On October 25, 2016, The Cumberland School of Law will host Oral Arguments in cases before both the Alabama Court of Civil Appeals and the Alabama Court of Criminal Appeals. The case before the Court of Criminal Appeals is an issue of first impression (i.e., legal questions that have not arisen before in the state’s reported case law), and will determine what evidence is sufficient to sustain a conviction for aggravated cruelty to an animal. The issue before the Court of Civil Appeals is whether the Jefferson County Board of Health properly interpreted and applied its internal rules and regulations in declining Appellee GASP’s request for a hearing regarding ABC Coke’s Title V Permit.
The occasion piqued our interest here at the Cumberland Law Review, and we’ve accordingly prepared a summary of each case’s background, along with a primer on the issues to be argued. We encourage our student-colleagues, faculty, and friends to take advantage of the opportunity to observe these arguments, and we hope they will find the material that follows to be a helpful introduction.
Jefferson County Board of Health & Drummond Coal Company d/b/a ABC Coke v. GASP
In the Court of Civil Appeals of Alabama
Oral Argument October 25, 2016
Cumberland School of Law
The issue before the Court of Civil Appeals of Alabama in Jefferson County Board of Health & Drummond Coal Company d/b/a ABC Coke v. GASP is whether the Jefferson County Board of Health properly interpreted and applied its internal rules and regulations in declining Appellee GASP’s request for a hearing regarding ABC Coke’s Title V Permit.
Appellant ABC Coke (hereinafter “ABC”) is a coke and coke byproducts manufacturing plant in Tarrant, Alabama. ABC is a subsidiary of Drummond Coal Company. ABC is required to obtain a Clean Air Act Title V operating permit to operate. Such a permit consolidates the numerous clean air requirements imposed on a facility into one document. Title V permits do not operate to impose or modify substantive obligations, nor does the permit provide an opportunity to reexamine any standards imposed on the permittee.
The Jefferson County Department of Health Air Pollution Control Program (hereinafter “the Program”) administers the Title V program in Jefferson County on behalf of the State of Alabama and the United States Environmental Protection Agency (hereinafter “EPA”). The Program generally does not have discretion to withhold a Title V permit or to add new substantive requirements thereto. Title V permits must be renewed every five years, and the Program must allow public comment before renewing the permit.
ABC sought to renew its longstanding Title V permit by submitting a renewal application to the Program on May 15, 2013. Public comments were accepted, reviewed, and forwarded along with the renewal permit to the EPA. GASP, a Birmingham area not-for profit corporation, founded in 1971 in response to dangerous air conditions, submitted several comments recommending changes to ABC’s draft permit during the public comment period. Ultimately, for various asserted reasons, GASP recommended the Health Officer deny ABC’s Major Source Operating Permit. The EPA did not object to the issuance of ABC’s renewal permit, and on August 11, 2014, despite GASP’s request, the Program reissued ABC’s Title V permit.
Subsequently, on August 26, 2014, GASP requested a hearing before the Jefferson County Health Board to contest the re-issuance of ABC’s Title V permit. GASP’s request alleged, among other things, that GASP, as an organization, had standing to pursue relief from the board because its members would otherwise have standing to pursue such relief, the interests GASP sought to protect were germane to the organization’s purpose, and neither the claims asserted nor the relief requested required the organization’s individual members be parties to the proceeding. GASP further alleged that the Jefferson County Board of Health should issue an order disapproving the issuance of ABC’s Title V permit. ABC later intervened in the action. Thereafter, the Board selected a hearing officer from a list of several retired judges to hear GASP’s petition.
On November 4, 2014, the Program and ABC filed motions to dismiss GASP’s request for a hearing. On March 19, 2015, the hearing officer entered Proposed Findings of Fact, Conclusions of Law, and Recommendation to the Board that GASP’s Request for Hearing should be dismissed for lack of standing, and failure to comply with Board rules regarding the content of a request for a hearing. Specifically, the hearing officer found GASP’s request failed to: (1) assert any error with the Permit or any unlawful action taken by the Program; (2) include a short statement of the proposed terms and conditions for the Board to include in its order modifying or disapproving the Program’s action; or (3) identify an individual GASP member who suffered a specific and particularized injury.
On June 5, 2015, GASP filed a civil action in Jefferson County, Alabama, Circuit Court asserting: (1) a petition for review of the Board’s final decision; (2) a petition for common law certiorari, and (3) a claim for a procedural due process violation. GASP subsequently moved for partial summary judgment on its petition for review of the Board’s final decision. The Jefferson County Circuit Court concluded that GASP had standing to challenge the Program’s issuance of ABC’s Permit, and determined GASP should be given a hearing before the Board on the merits of its claim. As a result, the lower court granted GASP’s motion for partial summary judgment, reversed the decision of the Board, and remanded the case to the Board to consider the merits of GASP’s action. Thereafter, on February 24, 2016, ABC and JCHB filed notices of appeal asserting the right to appeal to the Court of Civil Appeals pursuant to Code of Alabama section 12-22-2.
On appeal, the Court of Civil Appeals will review questions of law de novo, meaning the court will review the circuit court’s legal conclusions without deference for the lower court’s conclusions. Alabama law also requires a reviewing court give deference to an administrative agency’s interpretation of its rules and regulations, unless the interpretation is unreasonable or unsupported by the law.
In their briefs, ABC and JCHB assert the Board correctly determined GASP’s request for hearing was deficient and was properly dismissed. Appellants further contend the circuit court improperly granted summary judgment for GASP. ABC and JCHB argue GASP’s request for hearing was deficient because the request failed to: (1) allege any error with the permit or any unlawful action taken by the Program; (2) include a short statement of the proposed terms and conditions for the Board to include in an order modifying or disapproving the Program’s action; or (3) identify an individual GASP member who suffered a specific and particularized injury. Appellants further argue the circuit court failed to properly act as an appellate court because it entered an order “that is internally inconsistent and fails to defer to the Board’s reasonable application of its own rules.”
ABC and JCHB also argue GASP failed to allege GASP had standing to challenge the Title V permit because GASP failed to identify any individual GASP member who “allegedly suffer[ed] from any of the injuries GASP claims that its members suffer.” ABC and JCHB explain “[h]ere, the Board reasonably interpreted its own Rules and Regulations and looked to constitutional standing for guidance to conclude that a party must identify an individual – even if not by name – who has or might suffer an alleged injury.” ABC and JCHB contend GASP cannot establish the requirements of associational standing: (1) the organization’s members must otherwise have standing in their own right; (2) the interest and the protection sought are germane to the organizations’ purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the action. ABC and JCHB argue the Board’s interpretation of its regulation to require the identification of an individual member to satisfy the standing inquiry is entitled to substantial deference.
Appellee GASP responded to Appellants arguments noting that “a partial summary judgment is not final and appealable unless the lower court determines there is no just reason to delay entry of a final judgment on fewer than all claims and expressly directs entry of a final judgment on fewer than all claims.” GASP first argued it has standing to invoke judicial review of the Board’s order dismissing GASP’s Request for Hearing because GASP has met the constitutional requirements for judicial standing, namely: (1) GASP’s members have suffered an injury in fact; (2) a causal connection exists between GASP’s members’ injuries and the re-issuance and approval of ABC’s permit; (3) the relief requested by GASP can redress its injuries; (4) the members interests that GASP seeks to protect are germane to its purpose; and (5) neither the claims asserted nor the relief requested by GASP require that individual members be made parties in the proceeding.
GASP next countered ABC and JCHB’s argument that GASP’s Request for Hearing was defective because it failed to identify a GASP member by name who had suffered an injury in fact from the reissuance of the ABC permit. GASP asserts it was not required to name an individual GASP member arguing it satisfied the Board’s requirement that a party seeking review identify an “aggrieved person” for purposes of standing when it provided a short an plain statement of the threatened or actual injury suffered by the requester as a result of the administrative action of the Program.
GASP next concedes it did not identify any alleged error that the Program committed in renewing ABC’s permit, but argues the Board’s regulations did not require such a statement to request a hearing. GASP contends ABC and JCHB improperly rely on constitutional cases interpreting judicial standing in their argument. GASP continues, arguing the requirement of a statement concerning alleged errors committed by the Program is inconsistent with the Program’s rules and regulations, and is thereby an unreasonable and invalid interpretation thereof. Finally, GASP argues it satisfied the requirement of submitting proposed terms and conditions to the Board because GASP provided in its Request for Hearing: “GASP proposes that the Jefferson County Board of Health issue an order disapproving of the issuance of Major Source Operating Permit No. 4-07-0001-03 in its entirety.” GASP contends, “[h]owever short GASP’s statement may be, it is nevertheless a short and plain statement of the terms and conditions which [GASP] proposes the board should include in an order . . . disapproving the Program’s administrative action.”
In their replies, ABC and JCHB argue GASP “spen[t] twenty-one pages of its brief arguing an issue that is not in dispute – its standing before the circuit court.” Appellants argue regardless of whether GASP had standing before the circuit court, such standing does not change GASP’s failure to establish standing before the Board. The case will be argued before the Court of Civil Appeals in the 10:45 to 11:45 AM time slot.
Mogil v. State of Alabama
In the Court of Criminal Appeals of Alabama
Oral Argument October 25, 2016
Cumberland School of Law
Rebecca M. Guidry
Carmen E. Weite
In the proceedings before the Alabama Court of Criminal Appeals, David Martin Mogil appeals his criminal conviction for aggravated cruelty to an animal. This is a case of first impression in Alabama.
Mogil and his girlfriend, Allison Johnson, lived in an upstairs apartment in Anniston, Alabama with Johnson’s two dogs: a pug named Rider, and a Cocker Spaniel named Coco Lilly; and Johnson’s cat, Bo Kitty. On November 19, 2014, Coco Lilly, jumped from the ledge of Mogil’s second floor apartment balcony to the asphalt pavement below. The events leading up to and following the dog jumping from the balcony are hotly contested.
Eyewitness testimony from two contractors present near the residence in the early hours of November 19th established that Mogil was yelling and hollering on the balcony. During the commotion, Coco Lilly jumped onto the railing. Mogil was seen using a broom to hit the dog. Later in the morning, an eye witness observed more commotion on Mogil’s balcony: this time, Mogil was slinging a water hose toward the balcony floor. At the same time, Johnson’s dogs continued to bark and yelp. However, the eyewitnesses were unable to see whether Mogil was striking the dogs with the hose because the balcony railing obstructed their view. Moments later, Coco Lilly appeared on the ledge of the balcony. Coco Lilly jumped from the balcony and fell to the pavement below as Mogil approached the dog.
Eyewitnesses reported thinking Coco Lilly was dead after the fall. On the other hand, Johnson explained she was greeted by Coco Lilly wagging her tail soon after Coco Lilly jumped from the railing. Coco Lilly was immediately taken to the veterinarian where Dr. Ginger Bailey conducted a thorough physical examination. The exam revealed Coco Lilly was not exhibiting any symptoms of limping or unusual gait. Despite her fall, Coco Lilly suffered only an abrasion on her chin.
The Calhoun County Grand Jury indicted Mogil for aggravated cruelty to an animal under Ala. Code § 13A-11-14.1 which provides:
A person commits the crime of aggravated cruelty to animals if the person intentionally or knowingly [(1) Subjects any animal to cruel mistreatment; or (2) Subjects any animal in his or her custody to cruel neglect; or (3) Kills or injures without good cause any animal belonging to another], and the act or cruelty or neglect involved the infliction of torture to the animal.
Largely conflicting eyewitness accounts of the event were presented at trial. Dr. Bailey, the examining veterinarian, testified at trial that she “could not rule out any possibility that Coco Lilly had sustained any injuries consistent with being hit with a hose,” that manifestations of physical pain may not have been obvious immediately after the incident, and that some dogs are more stoic than others and simply do not show the pain they experience.
At trial, Mogil moved for a judgment of acquittal following the State’s case-in-chief, and again at the conclusion of the evidence. The trial court denied Mogil’s motions on both occasions. After deliberating, the jury returned a verdict finding Mogil guilty as charged in the indictment. On September 1, 2015, Mogil received a split sentence of ten years in prison; meaning Mogil was sentenced to 226 days in prison (time already served), and would spend the balance of the ten year sentence on probation. Mogil was also ordered to pay a $1,000 fine, court costs, and $40 per month for probation costs. Mogil filed a Motion for New Trial on September 17, 2015, noting that the verdict was contrary to the weight of the evidence. The court denied Mogil’s motion on September 22, 2015, without a hearing.
On appeal, the denial of Mogil’s Motion(s) for Judgment of Acquittal will be reviewed to determine whether there was sufficient evidence to allow the submission of the case to the jury. In determining the sufficiency of the evidence, the court must accept all of the State’s evidence as true, give the State the benefit of all legitimate inferences, and consider all evidence in a light most favorable to the State.
Mogil argues the trial court erred by denying his Motions for Judgment of Acquittal, and erred by denying his Motion for New Trial because the State failed to present legally sufficient evidence to prove Mogil intentionally or knowingly subjected the dog to cruel mistreatment. Specifically, Mogil argues the State had to rely on circumstantial evidence because no eyewitness saw the dog being cruelly mistreated by Mogil, and that there was no physical evidence of the dog being subjected to cruel mistreatment.
Mogil next argues the State failed to prove he tortured an animal. Torture is an “act of doing physical injury to an animal by the infliction of inhumane treatment or gross physical abuse meant to cause the animal intensive or prolonged pain or serious physical injury, or by causing the death of the animal.”  Mogil argues the State failed to provide legally sufficient evidence that Mogil: (1) caused physical injury to the dog; (2) inhumanely treated the dog, or grossly physically abused the dog; or (3) that the dog suffered any serious physical injury, intensive or prolonged pain, or death. Specifically, Mogil argues the State did not present any direct evidence, and relies on circumstantial evidence which is uncorroborated by any physical evidence.
Mogil also asserts the State failed to prove Mogil’s conduct involved inhumane treatment or gross physical abuse. In his appeal, Mogil expressed “[b]ecause this is a case of first impression involving the felony charge of aggravated cruelty to an animal this Honorable Court will have to get creative to discern what rises to the level of aggravated cruelty.” Mogil asks the court to look to past cases involving misdemeanor cruelty to an animal because for an action to rise to the level of “aggravated cruelty, there must be some absolutely egregious action.”
Finally, Mogil argues the State failed to prove torture by evidence that Coco Lilly suffered intensive or prolonged pain, serious physical injury, or death. Here, it is undisputed Coco Lilly did not suffer serious physical injury or death. Thus, Mogil argues the State failed to establish Mogil tortured Coco Lilly by inflicting intensive or prolonged pain because “Coco Lilly [was] seen running around just moments after she fell from the second floor balcony . . . the veterinarian noted only an abrasion on the dog’s chin and the dog [was] seen acting playful just two days after the alleged torture.”
The State argues that the trial court properly denied the motions for judgment of acquittal and that sufficient evidence was presented at trial in order to sustain Mogil’s conviction. Specifically, the State asserts that Mogil beat the dog with a water hose, and in a second incident, caused the dog to jump from the second floor balcony to avoid further mistreatment even though Mogil did not force the dog to jump off of the balcony. The State explains the act of torture which is sufficient to affirm the conviction is the act of beating the dog with the water hose. The State contends the dog jumping from the balcony to avoid further abuse was merely additional evidence from which the jury could infer that the beating of the dog with the water hose was torture. The State further argues that the verdict against Mogil was not wrong or unjust because there was legal evidence on every statutory element of the crime by which the jury could (and did), by fair inference, find Mogil guilty.
The case will be argued before the Court of Criminal Appeals in the 9:30 to 10:30 AM time slot.
 “From any final judgment of the circuit court or probate court, an appeal lies to the appropriate appellate court as a matter of right by either party, or their personal representatives, within the time and in the manner prescribed by the Alabama Rules of Appellate Procedure.” Ala. Code § 12-22-2.
 Brief for Appellant ABC Coke at 17.
 Id. at 36.
 Id. at 38.
 Brief for Appellee at viii.
 Id. at 64.
 Reply Brief for Appellant ABC Coke at 3.
 The testimony of Brian James Roberts, given at a preliminary hearing, was allowed to be read into evidence at trial because Roberts was unavailable as a witness.
 Ala. Code § 13A-11-14.1(a) (1975); see also Ala. Code § 13A-11-14(a) (1975).
 Brief of Appellee at 10.
 Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998).
 Ala. Code § 13A-11-14.1 (1975); see also § 13A-11-14.1(a) (1975).
 Brief for Appellant at 15.
 Id. at 16.