Legal News

Little Movement on “nuisance” house in Spanish Fort

By Andre Ramey

SPANISH FORT, Ala. (WPMI) — An upscale, unfinished Spanish Fort house is at the center of a lawsuit. Work stopped after fears it could collapse surfaced, but the fixes, two years later, are still being debated. We first investigated this project last year and tonight Local 15’s Andrea Ramey reports on what’s being done to address the nuisance in this Reality Check.

From the front, it looks like any other construction project. But go around the corner, and it quickly becomes apparent, there are big problems with this build.

“It’s not safe as we stand here no. I mean we are at some risk as we stand here now. The walls could collapse without any warning,” said structural engineer Jim Mallett in August 2014.

Mallett inspected the home for a prospective buyer. Last year, he told us “the defects are so severe… demolition is the only option.” Today, the house remains virtually untouched.

“If it was that dangerous then, it’s even more dangerous now,” said attorney Scott Yeager.

Yeager represents the neighbors on either side of the home, who have now filed a lawsuit. They claim the City of Spanish Fort and the builder, Colony Homes, are both negligent in creating, what they saw is a neighborhood hazard.

“The biggest concern is the safety for their children,” said Yeager.

Since our first report, a front door, safety railing, and security netting has gone up at the home, but the structural integrity of the building is still a concern.

“There’s concern it could just fall, it could fall either direction,” said Yeager.

A judge in May dismissed Spanish Fort from the lawsuit, but a month later, Colony Homes countersued the city. According to court documents, Colony claims the city’s proposal to fix the foundation are “unnecessary” and “overly burdensome.”

“They’re just pointing fingers at each other.” said Yeager.

Colony claims “five different engineers or foundation companies” have presented solutions but the city has rejected all of them for no reason. Because of the ongoing litigation, Spanish Fort’s attorney could not say much but was confident there will be movement with the project in the next few months. It’s currently reviewing a new engineering plan submitted by Colony six weeks ago.

“The city and the parties are working hopefully to come up with a resolution that would result in a fix to the property and move the property forward,” said attorney David Conner.

A promise that doesn’t mean much anymore to the neighbors.

“I’ve heard to two years we have a fix. We have a fix. We’re ready to go. Well, clearly that’s not been the case,” said Yeager.

Yeager says the city could have declared this property a nuisance and had it torn down. The city says it’s never exercised its authority to do that.

© 2016  Sinclair Broadcast Group, Inc.





Alabama AG denounces ruling denying right to carry concealed guns in public

By Kent Faulk | The Birmingham News
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on June 09, 2016 at 2:04 PM, updated June 09, 2016 at 3:09 PM

Alabama’s attorney general today denounced a federal appeals court ruling today effectively denying residents of one California county the right of possession of a handgun for self-defense outside the home.

“The U.S. Ninth Circuit Court of Appeals held today that residents have no Second Amendment right to carry a firearm outside their home for self-defense,” Alabama AG Luther Strange stated in a press release.
“In effect the appeals court ruled that San Diego County can outlaw guns outside the home by declining to issue anyone a permit. This court’s decision is a direct challenge to the Second Amendment and is unconstitutional,” Strange stated. The court ruled in a 7-4 opinion in the case.

“We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public,” the court ruled.

According to Strange’s statement one of the 9th Circuit judges, Consuelo Callahan wrote in a dissenting opinion that: “a prohibition on carrying concealed handguns in conjunction with a prohibition of open carry of handguns would destroy the right to bear and carry arms.”

Strange stated he filed an amicus brief on April 30, 2015, on behalf of Alabama and 20 other states, in the case of Peruta v County of San Diego challenging San Diego County’s effective prohibition of both open and concealed carry of firearms.

Alabama’s amicus brief asserted that “San Diego County sheriff’s prohibition on the possession of a handgun outside the home, with limited exceptions, makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.”

The brief continues, according to Strange, by saying “the sheriff’s department admits that, under this system, the typical person cannot qualify for a concealed carry permit for personal protection.

In fact, an applicant must specifically demonstrate ‘a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way. Simply fearing for one’s personal safety alone is not considered good cause.'”

The brief added under San Diego County’s gun restrictions “bearing arms in self-defense is not a right, but a privilege granted by the government to those it deems most in danger from a specific, previously documented threat.”




Shelby County probate judge hires mental health programs coordinator

By Kent Faulk | The Birmingham News
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on January 06, 2016 at 10:42 AM

Shelby County Probate Judge Jim Fuhrmeister has hired prosecutor Allison Boyd to serve in the newly created position of Programs Coordinator for Mental Health Services and Legal Counsel to the Probate Judge.

The hiring was effective Monday.

Fuhrmeister said that with prison reform, state mental hospital closures, and the rise substance abuse – particularly heroin – at critical levels in the county “our county, it is important that we devote our full attention and resources to treating those in need and to protecting our communities.”

Prior to joining the probate office Boyd was a Shelby County Assistant District Attorney working in the mental health, drug and veteran treatment courts and she is a member of the Board of Directors of Chilton-Shelby Mental Health Center, Fuhrmeister said. “She has the knowledge and skill to work with community stakeholders, law enforcement and other government agencies to offer the support of the Probate Judge’s office in addressing these urgent issues.”

“She (Boyd) will be working with law enforcement, existing mental health agencies, treatment courts, community groups and others to look for new ways to help address mental health and substance abuse issues in our county,” Fuhrmeister said. “She will be available to existing agencies to assist them in developing programs.”

“With the scarce resources in mental health care, we have to find new ways to encourage people to seek treatment and to provide the programs to meet their needs,” said Fuhrmeister, whose job often involves having to commit people with mental issues to treatment centers. “This is a very loosely described position because I want Allison to think creatively and find solutions that have not been tried in Shelby County in the past.”

“We’ve got to come up with new ideas, Allison will take the point on this,” Fuhrmeister said.

Boyd also will serve as legal counsel to Fuhrmeister and advise him on changing areas of the law affecting the probate office, such as same-sex marriage, voting rights and elections, Fuhrmeister said.

“The legal landscape affecting the Probate Office is rapidly changing. Allison will bring her knowledge as an attorney and help me anticipate and prepare for new developments affecting my office.”

Funding for the new position comes from an existing, dedicated Mental Health Fund and will not impact the Shelby County budget. Fuhrmeister said.

Boyd served as Assistant District Attorney since July, 2007. Prior to that, she was in private practice in Tuscaloosa and her practice included probate, estate planning and involuntary mental health commitments,

She serves on the Board of Directors of Chilton-Shelby Mental Health Center, is President of the Advisory Board of Shelby Volunteers in Service, a county non-profit benefiting senior citizens and volunteer efforts in the county, and is on the Board of Directors of Leadership Shelby County.

Allison has a law degree from the University of Alabama School of Law, an M.B.A. from the University of Alabama at Birmingham and a B.S. from Samford University. She is married to Candler Boyd and they have two young children.




Key Rulings in Agency Lawsuits Expected in 2016 Decisions could have vast ramifications

C. Ryan Barber
From net neutrality rules to the Sally Yates memo, federal agencies came out with major policy announcements and found themselves in high-stakes litigation in 2015. But by the year’s end, there was too little time left to see how those policies would be put into practice, or how lawsuits with potentially vast ramifications would be resolved.
Here are some of the top things to look out for in 2016 with four federal agencies: the Federal Trade Commission, Justice Department, Federal Communications Commission and the Consumer Financial Protection Bureau.
Federal Trade Commission
In February, the U.S. Supreme Court drilled a hole in the state action exemption to antitrust laws with a decision for the Federal Trade Commission in its case against the North Carolina State Board of Dental Examiners. The FTC had filed suit against the board over its practice of clamping down on non-dentists who offered teeth-whitening services, in part, by sending them cease and desist letters. The board argued that its actions fell under the “state action” exemption, but the FTC held that the board was not supervised by any state officials other than the practicing dentists on the board itself. With a 6-3 decision, the court found that boards must be supervised by the state to have antitrust immunity.
In 2016, the FTC and Justice Department are expected to continue sorting out how the decision applies to sectors that have historically been self-regulated. “With [North Carolina Board of Dental Examiners v. Federal Trade Commission] seeming to require that there be some disinterested higher level supervision before the state action exemption applies, that gives the agencies a number of areas that they’ll want to explore,” said Sidley Austin partner Bill Blumenthal, who once served as the FTC’s general counsel.
Meanwhile, the decision to clear or challenge a merger will remain one of the biggest the FTC can make as it grapples with structural changes in the healthcare industry. In the final weeks of 2015, the commission took steps to block the proposed merger of Advocate Health Care Network and NorthShore University HealthSystem — both leading providers of general acute care inpatient hospital services in the North Shore area of Chicago.
Earlier in December, the commission asked for more information in its ongoing review of the proposed $17.2 billion deal to combine Walgreens and Rite Aid.
Department of Justice
It was the shot that could be heard throughout the financial sector. In September, the Justice Department issued new policies to put heightened focus on individual conduct and added pressure on companies to hand over evidence about their executives.
The so-called “Yates memo,” authored by Deputy Attorney General Sally Yates and titled “Indi­vidual Accountability for Corporate Wrongdoing,” immediately sent shockwaves through the white-collar community. But the practical effect of that announcement remains unclear.
2016 will begin to provide answers. In the first full year since the memo’s release, lawyers will be following whether the September announcement actually changes the Justice Department’s conduct and prosecutorial decisions.
Like the FTC, the DOJ’s antitrust plate will also be full. Assistant Attorney General Bill Baer, the leader of the department’s Antitrust Division, voiced skepticism in November about the benefits of consolidation in the healthcare industry. Speaking at a Yale Law School conference, he did not name any companies specifically, but some saw the remarks as a potential hurdle for the proposed merger of Anthem and Cigna, along with a pending deal between Aetna Inc. and Humana Inc.
Federal Communications Commission
The oral arguments over the Federal Trade Commission’s latest crack at net neutrality rules drew a packed courtroom in early December. That interest is likely to only intensify in anticipation of the decision from the U.S. Court of Appeals for the D.C. Circuit. But a final resolution is unlikely to come in 2016, as it is virtually certain that whichever side loses will take the case to the Supreme Court. In the meantime, the telecommunications community will be keeping a close eye on how the commission treats any enforcement matters that come onto its radar under the new rules.
“To date, there has not been any significant net neutrality matters at the commission since the rules became effective,” said Boies, Schiller & Flexner partner Robert Cooper. “That is likely to change in the year ahead.”
The FCC is also facing a challenge in the D.C. Circuit over the agency’s interpretation of the Telephone Consumer Protection Act, a 1991 law that put restrictions on the use automatic dialing equipment. In July, the commission came out with a 138-page order that was criticized for expanding the definition of an automatic dialing system and giving too little leeway for calls and messages to reassigned numbers that previously belonged to consenting customers. Sirius XM Radio Inc., the Internet Association and the U.S. Chamber of Commerce were among the companies and business groups that recently filed briefs opposing the commission’s July order.
Consumer Financial Protection Bureau
Since its inception in 2011, the Consumer Financial Protection Bureau has faced withering criticism. Sen. Ted Cruz, a GOP presidential candidate, introduced a bill in July to abolish the bureau, and another Texas congressman, Rep. Jeb Hensarling, has called it the “single most powerful and least accountable federal agency in all of Washington.”
With an election coming in November, some lawyers who frequently deal with the bureau are looking to see whether the agency — which is already seen as aggressive — will put the pedal to the metal with enforcement to help supporters stay in office.
In 2016, the bureau will also consider whether to propose rules that would ban consumer financial companies from using arbitration clauses to prevent class actions. Lawyers with financial sector clients are also keeping a close eye on rules for debt collection, payday lending and prepaid cards.


The Year in Opinion

Snapshots of the controversies and issues NLJ readers explored on our op- ed pages in 2015.
Diego M. Radzinschi
National Law Journal

Practitioners, legal scholars, law school deans, general counsel and many others confronted a myriad of significant issues in 2015 on topics that included same-sex marriage rights, Syrian refugees, the Affordable Care Act, capital punishment, the Dewey &LeBoeuf trial, diversity in legal education, and data security. What follows are some of the highlights of op-eds that appeared on these pages over the course of the year.



Roy S. Gutterman, professor, S.I. Newhouse School of Public Communications (Jan. 12)

“The Interview” controversy gave life to a movie that likely would have been quickly forgotten and, instead, transformed Seth Rogen and James Franco, actors more apt to low-brow humor than political commentary, into anti-censorship martyrs. But it also unwittingly sparked quite a debate and discussion, and for that we should be grateful.


Wayne Turner, staff attorney, National Health Law Program (Feb. 16)

Researchers at the Harvard School of Public Health examined 48 Affordable Care Act health plans and found a disturbing trend: A dozen of these plans placed medications used to treat HIV/AIDS in the highest cost-sharing categories. This practice-known as “adverse tiering” serves to discourage people with significant health needs from enrolling in the health plan. And it is prohibited by the ACA.


Andrew D. Herman, Miller & Chevalier (June 8)

Despite playing an integral role in the most infamous presidential sex scandal of our time — that involving Bill Clinton — Dennis Hastert failed to heed the primary lesson of that experience: It’s far easier to get in trouble for what you say than for what you’ve done. Now, faced with a federal indictment stemming from the most technical of legal violations — charges that deal not with his alleged misdeeds but his attempts to cover them up — Hastert must surely wish he’d stayed mum.


Bert Brandenburg, executive director, Justice at Stake Campaign (July 27)

Sen. Ted Cruz, R-Texas, furious at U.S. Supreme Court decisions on health care and marriage, is pushing for a constitutional amendment to make Supreme Court justices stand for retention elections, in which they would be forced to campaign to stay in office.

If sending Antonin Scalia or Ruth Bader Ginsburg out on the campaign trail sounds like a Saturday Night Live skit, it’s because it would turn more than 225 years of American constitutional culture on its head.


Lawrence Rosenthal, professor, Chapman University (Oct. 12)

The deep irrationality baked into our firearms policy is well reflected in the gun-show loophole. In no other context would a regulatory requirement be imposed that is so easily circumvented.


Christian Sundquist, professor, Albany Law School (Nov. 30)

Syrian refugees, by definition under U.S. and international law, are those persons who fled Syria in the face a well-founded fear of persecution by the Islamic State on account of their political opinions, religion, social group, race or nationality and are unable to return due to such a fear of persecution. Coupled with the fact that refugees, including Syrian refugees, must go through the highest levels of security screening as compared with other groups of immigrants, it seems clear that the knee-jerk reactions to the Paris attacks are less about national security and more about fear of diverse immigrants.


Kevin Johnson, dean, University of California, Davis School of Law (Dec. 21)

In the end, while Trump’s bombastic attacks on immigrants might make political hay, one can hope that the American legal system has evolved to a point where anti-immigrant horror stories are parts of our history, not present.



John Blume, professor, Cornell Law School (Jan. 26)

Georgia led the nation in being the first state to enact a statute prohibiting the execution of defendants with intellectual disability (then referred to as mental retardation). But Georgia has now gone from first to last, and its outlier use of the beyond-a-reasonable-doubt standard is fatal to death-sentenced inmates’ assertions that they may not be executed because they have an intellectual disability.


Toby Eveland, Arnstein & Lehr (Feb. 16)

It has been well publicized that on Feb. 9, Alabama became the 37th state to recognize same-sex marriage. And it has also been well publicized that Alabama Chief Justice Roy Moore has done everything in his power to stop it.

I grew up in Alabama. I graduated from the University of North Alabama. I raced stock cars on local tracks in Alabama. I avidly watched University of Alabama football. Now an attorney in Chicago, I practice in one of Chicago’s oldest and most respected law firms. I still avidly watch NASCAR and Alabama football. My friends say I bleed crimson.

I am also a proud gay man. And I want to have a bourbon (or three) with Moore. Maybe, just maybe, after a couple of bourbons, Moore would explain to me why as the highest judicial officer in the state of Alabama he believes federal courts and federal laws do not apply in this instance.


Lawrence O. Gostin, director of the World Health Organization Center on Public Health Law (Feb. 9)

Unvaccinated children put everyone else at risk, violating a basic ethical principle against imposing harms on others. If an individual’s right ends at the point that its exercise jeopardizes the safety of others, then why do states allow parents to opt out? The reason boils down to overbroad exemptions granted by many states. The Constitution doesn’t require states to grant any exemptions, but lobbying by a minority of parents has resulted in a tragedy of the commons.