On October 25, 2016, The Cumberland School of Law hosted Oral Arguments for two cases: one which was before the Alabama Court of Civil Appeals, and one which was before the Alabama Court of Criminal Appeals. Many of our student-colleagues, faculty, and friends attended, capitalizing on the opportunity to observe the arguments. Last month, both courts rendered opinions in the cases that were heard. Our editors have prepared brief summaries of those opinions. We at the Review hope that those whose interests were piqued by these cases and by the Oral Arguments will find the material below to be a helpful follow up.
For background information on each case, click here to view the summaries the Law Review prepared last fall as a primer on the issues which were argued back in October.
Alabama Court of Civil Appeals Summary: ABC Coke v. Gasp
Sean T. Herald
In ABC Coke v. Gasp the Alabama Court of Civil Appeals held that GASP was not required to meet any judicial standing requirement but, instead, was required to demonstrate only that it was a “person aggrieved” and, thereby, entitled to an administrative hearing under Jefferson County Board of Health’s (“JCBH”) rules of administrative procedure. The court of civil appeals found that JCBH’s decision did not comply with its own rules of administrative procedure, and therefore affirmed the judgment of the circuit court which reversed the decision of the JCBH and remanded the cause for JCBH to conduct a hearing as requested by GASP.
On February 9, 2014, the Air Program issued a draft renewal Title V permit to ABC Coke, issued a public notice of the draft renewal permit, and also set an initial period to receive public comments on the draft renewal permit. On March 31, 2014, the Air Program held a public-information session where citizens were provided information about the draft renewal permit and were given an opportunity to ask questions and to offer comments for the public record. Subsequently, the Air Program responded in writing to the questions presented at the public hearing. On April 18, 2014, GASP submitted written comments on the draft renewal permit, which the Air Program considered and responded to before issuing a final renewal permit to ABC Coke on August 11, 2014. An order entered by a hearing officer during the administrative-review process noted that
[t]he proposed permit and all related public comments were sent to the U.S. Environmental Protection Agency (“EPA”) for review. Pursuant to Section 505(b) of the Clean Air Act, EPA has a right to object to the [Air] Program’s issuance of the permit if the permit contains provisions that are not in compliance with the requirements of the Clean Air Act. EPA did not object to issuance of the permit.
On August 26, 2014, GASP filed a petition requesting a hearing before JCBH to contest the renewal of ABC Coke’s Title V permit. On March, 2015, the hearing officer entered an order containing findings of fact and conclusions of law and determined that GASP had failed to demonstrate that it was a “person aggrieved” by the administrative action of the Air Program. The order also included a finding that GASP had not complied with Rule 12.4.4(d) of JCBH’s rules of administrative procedure, which requires a request for a hearing to include “a short statement of the terms and conditions which a requester proposes that the Board should include in an order modifying or disapproving the [Air] Program’s administrative action” and therefore, GASP was not entitled to a hearing.
On May 8, 2015, GASP filed a petition for judicial review in the Jefferson County Circuit Court pursuant to Code of Alabama Section 41-22-20. GASP, JCBH, and ABC Coke filed motions for summary judgment therein. On January 14, 2016, the circuit court entered an order granting GASP’s motion for summary judgment, concluding that GASP qualified as a “person aggrieved” under JCBH’s rules of administrative procedure, in addition to finding that GASP’s petition for a hearing fulfilled the requirements of notice pleading under the Alabama Rules of Civil Procedure.  JCBH and ABC Coke both filed notices of appeal.
In addressing whether GASP was entitled to a hearing, the Alabama Court of Civil Appeals noted that the case involved only GASP’s petition for an administrative hearing before JCBH and did not involve the issue of whether GASP would have “standing” to file suit in the judicial system. Agencies promulgate rules to address the question of “standing” and to establish eligibility criteria for contesting administrative actions within the administrative process. JCBH did so by promulgating Rule 12 of its rules of administrative procedure. The Court of Civil Appeals noted that Rule 12.4 provides, in part: “any person aggrieved by an administrative action of the [Air] Program, other than the issuance of any rule of regulation or emergency order, may file with the [JCBH] a request for a hearing to contest such action.”
Under Rule 12, the term “aggrieved” is defined as a person “having suffered a threatened or actual injury in fact,” and the term “person” includes a corporation. GASP filed a petition for a hearing in which it alleged injuries suffered by its members resulting from JCBH’s issuance of the permit to ABC Coke. GASP argued the petition satisfied JCBH requirements affording a “person aggrieved” by an action an administrative review of the action; and that GASP was not required to meet anything more. JCBH and ABC Coke contended that GASP’s petition for a hearing before JCBH was deficient under Rule 12 of JCBH’s rules of administrative procedure for failing to include a short statement of the terms and conditions that JCBH should include in an order modifying or disapproving the Air Program’s draft permit. Appellants also urged that GASP’s petition failed to allege any specific error committed by the Air Program in issuing the permit to ABC Coke.
The Court of Civil Appeals held that GASP included a single sentence that plainly sought an order containing terms and conditions denying the permit and that JCBH’s rules of administrative procedure did not require GASP to articulate the alleged error committed by the Air Program in order to receive a hearing. In following its own precedent, the court stated, “where an agency prescribes rules and regulations for the orderly accomplishment of its statutory duties, its officials must vigorously comply with those requirements and the agency must be held to its own standard.” The court’s decision makes clear that agencies must comply with their own promulgated rules of administrative procedure and cannot prescribe additional requirements that are not contained in their rules of administrative procedure. Moving forward, if the agency would like to have standing requirements that are similar to judicial proceedings, the agency must amend their current rules of administrative procedure.
 ABC Coke v. GASP, 2016 WL 7321557 (Ala. Civ. App. Dec. 16, 2016).
 Id. at *1. GASP is a not-for-profit corporation located in Alabama whose corporate mission is “to further the conservation, preservation, protection, maintenance, improvement, and enhancement of human health and the environment on behalf of its members and in the public interest. GASP’s current mission is to reduce air pollution, educate the public about the health risks of poor air quality, and encourage community leaders to serve as role models for clean air and clean energy.”
 Id. at *1. JCBH is a local health authority established pursuant to Ala. Code § 22-4-1 (1975).
 ABC Coke, 2016 WL 7321557, at *8.
 Id. at *2.
 Id. at *3. See also Ala. Code § 41-22-20 (1975).
 ABC Coke, 2016 WL 7321557, at *3.
 Id. at *4. See also Ecee, Inc. v. Federal Energy Regulatory Comm’n, 645 F.2d 339, 349-50 (5th Cir. 1981) (“Administrative adjudications … are not [proceedings under Article III of the United States Constitution] to which either the ‘case or controversy’ or prudential standing requirements apply; within their legislative mandates, agencies are free to hear actions brought by parties who might be without standing if the same issues happened to be before a federal court.”).
 ABC Coke, 2016 WL 7321557, at *5.
 Id. GASP asserted that it was a not-for-profit, membership corporation, that it was seeking relief on behalf of its members, and that its members were aggrieved by the issuance of the permit to ABC Coke because they had suffered, among other things, injurious soot deposits, unpleasant smells, and dangerous exposures to airborne carcinogens.
 ABC Coke, 2016 WL 7321557, at *6. See also Rule 12.4.4(d) JCBH rules of administrative procedure.
 ABC Coke, 2016 WL 7321557, at 7. See also Hand v. State Dep’t of Human Res., 548 So. 2d 171, 173-74 (Ala. Civ. App. 1988).
Alabama Court of Criminal Appeals Summary: Mogil v. State
In 2015, a Calhoun County Grand Jury indicted David Martin 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.
The State based their case against Mogil on evidence that Mogil beat a dog, Coco Lily, with a rubber water hose and caused Coco Lily to jump from a second-floor balcony. On October 25, 2016, the Alabama Court of Criminal Appeals heard David Martin Mogil’s appeal of his aggravated cruelty to an animal criminal conviction and the accompanying sentence of ten years’ imprisonment. Mogil argued that the State did not present sufficient evidence to sustain his conviction or the lesser-included offense, cruelty to an animal, and thus, the trial court erred in denying his motions for judgement of acquittal and his motion for a new trial.
On appeal, the court recognized the State first had to show that Mogil subjected “Coco Lily to cruel mistreatment either recklessly or with criminal negligence.” A person acts recklessly when “he is aware of and consciously disregards a substantial and unjustifiable risk . . .” and with criminal negligence when “he fails to perceive” such a risk. The State established that Mogil’s actions constituted cruel mistreatment through Dr. Bailey, a veterinarian, who testified that “striking a dog with a rubber hose absent a life-threatening situation amounts to cruel mistreatment.” Additionally, eyewitnesses testified that they heard a dog yelping that coincided with Mogil swinging a rubber hose from above his head to the ground. Viewing “the evidence in the light most favorable to prosecution,” the court found that the State’s evidence sufficed for a jury to find that Mogil acted recklessly or with criminal negligence as required by Ala. Code §13A-11-14. Accordingly, the court remanded the case for the trial court to enter a judgement of guilty for Mogil’s lesser-included offense, cruelty to an animal, and to resentence him accordingly.
Thereafter, the court addressed Mogil’s aggravated cruelty to an animal felony offense where the State had to show that Mogil’s cruelty, striking Coco Lily with a water hose, constituted “torture.” Ala. Code § 13A-11-14.1(b), defines “torture” as causing physical injury to an animal through “the infliction of inhumane treatment or gross physical abuse meant to cause the animal intensive or prolonged pain or serious physical injury.” Such “physical injury” requires a showing of “[i]mpairment of physical condition or substantial pain.” Although Coco Lily suffered physical injury from jumping off the balcony, the court recognized that Mogil “did not subject Coco Lily to cruel mistreatment when he walked onto the balcony before [she] jumped.” Further, the court found the State failed to present evidence that Coco Lily suffered physical injury, when Mogil hit her with the water hose. Accordingly, the court held that the State did not present legally sufficient evidence to sustain Mogil’s aggravated cruelty to an animal conviction. Based on the foregoing, the court reversed the trial court’s judgement with regard to Mogil’s aggravated cruelty to an animal conviction.
 Ala. Code § 13A-11-14.1(a)(1975); see also Ala. Code § 13A-11-14(a)(1975).
 Mogil v. State, No. CR-15-0011, 2016 Ala. Crim. App. LEXIS 74, at *1 (Ala. Crim. App. 2016).
 Mogil, 2016 Ala. Crim. App. LEXIS 74 at *11.
 Id. at *16.
 Ala. Code §§ 13A-2-2(3), (4) (1975).
 Mogil, 2016 Ala. Crim. App. LEXIS 74 at *16.
 Id. at *11 (quoting Faircloth v. State, 471 So. 2d 485, 489 (Ala. Crim. App. 1984) (reciting the standard of review for sufficiency of the evidence challenges)).
 Ala. Code § 13A-11-14(a) (requiring a showing of recklessness or criminal negligence to sustain a conviction for cruelty to an animal).
 Mogil, 2016 Ala. Crim. App. LEXIS 74 at *19.
 Id. at *17; see also Ala. Code § 13A-11-14.1(b).
 Ala. Code § 13A-11-14.1(b).
 Ala. Code § 13A-1-2.
 Mogil, 2016 Ala. Crim. App. LEXIS 74 at *18.
 Id. at *19.