by voluntary or involuntarymilitary service under federal andstate law.76
Enforcement ofUSERRAUSERRA is primarily enforced
through the United States Depart-ment of Labor, Veterans’ Employ-ment and Training Service.77 Anindividual who believes theirrights under USERRA have beenviolated may file a complaint withthe United States Secretary ofLabor for investigation.78 If theSecretary of Labor finds a com-plaint against a state or private en-tity to be founded, she may referthe complaint to the United StatesAttorney General for legal ac-tion.79 Additionally, a privatecause of action is available to anindividual without regard towhether they filed a complaintwith the Secretary of Labor.80
Non-USERRAEmploymentConsiderationsIn addition to USERRA, employ-
ers and employees should also beaware that the Family MedicalLeave Act also contains provisionsdealing with military service.Among the situations entitling anemployee to FMLA leave, Con-gress added leave for a “qualifyingexigency” arising out of the fact
H H H M I L I T A R Y L A W I S S U E H H H
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that the spouse, son, daughter, orparent of an employee is placed on“covered active duty” or has beennotified “of an impending call ororder to covered active duty” in theArmed Forces.81 For active-dutyfamily members, the United StatesDepartment of Labor defines “cov-ered active duty” as “during de-ployment of the member with theArmed Forces to a foreign coun-try.”82 For reserve-component fam-ily members, “covered active duty”is defined as deployment of themember with the Armed Forces toa foreign country under a call ororder to active duty in a contin-gency operation.”83 “Qualified exi-gencies” include issues arisingfrom a short-notice deployment(deployment within seven days ofnotice), deployment-related cere-monies, certain childcare and re-lated activities arising from theservicemember’s deployment,making financial and legal arrange-ments, attending counseling,spending time with the service-member on “Rest and Recupera-tion” leave during the deployment,and certain post-deployment activi-ties within 90 days of the end of thecovered active duty period.84
In Alabama, employees of stateand local governmental entities havestate-law benefits and employmentprotections. State, county, and mu-nicipal employees are typically enti-tled to 168 working hours ofmilitary leave each year.85 Becausethe statute treats state and federalmilitary service separately, however,employees who are members of theNational Guard may be entitled tomore than 168 working hours ofmilitary leave. For example, the Na-tional Guard response to the April2011 tornado event was activated on
state active duty, rather than in afederal status. Additionally, statelaw incorporates the protections ofUSERRA (and the SCRA) formembers of the National Guardcalled into active military duty bythe governor.86
Additionally, state employees mo-bilized or called into active serviceas part of the “war on terrorism” areentitled to supplemental pay mak-ing up any difference between theirstate salary and military pay.87
County and municipal employeesare not entitled to this supplementalpay, but their employers maychoose to provide for such supple-mental pay by way of ordinance,rule, or regulation.88 Whenever apublic employer pays supplementalincome to an employee under statelaw, the employee may elect to con-
tinue her individual or dependentcoverage under the public em-ployer’s health insurance plan.89
ConclusionFederal and state law protections
for servicemembers will likely im-pact all Alabama practitioners, eventhose who have no military clients,at some point. Those who representbusiness clients must be cognizantof the rights and protections pro-vided to uniformed servicememberswhen preparing motions for defaultjudgment or when seeking to draftinstallment contracts or residentialleases that would modify or waivethose protections. Those who repre-sent servicemembers preparing forentry into active duty must be pre-pared to assist with the terminationof installment contracts, automobileleases, and business/residentialleases, as needed. Family law prac-titioners must be familiar with thelimitations on a parent’s militaryservice as a consideration of achild’s best interests. As more Al-abamians heed the call to militaryservice, in both active and reservecapacities, practitioners need to un-derstand the scope of the SCRA andUSERRA, and their state law coun-terparts, in order to provide compe-tent legal counsel to their militaryand non-military clients. s
Endnotes1. 50 U.S.C. § 3902 (2018).
2. 50 U.S.C. § 3937 (2018). Interest rates are capped at sixpercent by the SCRA’s terms. At the time of the publica-tion of this article, this provision has little practical ap-plication outside of credit card debts and certainhigh-risk, consumer-lending practices.
3. 50 U.S.C. § 3931 (2018).
4. 50 U.S.C. § 3953 (2018).
5. 50 U.S.C. § 3952 (2018).
6. 50 U.S.C. § 3932 (2018).
H H H M I L I T A R Y L A W I S S U E H H H
As more Alabamiansheed the call to mili-tary service, in bothactive and reserve ca-pacities, practitionersneed to understandthe scope of the
SCRA and USERRA,and their state lawcounterparts, in orderto provide competentlegal counsel to theirmilitary and non-military clients.
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7. 50 U.S.C. § 3952 (2018).
8. 50 U.S.C. § 3955 (2018).
9. 50 U.S.C. § 3958 (2018).
10. 10 U.S.C. § 101(d)(1) (2018); 50 U.S.C. § 3911 (2018).
11. Supra, note x.
12. 50 U.S.C. § 3931(b) (2018).
13. https://scra.dmdc.osd.mil/ (last accessed on May 4,2020).
14. 50 U.S.C. § 3932 (2018).
15. Id.
16. 50 U.S.C. §§ 3952, 3955, 3956 (2018).
17. 50 U.S.C. § 3955(b) (2018).
18. 50 U.S.C. §§ 3956(d), 3959.
19. 50 U.S.C. §§ 3952(b), 3955(h) (2018).
20. 50 U.S.C. § 3918 (2018).
21. Id.
22. 50 U.S.C. §§ 3938, 3938a (2018).
23. 50 U.S.C. § 4041(a) (2018).
24. Id.
25. https://www.justice.gov/servicemembers/servicemembers-civil-relief-act-scra (last accessed on May 4, 2020).
26. ALA. CODE § 31-12-1, et. seq. (1975).
27. ALA. CODE § 31-12-2 (1975).
28. The protections of USERRA do not apply to a personwho receives a dishonorable, bad conduct, or otherthan honorable conditions discharge, is dropped fromthe rolls of a military service, or is dismissed from theservice. See 38 U.S.C. § 4304 (2018); 20 C.F.R. §1002.135 (West 2020).
29. Selective Training and Service Act of 1940, 54 Stat. 885;Universal Military Training and Service Act, 65 Stat. 75,86-87.
30. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275,284 (1946).
31. Id.
32. Fishgold, 328 U.S. at 285 (citing Boone v. Lightner, 319U.S. 561, 575 (1943)).
33. 38 U.S.C. § 4301(a)(1)–(3) (2018).
34. See Coffy v. Republic Steel Corp., 447 U.S. 191, 195(1980) (applying the Vietnam Era Veterans’ Readjust-ment Assistance Act of 1974); Alabama Power Co. v.Davis, 431 U.S. 581, 584 (1977) (quoting Fishgold, 328U.S. at 285) (applying the Military Selective Service Actof 1967); Tilton v. Missouri Pac. R. Co., 376 U.S. 169, 181(1964) (quoting Fishgold, 328 U.S. at 285) (applying theUniversal Military Training and Service Act).
35. 38 U.S.C. §§ 4311, 4312 (2018).
36. 38 U.S.C. § 4311 (2018).
37. Staub v. Proctor Hosp., 562 U.S. 411 (2011).
38. 38 U.S.C. § 4312(h) (2018).
39. 38 U.S.C. §§ 4312(a), (e) (2018).
40. 38 U.S.C. § 4312(b) (2018).
41. 38 U.S.C. § 4312(c) (2018).
42. 38 U.S.C. § 4312(e) (2018).
43. 20 C.F.R. § 1002.118 (West 2020).
44. 20 C.F.R. § 1002.181 (West 2020).
45. 38 U.S.C. § 4312(f) (2018).
46. Id.
47. See 38 U.S.C. § 4312(f)(2) (2018); 20 C.F.R. § 1002.123(West 2020). Acceptable documents can include certifi-cates of release or discharge from active duty (DD Form214), copies of orders carrying an endorsement indicat-ing completion of the required service, letters fromcommanders of a Personnel Support Activity (or similarauthority), certificates of completion from militaryschools, or copies of payroll documents (leave and earn-ings statements).
48. 38 U.S.C. § 4312(d)(1)(A) (2018).
49. 20 C.F.R. § 1002.139 (West 2020).
50. 38 U.S.C. § 4312(d)(1)(B) (2018).
51. 38 U.S.C. § 4312(d)(1)(C) (2018).
52. 38 U.S.C. § 4312(d)(2) (2018).
53. 38 U.S.C. § 4313 (2018).
54. 38 U.S.C. § 4313(a) (2018).
55. Fishgold, 328 U.S. at 284-85; see also Huhmann v. Fed-eral Express Corp., 874 F. 3d 1102, 1107-09 (9th Cir. 2017)(applying “escalator principle” in the USERRA context);Butts v. Prince William Cty. School Bd., 844 F. 3d 424 (4th
Cir. 2016) (same); DeLee v. City of Plymouth, 773 F. 3d172 (7th Cir. 2014) (same); Rivera-Melendez v. PfizerPharmaceuticals, LLC, 730 F. 3d 49 (1st Cir. 2013) (same);Milhauser v. Minco Products, Inc., 701 F. 3d 268, 271 n. 2(8th Cir. 2012) (same); Serricchio v. Wachovia SecuritiesLLC, 658 F. 3d 169 (2nd Cir. 2011) (same).
56. 20 C.F.R. § 1002.191 (West 2020).
57. Id.
58. 20 C.F.R. § 1002.210 (West 2020).
59. 20 C.F.R. § 1002.212 (West 2020).
60. 20 C.F.R. § 1002.236 (West 2020). At least one court hasheld, with the benefit of briefing by the Department ofLabor, that this includes a level of pay taking into ac-count pre-service commissions earned by the employee,as well as their access to clients or client lists upon theirreturn. Serrichio, 658 F. 3d at 183-85, 187-88.
61. 20 C.F.R. §§ 1002.259-267 (West 2020); see also Lapinev. Town of Wellesley, 304 F. 3d 90, 108-09 (1st Cir. 2002).
62. 20 C.F.R. §§ 1002.194 (West 2020).
63. 38 U.S.C. § 4316(b) (2018).
64. 20 C.F.R. § 1002.150 (West 2020).
65. Id.
66. 20 C.F.R. § 1002.247 (West 2020).
67. Id.
68. 38 U.S.C. § 4302(b) (2018).
69. See Petty v. Metro. Gov’t of Nashville-Davidson Cty., 538F. 3d 431 (6th Cir. 2008).
70. 20 C.F.R. § 1002.7 (West 2020).
71. See, e.g., Ziober v. BLB Resources, Inc., 839 F. 3d 814 (9th
Cir. 2016); Bodine v. Cook’s Pest Control, Inc., 830 F. 3d1320 (11th Cir. 2016); Landis v. Pinnacle Eye Care, LLC,537 F. 3d 559 (6th Cir. 2008); Garrett v. Circuit City Stores,
Inc. 449 F. 3d 672 (5th Cir. 2006).
72. 20 C.F.R. § 1002.34 (West 2020); see also 38 U.S.C. §4301 (2018) (“It is the sense of Congress that the Fed-eral Government should be a model employer in carry-ing out the provisions of this chapter.”).
73. Id.
74. Id.
75. 38 U.S.C. § 4303(4) (2018); 20 C.F.R. § 1002.35 (West2020).
76. 20 U.S.C. § 1091c (2018); ALA. CODE § 31-12-3 (1975).
77. 38 U.S.C. § 4321 (2018).
78. 38 U.S.C. § 4322 (2018).
79. 38 U.S.C. § 4323 (2018).
80. Id.
81. 29 U.S.C. § 2612(a)(1) (2018).
82. Fact Sheet #38M(c), U.S. Department of Labor, Wageand Hour Division (Feb. 2013), available at https://www.dol.gov/whd/regs/compliance/whdfs28mc.pdf(last viewed February 1, 2020).
83. Id.
84. Id.
85. ALA. CODE § 31-2-13(a) (1975). Although this statutealso imposes a paid-military-leave requirement on pri-vate employers, that portion of the statute has beendeemed unconstitutional. White v. Assoc. Ind. of Ala.,Inc., 373 So. 2d 616 (Ala. 1979).
86. Ala. Code § 31-12-2 (1975).
87. ALA. CODE § 31-12-5 (1975).
88. ALA. CODE § 31-12-6 (1975).
89. ALA. CODE § 31-12-7 (1975).
H H H M I L I T A R Y L A W I S S U E H H H
Capt. James R. HoutsCapt. James Houts is a JAGCorps officer in the Ala-bama Army National Guard,assigned to the Joint ForcesHeadquarters in Mont-gomery. He served in the
United States Army Reserve and de-ployed to Iraq with the XVIIIth AirborneCorps. In civilian practice, he serves as adeputy attorney general in the SpecialProsecutions Division of the Office of theAlabama Attorney General.
Maj. O. Scott HewittMaj. Scott Hewitt is a full-time judge advocate withthe Alabama National Guardat Joint Forces Headquartersin Montgomery.
including having to file for bank-ruptcy. The rate at which formerand current members of ourArmed Forces file for bankruptcyis uncertain, as the U.S. court sys-tem does not track the number ofveterans and servicemembers whofile for bankruptcy each year. Sta-tistics indicate, however, that theirnumbers are substantial. A recentstudy, for example, reflects thatapproximately 15 percent of peo-ple who file for bankruptcy areveterans, even though they makeup only around 10 percent of thenational population.1
The numbers are worse for dis-abled veterans and servicemem-bers. The previously-cited studyreports that disabled persons com-prise approximately 14 percent ofthe overall U.S. population, butconstitute approximately 26 per-cent of the annual population filingfor bankruptcy.2 Although there areno statistics focusing solely on thebankruptcy rate for disabled vetsand servicemembers, that popula-tion is undoubtedly large, giventhat there are 4.75 million Ameri-can veterans–one-quarter of the en-tire U.S. veteran population–whoare receiving Veterans Administra-tion (VA) and/or Department ofDefense (DoD) disability benefits.3
Military veterans and servicemembers arenot immune from financial problems,
In Defense of Our Veterans and Servicemembers:
The Honoring American Veterans in Extreme Need Act
By Jay R. Bender, Capt. Amy Q. Glenos and Capt. John C. Hensley
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Alabama has its share, with approximately 100,000 vet-erans in our state receiving VA and/or DoD disabilitybenefits.However, until Congress passed The Honoring
American Veterans in Extreme Need Act (the“HAVEN Act”),4 disabled vets and servicememberssuffering financial distress did not have all of the pro-tection that they needed.
Bankruptcy Law before the HAVENAct’s Recent EnactmentBefore the HAVEN Act became law in August
2019, disabled veterans and servicemembers did nothave certain protections under the U.S. BankruptcyCode. The old law is best demonstrated through thefollowing hypothetical:
Three people–Xavier, Yvonne, and Zach–are intough financial straits and are thinking about fil-ing for bankruptcy. They all appear to be in thesame exact financial condition: they each ownthe same assets, owe the same debts, and receivethe same amount of income. The only financialdifference among them is the source of their in-come. For Xavier, Social Security disability ben-efits are his only source of income. Yvonne’sincome all comes from payments she receivesbecause she was a victim of both war crimes andinternational terrorism. Finally, Zach’s only in-come is the disability benefits he receives fromthe Department of Veterans Affairs (the “VA”)for injuries sustained while serving in combat onbehalf of our country.
It would have been reasonable to expect that Xavier,Yvonne, and Zach would all have been treated identi-cally under the Bankruptcy Code. Unfortunately, priorto the HAVEN Act’s recent passage, Zach–the dis-abled American veteran–had more limited access torelief under the Bankruptcy Code than did Xavier orYvonne.How did it happen that disabled veterans and service-
members–of all people–were disfavored under ourbankruptcy laws? The answer can be traced back to2005, when Congress revised the Bankruptcy Code toaddress some perceived problems in the bankruptcy
system. Many in Congress believed that too many menand women with regular disposable income were abus-ing the bankruptcy system by filing liquidating Chapter7 bankruptcies–which did not require them to pay anyof their future earnings to their creditors–rather thanChapter 13 bankruptcies that required payment of someof their future disposable income toward partial or fullpayment of creditors’ claims. Congress also believedthat too many bankruptcy judges were being lax in per-mitting Chapter 7 filings, rather than requiring Chapter13 filings, to the detriment of creditors.In response to these perceived abuses, Congress en-
acted the Bankruptcy Abuse Prevention and Con-sumer Protection Act of 2005 (“BAPCPA”).5 Amongother things, BAPCPA creates an objective standard–known as the “means test”–for determining a pre-sumption of which individuals should be required tofile for Chapter 13 bankruptcy.Because a debtor’s income was the cornerstone of
BAPCPA’s “means test,” Congress mandated whatwould constitute a debtor’s income for bankruptcy pur-poses. BAPCPA established a standardized formula fordetermining a debtor’s disposable income, with thestarting point being the debtor’s “current monthly in-come,”6 a new term introduced to the Bankruptcy Codeby the statute. BAPCPA’s definition of “current monthlyincome” was extremely expansive, encompassing adebtor’s average monthly income from all sources thatthe debtor received. From that broad definition, Con-gress specifically identified only three sources of in-come that would not be included as part of a debtor’sbankruptcy income: (1) benefits received by a debtorunder the Social Security Act; (2) payments to victimsof war crimes or crimes against humanity on the ac-count of their status as victims; and (3) payments to vic-tims of terrorism on account of their status as victims.These three categories were the only permissible exclu-sions, with bankruptcy judges being stripped of the dis-cretion to exclude any other sources of income from adebtor’s “current monthly income.”As a result of this statutory scheme, disability bene-
fits paid by the VA or the Department of Defense todisabled veterans and servicemembers could not beexcluded from the definition of “current monthly in-come.” Moreover, because Congress took away bank-ruptcy judges’ discretion, bankruptcy judges were
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rendered powerless to make a judicial exception forthese disability benefits–no matter how equitable andjust such an exception would be.BAPCPA not only made it harder for disabled veter-
ans and servicemembers to file Chapter 7 bankrupt-cies, it also made it more difficult for disabledveterans to successfully emerge from Chapter 13bankruptcies. Because Congress mandated that VAand DoD disability benefits be included in the defini-tion of “current monthly income,” disabled veteranswho filed for Chapter 13 were required to committheir disability benefits to the funding of the Chapter13 plan in order to obtain approval from a bankruptcycourt. This was an odd result, because VA and DoDdisability benefits were exempt from garnishment andattachment by creditors outside of bankruptcy.7
In the years following the enactment of BAPCPA,bankruptcy courts were powerless to treat disabled veter-ans and servicemembers equitably because they could nolonger exercise any discretion in determining income forbankruptcy purposes. This led to at least five bankruptcycourt opinions reluctantly ruling against disabled veteransand their families because VA disability benefits were notspecifically excluded from the Bankruptcy Code’s defini-tion of income.8 Four of those opinions were released in2008, when the broad economic collapse of real estateand financial markets was commanding Congress’s atten-tion, perhaps explaining why no legislative effort was un-dertaken then to correct this oversight.In 2017, the United States Bankruptcy Court for the
Eastern District of Wisconsin announced its decisionin In re Brah.9 It was not until this decision that Con-gress began to act on the issue. In Brah, Judge SusanKelley had been asked to exclude a disabled veteran’sVA disability benefits from his Chapter 13 bankruptcyincome. While clearly sympathetic to the veteran’sposition, and clearly puzzled as to why VA disabilitybenefits were treated differently than Social Securitydisability under federal bankruptcy laws, Judge Kel-ley ruled against the debtor. She noted that the bank-ruptcy laws were clear and unambiguous, leaving herno discretion to create an exception for VA disabilitypayments. In her concluding remarks, Judge Kelleyinvited Congress to take legislative action to fix theproblem, writing:
In sum, the Court understands why the Debtorsseek the same exclusion for their veterans’ disability
benefits as afforded to recipients of Social Securitydisability benefits. But creating this exception is ajob for Congress, not the Court.10
Within months of the release of Judge Kelley’s opin-ion, Wisconsin Sen. Tammy Baldwin drafted legisla-tion–legislation that would ultimately become theHAVEN Act–to fix the Bankruptcy Code’s unfair treat-ment of VA disability benefits. Sen. Baldwin unsuccess-fully attempted to include the HAVEN Act in theNational Defense Appropriations Act in an effort to ex-pedite relief for affected veterans and servicemembers.The following year, Sen. Baldwin secured the supportof Sen. Doug Jones from Alabama (the second Senatesponsor of the HAVEN Act) and Sen. John Cornyn ofTexas (the third Senate sponsor and first bipartisansponsor of the bill). At the same time, a formidablecoalition of veterans’ organizations, military organiza-tions, and bankruptcy professional associations cametogether to support the HAVEN Act; notably, the Veter-ans of Foreign Wars, the American Legion, theWounded Warrior Project, the American College ofBankruptcy, and the American Bankruptcy Institute’sTask Force on Veterans and Servicemembers Affairs.In 2019, Sen. Baldwin formally introduced the
HAVEN Act in the Senate. When introduced in theSenate, the HAVEN Act had broad bipartisan support,with 10 Democrat and 10 Republican supportersnamed as sponsors or co-sponsors; soon thereafter, thenumber of named sponsors and co-sponsors swelled to40 Senators, with an equal number of Democrats andRepublicans backing the bill. After the bill was intro-duced in the Senate, Congresswoman Lucy McBath ofGeorgia introduced the HAVEN Act in the House ofRepresentatives. In a matter of months, Sen. Baldwinand Rep. McBath secured unanimous passage of theHAVEN Act in both houses of Congress. PresidentTrump signed the HAVEN Act into law on August 23,2019. And, with that, the Bankruptcy Code’s mistreat-ment of disabled veterans and servicemembers wasbrought to a long overdue end.
The HAVEN Act and Its ImpactThe HAVEN Act created a fourth exclusion to the
Bankruptcy Code’s definition of a debtor’s income forbankruptcy purposes. That new exclusion reads asfollows:
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(IV) any monthly compensation, pension, pay,annuity, or allowance paid under title 10, 37, or38 in connection with a disability, combat-relatedinjury or disability, or death of a member of theuniformed services, except that any retired payexcluded under this subclause shall include re-tired pay paid under chapter 61 of title 10 only tothe extent that such retired pay exceeds theamount of retired pay to which the debtor wouldotherwise be entitled if retired under any provi-sion of title 10 other than chapter 61 of that title.11
Significantly, the VA and DoD benefits exceptedunder the HAVEN Act include not only benefits re-ceived by disabled veterans, but also certain disabilitybenefits received by active-duty servicemembers. Al-though no courts have ruled on the breadth of benefitsprotected by the HAVEN Act, bankruptcy commenta-tors and military benefits experts have written articlesproviding excellent guidance about the scope of theHAVEN Act’s protections.12
Meanwhile, the passage of the HAVEN Act is provid-ing demonstrable relief to disabled veterans, servicemem-bers, and their families who are in financial distress. Todate, two bankruptcy courts have published opinions re-garding the HAVEN Act. In March 2020, the UnitedStates Bankruptcy Court for the Eastern District ofMichigan issued the first opinion to consider whether theHAVEN Act applied to disabled veterans’ Chapter 13bankruptcy cases that were filed before, and pending asof, the HAVEN Act’s enactment on August 23, 2019.13 InGresham, the Michigan bankruptcy court concluded thatthe HAVEN Act had such retroactive application, suchthat the debtor could modify her previously confirmedChapter 13 bankruptcy plan to exclude her VA disabilitybenefits, allowing the disabled veteran to retain thosebenefits to help facilitate her fresh start.The United States Bankruptcy Court for the Northern
District of Texas also considered the HAVEN Act’s ef-fect in its recent opinion in In re Price.14 In that case, theChapter 13 debtor filed his bankruptcy case before the
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HAVEN Act was enacted, but the confirmation hearingon the debtor’s plan was held a month after its enact-ment. The debtor’s Chapter 13 plan, interestingly, didnot exclude the debtor’s VA disability benefits; instead,the debtor elected voluntarily to contribute those benefitsto fund his Chapter 13 plan so as to enable him to keepcertain of his assets. The Chapter 13 trustee objected toconfirmation of Price’s plan on the ground it was notfiled in good faith. In finding for the debtor, the bank-ruptcy court cited the debtor’s inclusion of his disabilitybenefits in his Chapter 13 plan as a factor weighing infavor of the debtor’s good faith. The court noted thateven though Price filed for bankruptcy before theHAVEN Act was enacted, the HAVEN Act likely ap-plied retroactively to his case, such that the debtor couldhave amended his plan to exclude his disability benefits.The court concluded that the fact that the debtor did notseek such a modification was evidence of his good faith.
Members of the American Bankruptcy Institute’sTask Force on Veterans and Servicemembers Affairs(of which author Jay Bender is a founding member)have heard numerous stories of veterans and service-members who have benefitted from the HAVEN Act’spassage. Thanks to the HAVEN Act, disabled veter-ans, servicemembers, and their families:
• Can now file for bankruptcy without concern thattheir VA disability benefits–exempt outside of bank-ruptcy–might be lost to creditors’ claims if theyfiled for bankruptcy;
• Enjoy greater access to Chapter 7 bankruptcy;
• Are able to retain thousands of dollars in disabilitybenefits that can be devoted to their day-to-day liv-ing expenses and to improving their distressed fi-nancial condition;
H H H M I L I T A R Y L A W I S S U E H H H
300 North Dean Road, Suite 5-193 • Auburn, AL 36830
334.799.7843 • [email protected]
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• Are shortening the amount of time they might other-wise need to spend in Chapter 13 before they cansuccessfully emerge from bankruptcy; and,
• Can elect, voluntarily and not under unjust compul-sion, to use their disability benefits to fund theirChapter 13 plans to help retain property they deemimportant to their financial turnaround.
The relief provided by the HAVEN Act to disabledveterans and servicemembers came without any costto the United States taxpayers. To the contrary, theHAVEN Act has ensured that compensation paid tovets and military members for disabilities they sus-tained in service of our country will be retained bythem if they ever encounter financial difficulties, thusensuring that our tax dollars go to their proper use.
ConclusionAs of the submission of this article, more than three
million Americans lost their jobs in one week, withmore uncertainty ahead about the long-term health ofthe economy and the return of those lost jobs. In themonths to come, many Americans–including, un-doubtedly, many veterans and members of the ArmedForces–may find themselves in need of bankruptcyrelief to help them move forward with their lives andtheir financial affairs. For those veterans and service-members receiving disability benefits who may findthemselves in this distressed situation, the HAVEN Acthelps clear the path for them to pursue and obtain theproverbial “fresh start” that the American bankruptcysystem promises its people. It is imperative for thelawyers who serve these people that we advise themthoroughly of these recent bankruptcy developments af-fecting them and their families, and that we zealouslyadvocate on behalf of those who have given so much forus and our country. s
Endnotes1. Jonathan Fisher, Who Files for Personal Bankruptcy in the United States?, Center for Eco-
nomic Studies 17-54, September 2017, at https://www2.census.gov/ces/wp/ 2017/CES-WP-17-54.pdf (last viewed April 2, 2020).
2. Id.
3. See Statistical Trends: Veterans with a Service-Connected Disability, 1990 to 2018,, National Centerfor Veterans Analysis and Statistics, May 2019, at https://www.va.gov/vetdata/ docs/Quick-facts/SCD_trends_FINAL_2018.pdf (last viewed April 2, 2020); VA Annual Benefits Report 2018–Compensation, https://www.benefits.va.gov/REPORTS/abr/docs/2018- compensation.pdf (lastviewed April 2, 2020).
4. Pub. L. 116-52 (2019).
5. Pub. L. 109-8, 119 Stat. 23 (2005).
6. 11 U.S.C. § 101(10A) (2012).
7. 38 U.S.C. § 5301(a)(1) (2012).
8. In re Brah, 562 B.R. 922 (Bankr. E.D. Wis. 2017); In re Hedge, 394 B.R. 463 (Bankr. S.D. Ind. 2008);In re Waters, 384 B.R. 432 (Bankr. N.D. W. Va. 2008); In re Wyatt, 2008 WL 4572506 (Bankr. E.D.Va. 2008); In re Redmond, 2008 WL 1752133 (Bankr. S.D. Tex. 2008); see also Jay Bender, The Un-equal Treatment of Veterans and Veterans’ Disability Benefits under the Bankruptcy Code, NORTON
BANkRUPTCy LAW ADVISER, v. 2017, issue 6 (June 2017); Jay Bender, Elizabeth L. Gunn and John H.Thompson, Defending Our Veterans: Excluding Veterans’ Benefits from Current Monthly Income,XXXVII ABI JOURNAL 11, 12-13, 69, Nov. 2018.
9. 562 B.R. 922.
10. Id. at 925-26.
11. 11 U.S.C.A. § 101(10A)(B)((ii)(IV) (West 2020).
12. Jessica Hopton youngberg, HAVEN Act’s Amendment to CMI: Broadly Protecting MilitaryService-Related Disability and Death Benefits in Bankruptcy, XXXVIII ABI JOURNAL 11, 34-35,71, Nov. 2019.
13. In re Gresham, 2020 WL 1170712 (Bankr. E.D. Mich. March 10, 2020).
14. In re Price, 609 B.R. 475 (Bankr. N.D. Tex. 2019).
H H H M I L I T A R Y L A W I S S U E H H H
Jay R. BenderJay Bender is a partner in the creditors’ rights andbankruptcy practice group at Bradley Arant BoultCummings LLP, where he practices out of thefirm’s Birmingham and Houston offices. Jay is aFellow in the American College of Bankruptcy anda founding member of the American Bankruptcy
Institute’s Task Force on Veterans and Servicemember Affairs. In2019, he received the American Bankruptcy Institute’s inauguralService to Veterans Award for his work getting the HAVEN Actdrafted and passed by Congress.
Capt. Amy Q. GlenosCapt. Amy Glenos practices labor and employmentlaw with Ogletree, Deakins. She is a JAG Corps offi-cer in the Alabama Army National Guard and a mem-ber of the JAG Corps. She is assigned to the JointForces Headquarters in Montgomery and resides inBirmingham with her husband and two children.
Capt. John C. HensleyCapt. John Hensley is an assistant attorney generalfor the State of Alabama in the criminal trials divi-sion. He is also currently assigned to the Trial De-fense Services for the Alabama National Guard.
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H H H M I L I T A R Y L A W I S S U E H H H
The men and women of the Ala-bama National Guard Judge Advo-cate General’s Corps are morethan just lawyers; they are soldiersand airmen, officers and leaders,and advocates for the principles offreedom, liberty, and justice uponwhich our nation was founded.Each has their own reasons forserving, but they all possess a pro-nounced sense of duty and love ofcountry. They come from all walksof life and represent all geographicareas of the state; the TennesseeValley, the Wiregrass, the BlackBelt, and the Gulf Coast.As an organization, the military
has always required professional,competent legal counsel to fulfillits duty to the nation. In 1775, dur-ing the events that led to the birth
of our nation, Gen. George Washington established theArmy’s Judge Advocate General’sCorps. Then, the need for lawyersfocused on ensuring good orderand discipline in the ranks throughan efficient military-justice sys-tem. As the concept of interna-tional law as a means of regulatingarmed conflict took root in theearly-to-mid-20th century, militarylawyers began work in both pre-venting and prosecuting warcrimes. More recently, Article 82of the 1977 Additional Protocol Ito the Geneva Conventions of1949 established a requirement forall signatory nations to providelegal advisors for their armedforces for the purposes of ensuringcompliance with the laws of
CITIZEN-SOLDIER LAWYERS:The Lawyers of the Alabama National Guard
By Lt. Col. Thomas J. Skinner, IV
Alabama National Guard JAGs and paralegals
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armed conflict. Today, in addition to their militaryjustice and international law responsibilities, militarylawyers perform a wide range of legal services in-cluding contracts and fiscal policy, adherence to lawsprotecting United States citizens from surveillanceand military-intelligence operations, providing legalassistance to servicemembers, and resolving claimsagainst the government for damages caused by mili-tary exercises or operations.The purpose of this article is to introduce you to
members of the Alabama State Bar–your colleagues–who currently fulfill these important roles.
Capt. Lucas Beaty, 20th Special Forces Group(Airborne)–ArdmoreCapt. Lucas Beaty lives in
Limestone County where he hasa criminal defense and generallitigation practice. He opened hispractice in Athens in April 2011,shortly after his admission to thebar. Capt. Beaty is married toKasey, his best friend and mid-dle school sweetheart, withwhom he shares two daughters,Isabel and Reese. Capt. Beatyacknowledges that without the support of Kasey, “thereis no way I could have the experiences I’ve had.”Capt. Beaty graduated from Ardmore High School in
2000 and spent that summer working two jobs to payfor a trip to Australia as a member of a statewide foot-ball team. When his college football aspirations didnot come to fruition, he joined the Army. He enlistedas an M1A1 tank crewman–a “tanker”–on November2, 2000. Capt. Beaty recalls, “I originally joined up be-cause I wanted out of the house, I wanted to drive atank, and the college money was really good. It didn’thurt that my father and both grandfathers had served,as well.” After graduating basic training at Fort Knox,Kentucky, Capt. Beaty was assigned to Fort Benning,Georgia, where he learned he would be a crewman forhis battalion commander’s tank.
The September 11, 2001 terrorist attacks occurredduring his second year on active duty. Capt. Beaty’sbattalion had just returned from a month-long exer-cise when the terrorist attacks resulted in Fort Ben-ning’s being “locked down” for security reasons, andCapt. Beaty was unable to leave the base until Christ-mas 2001. In March 2002, Capt. Beaty deployed toKuwait in support of Operation Desert Spring, spend-ing the next several months driving his tank all overthe Kuwaiti Desert.Capt. Beaty’s two-year enlistment ended on No-
vember 1, 2002. After leaving the Army, he enteredAthens State University. After graduating fromAthens State, Capt. Beaty enrolled at the MississippiCollege School of Law, earning his J.D. in December2010. A few weeks later his first daughter was born,Capt. Beaty was admitted to the Alabama State Bar,and he spent the next four years building his practiceand supporting his family.In 2014, a colleague approached Capt. Beaty about
joining the Alabama Army National Guard JAGCorps. Capt. Beaty completed the application process,and in July 2015, at 33 years of age, Capt. Beaty re-ceived a direct commission as a first lieutenant in theAlabama Army National Guard. As a judge advocate,Capt. Beaty has served in the Trial Defense Service–the branch of the JAG Corps responsible for provid-ing legal defense for accused soldiers–and he nowserves as a battalion judge advocate within the 20th
Special Forces Group (Airborne). The latter assign-ment required Capt. Beaty to complete Army Air-borne School at the ripe age of 37! In 2018, Capt.Beaty was honored for his commitment and dedica-tion to military service by being named the ArmyCompany Grade Officer of the Year by the NationalGuard Association of Alabama.Capt. Beaty believes that “there is a difference in
‘why we join’ and ‘why we serve.’” He explains thatcollege money, medical insurance, retirement bene-fits, and military-installation privileges are some ofthe many perks of military membership (“why wejoin”), but that “the comraderies, friendships, andunique experiences are what keep me here.” As an ex-ample, Capt. Beaty noted that he “can go anywhere inthe State of Alabama and never be very far from an-other JAG officer. It truly is awesome to be part ofsuch a team.”
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Capt. Amy Glenos, Joint Forces Headquarters–BirminghamCapt. Amy Glenos is a native
of Birmingham, practicing laborand employment law with Ogle-tree, Deakins, Nash, Smoak &Stewart PC. She represents em-ployers in all phases of employ-ment-related disputes andlitigation, including defense ofclaims under Title VII, the AgeDiscrimination in Employment Act, the AmericansWith Disabilities Act, and the Family and MedicalLeave Act. She also represents schools and universitiesin the defense of claims under Title IX and Section1983. Her husband, Chris, is a partner at Bradley ArantBoult Cummings LLP, and they have two children,Christian and Sophia.Capt. Glenos joined the military to continue her
family’s tradition of uniformed service. Both of hergrandfathers fought during World War II, and her fa-ther retired from the Alabama Army National Guardas a major general. Capt. Glenos’s younger brotherand her nephew serve in the Alabama Army NationalGuard where her brother is a combat medic and hernephew is an infantryman and combat engineer. In ad-dition, her older brother served in the Alabama ArmyNational Guard as an infantryman and chaplain’s as-sistant. Capt. Glenos explains, “I wanted the chanceto continue my family’s legacy, to serve a bigger pur-pose and to support the soldiers who have fought forand continue to fight for our country.”In February 2016, Capt. Glenos accepted a direct
commission with the Alabama Army National Guard.Since commissioning, she has served primarily in therole of trial counsel–the Army equivalent of an assis-tant district attorney–and she was one of the lead at-torneys in Alabama’s 2018 mock courts-martialexercise, a nationally renowned training program.Military lawyers from across the country came to Alabama to watch Capt. Glenos and her fellow officers try the mock court-martial.
Capt. Glenos’s service has taken her outside of thecourtroom, too. In 2017, she trained with the GermanArmy and received the German military’s Mountain In-fantry Badge, which required a 20-mile rucksack march,rappelling, and mountain climbing. Capt. Glenos creditsthe military to making her a better, more well-roundedattorney, noting, “My time in the military has providedsome of the greatest opportunities of my life. The peopleare great–you make lifelong friends–and there has beena real benefit to my civilian practice. I was forced to findmy legs in the courtroom and to develop my trial advo-cacy skills.” Capt. Glenos finds value in the fact that theAlabama National Guard JAG Corps includes state andfederal judges, assistant United States attorneys, andskilled litigators from the private sector. Looking backon the last four years, Capt. Glenos observes, “The train-ing I have received has made me more comfortable onmy feet, and it has given me the confidence to take onincreasingly difficult assignments.”
Maj. Matthew Davis, 117th Aerial Refueling Wing–LeedsMaj. Matthew Davis is a bank-
ruptcy attorney who owns the Al-abama Bankruptcy Relief Center.He lives in Leeds with his wife,Kiley, with whom he shares fourchildren: Caleb, William, Karen,and Robert. Maj. Davis is a mem-ber of the Alabama Air NationalGuard, where he serves as DeputyStaff Judge Advocate for the 117th Air Refueling Wing(ARW). The 117th ARW provides worldwide aerial re-fueling, airlift, support, logistics, intelligence, and med-ical services in support of our state and nation. In 2019,the United States Strategic Command awarded the 117th
ARW the Omaha Trophy for their outstanding support ofthe United States’ strategic deterrence mission. The 117th
ARW was the first Air National Guard tanker unit to winthis prestigious award.As the 117thARW’s Deputy Staff Judge Advocate, Maj.
Davis provides legal advice to the wing commander and
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subordinate commanders on a wide range of legal issuesincluding military justice, civil affairs, support of disasterrelief operations, and other issues specific to the uniquemission of the Air National Guard. He also provides legalassistance to servicemembers, dependents, and retirees.Like many other members of the Alabama National
Guard, the events of September 11, 2001 weighedheavily on Maj. Davis. Immediately after the terroristattacks, Maj. Davis contacted a military recruiter. OnOctober 1, 2001, he raised his right hand and sworethe oath to support and defend the Constitution of theUnited States. Looking back after nearly 19 years ofservice, Davis realizes his decision literally took himto the other side of the world and back.Maj. Davis says that there are several similarities
between his military and civilian careers, both ofwhich he views as a calling. He believes that “the mil-itary isn’t for everyone, but those who find their placein it truly find work that matters to them, and they cansee the difference they make in people’s lives. Fromdelivering soccer balls to children in Afghanistan, toensuring that justice is applied fairly to servicemem-bers, to helping a World War II veteran with his lastwill and testament, there is meaning in what you do.It’s not easy, but it is rewarding.” Maj. Davis alsocredits the military with exposing him to many moreareas of the law than his civilian practice would haveallowed. In one month of active military service, Maj.Davis was a prosecutor, defense attorney, in-housecounsel, contract attorney, ethics counselor, will andestate planner, environmental attorney, military opera-tional lawyer, and judge.Maj. Davis enjoys the comradery of military serv-
ice. He explains that there is great comradery amongsoldiers, sailors, and airmen. “All the time I meet vet-erans who ask, ‘where are you stationed?’ or ‘wheredid you deploy?’ and who tell stories from their ownmilitary experience. The bonds you make with thepeople you meet while serving last a lifetime.”
Capt. John Hensley, Trial Defense Service–Montgomery
Capt. John Hensley was born inBirmingham and spent his child-hood in Hoover and Griffin,Georgia. He attended W.A. BerryHigh School for three years andwas a member of the first gradu-ating class of Hoover HighSchool. He met his wife, Christy,when the two worked togetherwaiting tables. She had just graduated from high school,and he was a sophomore in college.After graduating from Auburn University in 2000,
Capt. Hensley worked as a grants-and-contracts ac-countant at a university. Like many others, Capt.Hensley enlisted in the Army after September 11,2001, serving as a linguist/signals intelligence (SIG-INT) collector. He recounts, “Like many Americans atthe time, I felt a call to serve my country during oneof America’s darkest hours. It was an easy decisionfor me at the time, because I was swept up in the na-tional fervor to defend and support our country.”What is unique is that–other than Hensley’s maternalgrandfather, who served in the Army during WorldWar II–there was no military legacy in his family.Capt. Hensley attended basic training at Fort
Leonard Wood, Missouri with follow-on training atthe Defense Language Institute in California (wherehe studied Arabic); Goodfellow Air Force Base, Texas;Fort Huachuca, Arizona; and Army Airborne School atFort Benning, Georgia. Christy and John married twoweeks after his graduation from Army AirborneSchool, and the couple moved to Fort Bragg, NorthCarolina. In May 2005, Capt. Hensley deployed toeastern Afghanistan where he led a SIGINT-collectionteam on multiple missions along the easternAfghanistan border. He left active duty in December2006 with no intention of further military service.Capt. Hensley next attended Cumberland School of
Law and graduated in 2010. Upon being admitted tothe Alabama State Bar, he accepted a position as anassistant attorney general in the criminal trials divi-sion of the Alabama Attorney General’s Office. It wasin that division that Capt. Hensley met Maj. TernishaMiles-Jones, another assistant attorney general. Maj.Miles-Jones spoke regularly about her experiences asa judge advocate, which convinced Capt. Hensley tocontinue his military service.
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In June 2015, Capt. Hensley accepted a direct com-mission into the Alabama Army National Guard as ajudge advocate. He served three and a half years withthe Group Support Battalion, 20th Special Forces Group(Airborne). His duties ranged from advising the battal-ion commander on administrative investigations topreparing wills and powers of attorney for soldiers.Capt. Hensley now serves as a trial defense counsel,helping accused soldiers through difficult times in theirmilitary service. Hensley sums up his military experi-ence by saying, “While my family and I have made nu-merous sacrifices, the benefits I have gained frombeing in the Army have far outweighed them all.”
Maj. Ternisha Miles-Jones,Joint Forces Headquarters–TroyAs a high
school studentin rural Goshen,Alabama, Maj.Ternisha Miles-Jones spent twoyears in theJunior ReserveOfficer Train-ing Corps(JROTC). This experience taught her basic soldieringskills and developed a desire to serve a cause greaterthan herself. She fondly remembers a sign that hung inthe JROTC classroom which read, “If you always dowhat you have always done, you’ll always have whatyou’ve always had.” The words on that sign weremeant to inspire her class to do more, to be more, andto serve more. In her case, the sign worked.After graduating from law school and being admit-
ted to the bar, she commissioned into the AlabamaArmy National Guard as a first lieutenant. She recallsthat she did so for one reason, “to serve.” Militaryservice runs deep in her family. Her great-grandfatherserved in the United States Army, her father served inthe Alabama Army National Guard, and her uncleserved in the United States Navy. Maj. Miles-Jones,
however, is the first officer and the first lawyer in herfamily. Maj. Miles-Jones is “proud of my family’sservice. I am proud of those who have served beforeme. I am proud of those who serve with me. I amproud of those, like my 17-year-old nephew, who de-sire to serve in the future. The sacrifice of militaryservice makes the freedoms we all enjoy enduring.”Maj. Miles-Jones resides in Troy with her husband,
David, and their two children, Cobi and Ava. In hercivilian practice, Miles-Jones serves as an assistant dis-trict attorney for Pike and Coffee counties. She findsthe work in the DA’s office to be dynamic, complex,and rewarding. She views the prosecution of all cases,from traffic tickets to capital murder, as important tothe citizens in her jurisdiction, and believes that all ofher cases are an opportunity to serve her community.Maj. Miles-Jones states that the most rewarding part
of being a judge advocate is having the ability to fighton behalf of those who fight for our nation. Just as incivilian practice, when a service member comes to ajudge advocate with a legal issue, they need an atten-tive ear and prompt service. Each time a judge advo-cate assists a service member with their personal legalmatters, that judge advocate advances the militarymission, whether home or abroad.Maj. Miles-Jones’s military career has taken her
around the state and the world. Prior to her current as-signment with the Joint Forces Headquarters in Mont-gomery, she was assigned to the 226th ManeuverEnhancement Brigade (MEB) in Mobile as the com-mand judge advocate. During her time with the 226th
MEB she served in exotic places, such as Guan-tanamo Bay, Cuba, and eastern Europe. Maj. Miles-Jones does not speak much about her time atGuantanamo Bay because of the sensitive nature ofthat location and mission. Her 2015 mobilization toRomania, however, is a different story.Romania is the Alabama National Guard’s State
Partnership Program partner country. This program al-lowed Maj. Miles-Jones to travel to Romania to sup-port Operation Atlantic Resolve, a joint US/NATOtraining event. The multilateral operation was de-signed to build readiness and to increase interoperabil-ity between 16 partner nations. During this mission,Maj. Miles-Jones trained alongside members of Ro-mania’s defense forces, as well as other partner na-tions, and she built key, bond-enhancing relationships
H H H M I L I T A R Y L A W I S S U E H H H
Maj. Miles-Jones, second from left
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with members of allied forces. Maj. Miles-Jones isproud that, “As the judge advocate, I conducted legaloperations that were vital and necessary to the unit’smission within Atlantic Resolve.”
Capt. Erick Bussey, 226th
Maneuver EnhancementBrigade–MobileCapt. Frederick “Erick”
Bussey is an attorney with Kil-lion & Associates PC in Mobile.Capt. Bussey focuses primarilyon insurance defense litigation,and he maintains an active trialpractice. He enjoys being in thecourtroom, especially in jurytrials. Capt. Bussey resides inBaldwin County with his wife,DeLacy, and his newborn son, Lan. He comes from afamily with a history of service in the legal profes-sion, with six family members currently in the Ala-bama State Bar, and his father-in-law, the late ThomasP. “Corky” Ollinger, Jr., a previous member.Originally from Cullman, Bussey first learned “ser-
vice to others” from his father, a volunteer fire fighterfor the small Johnson’s Crossing community. Capt.Bussey received his undergraduate degree from AuburnUniversity and his law degree from the Thomas GoodeJones School of Law in 2007. Wanting to follow in thefootsteps of family members who had served in the mil-itary, Capt. Bussey accepted a direct commission as ajudge advocate in the Alabama Army National Guard.Capt. Bussey’s military service began with basic of-
ficer courses at Fort Benning, Georgia and the UnitedStates Army Judge Advocate General’s School atCharlottesville, Virginia. Afterwards, Bussey was as-signed to the 167th Theater Sustainment Command(TSC) at Fort McClellan in Anniston. While at the167th TSC, Bussey served as the lead defense counselduring the 2018 mock courts-martial training exercise,opposite Capt. Amy Glenos and Maj. Jason Britt.Capt. Bussey serves as trial counsel for the 226th
Maneuver Enhancement Brigade, which is based at
historic Fort Whiting in Mobile. His duties includethe responsibility for military justice matters in thebrigade, in addition to providing counsel to thebrigade commander, command staff, and subordinatecommanders on matters involving financial, adminis-trative, and operational law issues. Capt. Bussey alsoprovides legal assistance to soldiers, airmen, and mili-tary retirees in the Mobile area.What many of his colleagues in Mobile County may
not realize is that Capt. Bussey is also responsible forproviding legal advice to the commander of TaskForce Tarpon, the Alabama National Guard task forceresponsible for hurricane-response operations. Capt.Bussey is proud to be part of the team responsible forensuring the safety of his family, friends, and neigh-bors in the event a hurricane impacts Alabama’s GulfCoast. “When most everyone is evacuating, I get tostay and work with the first responders to assist thecitizens of our state, protect their property, and ensurethat law and order are maintained in affected areas.”
ConclusionThese men and women are a representative cross-
section of the Alabama National Guard Judge Advo-cate General’s Corps. They represent and serve thethousands of soldiers and airmen who wear civilianattire during the week and a military uniform on theweekend. In addition to being members of our proudprofession, they are patriotic citizens of the state whoput others before themselves, seeking out additionalways to serve our country. s
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Lt. Col. Thomas J. Skinner, IVLt. Col. Thomas Skinner is the Command JudgeAdvocate of the 31st CBRN Brigade of the Ala-bama Army National Guard. He is a graduate of theUniversity of Alabama and Cumberland School ofLaw. He has his own practice with offices in Birm-ingham and Valley Head.
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Overview of State and Local GovernmentPowers during the Covid-19 Pandemic
By Phillip D. Corley, Jr., April B. Danielson, and Gabe M. Tucker
as governmental entities of all levelshave issued both guidance and di-rectives in response to the pan-demic. As more medical research isconducted and information is dis-persed through news organizations,citizens may find that it is difficultto determine how to navigate theever-changing restrictions andguidelines issued by the governmentat all levels. Some residents havenot left their homes, while othershave continued with their daily livesas best as possible. One thing isclear–the COVID-19 virus and thechanges it brought came quickly.Many states, including Alabama,
are in the stage of re-opening. Re-opening brings with it many chal-lenges and questions, specifically inregard to state and local government
powers. The constitutionality ofquarantines and stay-at-home ordershas been questioned. Cities that arecoronavirus hot-spots in states thatare re-opening worry what the num-bers will look like a month fromnow. People have lost jobs, are un-able to see family members, and arenow required to wear masks in cer-tain areas. Those who live alone areliving in isolation, and those whohave children need a break. Howmuch longer is this way of livingsustainable? Even more so, is all ofthis constitutional? This article willdetail the actions taken by the fed-eral government and the State of Al-abama in response to the COVID-19pandemic and discuss the constitu-tionality of state and municipal re-sponse measures, enforcement ofthese measures, and liability issuesfor Alabama municipalities, busi-ness owners, and employers.
State and local governmental powers have been asignificant focus during the COVID-19 pandemic
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Overview of COVID-19 Timeline and Emergency OrdersThe following is an overview of the response of both the federal government and the
State of Alabama to the COVID-19 pandemic.
fEdEraL COVID-19 Response Timeline
Jan. 30: Centers for Disease Control and Prevention (CDC)identifies person-to-person transmission in US
President Trump (POTUS) establishes COVID-19 task force
Jan. 31: Department of Health and Human Services (DHHS) declares a public health emergency
Announcement of travel restrictions from China
feb. 6: First U.S. death related to COVID-19
mar. 6: POTUS signs COVID-19 bill providing $8.3B for crisis response
mar. 11: POTUS addresses the nation
Announcement of travel restrictions from Europe
mar. 13: POTUS declares COVID-19 a national emergency
mar. 16: White House announces “15 Days to Slow the Spread,” implementing social distancing at all levels of society
mar. 17: All 50 states have confirmed COVID-19 cases
mar. 18: POTUS signs Family First Coronavirus Response Act providing$3.5B in emergency funding for employment-related protections and ben-
efits, health programs and insurance coverage requirements, and tax credits
mar. 19: POTUS invokes the Defense Production Act
mar. 27: POTUS signs Coronavirus Aid, Relief, and Economic Security Act providing $2T for families and small businesses
mar. 28: POTUS invokes the Defense Production Act, requiring GM to make ventilators
mar. 29: POTUS extends social distancing guidelines through Apr. 30
apr. 9: Federal Reserve announces options to provide up to $2.3T in loans to support the economy
apr. 11: Major disaster declarations have been issued in all 50 states for the first time in U.S. history
apr. 16: POTUS announces guidelines on the three phases of “Opening Up American Again”
apr. 24: POTUS signs Paycheck Protection Program and Health Care Enhancement Act
apr. 28: U.S. passes 1M confirmed COVID-19 cases
POTUS invokes the Defense Production Act to ensure Americans have a reliable supply of meat products
may 8: Bureau of Labor Statistics reports the U.S. jobless rate reached14.7 percent in April, the highest level since the Great Depression
sTaTE Of aLaBamaCOVID-19 Response Timeline
mar. 13: Gov. Ivey declares a state public health emergency
mar. 17: State Health Officer (SHO) suspends public gatherings of 25people or more in Blount, Saint Clair, Shelby, Tuscaloosa, and Walker counties
mar. 18: Gov. Ivey requires the closure of all k-12 public schools
mar. 19: SHO suspends public gatherings of 25 people or more statewide
Closes schools and beaches; prohibits visitation at hospitals and nursinghome/long-term care facilities; delays elective procedures; prohibits on-premises consumption of food or drink at all restaurants, bars, and breweries
mar. 23: Gov. Ivey postpones certain state tax obligations
mar. 27: SHO closes non-essential businesses
apr. 3: SHO issues Stay at Home Order
Prohibits non-work-related gatherings of 10 people or more
Gov. Ivey orders protection against residential evictions and foreclosures
apr. 28: SHO issues Safer at Home Order
Non-work-related gatherings of 10 persons or more remain prohibited;several businesses and offices, including retail, are allowed to re-opensubject to restrictions; restaurants, bars, and breweries remain limited tono on-premises consumption; higher-risk business and activities remainclosed (entertainment venues, athletic facilities, close-contact serviceproviders); schools remain closed; elective procedures may proceed
may 8: Gov. Ivey extends State of Emergency
SHO amends Safer at Home Order
Re-opens most businesses and activities subject to restrictions, includ-ing close-contact service providers and gyms; restaurants, bars, andbreweries allowed to offer on-premises consumption; certain higher-risk businesses and activities remain closed (entertainment venues,athletic activities that involve interaction with another person)
Gov. Ivey provides liability protections related to COVID-19 for businessesand health care providers T
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www.alabar.org 297Additional COVID-19-related emergency actions taken in the future by Alabama state
agencies may be found at https://alabamapublichealth.gov/legal/orders.html.
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Constitutionality ofStates ImplementingStay-at-Home OrdersIndividual states possess the
power to establish and enforce lawsto protect the public health, safety,and general welfare. This power,known as the state police power,comes from the Tenth Amendmentto the Constitution which grantsstates the “powers not delegated tothe United States.”1 Nearly 200years ago, in 1824, Chief JusticeJohn Marshall in Gibbons v. Ogdendescribed state police powers asthose “which embrace[] everythingwithin the territory of a State, notsurrendered to the general govern-ment[,] all which can be most ad-vantageously exercised by the Statesthemselves.”2 Chief Justice Marshallthen listed examples of these lawsexercisable by the states, and amongthem are, yes, “quarantine laws” and“health laws of every description.”3
Several decades later, in 1905, theUnited States Supreme Court de-cided Jacobson v. Commonwealthof Massachusetts.4 During the rele-vant time period of this case, thecountry was experiencing a healthemergency similar to COVID-19,but with smallpox. The law at issuewas a statute passed by Massachu-setts that allowed cities or towns torequire that all residents be vacci-nated if “necessary for the publichealth or safety.”5 Under the author-ity granted by the statute, the Cityof Cambridge adopted a regulationrequiring all of its inhabitants to bevaccinated to prevent the spread ofsmallpox.6 Jacobson refused thevaccination, Cambridge prosecutedhim, and a jury found him guilty.7
Jacobson appealed his conviction
and the case made it to the UnitedStates Supreme Court.The question to be addressed on
appeal was whether Cambridge’svaccination law violated Jacob-son’s Fourteenth Amendment rightto liberty. The Court, with a 7-2majority, held that the law did notviolate Jacobson’s right, becausethe states possess the policepower, which “must be held toembrace, at least, such reasonableregulations established directly bylegislative enactment as will pro-tect the public health and publicsafety.”8 The Court made severalassertions and conclusions that aredirectly applicable to the COVID-19 pandemic today, such as:
• “[T]he liberty secured by theConstitution of the UnitedStates to every person withinits jurisdiction does not importan absolute right in each per-son to be, at all times and in allcircumstances, wholly freedfrom restraint.”9
• “Even liberty itself, the greatestof all rights, is not unrestricted
license to act according to one’swill. It is only freedom from re-straint under conditions essen-tial to the equal enjoyment ofthe same right by others.”10
• “Upon the principle of self-de-fense, of paramount necessity, acommunity has the right to pro-tect itself against an epidemicof disease which threatens thesafety of its members.”11
• “[I]t is equally true that in everywell-ordered society chargedwith the duty of conserving thesafety of its members the rightsof the individual in respect ofhis liberty may at times, underthe pressure of great dangers, besubjected to such restraint, to beenforced by reasonable regula-tions, as the safety of the gen-eral public may demand.”12
Ultimately, the Court held that toprevent the spread of an infectiousdisease, a state may use its policepower to enact reasonable regula-tions in order to protect the publichealth and safety. Of course, regu-lations of this nature cannot be ar-bitrary, unusual, or unreasonable.13
As further explained by the Jacob-son Court, regulations that are in-tended to prevent the spread of aninfectious disease should be basedon the recommendations of aboard of health.14
What does this mean today?As the United States Supreme
Court held in Gibbons, implement-ing and enforcing quarantine lawsare well within a state’s policepower.15 This means that the shelter-in-place and stay-at-home ordersimplemented by states thus far in re-sponse to COVID-19 are mostlikely constitutional. And becausethe police power also includes thepower to pass “health laws of everydescription,” many of the other
Individual statespossess the powerto establish andenforce laws to
protect the public health,safety, and
general welfare.
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COVID-19 related regulations im-plemented thus far are most likelyconstitutional as well.16 This conclu-sion is supported by the holding inJacobson, where the Court appliedthe Gibbons principles to a healthemergency similar to what we arecurrently experiencing. If requiringvaccination is a constitutional meas-ure which can be justified via theprotection of the public health andsafety, then measures requiring peo-ple to stay at home, closing non-es-sential businesses, and restrictingtravel are likely permissible as well.This is especially true because thereis no vaccine for COVID-19 yet,and the only known way to preventits spread is through limiting contactwith other people. Additionally, acourt would be unlikely to find thepresent regulations to be arbitrary,unusual, or unreasonable, becausehealth boards across the UnitedStates, and across the world, haverecommended such regulations toprotect the public health and safety.To address the somewhat contro-
versial mask-wearing guidelines andrequirements, it is necessary to ana-lyze the differences and similaritiesbetween a vaccination and wearinga mask. A vaccination is a compara-tively invasive procedure to limitthe spread of disease. Vaccinationsrequire antigens to be injected intothe body so the immune system canproduce antibodies to protect fromlater exposure to viruses orbacteria.17 A mask, on the otherhand, is an item of clothing that cov-ers one’s mouth and nose. A maskdoes not require anything to be in-jected into a person, nor does it alteranything in a person’s body. Sincethe Court in Jacobson found that avaccination requirement did not vio-late a person’s right to liberty, then itwould likely find that governmentssuggesting or mandating that peoplewear masks to prevent the spread of
COVID-19 do not violate the rightto liberty either.18
Municipal Government PowerTo ImplementCOVID-19 ResponseMeasuresNot only are there questions sur-
rounding a state’s power to issuestay-at-home orders, but there arealso questions regarding the powerthat municipal governments possessto implement preventative responsemeasures that are different from astate’s orders. There are two generalapproaches to municipal governanceand autonomy. The first, referred toas “Dillon Rule,” holds that localgovernment power is derived fromthe state, and that a local govern-ment’s authority is therefore limitedto what is delegated by the state.19
The second approach, known as“Home Rule,” stands for the propo-sition that local governments enjoyat least some inherent rights that arefree from the threat of state interfer-ence.20 If a state adopts Home Rule,whether through a constitutionalamendment or legislative act, localgovernments may pass ordinanceswithout approval from the state leg-islature.21 A majority of states haveadopted some form of Home Rule,though each state varies in the coun-ties, cities, and towns it applies to.22
alabama’s approachAlabama applies the Dillon Rule
in analyzing the power of a city ortown to exercise a particularpower.23 Alabama grants specificpowers to municipal governmentseither expressly through its constitu-tion or through statutes or acts
passed by the Alabama State Legis-lature. This principle was discussedlong ago in an opinion of the Ala-bama Supreme Court in the case ofCity of Mobile v. Moogwherein Jus-tice Manning quotes Judge Dillon’sTHE LAW OF MUNICIPAL CORPORA-TIONS: “It is a general rule, andundisputed proposition of law, that amunicipal corporation possesses andcan exercise the following powersand no others: first, those granted inexpress words; second, those neces-sarily or fairly implied in, or inci-dent to the powers expresslygranted; third, those essential to thedeclared objects and purposes of thecorporation–not simply convenient,but indispensable.”24 Incidental orimplied powers must be akin to themunicipal purpose.25 Despite Al-abama’s granting no general powersto municipalities, the Alabama
Constitution delegates specific pow-ers to municipal corporations, whichinclude cities and towns. Section 89of the Alabama Constitution pro-hibits municipalities from passing“any laws inconsistent with the gen-eral laws of this state.”26
municipal Power to issuestay-at-Home Orders andOther measuresSection 11-47-131 of the Alabama
Code gives cities and towns thepower to establish and regulatequarantines, such as stay-at-homeorders, as long as the quarantine is“not inconsistent with laws of thestate.”27 Under this statute, cities andtowns have the power to “preventthe introduction of contagious, in-fectious, or pestilential diseases,”implement a quarantine punishableby law, and adopt ordinances andregulations deemed “necessary toinsure good sanitary condition inpublic places or in private prem-ises.”28 The powers set forth in thisstatute are considered “police pow-ers” of a municipality to protect thepublic’s health, safety, and welfare.29
This “umbrella” of police powers isset forth in Alabama Code §11-45-1which states: “Municipal corpora-tions may from time to time adoptordinances and resolutions not in-consistent with the laws of the stateto carry into effect or discharge thepowers and duties conferred by theapplicable provisions of this titleand any other applicable provisionsof law and to provide for the safety,preserve the health, promote theprosperity, and improve the morals,order, comfort, and convenience ofthe inhabitants of the municipality,and may enforce obedience to suchordinances.”30
Additionally, Section 22-12-12gives cities and towns the author-ity to issue a quarantine order sep-arate from the state.31 This statute
conditions a quarantine proclama-tion upon the recommendation ofthe county board of health and sub-ject to the approval of the StateBoard of Health, but in emergencysituations, the mayor or chief exec-utive officer of incorporated citiesand towns may proclaim a quaran-tine without the recommendationof the county board of health andthe approval of the State Board ofHealth, provided that the quaran-tine is subject to “approval, modi-fication or withdrawal by the boardof health of the county.”32
In the wake of the currentCOVID-19 pandemic, Alabama’sattorney general has provided sup-plementary guidance on this topicfor municipalities. The guidance is-sued on March 25, 2020 states, “[a]municipal ordinance proclaiming aquarantine that is more restrictive
than a regulation or order by theState Board of Health is likely not‘inconsistent’ or ‘in conflict with’the laws of the state.”33 Subsequentguidance, issued on April 8, 2020,affirmed this position.34
In both statements made by theattorney general, he urged munici-palities to “recite the specific cir-cumstances that make morerestrictive measures than similarState orders necessary,” limit theduration of the restrictive meas-ures, and reevaluate periodicallywith updated information.35 Healso advised local governments “tocoordinate with their countyboards of health, where applicable,and the state health officer to en-sure that the municipal action inquestion will be supported by, andis not inconsistent or in conflictwith, current or impending stateactions related to quarantine.”36
Law EnforcementAnd COVID-19 Response MeasuresWith many states and cities im-
plementing stay-at-home orders,travel restrictions, and mask-wear-ing requirements, the next questionis, how will these measures be en-forced by law enforcement? Mostof the regulations seen around thecountry provide for fines or short-term imprisonment (or both) forthose who violate them.37 Instead oftraditional penalties, some stateshave provided for sanctions fornon-compliant businesses.38 For ex-ample, businesses that do not com-ply with Pennsylvania’s laws risklosing eligibility for disaster relieffunding and other loan or grantfunding, and businesses in the Dis-trict of Columbia and New Mexicorisk losing their business licenses.39
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With many statesand cities imple-menting stay-at-home orders,
travel restrictions,and mask-wearingrequirements, thenext question is,how will thesemeasures be
enforced by lawenforcement?
Likewise, the City of Los Angelesthreatened to shut off utility serv-ices to non-essential businesses thatrefused to close.40 There is a push toeducate and persuade the public toadhere to the COVID-19 ordersrather than immediately use thecriminal justice enforcementprocess.41 This seems to be Al-abama’s approach, as the attorneygeneral issued guidance for law en-forcement to restrain from crimi-nally enforcing the governor’sorders unless “a violator has beenmade aware of the state health orderand the refusal to comply presents athreat to public health and safety.”42
Even though Alabama is no longerunder a stay-at-home order, thereare still restrictions on people keep-ing a six-foot distance between eachother and entertainment businessesremaining closed. As a result, thereremain possibilities of people andbusinesses facing criminal conse-quences for violating current orders.
Liability Issues for Municipalities,Business Owners,And EmployersOn May 8, 2020, Governor Ivey
issued a proclamation providing lia-bility protections related toCOVID-19.43 The proclamation af-fords protections from certain liabil-ities, limitations on damages, and astandard of care for negligenceclaims arising before the issuanceof the proclamation. The protec-tions apply to “businesses, healthcare providers, and other coveredentities,” which are defined as:
[A]n individual, partnership,association, corporation, healthcare provider, other businessentity or organization, or any
agency or instrumentality ofthe State of Alabama, includ-ing any university or public in-stitution of higher education inthe State of Alabama, whetherany such individual or entity isfor profit or not for profit, in-cluding its directors, officers,trustees, managers, members,employees, volunteers, andagents.44
For liability protections, theproclamation states that there willbe no liability for the death or injuryto people, or for damage to property,from an act or omission related to orin connection with COVID-19, un-less the claimant can show, by clearand convincing evidence, that therewas wanton, reckless, willful, or in-tentional misconduct.45
For limitations on damages, theproclamation states that if liabilitycan be established under the newliability protections, but there is noserious physical injury, then dam-ages are limited to those that areactual economic compensatorydamages. The proclamation fur-ther provides that there will be noliability for non-economic or puni-tive damages, unless a party as-serts a wrongful death claim, inwhich case the plaintiff is entitledonly to punitive damages.46
For causes of action related toCOVID-19 that occurred beforethe May 8 proclamation, and if acourt holds that the liability protec-tions and limitations on damagesdo not apply, then there are stillprotections. The proclamationstates that there will be no liabilityfor negligence, premises liability,or any non-wanton, non-willful, ornon-intentional civil causes of ac-tion related to COVID-19, unlessthe claimant can show, by clearand convincing evidence, that thealleged at-fault party “did not rea-sonably attempt to comply with thethen applicable public health guid-ance.”47 Additionally, there will beno liability for damages from men-tal anguish or emotional distress,or for punitive damages; however,for causes of action that do not in-volve serious physical injury, therestill may be liability for economiccompensatory damages.48 Finally,the proclamation states that onlypunitive damages may be awardedfor wrongful death claims.49
In summary, the COVID-19 pan-demic has created unique challengesfor government. Governmental enti-ties of all levels have issued bothguidance and directives in responseto the pandemic that have restrictedindividual liberties. However, theright to individual liberties is not ab-solute. Based upon the support
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Even though Alabama is nolonger under astay-at-homeorder, there are
still restrictions onpeople keeping asix-foot distancebetween each
other and entertainment businesses
remaining closed.
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presented in this article, it is clearthat a state may use its policepower to prevent the spread of aninfectious disease by enacting rea-sonable regulations to protect thepublic’s health and safety. Like-wise, Alabama municipalities mayalso use their police powers andthe specific powers given to themby the Alabama Legislature to pro-tect their residents’ health, safety,and welfare. s
Endnotes1. U.S. CONST. amend. X.
2. Gibbons v. Ogden, 22 U.S. 1, 203 (1824).
3. Id.
4. Jacobson v. Commonwealth of Massachusetts, 197 U.S.11 (1905).
5. Id. at 12.
6. Id. at 12–13.
7. Id. at 13–14.
8. Id. at 25.
9. Id. at 26.
10. Jacobson, 197 U.S. at 26–27.
11. Id. at 27.
12. Id. at 29.
13. Id. at 27.
14. Id.
15. Gibbons, 22 U.S. at 203.
16. Id.
17. Understanding How Vaccines Work, CENTER FOR DISEASE
CONTROL AND PREVENTION (last updated July 2018),https://www.cdc.gov/vaccines/hcp/conversations/downloads/vacsafe-understand-color-office.pdf.
18. As an aside, private businesses are also allowed to re-quire certain sanitation standards for customers be-cause they are on private property. Just as a privatebusiness can require customers to wear shirts and shoesfor service, a private business may require mask-wear-ing or check customers’ temperatures. The requirementsmust apply to every person equally, though, as issueswould begin to arise if a business required masks ortemperature screenings based on specific demograph-ics, such as age, race, or place of residence.
19. Hon. Jon D. Russell & Aaron Bostrom, Federalism, DillonRule and Home Rule, AMERICAN CITy COUNTy EXCHANGE (Jan.2016), https://www.alec.org/app/uploads/2016/01/2016-ACCE-White-Paper-Dillon-House-Rule-Final.pdf.
20. Id.
21. Id.
22. Id.
23. See New Decatur v. Berry, 7 So. 838 (Ala. 1890); Best v.Birmingham, 79 So. 113 (Ala. 1918).
24. City of Mobile v. Moog, 53 Ala. 561 (1875) (quoting JOHN
FORREST DILLON, THE LAW OF MUNICIPAL CORPORATIONS § 55 (2d.ed. 1873).
25. Best, 79 So. at 116.
26. AL. CONST. art. IV, § 89.
27. ALA. CODE § 11-47-131(2).
28. ALA. CODE § 11-47-131(1)–(3).
29. State of Alabama Office of the Attorney General, Guid-ance for Municipalities on Shelter-in-Place Orders/Quarantine (Mar. 25, 2020), https://www.alabamaag.gov/Documents/files/2020-03-26-Shelter-in-place-Orders.pdf.
30. ALA. CODE § 11-45-1.
31. ALA. CODE § 22-12-12. For an incorporated city or town,the power may be exercised by the mayor. Id.
32. Id.
33. Guidance for Municipalities on Shelter-in-Place Or-ders/Quarantine, supra note 29.
34. See State of Alabama Office of the Attorney General,Guidance for Municipalities on Use of Power duringState of Emergency (Apr. 8, 2020), https://www.alabamaag.gov/Documents/files/StayAtHomeGuidance.pdf.
35. Id.
36. Guidance for Municipalities on Shelter-in-Place Orders/Quarantine, supra note 29.
37. kelly Currie and Tyler Brown, COVID-19 Stay-at-Homeand Traveler Quarantine Orders Pose Enforcement Chal-lenges for Local Officials, AMERICAN CITy & COUNTy (Apr. 22,2020), https://www.americancityandcounty.com/2020/04/22/covid-19-stay-at-home-and-traveler-quarantine-orders-pose-enforcement-challenges-for-local-officials/.
38. Id.
39. Id.
40. Id.
41. Betsy Pearl, et al., The Enforcement of COVID-19 Stay-at-Home Orders, CENTER FOR AMERICAN PROGRESS (Apr. 2, 2020),https://www.americanprogress.org/issues/criminal-justice/news/2020/04/02/482558/enforcement-covid-19-stay-home-orders/.
42. State of Alabama Office of the Attorney General, Guid-ance for Law Enforcement on Enforcement of StateHealth Order (last updated Mar. 27, 2020), https://www.alabamaag.gov/Documents/files/03-27-2020-GuidanceEnforcementStateHealthOrder.pdf.
43. State of Alabama, proclamation by the governor (May8, 2020), https://governor.alabama.gov/newsroom/2020/05/eighth-supplemental-state-of-emergency-coronavirus-covid-19/.
44. Id. Questions have arisen as to whether a municipalityis an instrumentality of the State of Alabama. However,the recent Alabama Supreme Court decision in the caseof State of Alabama v. City of Birmingham, et al., involv-ing a Civil War monument in Linn Park clearly affirmsthat a municipality is an instrumentality of the statethrough the following statements. “Any discussion ofthis issue must begin with the well settled principlethat “[m]unicipalities are but subordinate departmentsof state government.” Alexander v. State ex rel. Carver,274 Ala. 441, 443, 150 So. 2d 204, 206 (1963) (citing Exparte Rowe, 4 Ala. App. 254, 59 So. 69 (1912)). As “mereinstrumentalities of the state,” municipalities possess“only such powers as may have been delegated to themby the legislature.” City of Leeds v. Town of Moody, 294Ala. 496, 501, 319 So. 2d 242, 246 (1975) (citing Stateex rel. Britton v. Harris, 259 Ala. 368, 371, 67 So. 2d 26,
28 (1953)). See also Winter v. Cain, 279 Ala. 481, 487,187 So. 2d 237, 242 (1966) (“‘A municipal corporation isbut a creature of the State, existing under and by virtueof authority and power granted by the State.’” (quotingHurvich v. City of Birmingham, 35 Ala. App. 341, 343, 46So. 2d 577, 579 (1950))); and Alexander, 274 Ala. at443, 150 So. 2d at 206 (“Counties and cities are politicalsubdivisions of the state, each created by sovereignpower in accordance with sovereign will, and each exer-cising such power, and only such power, as is conferredupon it by law.” (citing Trailway Oil Co. v. City of Mobile,271 Ala. 218, 122 So. 2d 757 (1960)).” State of Alabamav. City of Birmingham, et al., No. 1180342, 2019 WL6337424 (Ala. Nov. 27, 2019).
45. Id.
46. Id.
47. Id.
48. Id.
49. State of Alabama, proclamation by the governor (May8, 2020), https://governor.alabama.gov/newsroom/2020/05/eighth-supplemental-state-of-emergency-coronavirus-covid-19/.
Phillip D. Corley, Jr.Phillip Corley is a memberof Wallace Jordan Ratliff &Brandt LLC in Birming-ham. He serves as city attor-ney for Hoover.
April B. DanielsonApril Danielson is a memberof Wallace Jordan Ratliff &Brandt LLC in Birminghamand serves as assistant cityattorney for Hoover.
Gabe M. TuckerGabe Tucker is a third-yearlaw student at CumberlandSchool of Law.
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Few sections of our 1901 constitution are more confusing or difficult to parse outthan section 125 that sets out the framework for what happens to legislation once itis transmitted from the legislative to executive branches of our government. everyyear i read it several times each session and second-guess myself regarding what ithought i knew and having to re-work the various options and time frames. i havecreated charts, graphs, diagrams, decision trees, sketches, and memos, and yet i amstill never confident about how it all works until i go back to the text itself and workback through it in a way that reminds me of fourth-grade sentence-diagraming exer-cises. This year, as i write this in the break between our penultimate and final legisla-tive days, it is no different.
section 125 in all its glory has never been amended. it lays out how a bill can be-come a law without the governor’s signature or with it, how a veto can be exercised,how the governor can propose an executive amendment, what the legislature’s op-tions are when an executive amendment is offered, and how and when the pocketveto comes into play. The “line-item veto” is established by section 126, and we willcome back to that later. section 125 provides:
every bill which shall have passed both houses of the legislature, except as oth-erwise provided in this constitution, shall be presented to the governor; if he ap-proves, he shall sign it; but if not, he shall return it with his objections to thehouse in which it originated, which shall enter the objections at large upon thejournal and proceed to reconsider it. if the governor’s message proposes noamendment which would remove his objections to the bill, the house in which
L e g i s L a T i V e W r a P - U P
Othni J. LathramDirector, Legislative Services Agency
For more information, visit www.lsa.alabama.gov.
it Passed–Now What are thegovernor’s options?
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the bill originated may proceed to reconsider it, and if amajority of the whole number elected to that house votefor the passage of the bill, it shall be sent to the otherhouse, which shall in like manner reconsider, and if a ma-jority of the whole number elected to that house vote forthe passage of the bill, the same shall become a law,notwithstanding the governor’s veto. if the governor’smessage proposes amendment, which would remove hisobjections, the house to which it is sent may so amendthe bill and send it with the governor’s message to theother house, which may adopt, but cannot amend, saidamendment; and both houses concurring in the amend-ment, the bill shall again be sent to the governor andacted on by him as other bills. if the house to which thebill is returned refuses to make such amendment, it shallproceed to reconsider it; and if a majority of the wholenumber elected to that house shall vote for the passageof the bill, it shall be sent with the objections to the otherhouse, by which it shall likewise be reconsidered, and ifapproved by a majority of the whole number elected tothat house, it shall become a law. if the house to whichthe bill is returned makes the amendment, and the otherhouse declines to pass the same, that house shall pro-ceed to reconsider it, as though the bill had originatedtherein, and such proceedings shall be taken thereon asabove provided. in every such case the vote of bothhouses shall be determined by yeas and nays, and thenames of the members voting for or against the bill shallbe entered upon the journals of each house, respectively.if any bill shall not be returned by the governor within sixdays, sunday excepted, after it shall have been presented,the same shall become a law in like manner as if he hadsigned it, unless the legislature, by its adjournment, pre-vent the return, in which case it shall not be a law; butwhen return is prevented by recess, such bill must be re-turned to the house in which it originated within twodays after the reassembling, otherwise it shall become alaw, but bills presented to the governor within five daysbefore the final adjournment of the legislature may beapproved by the governor at any time within ten daysafter such adjournment, and if approved and depositedwith the secretary of state within that time shall becomelaw. every vote, order, or resolution to which concurrenceof both houses may be necessary, except on questions ofadjournment and the bringing on of elections by the twohouses, and amending this constitution, shall be pre-sented to the governor, and, before the same shall takeeffect, be approved by him; or, being disapproved, shallbe repassed by both houses according to the rules andlimitations prescribed in the case of a bill.
so now that you have read the text, let’s walk through theoptions.
signing of Billsduring the majority of the session, the governor must sign a
bill within six calendar days, sundays excepted (seven calendardays). if the governor fails to sign a bill or return it to the legis-lature in that period, the bill becomes law without the gover-nor’s signature. This time is extended if the governor isprevented from returning a bill to the legislature because of arecess until the second day of the legislature’s return. Thischanges for bills “presented to the governor within five daysbefore final adjournment of the legislature.” These bills must besigned by the governor within 10 days after final adjournment(also known as adjournment sine die) or otherwise the bills be-come pocket vetoed.
Passage without governor’s signatureWhenever the governor fails to return a bill to the house in
which it originated within six calendar days after it is pre-sented to her, sundays excepted, it becomes a law withouther signature, unless the return was prevented by recess oradjournment. in that case, the bill must be returned withintwo days after the legislature assembles, or the bill becomeslaw without the governor’s signature. but, when the gover-nor is unable to return a bill on the sixth calendar day afterpresentation because the originating body is not in session,she must return it on the next legislative day if it is the lastday on which the legislature can meet.1 In re Opinion of theJustices No. 104, 52 ala. 541, 42 so. 2d 27 (ala. 1949).
veto and Overrideif the governor objects to a bill, she may veto it, in which
case she must return it to the house in which it originated,with a message explaining her objections. if the house towhich the bill is returned so chooses, it may override the gov-ernor’s veto by a simple majority vote and transmit the bill tothe second house to consider the same. alabama is one ofonly six states where the required threshold to override a vetois a mere majority.2 This low threshold is particularly strikingsince it would have taken a three-fifths vote of those presentand voting to have considered the bill in the first instance if itwas passed prior to the passage of both budgets.3
Executive amendmentin the alternative to exercising her veto right, the governor
may suggest amendments that will remove her objections, ifsuch amendments are possible. The bill is then reconsidered,and if a majority of the members elected to each house
L e g i s L a T i V e W r a P - U P
(Continued from page 303)
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who takes careof yOU?
You take care of your clients… but
For information on the alabama Lawyerassistance Program’s
free and Confidential services, call
(334) 224-6920.
agree to the executive amendments, it is returned to thegovernor for her signature. in the event the amendment isnot acceptable, the transmission converts to a veto and itmay be overridden as outlined above.
Pocket vetobills that reach the governor less than five days before the
end of the session must be approved by her within 10 daysafter adjournment. bills that are not approved within thattime do not become law and are said to be “pocket vetoed.”in essence, during this time period the presumption of thegovernor taking no action flips from becoming law withouther signature to being vetoed.
Line-item vetoin alabama, the governor has the power to approve or dis-
approve any item or items of an appropriation bill withoutvetoing the entire bill. This power is covered by section 126:
The governor shall have power to approve or disap-prove any item or items of any appropriation bill em-bracing distinct items, and the part or the parts of thebill approved shall be the law, and the item or items dis-approved shall be void, unless repassed according tothe rules and limitations prescribed for the passage ofbills over the executive veto; and he shall in writing statespecifically the item or items he disapproves, setting the
same out in full in his message, but in such case theenrolled bill shall not be returned with the governor’sobjection.
The line-item veto is essentially a specialized form of exec-utive amendment as it can only be exercised if the governorreturns the same to the legislature while they are still in ses-sion. in the event of a line-item veto, only the parts of the billapproved become law; the item or items disapproved do notbecome law unless they are repassed over the governor’sobjection. a line-item veto is effective so long as the legisla-ture has an opportunity to override the veto. a line-itemveto of an appropriation bill made after the legislature adjourns is ineffective.
ConclusionUnder most circumstances, the governor and the legisla-
ture work in a cooperative nature on most legislation. Whilethere are few instances where these powers come into playin an adversarial way, you can expect that when they do thestakes are very high, and the cases that result make for veryinteresting reading. s
Endnotes1. In other words, the 30th legislative day or 105th calendar day.
2. The others are Arkansas, Indiana, kentucky, Tennessee, and West Virginia.
3. See, Section 71.01 of the Official Recompilation of the Alabama Constitution of 1901.
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each year the office of general counselreceives a number of questions fromjudges who are leaving the bench after aperiod of public service and seeking to re-enter the private practice of law. one ofthe topics we have to counsel them on istheir continued use of the term “judge.” asa general rule, upon re-entering privatepractice, the term “judge” should not beappear before an individual’s name any-where on pleadings or even letterhead.although the office of general counselbelieves that a judge’s prior service on thebench may be noteworthy and of generalinterest to prospective clients, there arelimitations on the use of this moniker. The
old adage that “once a judge, always ajudge” is really a statement of social eti-quette. The use of this phrase dates backto a long-standing british convention thatjudges generally are not allowed to returnto the practice of law. Judiciary of englandand Wales, becoming a Judge, http://www.judiciary.gov.uk (last visited may 29, 2020).Judges in the United states, including ala-bama, are allowed to return to privatepractice after leaving the bench.
The professional conduct rules impli-cated in deciding the appropriatenessof the term “judge” include rule 7.1(communication concerning a Lawyer’sservices), rule 7.5 (Firm Names and
o P i N i o N s o F T h e g e N e r a L c o U N s e L
Roman A. [email protected]
Judicial Titles are NotPortable–They stay with thePosition, Not the individual
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Letterheads), and 8.4(e) (misconduct).rule 7.1 provides, in pertinent, that:
a lawyer shall not make a falseor misleading communicationabout the lawyer or lawyer’sservices. a communication isfalse or misleading if it:…(b) islikely to create an unjustified ex-pectation about the results thelawyer can achieve, or states orimplies that the lawyer canachieve results by means that vi-olate the rules of professionalconduct or other law…
rule 7.5 prohibits the use of letter-head that violates rule 7.1.
The majority of regulatory authori-ties, including the american bar associ-ation, have concluded that the use ofthe title “judge” in pleadings, officenameplates, and letterhead is mislead-ing and likely to create an unjustifiedexpectation about the results that alawyer can achieve and exaggerate hisor her level of influence. see AmericanBar Association, Fo 95-391 (april 24,1995); Supreme Court of Ohio, op. 2013-3 (June 6, 2013); Florida State Bar Asso-ciation, op 87-9; State Bar of Michigan,op. ri-106; U.S. Jud. Conf.,op. No. 72(June 2009). The american bar associa-tion opinion specifically states that:
in fact, there appears to be noreason for such use of the title[judge] other than to create suchan expectation or to gain an un-fair advantage over an oppo-nent. moreover, the use ofjudicial honorifics to refer to alawyer may in fact give his clientan unfair advantage over his op-ponents, particularly in thecourtroom before a jury.
rule 8.4(e) explains that it is profes-sional misconduct to “state or imply anability to influence improperly a gov-ernment agency or official.” it has beenopined by many jurisdictions that theuse of the title “judge” can be seen asan attempt to imply improper influ-ence. again, this is particularly truewhen used in a courtroom. although itis true that a qualification or modifier
such as “former” or “retired” would bemore accurate, such an addition does-n’t address the concern about the per-ception of improper influence, andtherefore has generally been rejected.
it is not the desire of the office ofgeneral counsel to prevent the use ofthe title “former judge” or “retiredjudge” in every context. The cited limi-tations do not prevent former or re-tired judges from marketing theirservices in a truthful manner and ex-plaining their prior judicial experience.There is little question that prior judi-cial experience could be important in-formation to potential clients whendeciding to retain legal counsel.
The last category of inquiries the of-fice of general counsel receives con-cerning the term “judge” is related tojudicial elections. The typical scenario iswhen a former or retired judge decidesto run for judicial office. it is the positionof the office of general counsel that acandidate for judicial office should notrefer to themselves in campaign mate-rial as “judge” unless they are currentlyserving as a judge in some capacity.rule 8.4(c) states that, “[i]t is professionalmisconduct for a lawyer to…engage inconduct involving dishonesty, fraud, de-ceit or misrepresentation.” if a personrefers to themselves as “judge” in cam-paign material, it is likely that many citi-zens would assume the individual iscurrently an acting judge. This impres-sion would be both a misrepresentationand dishonest and therefore a violationof the alabama rules of Professionalconduct. however, the use of modifierssuch as “retired” or “former” before theterm judge would be ethically permissi-ble in campaign material, unlike theiruse on letterheads and in pleadings. Themain difference is that the campaignmaterial is not a communication con-cerning the lawyer’s legal services. Fur-ther, information about a candidate’sprior judicial experience can be seen ashelpful to citizens trying to decide forwhom to vote.
as always, if you have any ethicsquestions or comments, please contact us at (334) 269-1515 [email protected]. s
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rECEnT CiviL dECisiOns
From the alabama supremecourtattorney disciplineWalden v. Alabama State Bar, no. 1180203 (ala. march 27, 2020)
Under ala. r. disc. P. 1(a)(1), the bar has exclusive jurisdiction over attorney disci-pline, with appeal to the supreme court of alabama.
rule 60Ex parte Huntington College, no. 1180148 (ala. march 27, 2020)
Plurality opinion; action by trustees, seeking to deviate in a plan for trust distribu-tions from a consent judgment entered decades earlier in the circuit court, was notsubject to the jurisdiction of the probate court. even though probate court could ex-ercise general equity jurisdiction under the alabama Trust code absent a prior judg-ment, in the presence of the prior judgment, the only proper course was to seek relieffrom the judgment in the circuit court under rule 60.
specially-sitting Circuit JudgesLawler Mfg. Co. v. Lawler, no. 1180889 (ala. march 27, 2020)
Presiding circuit judge on recusal assigned action to a district judge for handling asa specially-sitting circuit judge. held: orders entered by the district judge were with-out jurisdiction, and thus orders would not support an appeal, for failure to followthe procedure on judicial recusals and reassignments in Ex parte Jim Walter Homes,Inc., 776 so. 2d 76 (ala. 2000).
shareholder derivative actions; mandamus reviewEx parte 4tdd.com, Inc., no. 1180462 (ala. march 27, 2020)
Putative derivative action was to be dismissed under arcP 23.1 for failure to allegewith particularity the efforts plaintiff shareholder made to demand the requested re-lief before commencing suit. shareholder demand is not an issue of standing butrather of adequacy of pleading. mandamus review is, however, available to deter-mine compliance with rule 23.1, which requires a derivative complaint to allege thata director demand was made or was futile. claims in this case were derivative in na-ture, in that they sought to set aside certain acts taken as ultra vires which inured tothe detriment of the corporation. The relief requested was in part for damages to allshareholders, and non-monetary relief did not seek relief unique to the plaintiffshareholder. director demand was therefore required, and no facts were pleaded tolead to the conclusion that it would be futile.
T h e a P P e L L a T e c o r N e r
Wilson F. Green
Wilson F. Green is a partner in Fleenor &Green LLP in Tuscaloosa. He is a summacum laude graduate of the University ofAlabama School of Law and a former lawclerk to the Hon. Robert B. Propst, UnitedStates District Court for the Northern District of Alabama. From 2000-09, Greenserved as adjunct professor at his almamater, where he taught courses in classactions and complex litigation. He repre-sents consumers and businesses in con-sumer and commercial litigation.
Marc A. Starrett
Marc A. Starrett is an assistant attorneygeneral for the State of Alabama and repre-sents the state in criminal appeals andhabeas corpus in all state and federalcourts. He is a graduate of the University ofAlabama School of Law. Starrett served asstaff attorney to Justice Kenneth Ingram andJustice Mark Kennedy on the AlabamaSupreme Court, and was engaged in civiland criminal practice in Montgomery beforeappointment to the Office of the AttorneyGeneral. Among other cases for the office,Starrett successfully prosecuted BobbyFrank Cherry on appeal from his murderconvictions for the 1963 bombing of Birm-ingham’s Sixteenth Street Baptist Church.
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Juror Qualifications; general verdictsLeftwich v. Brewster, no. 1180796 (ala. april 3, 2020)
(1) Trial court properly denied strike for cause of one spousebased on claim that two spouses (husband and wife) were onthe same venire. Nothing in ala. code § 12-16-150 disqualifiesa venireperson for cause based on being married to anothermember of the venire. (2) since the case was submitted on ageneral verdict, evidentiary issue concerning exclusion of testi-mony relating to real property damage could not be assignedas error because the jury could have determined there was nobreach of duty, independent of any question of damage.
res ipsa LoquiturNettles v. Pettway, no. 1181015 (ala. april 10, 2020)
Negligence through res ipsa loquitur (riL) requires plaintiffto demonstrate that alternative non-negligent potentialcauses of the accident did not occur or are implausible. in thiscase, the trial court properly granted summary judgment onan riL claim based on allegedly negligent installation of after-market wheels, where plaintiff provided no evidence to fore-close the possibility that the detachment of the wheel couldhave occurred as a result of other causes. While a plaintiff is
not required to exclude all other explanations, once a defen-dant offers evidence to support a potentially non-negligentalternative explanation, plaintiff is obligated to demonstratethat the plaintiff’s theory is more probable.
dram shop actEverheart v. Rucker Place, LLC, no. 1190092 (ala. april 24,2020)
abc regulation on service of alcohol “applies when the on-premises licensee, either as an individual or through itsagents, is acting in its capacity as an on-premises licensee.” itdoes not apply to a caterer which is serving alcohol pro-vided by the party’s host at a venue which is not the subjectof the on-premises license.
direct action statute; mandamus reviewEx parte State Farm Fire & Cas. Co., no. 1180451 (ala.april 24, 2020)
carrier’s contention that a direct-action statute claimcould not be raised by amendment, but rather must be as-serted in a different lawsuit, is not subject to mandamus re-view; review by appeal provided an adequate remedy.
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relation Back of amendmentsEx parte Gray, no. 1180999 (ala. april 24, 2020)
Under ala. r. civ. P. 15(c)(3), an amendment changing thename of a defendant relates back if three elements are satis-fied: (1) the claims against the newly-added defendant aretransactionally related to the claims as originally asserted; (2)within the later of the expiration of the statute of limitationsor 120 days after commencement of the action, the new de-fendant receives notice of the action, and (3) the new defen-dant knows or should know that, but for a mistake innaming him, he would have originally been named. in thiscase, plaintiff mistakenly sued the law enforcement officerwho worked the two-car accident instead of the party in-volved therein (suit was filed two days before the statute ex-pired), but plaintiff corrected the error about 90 days aftercommencement of the action. There was no dispute thatgray knew or should have known that he was to have beensued. The amendment substituting gray for the officertherefore related back.
non-Compete agreements and intentionalinterference; CausationJostens, Inc. v. Herff Jones, Inc., no. 1180808 (ala. april24, 2020)
hJ and Jostens are competitors in high-school scholasticrecognition products, each of which sells its productsthrough independent contractor businesses which aregranted territories for the sales. at issue in this case was analleged breach of a non-compete agreement involving acontractor’s switch from hJ to Jostens, allegedly leading tothe switch by 47 schools from hJ to Jostens products. after atwo-week trial, the jury awarded compensatory and punitivedamages to hJ and its contractor. The sole issue on appealwas the sufficiency of evidence that the wrongful conductcaused 47 high schools to switch their accounts from hJ toJostens. defendants contended that under Corson v. Univer-sal Door Systems, Inc., 596 so. 2d 565 (ala. 1991), plaintiffswere required to produce evidence from each of the deci-sion-makers in the 47 schools. Plaintiffs countered thatunder Intergraph Corp. v. Bentley Systems, Inc., 58 so. 3d 63(ala. 2010), the jury was allowed to infer that all damageswere caused by the wrongful conduct. The supreme courtaffirmed the judgment for plaintiffs, reasoning that plaintiffswere not required to present customer-specific evidence asto the reason each of the 47 schools switched. This is a unan-imous full-court opinion by Justice mendheim.
declaratory Judgments; JusticiabilityCity of Montgomery v. Hunter, no. 1170959 (ala. may 1, 2020)
Moore v. City of Center Point, no. 1171151 (ala. may 1, 2020)
Woodgett v. City of Midfield, no. 1180051 (ala. may 1, 2020)
Mills v. City of Opelika, no. 1180268 (ala. may 1, 2020)Trial courts lacked subject matter jurisdiction over these
actions against municipalities by red-light camera citation re-cipients for lack of a justiciable controversy. in most of thecases, the plaintiff had paid the citation but not followed thechallenge mechanism in the implementing legislation in themunicipal or circuit court. (in at least one unpaid case, theplaintiff did not challenge the citation in the time period pre-scribed by the Local act and ordinance, but did not pay.) anycontroversy involving the legality of the citations becamemoot once the time for challenge in the local act and ordi-nance passed without challenge, destroying justiciability.
Unjust Enrichment; PleadingPentagon Fed. Credit Union v. McMahan, no. 1180804(ala. may 8, 2020)
in action for redemption of property, trial court erred inrefusing to consider unjust enrichment argued by redemp-tionee for defendant’s failure to plead it; unjust enrichmentis not an affirmative defense under case law and because itwas simply interposed as a defense rather than as an affir-mative claim for relief.
Cds; OwnershipDupree v. PeoplesSouth Bank, no. 1180095 (ala. may 8,2020)
Where two parties’ names appear on a cd and the fundsused to purchase the cd belong to one party, unless there isevidence that the funding party intended to make a gift orcreate a trust, the funding party has the right to the funds asbetween the two named parties. second party did not es-tablish an inter vivos gift, and thus bank was entitled to sum-mary judgment in action by second party arising frombank’s payment of the cd to funding party.
arbitration; Post-arbitral ProcedureRussell Construction of Alabama, Inc. v. Peat, no. 1180979(ala. may 22, 2020)
challenges to the arbitrator’s modified order were barred be-cause challenger did not file a rule 71b proceeding to vacate
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the arbitral award within 30 days of the arbitral award. how-ever, challenger’s “answer” to prevailing party’s rule 71c pro-ceeding could in substance be deemed a timely rule 71bproceeding to vacate the arbitrator’s “Final order” regardingcertain escrowed funds.
fELaMohr v. CSX Transp., Inc., no. 1180338 (ala. may 22, 2020)
rail worker was injured when his glove cuff (gloves wereprovided by employer) was caught in repairing a line with-out using a second “tag” line. Trial court granted summaryjudgment to employer. The supreme court affirmed. Therewas no evidence of any prior accidents caused by the stan-dard-issue leather safety gloves involved nor any evidencecsx had notice of the tendency of the gloves to get caught.as to the use of only one tag line, no member of the undis-putedly well-trained and experienced crew–includingmohr–thought a second tag line was needed or complainedabout the crew’s failure to use one.
state-agent immunityEdwards v. Pearson, no. 1180801 (ala. may 22, 2020)
child died after being struck by motorist while crossingthe road in an effort to board a school bus. child’s estate Prsued the bus driver. Trial court granted summary judgmentbased on Cranman immunity. The supreme court affirmed.exercising judgment in supervising students extends to busdrivers performing official duties and exercising discretion insupervising students. although the bus driver was stoppingat an undesignated stop, she was undisputedly exercisingjudgment in responding to child’s running across her yardand toward a busy highway.
From the court ofcivil appealsdefault Judgment ProcedureLiving By Faith Christian Church v. Young Men’s ChristianAssociation of Birmingham, no. 2180674 (ala. Civ. app.march 20, 2020)
circuit court correctly denied rule 60(b)(4) motion bychurch, seeking relief from a default judgment regardingpossession of a building. circuit court was not required tohold a hearing before entering default judgment; rule55(b)(2) provides a trial court “may” hold a hearing on appli-cation for default judgment, but it is not required.
Ejectment; non-final JudgmentsDelevie v. Carrington Mortgage Services, LLC, no.2180245 (ala. Civ. app. march 20, 2020)
Underwood v. Planet Home Lending LLC, no. 2180680(ala. Civ. app. march 20, 2020)
The court dismissed these appeals as being from non-finaljudgments. both were ejectment actions in which othernon-ejectment claims were asserted, but the trial court’sorder disposed of only the ejectment claim. appeals werethus from non-final orders and there was no jurisdiction.
Workers’ Comp; venue; forum non ConveniensEx parte Wal-Mart Associates, Inc., no. 2190468 (ala. Civ.app. april 24, 2020)
interests of justice mandated transfer from mobile county(plaintiff’s residence) to baldwin county (plaintiff’s work siteand site of injury and treatment) in workers’ comp action.
Condemnation; rights of WayForty Three Investments, LLC v. The Water Works Board ofthe City of Birmingham, no. 2180799 (ala. Civ. app. may1, 2020)
Under ala. code § 18-3-1, the owner of a landlocked par-cel may obtain a right of way to reach a public road, “pro-vided written approval is obtained from the municipalgovernment and the planning board of such municipality.”here, applicant’s property was located outside municipallimits, but the board’s property was located inside the mu-nicipal limits of birmingham. held: where property staggersincorporated and unincorporated properties, municipal ap-proval must by granted by the government and the plan-ning board of the municipality in which the property thatstands to be affected (i.e., to be condemned) is located.
statute of fraudsMcCall v. Lowndes County Commission, no. 2180781 (ala.Civ. app. may 15, 2020)
statute of Frauds, ala. code § 8-9-2, barred claims assertedby the commission that an entity (plaza) breached agree-ment with the commission, as part of a sales contract, toplace $500,000 of funds into escrow for commission’s use toservice a bond debt. Tender of a $500,000 check from plazato the commission did not satisfy the statute of Frauds be-cause it did not disclose the full terms of the contract, datesof closing, and payment of balance, and was not a final ex-pression of the agreement.
Workers’ CompensationNucor Steel, Inc. v. Otwell, no. 2180542 (ala. Civ. app. may22, 2020)
because plaintiff did not plead that his chronic lumbarpain was an occupational disease under section 25-5-110(1),the trial court’s permanent total finding based on that deter-mination could not be sustained. although complaint didplead cumulative trauma or repetitive physical stress claimleading to disability, under the last-injurious-exposure rule,
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employer is responsible for benefits only if the injuryclaimed by employee is either new injury or aggravation ofprior injury, which trial court expressly did not find. remandwas thus necessary to resolve the inconsistency.
From the Unitedstates supremecourtCopyrightAllen v. Cooper, no. 18-877 (U.s. march 23, 2020)
congress lacked authority to abrogate the states’ immu-nity from copyright infringement suits in the copyrightremedy clarification act of 1990.
section 1981; CausationComcast Corp. v. National Assn. of African-AmericanOwned Media, no. 18-1171 (U.s. march 23, 2020)
section 1981 plaintiff is required to plead and prove thatrace was the but-for cause of the injury alleged to have beensuffered, and that burden remains over the life of the lawsuit.
adEa; federal EmployeesBabb v. Wilkie, no. 18-882 (U.s. april 6, 2020)
because most federal-sector “personnel actions” affectingindividuals aged 40 and older must be made “free from anydiscrimination based on age,” 29 U.s.c. § 633a(a), such a per-sonnel action is unlawful if age is a factor in the challengeddecision. The court rejected a but-for causation standard,under which the employment decision would not have beenmade but for the discrimination; the plain language of thestatute as to federal employees (not as to private employ-ees) requires that there be no discrimination based on age infederal employment.
Environmental LawAtlantic Ritchfield Co. v. Christian, no. 17-1498 (U.s. april20, 2020)
cercLa does not prohibit actions against potentially re-sponsible parties in state court under state law theories for
remediation damages, even if the damages being soughtare for remediation efforts beyond that required by the ePaunder its cercLa plan.
Environmental LawCity of Maui v. Hawaii Wildlife Fund, no. 18-260 (U.s. april23, 2020)
The clean Water act forbids “any addition” of any pollutantfrom “any point source” to “navigable waters” without an ap-propriate permit from the ePa. §§ 301(a), 502(12), 86 stat.844, 886. in this case, maui’s wastewater treatment systemcarried effluent a half-mile, through groundwater, and even-tually into the Pacific. The district court and the Ninth circuitheld that this was a discharge into a navigable water. Thesupreme court reversed, holding that a permit was requiredonly where there is a direct discharge from a point sourceinto navigable waters or when there is the functional equiva-lent of a direct discharge, which was not present in this case.
Lanham actRomag Fasteners, Inc. v. Fossil Group, Inc., no. 18-1233(U.s. april 23, 2020)
Plaintiff in a trademark infringement suit is not required toshow that a defendant willfully infringed the plaintiff’strademark as a pre-condition to a profits award.
deportationBarton v. Barr, no. 18-725 (U.s. april 23, 2020)
When a lawful permanent resident commits certain seriouscrimes, the government may initiate removal proceedingsbefore an immigration judge. 8 U. s. c. § 1229a. if the lawfulpermanent resident is found removable, the immigrationjudge may cancel removal, but only if the lawful permanentresident meets strict statutory eligibility requirements. §§1229b(a), 1229b(d)(1)(b). among the eligibility requirements,a lawful permanent resident must have “resided in the Unitedstates continuously for 7 years after having been admitted inany status.” § 1229b(a)(2). another provision, the so-calledstop-time rule, provides that a continuous period of resi-dence “shall be deemed to end” when the lawful permanentresident commits “an offense referred to in section 1182(a)(2). . . that renders the alien inadmissible to the United statesunder section 1182(a)(2).” § 1229b(d)(1)(b). held: For pur-poses of cancellation-of-removal eligibility, a § 1182(a)(2) of-fense committed during the initial seven years of residencedoes not need to be one of the offenses of removal.
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Unfunded mandates (aCa)Maine Community Health Options v. US, no. 18-1023 (U.s.april 27, 2020)
a now expired provision of the affordable care act estab-lished a “risk corridors” program aimed to limit the plans’profits and losses and set out a formula for computing aplan’s gains or losses at the end of each year, providing thateligible profitable plans “shall pay” the secretary of hhs,while the secretary “shall pay” eligible unprofitable plans.The aca neither appropriated funds for payments nor lim-ited the amounts that the government might pay nor wasthe program required to be budget neutral. held: the Unitedstates is required to pay the unprofitable-plan insurersunder the Tucker act.
CopyrightGeorgia v. Public.Resource.org, Inc., no. 18-1150 (U.s.april 27, 2020)
annotations in the official code of georgia annotated,which were produced by private authors under a work-for-hire agreement with the georgia code commission, are notsubject to copyright under the “government edicts” doctrine.
issue PreclusionLucky Brand Dungarees, Inc. v. Marcel Fashions Group,Inc., no. 18-1086 (U.s. may 14, 2020)
because two suits here involved different marks and differ-ent conduct occurring at different times, they did not sharea “common nucleus of operative facts.” Thus, the doctrine ofdefensive preclusion within res judicata, under which theprior litigant would be precluded from asserting defensesnot raised in the prior action, did not apply.
From the eleventhcircuit court of appealsCafa; “Local Event” ExceptionSpencer v. Specialty Foundry Products, Inc., no. 19-14427(11th Cir. march 17, 2020)
“[a]n event or occurrence” in the caFa local-event excep-tion to federal jurisdiction, 28 U.s.c. § 1332(d)(11)(b)(ii)(i),“refers to a series of connected, harm-causing incidents thatculminate in one event or occurrence giving rise to plaintiffs’claims.” allegations referring to exposures over many yearsand at different times for different plaintiffs did not meet thatstandard, and thus do not fall within the exception. The courtleft open the question whether § 1332(d)(4)(a)’s local contro-versy exception applied, because the district court did not
address that ground for remand, and because the defendants’petition for interlocutory appeal did not present this issue.
Qualified immunityWaldron v. Spicher, no. 18-14536 (11th Cir. march 25,2020)
decedent’s mother sued responding deputy, contendingdeputy violated decedent son’s due process rights by stop-ping bystanders from performing cPr on decedent. by-standers detected a pulse when deputy ordered them tostop, whereupon deputy called for response indicating indi-vidual was deceased and responding personnel had no rush.When rescuers arrived, they detected a heartbeat and stabi-lized and transported decedent, but he died a week later.The district court denied summary judgment to deputy onqualified immunity. The eleventh circuit reversed. assumingthat deputy was acting within his discretionary authority,deputy’s actions did not violate clearly established substan-tive due process rights, unless deputy could have acted witha level of culpability more than reckless interference withbystanders’ rescue efforts. however, if jury could find thatdeputy acted for the purpose of causing harm to decedent,plaintiff would have proved a violation of clearly establishedsubstantive due process rights. The panel remanded for thedistrict court to reconsider the facts under this standard.
Qualified immunityAlston v. Swarbrick, no. 18-10791 (11th Cir. march 26,2020)
The court reversed the district court’s grant of summaryjudgment to sheriff’s deputy on grounds of qualified immu-nity, relating to claims of false arrest and excessive force inthe use of pepper spray for three to five minutes. The courtaffirmed summary judgment on all other excessive forceclaims against deputy, as well as on all claims against secondofficer for his failure to intervene, and on all claims againstsheriff for having a policy allowing or condoning excessiveforce. Fact issue existed as to whether the facts even gaverise to probable cause to arrest without a warrant for disor-derly conduct, and facts as construed in plaintiff’s favor alsoestablished lack of arguable probable cause to arrest for re-sisting without violence under Florida law, thus precludingsummary judgment on false arrest claim.
ErisaWilliamson v. Travelport, LP, no. 18-10449 (11th Cir. march27, 2020)
because complete administrative record is a prerequisite tojudicial review of any erisa benefits claim, the district courterred in granting a rule 12 dismissal of a suit for benefits con-cerning calculation of a pension. because 29 U.s.c § 1132(c)imposes penalties for an administrator’s failure to providedocuments, it must be strictly and narrowly construed; penal-ties cannot be imposed for failure to provide documentsother than those specifically enumerated in § 1024(b)(4).
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Employment; retaliatory dischargeMonaghan v. WorldPay US, no. 17-14333 (11th Cir. april 2,2020)
abrogating Gowski v. Peake, 682 F. 3d 1299, 1312 (11th cir.2012), retaliatory discharge plaintiff can survive summaryjudgment by proving “material” retaliation, which “wellmight have dissuade[d] a reasonable worker from making orsupporting a charge of discrimination.”
Higher Education; student Loans; Preemp-tionLawson-Ross v. Great Lakes Higher Educ. Corp., no. 18-14490 (11th Cir. apr. 10, 2020)
higher education act of 1965, 20 U.s.c. §§ 1001 et seq.(“hea”), does not preempt state law claims alleging that stu-dent loan servicers made affirmative misrepresentations toborrowers regarding their eligibility for a federal programthat forgives student loan balances.
standingIn Re Bay Circle Properties, LLC, no. 18-12536 (11th Cir.apr. 8, 2020)
Non-debtor and non-mortgagee lacked standing to pur-sue claims based on allegedly wrongful foreclosure eventhough he personally guaranteed the loans at issue andeven though the property could satisfy or decrease his per-sonal liability stemming from judgments that two creditorshave against him individually.
victims’ rightsIn re Wild, no. 19-13843 (11th Cir. april 14, 2020)
Wild, one of 30+ victims of Jeffrey epstein, sued under thecrime Victims’ rights act of 2004, claiming that when federalprosecutors secretly negotiated and entered into a non-prosecution agreement with epstein in 2007, they violatedher rights under the cVra to confer with the government’slawyers and to be treated fairly by them. The eleventh cir-cuit held that, as the cVra is currently written, rights underthe cVra do not attach until criminal proceedings havebeen initiated against a defendant, either by complaint, in-formation, or indictment. because the government neverfiled charges or otherwise commenced criminal proceed-ings against epstein, cVra was never triggered.
monell LiabilityBarnett v. MacArthur, no. 18-12238 (11th Cir. april 15, 2020)
macarthur arrested barnett on suspicion of dUi and trans-ported her to the county jail. barnett twice took a breatha-lyzer test, and both times the results were a blood alcohollevel of 0.000. Without evidence of any impairment, she wasdetained for eight hours, even after she posted bond, pur-suant to the dUi eight-hour “hold policy” of the seminolecounty sheriff’s office. barrett sued macarthur and the sher-iff under section 1983. The district court granted summaryjudgment to the sheriff, and the case proceeded to trialagainst macarthur. The jury returned a verdict for defen-dants, and judgment was entered thereon. on appeal, thecourt summarily affirmed the judgment for macarthur, butreversed the grant of summary judgment to the sheriff onMonell liability. claim against the sheriff was that plaintiffwas unlawfully detained pursuant to the sheriff’s hold pol-icy, under which continued detention occurred withoutprobable cause.
maritime LawCarroll v. Carnival Corp., no. 17-13602 (11th Cir. april 15,2020)
after carroll tripped over the leg of a lounge chair whilewalking through a narrow pathway on a carnival cruise ship,she sued carnival, claiming it negligently failed to maintaina safe walkway and failed to warn her of that dangerouscondition. The district court granted summary judgment forcarnival, concluding the condition was open and obviousand that carnival lacked notice of the hazard. The eleventhcircuit reversed, holding that the district court’s conclusiondid not construe the facts for plaintiff, and that even if theallegedly dangerous condition were open and obvious, thatwould only defeat the failure to warn claim, not the claim fornegligent failure to maintain safe walkway.
Copyright; statute of LimitationsWebster v. Dean Guitars, Inc., no. 19-10013 (11th Cir. april16, 2020)
Unlike an ordinary copyright infringement claim, whichaccrues for each infringing act, a claim concerning owner-ship accrues only once.
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Labor and Employment (Pda)Durham v. Rural/Metro Corp., no. 18-14687 (11th Cir. april17, 2020)
durham’s emT job required her to lift 100+ pounds regu-larly. When physician recommended she not lift more than50 pounds due to pregnancy, durham asked for a light-dutyassignment for the duration of her pregnancy. rural hadprovided those light-lifting accommodations (10- to 20-lb.restrictions) for emTs who were injured on the job, but had apolicy of not providing such accommodations for emTswhose injuries were not job-related. rural’s policy did allowfor accommodation decisions on a case-by-case basis. ruraldeclined the request for accommodation, and durham sued.The district court granted summary judgment to rural. Theeleventh circuit reversed, reasoning that “[n]either a non-pregnant emT who is limited to lifting 10 or 20 pounds nor apregnant emT who is restricted to lifting 50 pounds or lesscan lift the required 100 pounds to serve as an emT. sinceneither can meet the lifting requirement, they are the samein their ‘inability to work’ as an emT, which satisfies the plain-tiff’s prima facie requirement to establish she was similar toother employees in her ability or inability to work.”
rule 59; new EvidenceGrange Mut. Cas. Co. v. Slaughter, no. 18-13555 (11th Cir.may 1, 2020)
district court did not abuse its discretion in refusing toconsider evidence available at summary judgment but notoffered, and instead offered only on a rule 59 motion.
TCPaMedley v. DISH Network, Inc., no. 18-13841 (11th Cir. may1, 2020)
TcPa does not allow unilateral revocation of consentgiven in a bargained-for contract.
Employment discriminationKnox v. Roper Pump Co., no. 18-11756 (11th Cir. april 30,2020)
Knox and his adult daughter worked for sister companies.They got into a domestic altercation at home, after whichdaughter complained to the hr department of roper (Knox’semployer). roper suspended Knox based on its workplace vio-lence policy, after which Knox complained of race discrimina-tion because other similar instances had been handled whileallowing employees to continue working. roper then told himhe could keep his job if completing anger management classeswhile on unpaid leave. roper sent Knox a written agreement todocument the process, which included a release of all claims.after he refused to sign the release, he was fired. he sued; thedistrict court granted summary judgment on both Title Vii dis-crimination and retaliation claims. The eleventh circuit affirmedas to the discrimination claim, reasoning that the proffered
comparators were not material in all respects. The court re-versed as to the retaliation claim, reasoning that employer maynot respond to a claim of race discrimination by conditioningcontinued employment on a release of claims and firing theemployee for refusing.
Election Law; standingJacobson v. Fla. Sec. of State, no. 19-14552 (11th Cir. april29, 2020)
Voters and organizations lacked standing to challengeFlorida law governing order in which candidates appear onthe ballot in Florida’s general elections for lack of injury in fact.
COvid; Conditions of ConfinementSwain v. Junior, no. 20-11622 (11th Cir. may 5, 2020)
district court, in putative class action brought by inmates,entered a preliminary injunction requiring the defendants toemploy numerous safety measures to prevent the spread ofcoVid-19 and imposing extensive reporting requirements.Pursuant to FraP 8, the panel stayed the injunction pendingappeal and expedite the appeal. The court concluded thatthe defendants are likely to prevail on appeal because thedistrict court likely committed errors of law in granting thepreliminary injunction, specifically by incorrectly collapsingthe subjective and objective components of an eighthamendment claim based on conditions of confinement. Thesubjective component requires a demonstration by the stateactors of deliberate indifference to safety of the detainees;no such showing was made.
fmLa; Title viiMartin v. Financial Asset Mgmt. Systems, Inc., no. 17-14488 (11th Cir. may 14, 2020)
district court properly granted summary judgment to em-ployer on FmLa, Title Vii race and gender claims, and a sec-tion 1981 claim. as to the FmLa claim, a “serious healthcondition” under the statute requires being treated by a“health care provider”; employee’s being treated by a li-censed professional counselor was not qualifying. as to TitleVii retaliation, although employee testified that she com-plained to the hr director about maltreatment based onrace and sex, hr director denied the complaints were basedon race and sex, and company president (who fired em-ployee two days later) denied any knowledge of the com-plaint, so even crediting employee’s testimony, there was noevidence that the hr director had informed the president ofthe complaint, and thus no evidence the president had thatknowledge at the time he fired employee. although em-ployee’s termination within days of protected activity can becircumstantial evidence of a causal connection, unrebuttedevidence that the decision-maker did not have knowledgeof the employee’s protected conduct means that temporalproximity alone is insufficient to create a genuine issue offact as to causal connection.
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TrademarkEngineered Tax Services, Inc. v. Scarpello Consulting, Inc.,no. 18-13690 (11th Cir. may 14, 2020)
district court erred in concluding on summary judgmentthat mark was not inherently distinctive; the question is forthe jury.
admiraltyTroutman v. Seaboard Atlantic Ltd., no. 19-10533 (11th
Cir. may 13, 2020)issue: when, if ever, a negligence claim for breach of the
shipowner’s duty to turn over a vessel in safe condition prop-erly lies where the plaintiff was injured by an open and obvioushazard. held: generally, a shipowner does not breach this dutywhen the injurious hazard was open and obvious and couldhave been avoided by a reasonably competent stevedore.
TaxationChampions Retreat Golf Founders LLC v. Commissioner,no. 18-14817 (11th Cir. may 13, 2020)
Taxpayer was entitled to deduction for conservation ease-ment over property which included a private golf course;the relevant statutory provisions do not except property be-cause it lies within a golf course.
social securitySamuels v. Commissioner, no. 18-14562 (11th Cir. may 13,2020)
aLJ erred by failing to give disability applicant’s treatingphysician’s opinion the proper weight and by discountingher own testimony. aLJ’s hypothetical to vocational expertdid not sufficiently communicate her limitations from bipo-lar disorder.
insuranceRobinson v. Liberty Mutual Ins. Co., no. 19-10940 (11th Cir.may 11, 2020)
brown recluse spiders are “insects and vermin” within aproperty damage exclusion in a homeowner’s policy con-strued under alabama law.
fOiaStatton v. Florida Federal Judicial Nominating Commis-sion, no. 19-11927 (11th Cir. may 21, 2020)
advisory commission appointed by U.s. senators for fed-eral judge nomination recommendations is not an “agency”within the meaning of Foia.
rECEnT CriminaL dECisiOns
From the Unitedstates supremecourtinsanity defenseKahler v. Kansas, no. 18-6135 (U.s. march 23, 2020)
due process clause does not require state to adopt insan-ity test to exculpate criminal liability which turns on a defen-dant’s ability to recognize that his crime was morally wrong.The insanity defense is a project for state governance, notconstitutional law.
Terry stopKansas v. Glover, no. 18-556 (U.s. april 6, 2020)
as long as an officer lacks information which would sug-gest that the owner is not driving the vehicle, an investiga-tive traffic stop made after running a vehicle’s license plateand learning that the registered owner’s driver’s license hasbeen revoked is reasonable under the Fourth amendment.
Plain ErrorDavis v. U.S., no. 19-5421 (U.s. march 23, 2020)
The court overruled the Fifth circuit’s outlier rule underwhich factual errors not preserved in the district court arenot subject to “plain error” review.
Jury UnanimityRamos v. Louisiana, no. 18-5924 (U.s. april 20, 2020)
sixth amendment right to a jury trial, as incorporatedagainst the states by way of the Fourteenth amendment, re-quires a unanimous verdict to convict a defendant of a seri-ous offense. The case drew significant press coverageregarding separate writings from various justices, especiallyJustice Kavanaugh, regarding the circumstances in whichstare decisis does not compel continued adherence toprecedent.
“Honest services” and Property fraudKelly v. U.S., no. 18-1059 (U.s. may 7, 2020)
actions of (NJ) governor christie’s aides to close trafficlanes on the george Washington bridge between Ft. Lee, NJand NYc, to retaliate politically against the mayor of Ft. Lee
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for refusing to support gov. christie’s re-election campaign,was not a scheme to obtain money or property, and thuscould not be the subject of prosecution under federal wirefraud statutes.
From the alabamasupreme courtEthics actEx parte Hubbard, no. 1180047 (ala. apr. 10, 2020)
The court affirmed six convictions of violations of the ala-bama code of ethics by the former speaker of the alabamahouse of representatives, while reversing five convictionsdue to insufficient evidence or incorrect interpretations ofthe code. it rejected the defendant’s assertions of hypotheti-cal scenarios wherein the code would punish otherwise in-nocent conduct, noting that the code was designed tothwart corruption with prophylactic measures.
mistrialEx parte State (v. R.E.D.), no. 1180639 (ala. mar. 13, 2020)
defendant was not entitled to jury trial on whether thestate intentionally engaged in misconduct to provoke him tomove for a mistrial, without a showing of “substantial evi-dence” that the state committed such misconduct.
From the court ofcriminal appealsmunicipal Court appealEx parte City of Andalusia, Cr-19-0238 (ala. Crim. app.apr. 17, 2020)
defendant seeking to appeal to circuit court from his mu-nicipal court convictions perfected his appeal by timely fil-ing a notice of appeal and requesting a waiver of an appealbond within the 14-day time period required under ala. r.crim. P. 30.3 and ala. code § 12-14-70, even though waiverwas granted outside of the time period.
rule 32; ineffective assistanceWalker v. State, Cr-18-0098 (ala. Crim. app. mar. 13,2020)
defendant did not sufficiently plead facts to show that histrial counsel rendered ineffective assistance in failing to in-vestigate and prepare for trial. defendant’s assertion thatcounsel “interviewed less than two potential witnesses forthe defense” and did not “consult and retain expert wit-nesses to assist the defense[,]” without more, was insufficientto warrant further proceedings.
Probation revocationHooks v. State, Cr-18-0908 (ala. Crim. app. mar. 13,2020)
Trial court could not revoke probation based solely onfinding that probationer committed technical violations. be-cause no evidence was presented regarding the proba-tioner’s alleged commission of two new offenses, he wassubject only to a 45-day “dunk” under ala. code § 15-22-54(e)(1) for technical violations. s
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318 July 2020
about membersC. richard Wilkins announces the
opening of C. richard Wilkins attorneyat Law PLLC at 7070 bruns dr., mobile36695. Phone (251) 287-6087.
among Firmsamari & gray of birmingham an-
nounces that Orion Parrish joined as anassociate.
U.s. attorney general William Barrannounces that Philip a. Barr (no rela-tion) is a U.s. immigration Judge in theatlanta immigration court.
Baker donelson announces thatscott s. frederick is a shareholder inthe birmingham office.
Bradley arant Boult Cummings LLPannounces that rich sharff rejoinedthe birmingham office as counsel andthat Jessica sparhawk joined themontgomery office as an associate.
Cabaniss, Johnston, gardner,dumas & O’neal LLP announces thatgeorge morris and Hal West are thefirm’s managing partners.
The Cole Law firm LLC of decaturannounces that Zachary H. starnesjoined the firm.
The finley firm PC announces thatKirkland E. reid joined its columbus,georgia office as a partner.
g. Bartley Loftin iii and david W.Holt announce the formation of LoftinHolt LLP at 200 clinton ave. W, ste. 315,huntsville 35801. Phone (256) 929-7997.
mann & Potter PC of birmingham an-nounces that Corbin Potter joined asan associate.
maynard Cooper & gale announcesthat La Keisha Wright Butler joined asof counsel in the huntsville office.
Timothy B. mcCool and John mor-gan Owens announce the opening ofmcCool & Owens attorneys at Law at100 Phoenix ave., carrollton 35447.Phone (205) 367-8125.
Pepper & Odom PC announces thatandrew seth fishbein and Kristin m.Kizziah joined as associates in the birm-ingham office.
scarborough & griggs LLC of Tal-lassee announces that the firm name isnow The griggs Law firm LLC. s
a b o U T m e m b e r s , a m o N g F i r m s
Please email announcements [email protected].
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