Many Alabama lawyers close to missing charity account deadline
By DESIREE HUNTER, The Associated Press
December 28, 2007
MONTGOMERY, Ala. (AP) — When the Alabama Supreme Court ruled in September that charitable interest-generating accounts of law firms should be mandatory for all private-practice attorneys, the organizations who receive the funds thought Christmas had come early.
But officials with the Alabama Civil Justice Foundation and the Alabama Law Foundation say at least 2,000 lawyers in the state are dangerously close to missing the Jan. 1 deadline to set up their Interest on Lawyers' Trust Account, or IOLTA.
Tracy Daniel, executive director of the law foundation, said her office has seen a lot more forms coming in lately — up from five a week to about 30 a day — but there's still a significant number who hadn't signed up as of Friday.
All 50 states have IOLTA programs, which pool interest from lawyer trust accounts to provide civil legal aid to the poor.
Daniel said about 65 percent of the 10,000 or so Alabama lawyers who fall under IOLTA specifications were already involved in the program before it became required under the Supreme Court ruling.
Last year the Alabama Law Foundation received nearly $840,000 in IOLTA funds, while the Alabama Civil Justice Foundation received about $650,000.
Because the Supreme Court's order also required all charitable trust accounts be IOLTA accounts, the foundations are looking to double or triple the amount they receive in 2008.
"To the lawyers we would just like to say 'Please hurry up and get your forms in!" Daniel said, laughing. "A lot of lawyers are waiting until the last minute."
The law foundation is the charitable arm of the Alabama State Bar, which petitioned the Supreme Court for the change. The accounts had been voluntary until the court's September decision, which made Alabama the 34th state to require IOLTA participation.
Sue McInnish, who directs the civil justice foundation, said some organizations saw contributions increase threefold after their states made the program mandatory.
"Obviously in Alabama we're hoping for the same," she said. "We're not sure what the impact would be here, but the potential is ... very significant and that would be very exciting."
The justice foundation awards grants to charitable organizations that assist with both legal and nonlegal community causes, while the law foundation's grants are for legal assistance.
Daniel said the exact number of lawyers who don't heed the court's requirement won't be known until November, when firms report to the Alabama State Bar for their annual certification.
Failure to participate in the program is a violation of the bar's rules of conduct, but there aren't specific punishments for that offense, McInnish said, adding she's sure the lagging lawyers are just swamped and not trying to be grinches during this holiday season.
"My experience is that they are anything but greedy," she said. "Attorneys have demonstrated a charitable and compassionate attitude toward giving back to the community."
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RANTS & RAVES
The Montgomery Advertiser
December 29, 2007
RANT: To those Alabama lawyers who have dragged their heels in setting up charitable interest-generating accounts on trusts they hold. The Alabama Supreme Court ruled in September that charitable interest accounts are mandatory for all private-practice attorneys, but officials believe thousands of lawyers in the state could miss the Jan. 1 deadline. The interest from the accounts is used to help provide civil legal aid to the poor. But a RAVE to the Supreme Court for making it mandatory.
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Lawyers offer free wills for public safety workers
By Debbie Ingram, The Dothan Eagle
Dec 25, 2007
Those who are called upon any and every day to put their lives on the line could also be among the least prepared for the unlikely. “A lot of the public safety personnel in our community probably do not have the financial means or access to attorneys easily, and they might not have the chance to get all their affairs in order,” said Dothan Fire Chief Larry Williams.
That’s why he’s hoping that the 169 uniformed Dothan firefighters will take advantage of a new program called Wills for Heroes. The program, sponsored by the Alabama State Bar Association, provides free wills for first responders to include all rescue, police, firefighters, and emergency medical personnel.
“A lot of them have not provided for wills for their families,” said Dothan attorney Joey Morris, Alabama State Bar Commissioner for the 20th Judicial Circuit. “It needs to be the last thing they have to worry about. Under this program, we meet with any first responder and draft a will for them for free. It’s a great program and it is desperately needed.”
About 20 to 25 volunteers from the legal community will meet individually with first responders in Houston County, and draft the wills. Interested public safety workers will be asked to sign up with their respective supervisors; individual conferences will take place the last two weeks in February.
“The state bar brings in printers, supplies, everything we need,” said Dothan attorney Hamp Baxley. “Maybe we can do it in the civic center. We need to get the word out for people who can, to take advantage of the program.”
The program includes large and small police departments, volunteer units from out in the county and local municipalities. Mayor Pat Thomas estimated the number of local first responders at between 300 and 400.
Baxley, the local coordinator for Wills for Heroes, said he would love to see that many take part in the program but he doesn’t expect it. Birmingham recently did a week-long clinic, and about 150 first responders participated. Baxley said as part of the process, wills are tailored to each individual’s personal and professional needs.
“It is a comprehensive process,” Baxley said. “We do a 12-page questionnaire to be sure they get what they need. It’s more or less a fill-in-the-blank with some trust provisions included such as allowing one to be established.” Williams said he may take advantage of the program as well as encourage other firefighters to sign up.
“I think it’s fantastic,” he said. “I have a will but it is not updated. You could probably just say no I don’t have one ... so much has changed since I did one.”
Williams said he doubts firefighters think that much about losing their lives on the job, though it is a very real possibility.
“Most of us have to learn to put aside certain feelings and fears to do our job every day,” Williams said. “It is difficult to go out every day to bad situations, fatalities, seeing the critically injured. We have emotions like everyone else, but we can’t let it block our jobs.
“Every time we run up and down the road in an emergency vehicle, there is a risk there. We tend to suppress some of the concerns we have. Most people in public safety do not like to concentrate on what could happen. We are concerned more on the preventive.”
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Ohio Lawyers to Help Homeowners
By TERRY KINNEY, The Associated Press
December 26, 2007
More than 200 lawyers have volunteered to help financially strapped homeowners facing foreclosure in response to a request by Chief Justice Thomas Moyer to provide free legal advice.
The president of the Ohio State Bar Association put out a call for volunteers to meet Moyer's request, association spokesman Ken Brown said Wednesday.
"Unfortunately, it's a big problem, and lawyers feel a responsibility to help. But it's not new to us," Brown said. "We do support what the chief justice has asked of attorneys. But let me emphasize there are already lots of attorneys around the state helping folks who are in this situation."
Moyer said last week that lawyers have an obligation to help homeowners facing foreclosure, and they should do so without charge.
"This is more than a legal issue; this is a social issue," Moyer told a group meeting at the Ohio Judicial Center. "People's lives are being seriously affected, and the legal community must respond with action."
Foreclosures are up in 85 of Ohio's 88 counties, compared with four years ago, according to information supplied to the Ohio Supreme Court by common pleas courts.
The Coalition on Homelessness and Housing for Ohio estimates that 87,000 homeowners face imminent foreclosure. "Many Ohioans caught up in the crisis are of limited financial means with little or no access to an attorney," Robert Ware, president of the Ohio Bar Association, said in a note to members.
Working groups have been established to determine the best ways for volunteer lawyers to work with the Supreme Court, the governor's office and attorney general's office and Legal Aid groups to serve the needs of Ohioans, Ware said.
He expects a plan to be in place by early in 2008, when an even higher rate of foreclosure filings is expected. "OSBA members who volunteer can make a real difference for Ohioans at risk of losing their homes to foreclosure," Ware said.
Moyer said the best way lawyers can help is by mediating disputes between homeowners and their banks. He believes such mediation could head off the possibility of foreclosure filings filling court dockets. The Supreme Court is working with common pleas courts in Franklin, Cuyahoga and Montgomery counties on pilot projects to offer mediation between banks and homeowners.
A report released earlier this month by the Mortgage Bankers Association showed that home foreclosures reached an all-time high nationwide in the third quarter, with Ohio the top state in percentage of loans in foreclosure and ninth in delinquencies not yet in foreclosure.
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Lauderdale district attorney: pay for jurors too low in Alabama
The Associated Press
January 2, 2008
FLORENCE, Ala. (AP) — Jurors in state court in Alabama receive $10 a day and 5 cents a mile — an amount one district attorney says is too low and should be increased by the Legislature.
"That's not much pay for the very important job they do," Lauderdale County District Attorney Chris Connolly said.
By contrast, jurors in Arkansas will receive $50 a day this year, up from $20 in 2007, and federal court jurors receive $40 per day plus travel expenses.
The TimesDaily, which reported Wednesday on Alabama's level of pay for jury duty, said pay for jurors in some states varies depending on whether they are employed and being reimbursed by their employers. In Arizona, for example, jurors receive $12 a day, but that pay increases to $40 a day or more if they are unemployed, retired or can show they are losing money by serving on a jury.
There has been little talk in the Legislature of raising the pay of jurors. A bill by Rep. Steve Hurst, D-Munford, in the 2007 session would have raised the mileage reimbursement for jurors from 5 cents a mile to the rate paid to state employees, which is currently 50.5 cents a mile. That bill died in the House Government Appropriations Committee.
"There's not any discussions that I'm aware of going on at this time about raising jury pay," state Rep. Marcel Black, D-Tuscumbia, chairman of the House Judiciary Committee, told the TimesDaily. "But it's certainly time that we begin talking about raising it. It needs to be looked at and I'm going to start talking about it in Montgomery and see what we can do about updating it."
Alabama law requires employers to pay employees their regular pay for days they spend on jury duty, and the $10 per day does not create a hardship for most, Connolly said. When people who are self-employed are summoned for jury duty, however, it can create a hardship, he said.
Colbert County Circuit Court Judge Jackie Hatcher agrees that juror pay in Alabama is low, but said she hears few complaints. "Most people realize and understand that serving on a jury is part of being an American," Hatcher said.
Keith Hudson of Florence, who served on a Lauderdale jury earlier this year, said he did not have a problem with the low pay. "Because of the nature of the case I was involved with, I considered returning the check I received for jury duty," he said. "Serving on that jury was just part of my civic duty."
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In Year-End Report, Chief Justice Urges Swift Action on Judicial Pay Increases
Tony Mauro, Legal Times
01-01-2008
Chief Justice John Roberts Jr. is calling on Congress to make approval of a judicial salary increase "a first order of business" when it comes back from recess in January.
In his third annual year-end report on the state of the judiciary, Roberts also pledged to work on improving relations with the other branches of government and to continue reforming procedures for handling complaints of judicial misconduct. The report was formally released at 12:01 a.m. Eastern time on Jan. 1.
Overall, Roberts said Americans should take "enormous pride in our judicial system" which, he said, serves as a beacon around the world. "When foreign nations discard despotism and undertake to reform their judicial systems, they look to the United States judiciary as the model for securing the rule of law," he said.
Without specifically mentioning Pakistan, where the dismissal and arrest of the chief justice in 2007 triggered turmoil, Roberts said "we do not need to look beyond the front page of any newspaper" to understand the importance of a "skilled and independent judiciary."
Roberts recounted how Russian Supreme Court Justice Yuriy Ivanovitch Sidorenko, in a recent visit to the United States, visited Arlington National Cemetery to pay tribute to the late Chief Justice William Rehnquist, Roberts' predecessor and mentor. Sidorenko and Rehnquist had become friends, Roberts said, and Rehnquist had offered "advice and encouragement" as the Russian judiciary was reformed in the post-Soviet era.
In his report Roberts also invoked Rehnquist's "20-year pursuit" of judicial salary increases in urging swift action in 2008 on the issue.
Roberts noted that federal trial judges are "earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located." The words "first-year lawyers" are italicized in the text of Roberts' report. U.S. district court judges are paid $165,200 a year, the same as members of Congress. Salaries for first-years at many top U.S. law firms hit $160,000 this year (not counting bonuses), and Williams & Connolly recently announced that it would pay incoming associates $180,000.
The House Judiciary Committee on Dec. 12 endorsed, by a 28-5 vote, a bill that would raise the pay of district judges to $218,000, with similar increases for other judges. The Senate was considering a similar bill when the session ended in December. Roberts said he was grateful for support from President George W. Bush and leaders of both parties of Congress on the salary issue, adding, "I urge prompt passage as a first order of business in the new session."
On the issue of judicial misconduct, Roberts said, "the judiciary must relentlessly ensure that federal judges maintain the highest standards of integrity." He said the Judicial Conference, the policy-making body of the judiciary, had already implemented most of the recommendations for procedural changes made in 2006 by a committee that Justice Stephen Breyer headed. Rehnquist had created the committee in 2004 in part to respond to congressional complaints that it was difficult to hold judges accountable for alleged ethical violations. Further action will be considered at the conference's next meeting in March, Roberts said. "The judiciary cannot tolerate misconduct," Roberts said. "The public rightly expects the judiciary to be fair but firm in policing its own."
Roberts also spoke of the need to improve communications with Congress. It was easier for the two branches to communicate, he noted, before the Court moved from its space in the U.S. Capitol to its own building in 1935. Roberts quipped, "I am assured that my colleagues are happy in our separate building and not inclined to move back to the Capitol (even were we invited)." So Roberts said other avenues of communication with Congress and the executive branch will be sought to "strive, through respectful exchange of insights and ideas, to know and appreciate where the others stand."
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Legal assistance for state's poor receives boost
By SEBASTIAN KITCHEN, The Mobile Press-Register
December 20, 2007
MONTGOMERY -- State and legal officials say the Alabama State Bar and the Alabama Supreme Court have recently approved changes that should help provide more money to fund civil legal services for the poor.
Alabama ranks below the other 49 states, the District of Columbia and Puerto Rico in funding for civil legal services for the indigent, said Sam Crosby, a Daphne attorney who is president of the bar association.
"Less than 20 percent of the civil legal needs of the poor were served in Alabama last year," he said.
One change involves money from clients that is being held in escrow by their lawyers. Interest earned on that money now must go to organizations that provide legal services to low-income clients. Previously, lawyers did not have to direct the interest to those groups and some of the money instead would go back to the bank, according to Alabama Supreme Court Chief Justice Sue Bell Cobb.
More than 30 other states have implemented this type of program, Crosby said.
The interest rate also used to be lower on those accounts, Crosby said. He said banks, beginning Jan. 1, will pay the same interest on those accounts as they would to another customer with a comparable balance.
Crosby said that when taken individually those funds are not significant but, with more than 15,000 lawyers in the bar association, he expects that the changes will add up to "millions and millions in the future for civil legal services for the poor."
The bar association also raised the fee for out-of-state attorneys to practice here from $100 to $300, which Crosby expects to generate an additional $125,000.
Crosby and state Sen. Roger Bedford, D-Russellville, a member of the Board of Bar Commissioners, said the bar association also has a very active volunteer lawyer program. Crosby said he is a member along with hundreds of other Alabama attorneys.
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Cash crisis shrinks staff, threatens help for low-income clients
By SEBASTIAN KITCHEN, The Mobile Press-Register
December 20, 2007
MONTGOMERY -- Financial struggles at Legal Services Alabama, which provides free legal help to the poor, have resulted in layoffs and could lead to more job cuts if the group does not get an infusion of cash.
Some lawyers and state officials said they are concerned that the crunch could hurt low-income people statewide who can't afford lawyers and depend on the nonprofit group's help.
Legal Services Alabama represents people in civil matters but does not handle criminal cases. It is predominantly funded through federal appropriations.
Alabama Supreme Court Chief Justice Sue Bell Cobb and other officials want a permanent revenue source from the state. "It is crucial to keep all of the lawyers at work," she said. "We are not meeting the need now."
Cobb and Jimmy Fry, executive director of the group, said Alabama is one of only seven states that does not supply funding to Legal Services. Cobb described the situation as an embarrassment.
Legal Services Alabama provides free counsel to low-income people who are U.S. citizens. Under the terms of its general guidelines, a family of four making below $20,000, might qualify for its help.
Legal Services once had 113 employees in Alabama and now has 98, Fry said. Five of those were laid off and the other positions were not filled when employees left, he said.
Legal Services has not closed any of its 10 offices in the state.
"We have cut about everywhere we can cut," Fry said. "Staff is not where you want to cut, but we have got to be able to pay people."
He also said the group plans five more layoffs unless a pending federal spending bill is more "generous" than expected. To date, there have been no layoffs in the Mobile office and Fry said he would not discuss where the other five layoffs would be made without first talking to the people affected.
Alabama's program has fewer than one lawyer for every 10,000 people eligible for its help, said Kenneth Lay, housing advocacy director for Legal Services.
Sam Crosby, a Daphne attorney who is president of the Alabama State Bar , and state Sen. Roger Bedford, chairman of the Senate General Fund committee , expressed concern about the funding woes at Legal Services.
The bar association is also helping the poor, they said, and is working with the Alabama Supreme Court and the Access to Justice Commission, which was appointed by Cobb, to find ways to aid Legal Services. Bedford, D-Russellville, who is an attorney, said no one has talked to him about directing state funds to Legal Services.
Fry expects Legal Services to serve more than 8,000 people by the end of the year despite reduced staff and travel. Fry said about 90 percent of the group's funding comes from the federal government.
This year, Legal Services Corporation, the national organization that receives and distributes the federal money, budgeted about $6.2 million for Alabama, according to Fry. The amount available for 2008 has not been determined, he said.
Fry, a former district attorney and judge on the Alabama Court of Criminal Appeals, started as executive director in September.
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Court security bill to go to president
By James Oliphant, The Baltimore Sun
December 18, 2007
During its late-night session yesterday, the Senate passed a bill aimed at ensuring the safety of the nation’s judges.
The Senate’s version of the Court Security Improvement Act follows a similar bill passed earlier this year by the House. The legislation now goes back to the House today to be reconciled with the Senate bill. Once that happens, it will go to the White House for the president’s signature.
The bill is a direct response to the murders of the family of Chicago federal judge Joan Humphrey Lefkow in 2005 and comes on the heels of a government report released earlier this year that said the U.S. Marshals Service wasn’t doing enough to assess threats against judges and courthouse personnel.
The bill authorizes the appropriation of $200 million over four years to provide additional staff to the Marshals Service and to provide grants to state and local governments to improve court security and protect victims and witnesses. The legislation also authorizes the appropriation of $100 million over that period to states to assess domestic terrorism (which, for some reason, has been lumped into a court security bill).
The bill also increased the maximum sentences for certain crimes and would extend provisions of law preventing the release of financial information if disclosure could endanger federal judges or their families.
“The Senate has waited far too long to enact this legislation to protect those who guard justice in our court system,” said Judiciary Committee chairman Patrick Leahy (D-Vt.) in a statement. “There is no doubt that we must protect officials of the court from disgruntled or disturbed individuals seeking to harm them, and the Senate has finally moved forward to make more resources available to provide that security to our federal judiciary.”
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Alabama drops out of annual "judicial hellhole" report
By PHILLIP RAWLS, The Associated Press
December 18, 2007
MONTGOMERY, Ala. (AP) — Alabama has lost its title of "judicial hellhole."
The American Tort Reform Association released its annual report called "Judicial Hellholes" on Tuesday, and Alabama wasn't cited in the 49-page report. Alabama used to be a regular feature of that report and similar lists compiled by other business groups.
Gov. Bob Riley viewed the report as proof that Alabama's image is changing.
"Alabama today is recognized more than we ever have been before for judicial reform and tort reform we've had over the past few years. Impressions of the rest of the country have changed for the better," Riley said.
The Alabama Association for Justice, formerly the Alabama Trial Lawyers Association, did not see Alabama's omission as a positive.
"Unfortunately, this report is misleading, because when Alabama was what ATRA labeled a 'judicial hellhole,' it meant the courts worked properly and held wrongdoers accountable. By coming off ATRA's list, it appears we don't care about justice and not only tolerate corporate misbehavoir but reward it," association President Bob Prince of Tuscaloosa said Tuesday.
Skip Tucker, executive director of Alabama Voters Against Lawsuit Abuse, said Alabama has made some improvement, but the state's omission must be put in perspective. "It means lawsuit abuse is widespread and there are some places worse than we are," he said.
Tucker noted that not all business groups have changed their view of Alabama. For instance, the U.S. Chamber Institute for Legal Reform released its annual "Lawsuit Climate" report in April that showed Alabama ranked 47th among the 50 states' legal environments. That was the same low ranking Alabama had in 2006.
Each year, the American Tort Reform Association, which is funded by businesses, compiles a list of states and counties that it considers overly friendly to plaintiffs.
For 2007, South Florida led the report of "Judicial Hellholes," followed by the Rio Grande Valley and Gulf coast of Texas; Cook County, Ill.; West Virginia; Clark County, Nev.; and Atlantic County, N.J.
Two counties in Alabama — Jefferson and Choctaw — had been mentioned in the association's 2006 report as "areas to watch" — a step down from "judicial hellhole." But the 2007 report did not describe the state or any county in it as being unfair to business.
"The state has gone a long way in shedding that reputation," association spokesman Darren McKinney said.
He said there are still big verdicts in some Alabama counties that raise eyebrows, but the Alabama Supreme Court has had "a stabilizing effect" by reducing or overturning the verdicts. He cited as an example the court's recent decision throwing out all but $52 million of a $3.6 billion judgment the state government won against Exxon Mobil in a dispute over natural gas royalties.
McKinney and Riley said it's no coincidence that Alabama's recent economic resurgence — with new manufacturing plants and record low unemployment — occurred at the same time the state's judicial image was changing.
Losing the title of "judicial hellhole" may not be permanent. Alabama also dropped out of the report in 2003 and 2004 following the Republican takeover of the Alabama Supreme Court and the enactment of new laws to limit jury verdicts. But Alabama returned in 2005 when two jury verdicts in the state ranked among the highest in the nation.
While Alabama was not in the association's 2007 report, one Alabamian was. In criticizing the courts in Atlantic County, N.J., the report cited a $2.6 million verdict that Andrew McCarrell of Moody, Ala., won in a lawsuit over the acne treatment Accutane. The drug's manufacturer is based in New Jersey.
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A time out on executions – [Editorial]
The Birmingham News
December 17, 2007
THE ISSUE: If New Jersey's legislators can vote to abolish the death penalty, surely their peers in Alabama can vote to temporarily suspend the death penalty here.
New Jersey legislators voted last week to abolish the death penalty altogether in their state. Alabama legislators should at the very least stop inflicting the death penalty long enough to fix serious flaws in its, well, execution. Even the most ardent fans of capital punishment don't want to see the wrong person put to death for a crime. Surely most people also want the death penalty to be applied fairly and to be reserved for the worst offenders.
Our state falls short on these measures - really, on every death penalty measure. When you don't guarantee that capital defendants have a quality defense, you're simply gambling with the rights and the lives of the accused.
In a perfect world, Alabamians would launch a real debate, like New Jersey, on whether it's worth it to keep gambling.
To their credit, after taking a good, long look, New Jersey lawmakers decided their death penalty system was not worth saving. The vote came years after the state's execution procedures were struck down and months after a special state commission earlier this year concluded that imposing a death sentence was more expensive than sending a defendant to prison for life. And by life, we mean just that: life, with no chance ever for parole.
The commission also found the death penalty hadn't deterred murders, and that the state ran a real risk of executing an innocent person. "Capital punishment is costly, discriminatory, immoral and barbaric," New Jersey Assemblyman Wilfredo Caraballo said. "We're a better state than one that puts people to death."
True, New Jersey had only eight inmates on Death Row, and it hadn't executed anyone in more than four decades. It surely was never as devoted to death as Alabama, where 200 inmates are on Death Row and 13 have been executed just in the past four years.
But that doesn't make New Jersey's decision any less serious. If New Jersey Gov. Jon Corzine signs the law as expected, one of the inmates whose life will be spared is Jesse Timmendequas, who killed 7-year-old Megan Kanka in 1994, a crime that spawned new laws across the nation to protect children from sex offenders.
The Garden State's elected leaders have decided it's more virtuous to let Timmendequas live - albeit behind bars - than to keep alive the flawed system that would have put him to death.
Too often in Alabama, we see the flip side. We're so zealous about dishing out the harshest punishment and about preserving our death apparatus that we don't even want to take time out to fix it. Year after year, bills to establish a moratorium on executions die in our Legislature.
That's to our collective shame.
Even a perfect system of capital punishment is fallible as long as humans are calling the shots. Alabama's is far, far from perfect.
At the very least, the state needs to take a breather on executions and fix the most obvious flaws. With executions for all practical purposes on hold while the U.S. Supreme Court decides on the constitutionality of lethal injection procedures, Alabama Gov. Bob Riley even has a window of opportunity to do the right thing without much of a backlash.
If New Jersey can abolish its death penalty outright, surely Alabama can give its busy death chamber a break.
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Bills aim to get consumers their day in court - Many lawmakers say mandatory arbitration has tipped the playing field in favor of businesses. Critics of the legislation say Democrats are just doing trial lawyers a favor.
By Richard Simon, Los Angeles Times
December 17, 2007
WASHINGTON — Just a few years ago, Congress, then controlled by Republicans, made it a priority to limit litigation against businesses, expressing concerns about the costly burden it imposed. Now, with Democrats in charge, legislation is advancing that could lead to more court fights between consumers and businesses.
The turnabout shows how the fortunes of two key political interest groups -- business and trial lawyers -- have shifted in the last year. At issue is the fine print in many contracts for goods and services, such as credit cards and cellphones, requiring that disputes be submitted to arbitration by a third party.
Critics of the provisions say they deny consumers and employees a basic American principle: the right to go to court. "People from all walks of life -- employees, investors, homeowners, those enrolled in HMOs, credit card holders and other consumers -- often find themselves strong-armed into mandatory arbitration agreements," said Sen. Russell D. Feingold (D-Wis.), who is sponsoring one of the measures aimed at making arbitration voluntary rather than mandatory.
Business groups contend the new legislation would lead to more costly litigation -- to the benefit of trial lawyers, who contribute overwhelmingly to Democrats. "Democrats want to pay back trial lawyers," said Rep. Chris Cannon (R-Utah).
Consumer advocates brush off the charge. They say they want fairness, arguing that the arbitration process often favors businesses because arbitration firms rely on the companies for repeat business and are not inclined to rule against them.
"This is not about trial lawyers," said Sally Greenberg, executive director of the National Consumers League. "This is about consumers getting their day in court."
The fight has escalated as the legislation has gained momentum.
One measure, attached to a House bill that deals with the sub-prime loan crisis, would make arbitration voluntary instead of mandatory in residential mortgage contracts. Another, approved by the Senate Judiciary Committee and attached to the farm bill, would prohibit binding arbitration between livestock and poultry producers and packers, unless the parties agree.
The broadest and most controversial measure, introduced by Feingold in the Senate and Rep. Hank Johnson (D-Ga.) in the House, would make arbitration voluntary in consumer, employment, franchise and medical contracts.
Johnson's measure, which has been the subject of congressional hearings but has not moved out of committee, has 53 co-sponsors in the House, including some Republicans.
Johnson said he introduced the measure after he considered building a home and found a mandatory arbitration clause in every home construction contract he was presented. Johnson, a lawyer, said parties in disputes should be free to turn to the courts, arguing that mandatory arbitration amounts to a "private judicial system" that "benefits the commercial interests at the expense of consumers and employees."
At a hearing on Johnson's bill, Deborah Williams, owner of a coffee franchise in Annapolis, Md., said an arbitration with the coffee company took place in Michigan, "500 miles from our home," and cost more than $100,000, "hardly a cheaper alternative to litigating locally in Maryland."
"We never knew how precious our constitutional rights were until they were stolen from us by a binding mandatory arbitration clause," she said.
That Congress is considering the measures so bitterly opposed by business groups underscores the political change since Democrats took control last year.
"Congress is under new leadership, and the new leadership is much more concerned about fairness in the marketplace and fairness in the civil justice system," Greenberg said.
A priority of the Republican-controlled Congress was to end what it called "lawsuit abuses." Congress, in its first override of a veto by former President Clinton, voted in 1995 to restrict investors' ability to sue for securities fraud -- a provision of the House Republicans' "Contract with America."
President Bush in 2005 signed legislation limiting class-action lawsuits and shielding gun makers and sellers from lawsuits arising from misuse of their weapons. Republican lawmakers also pushed to cap jury awards in medical malpractice cases and bar lawsuits that sought to hold restaurants liable for a customer's weight gain, though neither measure has made it out of Congress.
Feingold thinks prospects for passage of the legislation have improved as Congress comes under pressure from an increasing number of consumers and employees who have found themselves "having to choose either to accept a mandatory arbitration clause or to forgo securing employment or needed goods and services."
"Here's a take-it-or-leave-it deal, basically," said Ira Rheingold, executive director of the National Assn. of Consumer Advocates.
As one example, a contract for AT&T wireless service says: "Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. . . . You agree that, by entering into this agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action."
"People are beginning to understand that the use of arbitration clauses -- the creation of a private system of justice -- is antithetical to what our country stands for," Rheingold said.
Consumer advocates say the arbitration system tilts against consumers.
Public Citizen, a Washington-based consumer watchdog group, reported that consumers won 4% of 19,000 California cases decided by one arbitration firm between January 2003 and March 2007. The study found one arbitrator who rendered 68 decisions in one day -- "one every eight minutes," said Laura MacCleery, director of the consumer advocacy group Public Citizen's Congress Watch. "Consumers won zero."
But Matt Webb, a vice president for the U.S. Chamber Institute for Legal Reform, said that even if those consumers could have gone to court, he doubted they would have fared any better since the study involved disputes over debts. "Odds are these are folks who ran up their credit card bills and didn't want to pay," he said.
Roger S. Haydock, managing director of Minneapolis-based National Arbitration Forum, an arbitration firm, said there was no bias in favor of business. "All types of parties get the same substantive outcomes in arbitration that they would get had they brought their dispute to court," he wrote in an e-mail.
Opponents of the legislation, including the American Bankers Assn., AT&T and Coors Brewing Co., said in a letter to lawmakers that the Feingold-Johnson legislation would "turn what could be easily resolved disputes into protracted and expensive class-action lawsuits."
Cannon contended that consumers benefited from arbitration because it was likely to be cheaper and faster, and they didn't have the "deep pockets of a large corporation if the dispute heads to litigation."
During a hearing Wednesday on Feingold's bill, Sen. Sam Brownback (R-Kan.) said, "The fact of the matter is that the little guy is, by and large, better off in arbitration than trying to get to court. Arbitration is cheaper than litigation, and it leads to faster results for plaintiffs."
Critics of the legislation also portray it as a sop to the trial bar.
The American Assn. for Justice, formerly the Assn. of Trial Lawyers of America, has contributed about $28 million since the 1990 election cycle, of which 90% went to Democrats and the party, according to the Center for Responsive Politics. In the last two-year election cycle, 95% of the organization's $2.8 million in donations went to Democrats.
Bill Schulz of the American Assn. for Justice defended his organization's support for the legislation. "The fact is that big corporations want to force binding mandatory arbitration clauses on often unsuspecting consumers, pick the private arbitrator of their choice and deny all appeals when a decision is clearly unfair," he said.
Republican Sens. Jon Kyl of Arizona, Arlen Specter of Pennsylvania and Brownback wrote in a recent Senate Judiciary Committee report that they opposed making arbitration voluntary instead of mandatory in livestock contracts. They said the measure would force families to pay more for food "so that the trial lawyers can get their cut."
But Sen. Tom Harkin (D-Iowa), chairman of the Senate Agriculture Committee, said in a statement that all the provision said was "that these increasingly large and economically powerful companies cannot force contract growers to sign away their right to go to court to resolve disputes as a condition of doing business."
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New officers installed for '08
By GARY McELROY, The Mobile Press-Register
December 15, 2007
The Mobile Bar Association welcomed its 2008 officers and handed out awards Friday during the organization's annual Christmas luncheon at the Radisson Admiral Semmes Hotel in downtown Mobile.
New officers include Ian Gaston, president; John Leach Jr., president-elect; Carlos Williams, vice president; Leanna Bankester, secretary, Christ Coumanis, treasurer and Sara Elizabeth "Beth" Lee, assistant treasurer.
Mobile's outstanding volunteer lawyers were also named, including the recipient of the Ben Kilborn Lawyer of the Year award, Gabrielle Pringle.Other outstanding volunteer lawyers included Fred Killion III, Mary Pilcher, Ian Rosenthal and Kirk Shaw.
The association's annual leadership award went to Gilbert Laden and Meegan Nelson.
Thomas McAlpine received recognition for volunteering his time for more than 500 hours this year. Volunteers who worked at least 250 hours included Henry Caddell, William Cunningham, Gilbert Laden and Richard Williams.
Those who volunteered their time for at least 100 hours this year included Ginger Gaddy, Marshall Gardner and Jon Green.
Members on Friday were told that the Alabama State Bar Foundation has given the Mobile Bar's volunteer group a $60,000 grant. The Mobile Bar Foundation handed out more than $45,000 to various organizations, including the Underage Drinking Task Force and Big Brothers Big Sisters of South Alabama.
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Judge worked to better young lives – [Editorial]
The Montgomery Advertiser
December 20, 2007
The children of Alabama, and especially those from Montgomery County, lost one of their strongest champions and greatest friends this week with the death of former family court judge Richard Dorrough.
Dorrough, 61, served for two decades as a family court judge in Montgomery County. He was one of the best. He was not just content to preside over family court cases, but was constantly looking for ways to improve the family court and conditions for the children who were drawn into court proceedings.
As the presiding judge of the Montgomery County Family Court, he started a Teen Court to address minor juvenile offenses. In 1998, he was named Judge of the Year by the Family Law Section of the Alabama State Bar Association.
Most family court proceedings are closed to the public, but court officials and lawyers have said over the years that Dorrough's quiet, almost mild, public persona would disappear immediately any time he thought that parents before his court were not doing what was right for their children.
Charles Price, presiding circuit judge for Montgomery County, described Dorrough's judicial demeanor as stern but fair. "He was a wonderful person and a very scholarly person," Price told The Associated Press.
After leaving the bench, Dorrough was named by Gov. Bob Riley to the post of commissioner of the state Department of Children's Services. "Commissioner Dorrough was a great man and a very thoughtful leader. He had a heart of gold and throughout his career he worked hard to improve the lives of children. He will be terribly missed," Riley said.
As commissioner, Dorrough played a key role in developing the Riley administration's voluntary First Class pre-kindergarten program, which the governor made public recently. The program calls for a major expansion of the state's voluntary pre-K program. That program has been praised nationally for its quality, but it currently reaches only a small percentage of eligible children.
Dorrough also pushed to strengthen Children's Policy Councils across the state through his new role as commissioner of children's services. He was chairman of Montgomery County's Children's Policy Council while he was a judge.
Dorrough also was active leader in Montgomery civic affairs, serving on a variety of boards. He was past president of the Montgomery Kiwanis Club and past lieutenant governor for the Alabama District of Kiwanis.
Linda Tilly, executive director of Voices for Alabama's Children, worked with Dorrough on many children's issues. She told The Associated Press that he was talented at bringing people together to collaborate on projects.
"He represented the best of what public service is and can be," Tilly said.
At a Montgomery YMCA annual meeting several years ago, a young man turned to then-Judge Dorrough and said: "You saved my life." The young man had taken drugs and had started selling them. Dorrough sent him to Montgomery County's juvenile boot camp and helped him move into an after-care program operated by the YMCA. When the young man spoke at the YMCA meeting, he had plans for college and appeared to be on his way to becoming a productive citizen.
As the judge's family and friends mourn his death, we hope they can take solace in the fact that Dorrough made life better for lots of young men and women through his years of public service.
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Governor right to call off the lawyers – [Editorial]
Mobile Press-Register
December 13, 2007
GOV. BOB Riley made the right call when he pulled the state's high-powered legal team off the trail of ExxonMobil.
The governor wisely gave up the chase after the Alabama Supreme Court threw out $3.5 billion in damages the state won in a dispute over royalties from the company's offshore natural gas wells. That decisive 8-1 ruling left little room for doubt about the outcome of a last-ditch appeal for a rehearing of the case.
With apologies to Gov. Riley, who understandably was hoping to put that $3.5 billion to good public use, the Supreme Court did a real service for the state by tossing out the stupefyingly large punitive damage award. The ExxonMobil case, which at one time featured an even more stupefying $11.8 billion award, had become Exhibit A in the case against Alabama's system of jackpot justice. Businesses in Alabama can rest easier now, knowing that even all-star lawyers working for the state couldn't hit a jackpot this enormous.
The Mobile firm of Cunningham, Bounds, Crowder, Brown and Breedlove hunted the oil industry giant for years. In 2003, Gov. Riley added Montgomery attorney Jere Beasley, a former lieutenant governor, to the state's team. The lawyers scored big when a jury returned the $11.8 billion verdict, but that award later was reduced on appeal to a mere $3.6 billion, with about $100 million going to compensatory damages.
Even the reduced punitive damages far exceeded what the U.S. Supreme Court has defined as unconstitutionally excessive. The $3.6 billion award was the largest in the nation that year.
Fortunately, the state Supreme Court had the final say on this anti-business madness. The court found no proof that ExxonMobil committed fraud, thereby eliminating all the punitive damages. In essence, the Supreme Court concluded that this was an argument over vague language in a contract. ExxonMobil played hardball in trying to reduce its costs, but the company didn't commit fraud under Alabama law.
Even if the justices hadn't rejected the fraud claim, they should have reduced the punitive damages to a level more consistent with the actual damages. The Legislature passed legal reforms after the ExxonMobil suit was filed, including a prohibition on punitive damage awards more than three times the actual harm caused to the plaintiff.
The justices could have honored the spirit of legal reform just by reducing the staggering punitive damage award against the oil company. But that issue was rendered moot when the court found no proof of fraud.
In any event, the state didn't exactly come away empty-handed. The Supreme Court ruled that ExxonMobil owes the state almost $52 million in compensatory damages, plus interest. With the interest added, the state probably will collect close to $100 million.
Of course, Gov. Riley and the state's lawyers aren't happy with that total. But the governor should be able to see a silver lining here if he thinks about what the outcome of the case says to the world about the predictability of the state's legal system and the stability of its business environment.
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House Judiciary Committee OKs Bill to Raise Federal Judges' Pay
Joe Palazzolo, Legal Times
December 13, 2007
The House Judiciary Committee on Wednesday approved a bill that would give federal judges their first pay raise in two decades, pushing them to the fore of federal earners.
The bill, passed by a 28-5 vote, also would increase the workload for senior judges, raise the retirement age for full pension and discourage retired judges from taking work in the private sector. The vote margin suggests the bill's prospects are good, but the full House is unlikely take up the legislation before the end of the year.
The Senate Judiciary Committee is scheduled to review a similar bill today.
Under the Federal Judicial Salary Restoration Act of 2007, federal district judges would earn $218,000 annually, uncoupling them from members of Congress, who make $165,200 a year. Federal appeals judges would earn $231,000; Supreme Court associate justices $267,900; and the chief justice $279,900.
Federal judicial pay has remained virtually the same since the 1980s, while private attorneys have seen their salaries swell. The bill's supporters were keen to point out that federal district judges, at $165,200 a year, are often paid less than first-year associates at prestigious firms.
As a result, federal judgeships have lost a measure of their allure, and judges are leaving for higher-paying jobs, Rep. Howard Berman, D-Calif., a co-sponsor of the bill, said at the committee hearing. "The federal judiciary should not be a steppingstone to a high-paying career. It's the capstone of a great career."
To that effect, the bill would tax retired judges who are collecting a federal pension while earning large salaries in private jobs.
"We thought that might be taking advantage of a situation for much greener pastures," said Rep. Lamar Smith, R-Texas, the committee's ranking member.
For every $2 they made over their salary as a federal judge, $1 would be cut from their pension. The bill would also increase senior judges' workload from three months a year to four months a year and require 17 years of service before a judge could retire with a full pension.
The bill's detractors warned that the pay increases would give the perception that the judiciary is somehow above the other two branches of the federal government.
"The reason it doesn't pass the smell test is if you serve in one coequal branch of the government, you will be paid significantly more than those serving in the other coequal branches," said Rep. F. James Sensenbrenner Jr., R-Wis., who voted against the bill.
"Is the position of federal judge one of greater responsibility than a member of the president's Cabinet ... or a member of Congress?" Rep. Louis Gohmert, R-Texas, warned fellow Republicans of the political pitfalls of that argument. "It's easier to get liberals who are not making anything" to fill the judgeships than capable conservatives who sniff at the pay, he said. "That's not as tongue-in-cheek as you might think."
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Poll: Missourians support judge-selection process
By Steve Vockrodt, Kansas City Business Journal
December 12, 2007
A majority of Missourians reject the idea that the current state system for appointing judges needs to be tweaked or overhauled completely, according to a poll Public Opinion Strategies released Tuesday.
Based in Alexandria, Va., Public Opinion Strategies polled 600 Missourians on behalf of Missourians For Fair and Impartial Courts, The Missouri Institute For Justice and Justice At Stake, all organizations that generally oppose changing the state's judicial selection process known by most as the Missouri Plan.
The results showed:
- 75 percent of Missourians oppose abolishing the commission that recommends three nominees that the governor chooses from.
- 60 percent oppose terminating judicial retention elections and leaving that decision up to the General Assembly.
- 58 percent oppose allowing the governor to select nominees for Supreme Court, appellate and some circuit-level judges with Senate confirmation.
The poll also found that respondents did not think judicial selection was a particularly significant issue, compared with other issues, including health care, education and government spending.
"It's not even close to being one of their highest priorities," said Dale Youngs, a lawyer with Blackwell Sanders LLP and president of The Missouri Institute for Justice.
Judicial selection has been a visible issue in recent years in Missouri, particularly this year when Supreme Court Justice Ronnie White retired into private practice, leaving a vacancy.
White was succeeded by Patricia Breckenridge, but not before Gov. Matt Blunt made public his dissatisfaction with a Missouri Plan he said lacks transparency.
Other opponents of the current Missouri Plan contend that the process is prone to too much influence by attorneys in the state.
The results of Tuesday's Public Opinion Strategies poll flies in the face of results of another poll conducted by The Polling Co. Inc., which was released in March.
That study, done on behalf of the Federalist Society, showed that most respondents were unaware of how judges were selected and that 57 percent thought the public should have more input in judicial selection.
Chip Robertson, a Bartimus Frickleton Robertson & Gorny PC lawyer and co-chairman of Missourians for Fair and Impartial Courts, dismissed the results of the Federalist Society poll, contending that it contained inaccuracies about how the Missouri Plan works.
"It's a lousy poll," he said.
Patrick Lanne, a partner of the Public Opinion Strategies firm, said his poll attempted to use neutral questions that would be more likely to reveal more accurate responses.
The margin of error was plus or minus 4 percentage points and was conducted between Dec. 4 and Dec. 6. Results of Tuesday's Public Opinion Strategies poll are available online, as are The Polling Co.'s March poll results.
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Jones School of Law places third in event
The Montgomery Advertiser
December 10, 2007
A four-person team of Faulkner University's Jones School of Law students placed third in a mock trial competition held in Buffalo, N.Y. The competition featured 140 top law students from 37 other schools.
The team was coached by Joe Lester, associate professor of law. Faulkner student, Matt Griffith, received an individual award for Best Summation. The fourth annual Buffalo-Niagara Mock Trial Tournament was hosted by the University of Buffalo. The students were challenged to defend both sides of a baffling murder case before local judges and attorney evaluators.
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Judge Wise won't run for Alabama Supreme Court; others eye race
By PHILLIP RAWLS, The Associated Press
December 4, 2007
MONTGOMERY, Ala. (AP) — Criminal Appeals Court Judge Kelli Wise said Tuesday she has decided not to run for the Alabama Supreme Court next year because her husband, newly appointed Montgomery County District Judge Arthur Ray, will be running for that post in 2008.
Wise, a Republican, said she has long dreamed of serving on the Supreme Court, but trying to run a statewide campaign next year while her husband is running a countywide race would not be best for their 8-year-old daughter.
"Her needs truly have to come before mine or my husband's," she said in a phone interview.
Republican Justice Harold See has decided not to run for re-election next year, which is creating a rare open seat. It will be the only Supreme Court race on Alabama's 2008 ballot.
Lauderdale County District Judge Deborah Bell Paseur is running for See's seat as a Democrat, and state Finance Director Jim Main is running as a Republican.
Two other Republicans, Opelika attorney Ben Hand and Montgomery attorney Doug McElvy, said Tuesday they are still considering entering the race. Both are known in political circles because Hand ran for the Supreme Court in 2006 and McElvy was president of the Alabama State Bar for 2004-2005.
Tom Dart, chairman of the Alabama Civil Justice Reform Committee, said the field could grow because the business group has heard from several judges and lawyers who are looking at the race. The committee, which has a big influence on the Republican nominee, hopes to make an endorsement shortly after Jan. 1, Dart said.
In October, Gov. Bob Riley appointed Wise's husband to a vacant judgeship in Montgomery County. To keep the post, Ray must run in next year's election, and he already has Democratic opposition.
Wise, who was re-elected to a second term in 2006, said her husband put his career on hold over the years to allow her to seek public office and now it is time for her to do the same for him. If both were campaigning, there would be too many nights when they would have to leave the care of their daughter to someone else, she said.
"I don't want someone else raising my child," the judge said.
The primary election for the Supreme Court will be on June 3, a runoff on July 15, if necessary, and the general election on Nov. 4.
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City set to cash in on business license change
By Andre Coe, The Montgomery Advertiser
December 2, 2007
Montgomery expects to get as much as $2 million more next year in revenue after it imposes a state-mandated business license structure on municipalities that is angering professionals citywide.
The City Council could vote as soon as Tuesday on the change, required by Alabama law. The statute goes into effect Jan. 1. Council members haven't revised the fee structure since 1979, said Charles Wilson, who administers the city's business license tax.
"The city needs to make the change because this has been an issue for many years. The end result will not only be good public policy, but also (develop) a fertile environment for businesses," said councilman Willie Cook.
Legislators decided last year to impose a fee structure code for all cities that adheres to the North American Industry Classification System (NAICS), which allows the federal government to compare business statistics with trading partners Canada and Mexico.
Montgomery has about 16,000 licensed businesses that fall into nearly 750 categories, city finance director Lloyd Faulkner said. The licenses brought in $26.2 million in 2006, and Faulkner estimated revenue for this year at a little more than $28 million. The new fee structure is projected to bring in $30.1 million in 2008.
"There have been just as many complaints about the current ordinance as there have been about the proposed changes," said Mayor Bobby Bright. "It is not to generate new revenue, but to more equitably distribute licensing fees."
Right now, the fee structure is two-tiered: one is a sliding scale based on annual income, and the other is a flat rate. The rate varies by occupation.
For example, a professional such as a doctor or lawyer whose yearly income is $75,000 pays a $150 fee. A clothing store owner who does $75,000 in business pays $270 -- a $105 fee plus $3 for every $1,000 over the $20,000 sales mark.
The proposed fee schedule calls for the professional making $75,000 to pay $268.75 and the retailer making $75,000 in sales to pay $314.50. The professional will be charged a $225 fee plus $1.75 for every $1,000 over $50,000; the storeowner will see a $100 fee plus $3.30 for every $1,000 over $10,000.
Eric Lewis owns and operates Bell Road Animal Medical Center. The veterinarian pays $300 to the city now -- $150 for his practice and $150 for the pet supplies and grooming services available at his office. Under the new structure, Lewis will pay about $1,000 on his practice alone. The amount for supplies and services will be about $130.
Lewis is resigned about paying the higher amount. Still, he thinks the city should give him and other fee payers something in return, such as a better business climate. "As a business owner, you'd like to see an enhancement," Lewis said, "not just an increase to the fee."
The Alabama State Bar Association is hearing from its members statewide, said executive director Keith Norman. Like other businesses, Norman said, lawyers have employees, buy goods and services, and pay taxes. Norman thinks the sliding fee structure will have the biggest impact on smaller firms, which could move away from the city to avoid the fee.
"You have to look at the fairness issue," he said. "Is it fair across the board?"
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