On May 1, 2009, the Alabama Court of Civil Appeals decided Butler v. MaxiStorage, Inc., Brazelton and Brazelton Properties, Inc. The facts in Butler are quite long, intricate, and somewhat confusing. However, the key fact is this: during a series of financial transactions, the owners of a corporation, MaxiStorage, Inc., gave a purchaser and business partner a "Bill of Sale" purporting to transfer all of the owners' shares in MaxiStorage to the purchaser. However, no stock certificates ever changed hands; only the Bill of Sale reflected the transfer. The transaction went sour, and a trial court entered a judgment for the purchaser, finding, among other things, that the purchaser owned MaxiStorage.

The previous owners of MaxiStorage argued that they never intended to transfer the actual ownership of MaxiStorage to the purchaser. In support of their claim they produced evidence that no stock certificates had ever changed hands. The trial court noted that, under Alabama law, the transfer of stock can be achieved without the physical delivery of a stock certificate under three circumstances: by constructive delivery (usually when the actual delivery is impossible or difficult), by equitable assignment (an assignment which is legally invalid, but will be enforced in order to work justice), and by gift. The trial court held the Bill of Sale to be an equitable assignment.

The Alabama Attorney General's office is periodically called upon by state officials, agencies, or political subdivisions to issue official opinions which clarify state law, which can sometimes by murky at best. These opinions are advisory only and not considered binding law, but they are given great weight by courts, and may even constitute persuasive authority.

Recently, in Opinion 2009-55, the Attorney General's office stated that the Alabama Department of Human Resources ("ADHR") has jurisdiction to investigate child abuse and neglect allegations involving children in ADHR legal custody, even if the incident(s) of alleged abuse and/or neglect occurred out of state, if the abuse or neglect was committed by ADHR foster parents or others authorized by ADHR to care for the children. The Attorney General opinion states that Alabama substantive law would apply to the ADHR child abuse and neglect investigations in such cases, even though the offense did not occur in Alabama.

This opinion means that foster parents and other ADHR child care individuals can be investigated and held accountable in Alabama for acts that may have occurred while the child was on vacation or otherwise out of the state. Law enforcement officers should keep this in mind when they respond to calls concerning such abuse and/or neglect. Conversely, ADHR foster and surrogate parents should be aware that their actions outside the state can still be investigated and prosecute by Alabama officials. There is no safe haven for child abuse or neglect.

The Fourth Amendment to the United States Constitution states as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Because of the language and purpose of the Fourth Amendment, all warrantless searches are presumed unconstitutional. However, there are several common exceptions to this warrant requirement, such as consent (the arrestee voluntarily agrees to the search), exigent (emergency) circumstances, an inventory search, and . . . a search incident to a lawful arrest.

Pursuant to the "search incident to a lawful arrest" exception, most law enforcement officers operate on the assumption that they may search a vehicle if they have just arrested a recent occupant of that vehicle. Today, however, in Arizona v. Gant, 556 U.S. ____ (2009), the United States Supreme Court severely abrogated that exception. The "bottom line" of the holding is this, as written by Justice Stevens:

"Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

Note: The following is a revision of an article I wrote with Gary L. Willford, Jr., Esq., and which was published in the Spring, 2007 edition of the Birmingham Bar Association Bulletin.

Sovereign Immunity is a legal defense available to Alabama State Constitutional officers which immunizes them from suit for money damages stemming from the performance of their governmental duties.

In a case called Parker v. Amerson, 519 So. 2d 442 (Ala. 1987), the Alabama Supreme Court established that sheriffs were absolutely immune to suits for money damages. This immunity was premised upon two provisions in the Alabama Constitution: (1) Article V, § 112 makes sheriffs executive branch constitutional officers; and (2) Article I, § 14 provides that the State of Alabama can never be a defendant in a court of law or equity. Sheriffs were entitled to § 14 immunity because “a suit against a sheriff [is] ‘essentially a suit against the state.’” Under the Alabama Constitution, sheriffs are executive branch constitutional officers on par with the governor. This distinction separates sheriffs from municipal police officers, doctors employed by the state, and other state agents who are not constitutional officers and do not therefore enjoy the same level of immunity. The concept of affording more immunity to constitutional officers was not new at the time of Parker, having been created two years earlier by the United States Supreme Court in the case of Mitchell v. Forsyth, 472 U.S. 511 (1985) (recognizing the absolute immunity of the President of the United States, but finding that the members of the President’s cabinet were not entitled to absolute immunity).