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Alabama Lawyer
T h e
JULY 2021 | VoLUme 82, NUmber 4
▲ ▲ ▲ ▲
Alabama Municipal Law 101 A Primer on the Alabama Alabama Local Government Municipal Liability Cap on
(A Primer on the Basics) Open Meetings Act Procurement Law Basics Damages and UIM Insurance
Page 244 Page 251 Page 258 Page 262
M U N I C I PA L A N D L O C A L G O V E R N M E N T E D I T I O N
Alabama Lawyer
T h e c o L U m N s
President’s Page
232
Executive Director’s Report
JULY 2021 | VoLUme 82, NUmber 4
236
Important Notices
237
Editor’s Corner
242
On The Cover Disciplinary Notices
Historic railroad station in 273
Legislative Wrap-Up
Decatur, Alabama
F e a T U r e a r T i c L e s 276
End of an Era Memorials
By Justice Michael F. Bolin 283
Opinions of the
239
General Counsel
MU N I C I PA L A N D LOC A L GOV ER N MEN T A RTI C LES
Alabama Municipal Law 101 (A Primer on the Basics)
284
By Lorelei A. Lein, Teneé R.J. Frazier, and H. Robert Johnston
The Appellate Corner
288
About Members,
244
A Primer on the Alabama Open Meetings Act
By Mark S. Boardman and Wilson P. Boardman Among Firms
251 298
Alabama Local Government Procurement Law Basics
By Morgan G. Arrington
wgward@mindspring.com
W. Gregory Ward, Lanett.......................................Chair and Editor
lflippo@whitearnolddowd.com
Linda G. Flippo, Birmingham...............................Associate Editor
258
Municipal Liability Cap on Damages and UIM Insurance
wgreen@fleenorgreen.com
Wilson F. Green, Tuscaloosa .................................Associate Editor
By Angela C. Taylor rhill@bradley.com
Jonathan C. Hill (Rudy), Montgomery......................Associate Editor
262
facebook.com/AlabamaStateBar
Private Judging: A Means for Expediting Justice for Litigants @AlabamaStateBar
Alabama Lawyer
By Eileen L. Harris
266 @AlabamaStateBar
30 Faces of Pro Bono: Part 4 of 6
youtube.com/TheAlabamaStateBar
269 flickr.com/AlabamaStateBar
The
www.alabar.org 229
ALABAMA STATE BAR STAFF
415 Dexter Avenue
BOard Of Bar COmmissiOnErs
a d Ve r T i se r s
Montgomery, AL 36104
1st Circuit, Halron W. Turner, Chatom • 2nd Circuit, J. Levi
(334) 269-1515 • (800) 354-6154
Nichols, Luverne • 3rd Circuit, Elizabeth C. Smithart, Union
Springs • 4th Circuit, Jana R. Garner, Selma • 5th Circuit, Larry
www.alabar.org
W. Morris, Alex City • 6th Circuit, Place No. 1, Terri O. Tomp-
ABA Retirement Funds....................233 kins, Tuscaloosa • Place No. 2, Scott B. Holmes, Tuscaloosa •
ADMINISTRATION
7th Circuit, William H. Broome, Jr., Anniston • 8th Circuit,
Terri Lovell............................................Executive Director
Alabama Academy of David W. Langston, Decatur • 9th Circuit, Dana J. Grimes, Ft.
Michelle Shaw ......................................Executive Assistant
Payne • 10th Circuit, Place No. 1, James M. Terrell, Birming-
Attorney Mediators.......................247 ham • Place No. 2, John A. Smyth, Birmingham • Place No. 3,
Melissa Warnke.....................Director of Communications
Barry A. Ragsdale, Birmingham • Place No. 4, S. Freddy
Megan Hughes .........................Content/Outreach Manager
Alabama Court Reporting, Inc.........227 Rubio, Birmingham • Place No. 5, LaBella S. McCallum,
Hunter Harris .....................Information Systems Manager
Birmingham • Place No. 6, Michael D. Ermert, Birmingham •
Matt Mara ...............Building and Security Superintendent
Alabama Legal & Investigative Place No. 7, Allison O. Skinner, Birmingham • Place No. 8,
Margaret Murphy ........................Director of Publications
Brannon J. Buck, Birmingham • Place No. 9, Erik S. Heninger,
Services, Inc..................................243 Birmingham • Bessemer Cut-off, Kenneth Moore, Bessemer •
ADMISSIONS & ATTORNEY LICENSING
11th Circuit, Leigh Anne Landis, Florence • 12th Circuit, Car-
Sonia Douglas...............................Administrative Assistant
Attorneys Insurance Mutual men F. Howell, Enterprise • 13th Circuit, Place No. 1, R. Edwin
Angie Fuqua.................................Administrative Assistant
Lamberth, Mobile • Place No. 2, Frederick G. Helmsing, Jr.,
Of the South..................................226
Morgan Lott.................................Administrative Assistant
Mobile • Place No. 3, William R. Lancaster, Mobile • Place
Cathy Sue McCurry ....................Administrative Assistant
No. 4, Bryan E. Comer, Mobile • Place No. 5, James Rebar-
Cain & Associates Engineers........240 chak, Mobile • 14th Circuit, Charles C. Tatum, Jr., Jasper • 15th
CENTER FOR PROFESSIONAL
Circuit, Place No. 1, George R. Parker, Montgomery • Place
RESPONSIBILITY
Cognito..........................................235 No. 2, Pat Sefton, Montgomery • Place No. 3, Joel D. Con-
Roman Shaul ............................................General Counsel
nally, Montgomery • Place No. 4, C. Gibson Vance, Mont-
Melissa Lawson ....................Paralegal to General Counsel
gomery • Place No. 5, Felicia A. Long, Montgomery • Place
Davis Direct......................................297 No. 6, J. David Martin, Montgomery • 16th Circuit, Bradley W.
Jeremy McIntire ................Deputy Chief General Counsel
Cornett, Gadsden • 17th Circuit, T. Thomas Perry, Jr., Demopo-
Mark Moody .............................Assistant General Counsel
J. Forrester DeBuys, III.................241 lis • 18th Circuit, Place No. 1, Clay R. Carr, Chelsea • Place No.
Dawynrico McCain..........................Paralegal/Investigator
2, Mark S. Boardman, Chelsea • Place No. 3, Anne Malatia
Stacey Moseley.......................................Disciplinary Clerk
Glass, Birmingham • 19th Circuit, Tina S. Moon, Prattville •
Fidelity Fiduciary Co. LLC...........289
Laurie Blazer ...........................................CSF Coordinator
20th Circuit, R. Cliff Mendheim, Dothan • 21st Circuit, J. Kirk-
Julie Lee ...........................................................Receptionist
man Garrett, Brewton • 22nd Circuit, Manish H. Patel, Andalu-
The Finklea Group, Inc.................238 sia • 23rd Circuit, Place No. 1, J. Mark Debro, Huntsville •
ETHICS DIVISION
Place No. 2, John A. Brinkley, Jr., Huntsville • Place No. 3, Re-
Tripp Vickers...............................................Ethics Counsel
Insurance Specialists, Inc..................300 bekah K. McKinney, Huntsville • Place No. 4, M. Clay Martin,
Autumn Caudell ..........................Assistant Ethics Counsel
Huntsville • 24th Circuit, Amanda W. Porter, Fayette • 25th Cir-
cuit, Chrissy L. Riddle, Haleyville • 26th Circuit, F. Patrick
LawPay..............................................228
PROGRAMS
Loftin, Phenix City • 27th Circuit, Clint L. Maze, Arab • 28th
Robyn Bernier..............................Administrative Assistant
Circuit, Place No. 1, J. Lynn Perry, Gulf Shores • Place No. 2,
National Academy of J. Langford Floyd, Fairhope • 29th Circuit, Sarah Clark Bowers,
ACCOUNTING/TRAVEL
Distinguished Neutrals...................231 Sylacauga • 30th Circuit, John W. Rea, Pell City • 31st Circuit,
Merinda Hall........................................Director of Finance
D. Edgar Black, Muscle Shoals • 32nd Circuit, Jason P. Knight,
Cullman • 33rd Circuit, Robert H. Brogden, Ozark • 34th Circuit,
Kristi Neal .............................................Financial Assistant
Schreiber Dispute Jeffrey L. Bowling, Russellville • 35th Circuit, W. Robert
LAWYER ASSISTANCE PROGRAM
Resolution Inc................................275 McMillan, Monroeville • 36th Circuit, Christy W. Graham,
Moulton • 37th Circuit, Andrew D. Stanley, Opelika • 38th Cir-
cuit, Deborah L. Dunsmore, Scottsboro • 39th Circuit, Donald
Jeremy Rakes............Director of Lawyer Assistance Program
Vargas Vocational Consulting........295 (334) 269-1515 • (334) 834-7576
B. Mansell, Athens • 40th Circuit, Mallory B. Whitley, Rock-
Shannon Knight ...........................................Case Manager
ford • 41st Circuit, Brett A. King, Locust Fork
Joycelyn Hill.................................Administrative Assistant
Veritext Legal Solutions...................299
aT-LargE BOard mEmBErs
LAWYER REFERRAL SERVICE
Diandra S. Debrosse, Birmingham • Raymond L. Bell, Jr.,
John Dunn ...........................................LRS Representative
Mobile • Latisha R. Davis, Chattanooga • Judge Charles Price, II,
Birmingham • Karen Laneaux, Montgomery • Kira Y. Fonteneau,
RECEPTIONIST
Birmingham • Jeanne Dowdle Rizzardi, Huntsville • Richard M.
Stephanie Oglesby...........................................Receptionist
Kemmer, Jr., Centreville • John T. Stamps, III, Bessemer • Holly
L. Sawyer, Dothan
VOLUNTEER LAWYERS PROGRAM
The Alabama Lawyer The Alabama Lawyer
The Alabama Lawyer (USPS 743-090) is published six times a
Linda Lund ..........Director of Volunteer Lawyers Program
GRAPHIC DESIGN PRINTING
Hilaire Armstrong.................Pro Bono Clinic Coordinator
year by the Alabama State Bar, 415 Dexter Avenue, Montgomery,
Alabama 36104. Periodicals postage paid at Montgomery, Ala-
Debbie Harper.................................................Intake Clerk
BOard Of EdiTOrs: Marc J. Ayers, Birmingham •
dress changes to The Alabama Lawyer, P.O. Box 4156,
bama and additional mailing offices. POSTMASTER: Send ad-
Robert C. Crocker, Cullman • Aaron L. Dettling,
OFFICERS AND EXECUTIVE COUNSEL
Birmingham • Jesse P. Evans, III, Birmingham • Linda
Montgomery, AL 36103-4156.
Robert G. Methvin, Jr., Birmingham.................President The Alabama Lawyer is the official publication of the Alabama
G. Flippo, Birmingham • Kira Y. Fonteneau, Birming-
Tazewell T. Shepard, III, Huntsville .........President-Elect
ham • Lloyd W. Gathings, II, Birmingham • Gregory H.
Alabama Lawyer
Christina D. Crow, Union Springs ..............Past President
Hawley, Birmingham • K. Dee Hutsler, III, Birmingham State Bar. Views and conclusions expressed in articles herein are
C. Gibson Vance, Montgomery...................Vice President
• Sarah S. Johnston, Montgomery • Jacob J. Key, Lanett those of the authors, not necessarily those of the board of editors,
officers or board of commissioners of the Alabama State Bar. Ad-
Leon Hampton, Jr., Montgomery ......Ex Officio Member
• Margaret H. Loveman, Birmingham • Allen P.
Mendenhall, Montgomery • Keith S. Miller, Mont- vertising rates will be furnished upon request. Advertising copy is
Jeffrey L. Bowling, Russellville............Executive Council
gomery • Anil A. Mujumdar, Birmingham • Sherrie L. carefully reviewed and must receive approval from the Office of
Diandra S. Debrosse, Birmingham ......Executive Council endorsement of any product or service offered. The Alabama
Phillips, Montgomery • Christopher E. Sanders, General Counsel, but publication herein does not necessarily imply
R. Clifford Mendheim, Dothan ............Executive Council Lawyer reserves the right to reject any advertisement. Copyright
Prattville • Allison O. Skinner, Birmingham • Marc A.
Starrett, Montgomery • David G. Wirtes, Jr., Mobile •
The
Barr D. Younker, Jr., Montgomery 2021. The Alabama State Bar. All rights reserved.
230 July 2021
Alabama Lawyer
The
www.alabar.org 231
P r e s i d e N T ’ s P a g e
Robert G. Methvin, Jr.
rgm@mtattorneys.com
a Year of challenges brought
opportunities for success
Those who know me well know that i i started my presidency with three
often speak of life lessons taught by my main initiatives: unity, diversity, and in-
parents, who unfortunately are no clusion; helping the legal profession
longer with us. my dad, affectionately adapt to a new norm; and lawyer public
known in eufaula as “big bob,” loved vari- relations with an emphasis on pro bono
ous sayings and quotes, which we com- service. i express my appreciation to all
piled in a short book. my friends call of the people who helped lead these ini-
them “big bobisms.” one of his favorites tiatives; without them, we would not
and mine is “your attitude, not your apti- have accomplished so much.
tude, determines your altitude.” my mom Three dedicated task forces, the Presi-
Alabama Lawyer
also taught my siblings and me that we dential council on Unity and diversity led
could accomplish anything if we worked by cassandra adams, hilaire armstrong,
hard and never quit. armed with my par- and ricardo Woods; the coVid-19 Task
ents’ guiding wisdom and the help of Force led by Tom Perry, Jeanne rizzardi,
our amazing bar leadership, we were and clay martin; and the coVid-19
able to successfully navigate and over- bench and bar Task Force led by christy
The
come the challenges presented this year. crow, melody eagan, and circuit Judge
232 July 2021
Jim hughey, guided us through these program allowing attorneys to obtain to leave her retirement to take on the
turbulent times. all of their required hours for free. be- role of interim executive director. after
as discussed in my last article, the cause of its popularity (over 3,000 being without an executive director for
bar honored one of the greatest civil lawyers completed more than 20,000 approximately four months, ellen im-
rights leaders of our history, Fred gray, hours with the program last year), this mediately got our ship moving in the
and will soon break ground on the valuable member benefit is also avail- right direction. her management style
Fred gray courtyard adjacent to the able this year. other cost-saving meas- and people skills are second to none. i
state bar building. We sponsored the ures that we implemented this year have learned a lot from my friend,
free “Unity matters” cLe series which included lowering the annual dues to ellen, and i am immensely grateful for
addressed diversity and unity issues. $300, reevaluating how to efficiently all of her hard work.
i am also very proud of the coVid-19 and cost-effectively operate the state on april 23, the board of bar com-
bench & bar Task Force’s work in bar, and increasing the number of missioners, at the recommendation of
preparing a Zoom virtual hearing member benefits. the executive director search Task
handbook and creating a plan to safely Just when i began getting comfort- Force, unanimously chose Judge Terri
re-start jury trials.1 The outstanding able with our progress on these initia- bozeman Lovell to lead the alabama
staff at the alabama state bar contin- tives, another unexpected thing state bar. Judge Lovell is the first fe-
ues to update a very useful coVid-19 happened: we began searching for a male executive director of our organi-
resource page on the bar’s website.2 new executive director. during this zation. Prior to her hiring, she served
as part of our adaption to working process, former montgomery county as the presiding circuit judge in the
remotely, we started a virtual cLe district attorney ellen brooks agreed second judicial circuit, which consists
Alabama Lawyer
The
www.alabar.org 233
P r e s i d e N T ’ s P a g e
(Continued from page 233)
of butler, crenshaw, and Lowndes have received overwhelmingly positive you who continue to make our motto,
counties. i am ecstatic to welcome feedback for this presentation, which “Lawyers render service,” a reality
Judge Lovell and look forward to her showcases the billions of dollars that through volunteer contributions to
great leadership in the years to come. alabama lawyers and the court system your community and profession. as a
i am grateful to our Lawyer Public re- contribute to our state’s economy each reminder, Lawyers render service is
lations Task Force led by sara Williams, year, highlights the leadership of also the name of our newly-formed
george Parker, and mike ermert for lawyers in charitable and civic causes, 501(c)(3) charity designed to provide fi-
spreading the positive message about and educates the public about the tens nancial help to attorneys experiencing
lawyers to the public. due to the hard of millions of dollars in pro bono lawyer serious life-changing events.3
work of this task force, we have been time that is donated each year. i specifically recognize my executive
able to give presentations to numerous This is starting to feel like one of council for all of their hard work, advice,
civic organizations throughout the those award speeches where they give and willingness to support the good
state about the importance of the you less than a minute to thank the ideas and cast aside the not-so-good:
court system and the legal profession hundreds of people who helped make gibson Vance, christy crowe, diandra
in alabama. our goal is to present this the award possible. Please know that i debrosse, Taze shepard, cliff mend-
message in every alabama county by am grateful to every single bar member heim, Jeff bowling, roman shaul, ellen
the time this article reaches you. We who assisted us this year. i salute all of brooks, Leon hampton, and evan allen.
Alabama Lawyer
The
234 July 2021christy, gibson, and roman–i appre- has truly been the highlight of my legal Endnotes
ciate all of your advice and guidance career. although we faced many chal- 1. This handbook provides information on how to use
this past year. You were selfless with lenges and much uncertainty, we were Zoom, including introducing exhibits and evidence at
your time and were largely responsible able to effectuate lasting, positive trial, and can be downloaded from https://www.
for helping keep this ship afloat during change because of the incredible team alabar.org/news/download-this-zoom-virtual-hearing-
handbook-for-alabama-lawyers/.
our time of transition, especially when effort, great attitude, and hard work of
2. Alabama State Bar COVID-19 Updates, AlABAmA STATe BAr,
we were without an executive director. our bar staff, executive council, bar com-
missioners, and you, our members. s
https://www.alabar.org/alabama-state-bar-coronavirus-
i am excited to pass the torch to Taze covid-19-safety-measures/.
who will soon be installed as the 146th 3. You can find out more information about this charity
president of our state bar. Taze and i at https://www.alabar.org/lawyers-render-service/.
have worked very well together this
past year, and i am excited to see the
implementation of his great ideas. i also
congratulate gibson, our president-
elect-designate, who will serve after
Taze.
i cannot close without thanking my
wife, Lee, and my wonderful daughters,
hope, Kate, and Laine, for their daily
support and willingness to adapt to my
schedule this past year. i am also grate-
ful for the encouragement and support
that i received from my law firm. and i
would be remiss not to thank both our
incredible bar staff for providing great
service to all of our members and
michelle shaw for her professional as-
sistance to me. a special thanks to greg
Ward and those at The Alabama Lawyer
for their patience (i am zero for six in
getting my articles to them by the
deadline). i am grateful for the talents of
courtney gipson and Jimbo Terrell who
helped edit each article i have written.
Finally, to the bar commissioners,
thank you for your hard work and sup-
port throughout this year. This was a
year of transition with many long vir-
tual meetings, and yet we were still
able to accomplish our objectives. so-
cial distancing frequently required us
to confront tough issues and reach dif-
ficult decisions without the normal
comradery of lunch and social events
that we have enjoyed in the past. as a
result of your professionalism, we were
able to obtain consensus on almost
every major issue presented, even fol-
Alabama Lawyer
lowing spirited discussion and debate.
Thanks again to each of you for your
leadership and your patience this year.
i am humbled and honored to have
served as the 145th president of the ala-
bama state bar. serving as your president
The
www.alabar.org 235e x e c U T i V e d i r e c T o r ’ s r e P o r T
Terri Lovell
terri.lovell@alabar.org
open doors
i always knew that at the end of my meetings and closed offices and
judicial career another door would open. courtrooms, i want you to remember
but never in my search for purpose and that not only do you add value to our
direction did i dream that my new open legal community, but you are also an
door would be an opportunity to serve influencer in your family, in your
lawyers and to help direct the future of community, and over everyone you meet
our legal profession. To say that i am and serve. sometimes it takes fresh eyes
humbled to be entrusted to serve as your to remind you of your importance.
next executive director would be an as you can imagine, engaging with
When one door closes, understatement. many lawyers and lawyers across the state has been the
friends have asked me if i am sad to be highlight of my first days in office. You
another opens; but we leaving the bench. after serving the state have turned the challenges of the past
of alabama and the second Judicial year into something positive, and that
often look so long and circuit for the past 24 years, i have inspires me to create and envision ways
realized that being a judge has been that the alabama state bar can come
more than a privilege, it has been a alongside you and serve you better. There
so regretfully upon the classroom to learn how to problem-solve, is no doubt that our members are the
collaborate, learn, and grow. Listening heartbeat of the alabama state bar, and
closed door that we do and learning from lawyers and judges for my priority is to ensure that all lawyers in
Alabama Lawyer
my entire life, i sincerely have a desire to alabama are engaged, equipped, and
not see the one which give back to those men and women who empowered for this great work.
have influenced me. it is an honor to be a lawyer.
i am, as we all are, where i am today opportunities are just behind the open
has opened for us. because of the influencers in my life. as door. Please join with me as we enter
the doors of opportunity and the actual the open doors to serve our profession
s
The
–alexander graham bell doors reopen after a year of virtual with excellence.
236 July 2021i 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 for
Comment on amendments to
The rules of the United states
Court of appeals for the
Eleventh Circuit
harold albritton Pro bono
Leadership award
The harold albritton Pro bono Leadership award seeks to identify and honor indi-
vidual lawyers who through their leadership and commitment have enhanced the
human dignity of others by improving pro bono legal services to our state’s poor and
disadvantaged. The award will be presented in october, which is officially designated
Pro bono month.
To nominate an individual for this award, submit no more than two single-spaced
pages that provide specific, concrete examples of the nominee’s performance of as
many 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;
Alabama Lawyer
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 or
in extending services to underserved segments of the population; or
4. successfully achieved legislation or rule changes that contributed substantially
The
to legal services to persons of limited means or low-income communities.
www.alabar.org 237i m P o r T a N T N o T i c e s
(Continued from page 237)
To the extent appropriate, include in the award criteria
narrative a description of any bar activities applicable to the
above criteria.
To be considered for the award, nominations must be
submitted by august 1. For more information about the
nomination process, contact Linda Lund at (334) 269-1515
or linda.lund@alabar.org.
Notice of and
opportunity for
comment on
amendments to the
rules of the United
states court of
appeals for the
eleventh circuit
Pursuant to 28 U.s.c. § 2071(b), notice and opportunity for Design and Marketing Services
comment is hereby given of proposed amendments to the
rules of the United states court of appeals for the eleventh
Logos Trade Show Exhibits
circuit. The public comment period is from august 4 to Websites Publication Design
september 3, 2021. Brochures Media Kits
a copy of the proposed amendments may be obtained
Product Catalogs Billboards
on and after august 4, 2021 from the court’s website at
http://www.ca11.uscourts.gov/rules/proposed-revisions. a Print Ads P.O.P. Displays
copy may also be obtained without charge from the office Product Packaging Professional Portfolios
Alabama Lawyer
of the clerk, U.s. court of appeals for the eleventh circuit,
Sales Support Material
56 Forsyth st., N.W., atlanta 30303. Phone (404) 335-6100.
comments on the proposed amendments may be
submitted in writing to the clerk at the above address or 300 North Dean Road, Suite 5-193 • Auburn, AL 36830
at http://www.ca11.uscourts.gov/rules/proposed-revisions, 334.799.7843 • gavin@taplink.com
by 5:00 p.m. eT on september 3, 2021. s
The
238 July 2021End of an Era By Justice Michael F. Bolin
earned–along with their respect and
friendship.
The Alabama appellate courts recently Bilee was appointed as the
courts’ first assistant reporter of de-
experienced the end of an era cisions in 1989, and she assumed
when Bilee Cauley retired as the re- the mantle of reporter of decisions,
porter of decisions on December one of only four over the course of
31, 2020. Tasked with ensuring that the last century in 2001. She was
the opinions of our appellate courts the first woman to hold the posi-
are accurately reported, the reporter tion. During her nearly 20-year
also serves in a less publicized role tenure as reporter, Bilee oversaw
the Alabama Reporter.
as the courts’ legal editor, advising the publication of 164 volumes of
the justices, judges, and their staffs
tire volume of The Alabama Lawyer
on the proper use of grammar and No doubt, we could fill up an en-
punctuation, editing court rules and
Alabama Lawyer
amendments thereto, and last, but with fond remembrances of Bilee
probably most importantly, offering and her service, but I hope a few
input and advice on drafts of opin- words from several friends and for-
ions. Needless to say, it is a job that mer colleagues will suffice to show
requires the complete trust of the what she has meant to the courts and
The
members of the courts, which Bilee how much she will be missed.
www.alabar.org 239As former Associate Justice her editorial comments, former As- former associate justice, sums up
Champ Lyons observes, “[t]he sociate Justice Bernard Harwood Bilee’s unique contributions most
task of serving as the Supreme fondly recalls, “I argued for a re- succinctly: “I was acutely aware
Proofreader for Supreme Court laxation of the formal rules of that, in some ways, our decisions
Justices, a class of people not grammar and syntax .... I can’t re- were like paintings–once we re-
known for their reticence or lack call these years later the actual de- leased them and the opinion be-
of self-confidence, is not an easy tails of the calmly reasoned tutorial came final, there was no going
one. It takes a very gentle touch Bilee gave me on why the revisions back to improve a brush stroke
while wielding a skilled, sharp she’d made should be adopted, but here or there. Bilee made us all
pen. Bilee is blessed with both tal- she won me over completely with look like accomplished artists.”
ents. I can remember her soft and her great command of proper Eng- I would be remiss if I did not
cheerful presence and the cautious lish composition and established add that I concur completely and
question, ‘Is that really what you rules of grammar and punctuation, wholeheartedly with the above
mean to say?’ More often than not all so diplomatically explained. I comments and opinions of Justices
the answer was, ‘Not really.’ A came over the years to appreciate Lyons, Harwood, Woodall, and
stronger opinion would result. I that every change she suggested Brown with regard to Bilee. Her
could go on, but I am becoming a served to make the meaning clearer abilities, intellect, and integrity
bit apprehensive over the prospect and more grammatically coherent. pale only in comparison to her
of her smiling to herself as she She never proposed anything to kind and gentle nature.
muses over my choice of words en alter the sense or effect of an opin- I first met Bilee in January 2005
route to pursuit of perhaps a better ion, but she sure knew how to re- as a new justice on the court. I
way to express these thoughts.” vise in a way that got the wording began my tenure by assuming that
Describing one of his first inter- just right. She was a marvelous re- I knew everything and would be
actions with Bilee after reviewing source for the Court for clear and completely self-sufficient as an
correct expression.” author of opinions. Although I was
Former Associate Justice Tom surrounded by quality lawyers, I
Woodall recalls Bilee’s skills and decided that I would research and
CONSTRUCTION personality similarly: “The re- write my first opinion on my own.
porter must polish and refine an So I began and finished my work
& ENGINEERING opinion of the Court without af- after a couple of weeks. After cir-
EXPERTS fecting the substance of the opin- culating it and obtaining the votes
Forensic engineering and
investigative inspections:
ion or unduly irritating its author. of a majority of the court, I sub-
Commercial • Industrial • Residential
Bilee was always able to accom- mitted it to my judicial assistant to
plish this daunting task with kind- prepare it for release. A few days
Our specialists have Testifying Expertise ness and good humor. Although later, she gave it back to me with,
■ Construction delay damages she had to be a critical reader, as she put it, some “suggested
■ Construction defects Bilee never criticized an opinion. Bilee changes” for my review. I
■ Acceleration of schedule Instead, through just the right mix- looked at my opinion, and I don’t
■ Structural issues ture of corrections, comments, think that there was a single para-
■ Foundations, settlement suggestions, questions, and discus- graph without pencilled-in, squig-
■ Stucco & EIFS
■ Electrical issues
sions, she improved every opinion gly, and unintelligible punctuation
■ Mechanical Systems
she reviewed. By doing so, Bilee marks and suggestions. I had no
■ Roofing problems
obviously enhanced the quality of idea what these marks meant, so I
■ Flooding & Retention Ponds
the Court’s work product and, in asked my assistant to give me two
■ Engineering Standard of Care issues
the process, made us all better copies of the opinion, one as origi-
■ Radio & Television Towers
Alabama Lawyer
writers. Bilee, thank you for being nally drafted and the other with
our editor and, at the same time, Bilee’s suggested changes. Need-
Cain and Associates
Engineers & Constructors, Inc. becoming a friend.” less to say, I was at least bright
Contact: Hal K. Cain, Principal Engineer Perhaps, though, Jean Brown, enough to admit that I had a lot to
Halkcain@aol.com
251.473.7781 • 251.689.8975
commissioner of the Alabama De- learn, and I wisely chose the Bilee
www.hkcain.com partment of Senior Services and a version.
The
240 July 2021I cannot imagine how any one other to work conferences, and they fondly wish her nothing but the best
person could ever juggle proposed found time to relax together in such as she adjusts to her “changes in lat-
opinions from nine justices and 10 varying locales as Disney World, itudes, changes in attitudes.” s
judges of the intermediate appellate Hawaii, and many places in be-
Justice Michael F. Bolin
courts each week, with a great ma- tween. Bilee is also fond of exotic
jority of these jurists expecting their cruises, having explored the eastern
opinions to be released the very Caribbean Sea, the Mediterranean
Justice Mike Bolin is a
next Friday. But Bilee did it as our Sea, and the Danube River. Al-
lifelong resident of Jeffer-
reporter, week after week, for over though COVID-19 has interfered
son County. He received his
two decades, always with a smile. with any immediate plans, I know Bachelor of Science degree
Although Bilee loved her work, she is looking forward to many in business administration
she was never defined by it, which more years of globe-trotting with from Samford University
is why I am confident she will friends and family. and his Juris Doctorate degree from
prosper in retirement. Raised in Those of you who know Bilee Cumberland School of Law, graduating
Pittsburgh, Pennsylvania, Bilee at- also know that she is an avid cy- cum laude and being inducted into Curia
tended Eckerd College in St. Pe- clist who has competed at several Honoris. He practiced in Birmingham for
tersburg, Florida, where she earned Senior Olympics, medaling in sev- 16 years. He was elected Probate Judge
an undergraduate degree in English eral events. She has toured Maine of Jefferson County in 1988 and served in
literature and met her husband of by bicycle during the fall, leaf- this position until he was elected to the
41 years, Wendell Cauley, a well- changing season, has ridden the Alabama Supreme Court in 2004. Justice
Bolin serves as the Senior Associate
known and well-respected attorney Natchez Trace in Mississippi, and
Justice of the Court.
in his own right, who tragically hopes to continue her two-wheeled
passed away in 2013. Before em- adventures cycling across Europe.
barking on her own legal career, Her longtime, valued administra-
Bilee was an English instructor at tive assistant, Terri Vaughn, loves
the University of Alabama while to remind Bilee of the 200-mile bi-
Wendell attended law school. Bilee cycle trek Bilee and her best friend
followed in Wendell’s footsteps, took from Montgomery to Destin,
graduating from the Thomas not realizing that their overnight pit
Goode Jones School of Law, where stop was in a dry county in south
she was awarded the James J. Alabama. Needless to say, they ap-
Carter Award for Scholarship for preciated their arrival in Destin that
maintaining the highest grade-point much more the next day.
average in her class. Even back Realizing early that all of us re-
then, she was usually the smartest tire someday, Bilee anticipated
person in the room! that, and, as her predecessor did
Shortly after joining the court, I for her, she has trained her long-
attended a banquet and, by chance, time assistant reporter of deci-
was seated next to Wendell and sions, Sean Blum, to succeed her.
Bilee. For those of you who knew Bilee always had the welfare of
Wendell Cauley, you know that he the appellate courts uppermost in
was a lawyer’s lawyer, and the her professional mind, and her
three of us became very good legacy will live on through Sean.
friends that night. Over the years, I A lover of the beach, Bilee plans
realized what everyone who knew to spend much of the coming years
Alabama Lawyer
them thought about Bilee and on the Gulf coast, listening to her
Wendell–they were made for each favorite musician, Jimmy Buffett,
other, this Yankee girl and this and entertaining her friends and
Southern boy. family. I feel confident speaking for
Bilee and Wendell loved to travel the many court members she has
together, often accompanying each worked with over the years when I
The
www.alabar.org 241e d i T o r ’ s c o r N e r
W. Gregory Ward
wgward@mindspring.com
municipal and Local
government edition
since i’ve spent some serious time its focus is to explain the different forms
representing governmental entities, i’ve of government that can be organized
long thought that an edition dedicated for small cities or towns, the open meet-
to their special problems might be fun. ings act, procurement law, or the cap on
When i contacted my friend Jake Key– damages when you sue a city. but i have
he is a member of the editorial board of to give it to our authors–they did a great
The Alabama Lawyer–and asked if he’d job. and, on second thought, their arti-
be interested in working on this with cles are not that dry after all.
Alabama Lawyer
me, he jumped in with both feet. i think i think this edition’s authors did an
you will agree that he came up with outstanding job of laying out informa-
some good articles. tion logically, carefully, and in a way that
one word of warning. Unless you do it can be gathered up and used. govern-
this for a living–and sometimes even if mental entities are an area of the law
you do–this can be a little dry. i mean, unto themselves. There are lots of code
The
just how exciting can an article be when sections that have to be consulted, and
242 July 2021they are not neatly kept in one place. in other words, before i hope you enjoy this issue as much as we enjoyed putting
you begin, you should consult with an expert. it together for you.
We’ve done that for you. and just wait until you see what we have for you next time.
We begin with “alabama municipal Law 101” (page 244). so, enjoy the articles. email me at wgward@mindspring.com
i love the title. Three lawyers for the alabama League of if you have questions, or comments, or want to write. We are
municipalities–Lorelei a. Lein, Tenee´ r.J. Frazier, and h. always looking for our next group of excellent writers. s
robert Johnston–accepted the task of showing us the ropes.
if you are new to the field of city or town governments
(spoiler alert: there is a difference–read the article to find out
what it is), then this is the place to start. or if you just want a
refresher course on what it’s all about, alfie, take a look.
mark and Wilson boardman gave us “a Primer on the ala-
bama open meetings act” (page 251). if you know anyone
with more experience or who is better informed on this topic
than mark boardman, let me know. he’s been doing this for a
while now, and his expertise in the field has been broadly
recognized. his son, Wilson, gave his dad a hand. Wilson is in
his third year at the University of chicago school of Law.
morgan arrington turned in “alabama Local government
Procurement Law basics” (page 258). morgan is general coun-
sel for the alabama association of county commissions, so
she’s well-positioned to know whereof she speaks. if you deal
with county or municipal governments, you might want to
spend some eye-time on this one. do you know the difference sErviCEs
between the competitive bid law and the public works law?
she’ll clue you in. and she did a fine job of it, too. Statewide Process Serving >
so far, we’ve stayed with the basics. Now let’s venture out
Skip Tracing >
a bit. if you want to defend a lawsuit against a city, or if you
want to sue a city, and you want to know the statutory caps, Tag Registration Searches >
angela Taylor supplies a solid footing with “municipal Liabil-
Vehicle Lien Searches >
ity cap on damages and Uim insurance” (page 262). Not only
Private Investigative Services >
Alabama Lawyer
does she talk about those caps, but, as the title suggests, she
goes farther afield and tops off an already-excellent treat-
ment with information about efforts to overcome the statu-
tory cap limits and uninsured motorist policies.
This edition has lots of information. if this is something you Jim HEndErsOn CLay HEndErsOn
do, or if it is something you might get into, this is an edition
(334) 478-4147 • www.alis-inc.com
The
you want to hang onto.
www.alabar.org 243M U N I C I PA L A N D L O C A L G O V E R N M E N T E D I T I O N
A L A B A M A M U N I C I PA L L AW 1 0 1
(A Primer on the Basics)
By Lorelei A. Lein, Teneé R.J. Frazier, and H. Robert Johnston
mayor-Council
Alabama has 463 incorporated
municipalities located in 67 counties.
Government
Most Alabama cities and towns
These entities are designated by use the mayor-council form of
state law as either cities (popula- government. This form is provided
tion of more than 2,000) or towns for by Ala. Code §§ 11-43-1 to -
(population of fewer than 2,000) 232. There are two variations of
and range in size from the state’s the mayor-council form of govern-
largest city, Birmingham (popula- ment. In cities with 12,000 or
tion 212,247) to the town of Mc- more inhabitants, the governing
Alabama Lawyer
Mullen (population 10). Alabama body is generally composed of a
is predominantly a state of small mayor and five councilmembers,
municipalities; more than 60 per- and in a handful of municipalities,
cent have a population of fewer seven or nine councilmembers.
than 2,000, and 27 percent have a These officials are elected by the
The
population of fewer than 500. voters of the city or town at-large
244 July 2021M U N I C I PA L A N D L O C A L G O V E R N M E N T E D I T I O N
unless the council, at least six months prior to an elec- council and may vote on any issue coming before that
tion, has voted to elect the councilmembers from dis- body. § 11-43A-8.
tricts or is otherwise required by law to be districted. The council has the power to appoint and remove a
In municipalities with fewer than 12,000 in popula- city manager and establish other administrative de-
tion, the legislative functions are exercised by the coun- partments and distribute the work of such depart-
cil which is generally composed of the mayor and five ments. § 11-43A-17. According to the Act, the city
councilmembers. Section 11-43-63 permits up to seven manager is the chief executive and head of the admin-
councilmembers in municipalities which are districted. istrative branch of the municipal government and is
The mayor presides over all deliberations of the council. responsible to the council for the proper administra-
At the mayor’s discretion, the mayor may vote as a tion of all affairs of the municipality. § 11-43A-28.
member of the council on any issue coming to a vote. In Currently, Auburn, Tuskegee, and Vestavia Hills oper-
the case of a tie vote, the mayor must vote. § 11-43-2. ate under this form of government.
The mayor, however, may never vote more than once
case of a tie vote. Jones v. Coosada, 356 So. 2d 168
on any issue that comes before the council, even in the
(Ala. 1978). All of the legislative powers of the munici-
Other Forms of municipal
pality are exercised by the council acting as a whole.
Government
The Alabama legislature has adopted specific legis-
Council-manager lation to provide either a form of government for a
particular municipality or to provide a procedure by
Government which the form of government of certain municipali-
ties may be altered. These laws generally apply only
Any Alabama municipality can hire a city manager to a single city or town. Those municipalities affected
• Anniston–Council-Manager, Act No. 71-1049
as provided for in § 11-43-20 to -22. However, that a by specific enactments are:
• Phenix City–Council-Manager, Act No. 77-71
city has a manager hired under the provisions of this
• Montgomery–Mayor-Council, Act No. 73-618
statute does not by itself give the municipality a true
council-manager form of government. To deal with
• Birmingham–Mayor-Council, Act No. 55-452
this, the legislature adopted the Council-Manager Act
• Troy–Mayor-Council, §§ 11-44A-1 to -16
of 1982, §§ 11-43A-1 to -52, to allow all Class 2
• Opelika–Mayor-Council, §§ 11-44D-1 to -21
through Class 8 municipalities the option of becoming
• Prichard–Mayor-Council, §§ 11-43C-1 to -92
a true council-manager form of government.
The council is the governing body of a municipality
• Tuscaloosa–Mayor-Council, §§ 11-44B-1 to -22
organized under the council-manager form of govern-
• Bessemer–Mayor-Council, §§ 11-43D-1 to -22
ment, and it is composed of five or seven members. One
• Gadsden–Mayor-Council, §§ 11-43B-1 to -32
member shall be the mayor who is elected at large, who
• Mobile–Mayor-Council, Ala. §§ 11-44C-1 to -93
shall be a voting member of the council, and either four
• Dothan–Class 5 cities with a mayor-commission-
or six members shall be council members elected either
at large or from single-member districts, as the resolu-
tion shall provide. § 11-43A-1.1. If a municipality has
• Talladega–Council-Manager–Amendment 738 (Tal-
manager, §§ 11-44E-1 to -221
Alabama Lawyer
single-member districts for the election of council mem-
bers when the council-manager form of government is
adopted in the municipality, the municipality must con- ladega 13), Alabama Constitution, 1901 provides
tinue with either four or six council members elected that the city shall operate under the council-manager
from single-member districts, and the mayor shall be form of government authorized by Chapter 43A of
elected at large. The mayor is the presiding officer of the Title 11, with certain modifications.
The
www.alabar.org 245M U N I C I PA L A N D L O C A L G O V E R N M E N T E D I T I O N
g e Classification of
Ju d
te ed a Cv or municipalities
riva
a P ssign bama Section 104(18) of the Alabama Constitution, 1901
Hireear any cabseeraby theoaf lCaourts prohibits the legislature from creating or amending by
local legislation the charter powers of municipal cor-
to h se num Office porations. The only exception to this restriction on the
e
dr cainistrativ legislature is the power to change or alter the corporate
adm limits of cities and towns by local legislation. Because
of this constitutional provision, the laws governing the
incorporation, organization, and operation of cities and
towns in Alabama are general in nature and either
Qualified, former or retired apply to all municipalities in the state or to all munici-
alabama Judges registered palities within a specified population group.
with the alabama Center for Prior to 1978, the state legislature adopted numerous
dispute resolution statutes to provide powers for municipalities with very
narrow population ranges. These laws were known as
Supreme Court, in the case of Peddycoart v. Birming-
Hon. s. Phillip Bahakel Hon. Charles “Chuck” r. malone general laws of local application. In 1978, the Alabama
ham, 354 So. 2d 808 (Ala. 1978), held that the state leg-
phillip@bahakellaw.net chuck@malonenelson.com
(205) 987-8787 (205) 349-3449
Hon. John B. Bush Hon. Julie a. Palmer
jbush@courtneymann.net judgejuliepalmer@gmail.com islature could no longer adopt general bills of local
(334) 567-2545 (205) 616-2275 application. The court held that the legislature could pass
Hon. suzanne s. Childers Hon. Eugene W. reese only statewide general bills affecting every jurisdiction
judgesuzanne@gmail.com genereese2000@yahoo.com in the state or local bills affecting single jurisdictions.
(205) 908-9018 (334) 799-7631
Since Section 104 of the Alabama Constitution prevents
Hon. scott donaldson Hon. James H. reid, Jr.
scottdonaldson@gmail.com bevjam@bellsouth.net amendment of municipal charters by local acts, another
(205) 860-0184 (251) 709-0227 method of enacting such amendments was needed.
Hon. r.a. “sonny” ferguson Hon. James H. sandlin Amendment 397 (Section 110) of the Alabama Con-
raferguson@csattorneys.com judge@jimmysandlin.com stitution, 1901, which was passed by the legislature and
(205) 250-6631 (256) 319-2798
ratified by Alabama citizens post-Peddycoart, author-
Hon. J. Langford floyd Hon. ron storey izes the legislature to establish no more than eight
floydmediation@outlook.com ron@wiregrasselderlaw.com
(251) 610-1001 (334) 793-7635 classes of municipalities based on population. This pro-
Hon. arthur J. Hanes, Jr. Hon. Edward B. vines vision also allows legislation to be passed affecting one
ahanes@uww-adr.com evinesattorney@yahoo.com or more of the classes and that any such legislation shall
(205) 933-9033 (205) 586-0222 be deemed to be general laws rather than local laws.
Hon. James E. Hill, Jr. Hon. J. scott vowell At the same time the legislature passed Amendment
jimhill@hhglawgroup.com jsv@scottvowell.com
(205) 640-2000 (205) 214-7320 397, it passed legislation now codified as §§ 11-40-12
Class 1–Cities of 300,000 inhabitants or more
to-13, which established eight classes of municipalities:
Hon. James d. Jordan
Class 2–Cities of not fewer than 175,000 and not
jdjordan@ottsmoorelaw.com
(251) 867-7724
Class 3–Cities of not fewer than 100,000 and not
more than 299,999 inhabitants
fasT • Easy • aPPEaLaBLE
Alabama Lawyer
Class 4–Cities or not fewer than 50,000 and not
aL acts No. 2012-266 and 2018-384 more than 174,999 inhabitants
Class 5–Cities of not fewer than 25,000 and not
For more information, search “Find a Private Judge” at more than 99,999 inhabitants
www.alabamaADR.org
The
more than 49,999 inhabitants
246 July 2021M U N I C I PA L A N D L O C A L G O V E R N M E N T E D I T I O N
Class 6–Cities of not fewer than 12,000 and not “It is a general rule, and undisputed proposition of
Class 7–Cities of not fewer than 6,000 and not more
more than 24,999 inhabitants law, that a municipal corporation possesses and
can exercise the following powers and no others:
Class 8–Cities and towns with a population of
than 11,999 inhabitants first, those granted in express words; second, those
necessarily or fairly implied in, or incident to the
powers expressly granted; third, those essential to
5,999 or fewer.
the declared objects and purposes of the corpora-
The population figures refer to the 1970 federal de- tion–not simply convenient, but indispensable.”
cennial census. Once a classification is set, it never
changes regardless of changes in population. Any mu- McQuillin cites this case as authority in stating that
nicipality incorporated after June 28, 1979 is placed in Alabama cities and towns have no inherent powers, but
ment on the meaning of the word “inherent.” See 2A
one of the above classes according to the population of such a statement requires an understanding and agree-
McQuillin Municipal Corporations, 3rd Ed. Section
the municipality at the time of its incorporation.
In addition, Amendment 389 (Section 106.01) of the
acts of local application enacted prior to Peddycoart,
Alabama Constitution, 1901, validated most general 10:12. It is true that a city has no authority to confer
upon itself power it does not possess. Courts in Ala-
that were otherwise valid and constitutional, even bama follow the “Dillon Rule” in determining whether
power. See New Decatur v. Berry, 7 So. 838 (Ala.
though they were not advertised as required by Sec- a city or town is authorized to exercise a particular
1890); Best v. Birmingham, 79 So. 113 (Ala. 1918).
tion 106 of the state constitution. This provision man-
In Best v. Birmingham, the Supreme Court of Ala-
dates that the acts shall forever apply only to the
county or to the municipality to which they applied on
January 13, 1978, despite changes in population. Such bama held that the Alabama Court of Appeals erred in
acts can only be amended by advertised local bills. In
cases where a general law exempts cities of a certain,
stated population from being subject to said law, Sec-
tion 106.01 will not help the city maintain its exemp-
outside the protected population bracket. Birmingham
tion when a population change causes them to fall
v. George, 988 So. 2d 1031 (2007).
Sources of municipal The Alabama Academy
Power of Attorney Mediators
The Constitution of Alabama does not recognize … was founded in 1998 by experienced attorney-
any inherent right of local government. Except where mediators who were dedicated to the practice of
restricted by limitations imposed by the state and fed- mediation.
We believe that mediation is an efficient, effective
eral constitutions, the legislature of Alabama is vested and equitable process for the resolution of legal
with complete authority over what municipalities in disputes. We strive to
Alabama can and cannot do. In general, municipali-
• Encourage mediation at all stages of disputes
ties are delegated a portion of the sovereign powers of as a means of resolving the issues;
the state for the welfare and protection of their inhabi-
tants and the general public within their jurisdictional • Promote the highest level of mediation skills
among our members; and
Alabama Lawyer
areas. The sources of municipal power include the Al-
abama Constitution, the Code of Alabama, and special • Facilitate education in mediation skills and
A list of our members can be found at
mediation advocacy.
In an early Alabama case, Mobile v. Moog, 53 Ala.
acts of the legislature.
561 (Ala. 1875), Justice Manning quoted Judge Dil- alabamaattorneymediators.com
lon from his work on municipal corporations:
The
www.alabar.org 247M U N I C I PA L A N D L O C A L G O V E R N M E N T E D I T I O N
holding that municipal corporations have no implied instance, the council acts very much as an arm of the
powers. In so ruling, the court pointed out that except state legislature. As a corporate body, a municipality
for the power of taxation (and probably some others exercises powers of a ministerial nature for the pri-
not necessary to mention here), municipal corpora- vate benefit of the corporation. In this case, a munici-
tions are clothed with powers implied or incidental. pality acts in a manner comparable to the board of
As a guide, the court noted that these incidental or im- directors of a private corporation.
plied powers must be germane to the purpose for The distinction between these two types of powers is
which the corporation was created. Municipal powers important to determine if a council must formally adopt
cannot be enlarged by construction to the detriment of an ordinance to exercise a particular power. If the power
individual or public rights. The power must relate to exercised requires the action of the council in its legisla-
some corporate purpose which is germane to the gen- tive capacity, then a formal ordinance is required in the
eral scope of the object for which the corporation was manner prescribed by statute. If the action is of a minis-
ject. Harris v. Livingston, 28 Ala. 577 (Ala. 1856).
created or has a legitimate connection with that ob- terial nature, then the council may exercise the power
by resolution or simple motion set forth in the journal.
Unfortunately, no precise definition distinguishes in- The formalities required by statute for the adoption
dispensable powers from powers which are merely and publication of ordinances of a general and perma-
useful or convenient. As a general policy, municipal nent nature are set out in, §§ 11-45-2 and 11-45-8,
of their express powers. Ex parte Rowe, 59 So. 69
corporations are held to a reasonably strict observance and must be followed closely by the council.
(Ala. App. 1912). The safest rule is that if there is sub-
stantial doubt as to the existence of a particular power,
such power will be held by the courts not to exist.
exercise of Powers
In some instances, statutes relating to municipal
The powers of a municipality may be derived from powers are self-executing. In most instances, how-
a single express grant or from a combination of enu- ever, the grants of power are not effective until the
merated powers which must be construed together. council takes legislative action to set them in motion.
The purpose of all rules of construction is to arrive at Such action is taken by the adoption of an ordinance,
the intent of the legislature. It follows that if fairly in- resolution, or motion depending on the power being
cluded in or inferable from other powers expressly exercised and any statutory requirements imposed.
conferred and consistent with the purposes of the mu- The powers of a municipality, both legislative and
nicipal corporation, the exercise of the power should corporate, are required to be exercised by the council in
be resolved in favor of the municipality to enable it to legally convened meetings as provided in the Alabama
perform its proper functions. Open Meetings Act. Further, the municipal journal
(minutes) is the only evidence acceptable in determin-
Types of Power will not be received to establish such action. Penton v.
ing the action taken by the council, and parol evidence
Two basic types of powers are delegated to and exer- Brown-Crummer Inv. Co., 131 So. 14 (Ala. 1930).
cised by Alabama cities and towns: those of a political The method of exercising a power granted by the
body (legislative) and those of a corporate body (minis- legislature depends upon whether the statute pre-
terial). As a political body, municipal powers are general scribes the manner of performance. The prescribed
in application and public in character. As a corporate procedure for adopting ordinances of a general and
body, a municipality has powers that are proprietary in permanent nature is mandatory. In exercising ministe-
character, exercised for the benefit of the municipality in rial powers, it should be noted that sometimes proce-
its corporate or individual capacity. Such powers are for dures are prescribed by statute. In some cases, courts
entity. State v. Lane, 62 So. 31 (Ala. 1913).
Alabama Lawyer
the internal benefit of the municipality as a separate legal recognize such procedures as mandatory and in other
instances, they are declared to be directory only.
As a political body, a municipal corporation exer- Generally, where a statutory grant of power pro-
cises legislative powers of a general and permanent vides that a municipality “shall” or “must” perform an
mandatory. Prince v. Hunter, 388 So. 2d 546 (Ala.
nature which affect the public generally within the act in a prescribed manner, the statute is declared
territorial jurisdiction of the municipality. In this
The
248 July 2021You can also read
