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Monday, April 3, 2017

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Blogger Comments:  

Please see FR CiVP 25(d)(1) below for your review.  I hope I added the correct rule.  This stuff is deep.  If I understand what Anonymous, April 2, 2017 at 7:39 PM says based on the law, it appears that Sheriff Franklin falls under the Amended Order of the Consent Decree of 2009.  So! Why did Barney wait until now to submit a request to the courts requesting that Sheriff Franklin not be bound by the Amended Consent Decree of 2009?  Could it be that Ana doesn’t want us to know that the $160,000.00 isn’t the first or last time she took money out of the inmate food account?  Also see an additional comment below Excerpts of FR CiVP 25(d)(1).

U.S. District Judge U.W. Clemon’s 2009 order states:

“The sheriff of Morgan County shall immediately establish and implement a procedure whereby all funds provided by any source for the feeding of inmates, including funds from the state of Alabama, any municipality, and the federal government will be used exclusively for the feeding of said inmates incarcerated in the Morgan County Detention Facility.”  Shinn said he gave an informal opinion to Franklin’s attorney and his law partner, Barney Lovelace, that the court order applied to Franklin.

A note Shinn attached to case law he gave Lovelace to back his opinion read: “Barney, the attached FR CiVP 25 (d) (1) answers your question to Sheriff Franklin’s liability in the (Sheriff Greg) Bartlett jail case.”

Franklin was sheriff-elect when Shinn gave the opinion in November. She defeated Bartlett in a Republican primary runoff in July and a Democratic contender in the general election.

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Excerpts from FR CiVP 25 (d) (1)

(d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.

Subdivision (d)(1). Present Rule 25(d) is generally considered to be unsatisfactory. 4 Moore's Federal Practice 
 25.01[7] (2d ed. 1950); Wright, Amendments to the Federal Rules: The Function of a Continuing Rules Committee, 7 Vand.L.Rev. 521, 529 (1954); Developments in the Law—Remedies Against the United States and Its Officials, 70 Harv.L.Rev. 827, 931–34 (1957). To require, as a condition of substituting a successor public officer as a party to a pending action, that an application be made with a showing that there is substantial need for continuing the litigation, can rarely serve any useful purpose and fosters a burdensome formality. And to prescribe a short, fixed time period for substitution which cannot be extended even by agreement, see Snyder v. Buck, 340 U.S. 15, 19 (1950), with the penalty of dismissal of the action, “makes a trap for unsuspecting litigants which seems unworthy of a great government.” Vibra Brush Corp. v. Schaffer, 256 F.2d 681, 684 (2d Cir. 1958). Although courts have on occasion found means of undercutting the rule, e.g. Acheson v. Furusho, 212 F.2d 284 (9th Cir. 1954) (substitution of defendant officer unnecessary on theory that only a declaration of status was sought), it has operated harshly in many instances, e.g. Snyder v. Buck, supra; Poindexter v. Folsom, 242 F.2d 516 (3d Cir. 1957).

Under the amendment, the successor is automatically substituted as a party without an application or showing of need to continue the action. An order of substitution is not required, but may be entered at any time if a party desires or the court thinks fit.
The general term “public officer” is used in preference to the enumeration which appears in the present rule. It comprises Federal, State, and local officers.
The expression “in his official capacity” is to be interpreted in its context as part of a simple procedural rule for substitution; care should be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity from suit or the Eleventh Amendment. The amended rule will apply to all actions brought by public officers for the government, and to any action brought in form against a named officer, but intrinsically against the government or the office or the incumbent thereof whoever he may be from time to time during the action. Thus the amended rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. It will also apply to actions to prevent officers from acting in excess of their authority or under authority not validly conferredcf. Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), or from enforcing unconstitutional enactments, cf. Ex parte Young, 209 U.S. 123 (1908); Ex parte La Prade, 289 U.S. 444 (1933). In general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office. Cf. Land v. Dollar, 330 U.S. 731 (1947); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). Excluded from the operation of the amended rule will be the relatively infrequent actions which are directed to securing money judgments against the named officers enforceable against their personal assets; in these cases Rule 25(a)(1), not Rule 25(d), applies to the question of substitution. Examples are actions against officers seeking to make them pay damages out of their own pockets for defamatory utterances or other misconduct in some way related to the office, see Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). Another example is the anomalous action for a tax refund against a collector of internal revenue, see Ignelzi v. Granger, 16 F.R.D. 517 (W.D.Pa. 1955), 28 U.S.C. §2006, 4 Moore, supra

Blogger Comments:  Anonymous below states that Ms. Mary Pons said “if it were me, I would have gone through the County Commission and asked them to get the opinion for me.”  Ms. Mary, Sheriff Franklin did submit a request before taking office.  Sheriff Franklin didn’t like the answer she received from Mr. Bill Shinn and chose to take the money defying the Amended Consent Decree of 2009.
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Mary Pons, attorney for the Association of County Commissions of Alabama, said she doesn’t know of any law that clearly addresses the opinion Franklin sought.

“I can’t think of anything I’ve ever seen for or against that,” Pons said. “If it were me, I would have gone through the County Commission and asked them to get the opinion for me.”



25 comments:

  1. Do you have nothing better to blog about? You post the same crap over and over. It is going to court we will find out the outcome once the judge rules. Get over your witch hunt. Get a real job, live life, laugh have fun. STOP with your nonsense.

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  2. Another Ana supporter upset with the blog, and refusing to address the issues. Same old blah, blah, blah by the fan club. Don't like the blog? Don't read it, there is a new concept.

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    1. I'm not upset at all. I live life everyday to the fullest. I think you should do the same. If the judge says she can't keep the money then she can't. If he says she can, then she can. No big deal! I'm still handling my business and you should do the same.

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    2. As I should do the same? A bit rude telling someone you don't know what to do. Oh forgive me. Ana fan club member rudeness is required what was I thinking?

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    3. Rude? Sounded like solid advice to me, I guess you can't stop the venom from spewing out.

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    4. Another fan of the Sheriff saying "spewing venom" "handling my business you should do the same", and yet not a one of them wants to say why their sheriff keeps changing her story, why she defied a fedral court order. You just cannot defend the deception, so they don't. they kill me LOL!

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    5. That's all these people know is hatred and how to be rude. You can't fix stupid!

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    6. Yeah, you're really handling your business and living life to the fullest by trolling comments on a blog that practices freedom of speech. It's hard to believe that you're not upset when your actions show otherwise. I'll go ahead and state the obvious, if Ana Woodard Franklin had been handling her business, this blog wouldn't have existed.

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    7. Yeah, you're really handling your business and living life to the fullest by trolling comments on a blog that practices freedom of speech. It's hard to believe that you're not upset when your actions show otherwise. I'll go ahead and state the obvious, if Ana Woodard Franklin had been handling her business, this blog wouldn't have existed.

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    8. Rude,stupid,troll, hate...Glenda and her thugs sure do a lot of name calling. Name calling is the hallmark of a weak mind.

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    9. I didn't call anyone a troll per say. I used it as a verb not a noun.

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  3. I appreciate the information and I certainly think the public should gain more knowledge about the subject considering the past history with our elected officials.

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  4. I do not care what the Judge rules. It is plain and simple Ana Franklin is a lieing thief. You are just as bad. Even if the judge backs off and is to much of a coward to rule the fair and just way guilty. Ana Franklin is out of office.

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    1. Judge Kallon is a coward? You should stand up in his courtroom and tell him so. That'll show him.

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  5. Any other comments by Ana's thugs are welcomed...she asked if the order applied to her before she took office...prominent attorney Bill Shinn said yes it applies to you...did she abide by it...nope...sorry the writing is on the wall...if you wont even abide by a Federal Judges order why are you still running our County????????????????

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    1. Nobody cares about Bill Shinn............
      It's all up to the federal judge,,,,,,,,,, now!!!!!!!!!!

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    2. Ana thugs always comments...I'm not scared of the Feds...in fact I hope they come Ill meet them on the courthouse step's (Blake Robinson stated as he was involved in the title mart scheme)...you all should be scared...not looking too good for any of Ana's thugs. If Bill Shinn doesn't mean shit...why has Morgan County been paying him for several years...Ana thugs need to pipe it...sit back...wait watch and see what is going to happen to them.

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  6. If nobody cares then why are we paying tax money to him for legal advice.

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  7. Why do you people keep yapping about the Ana supporters? Once she goes to jail they will all be fired. Let your heart not be troubled.

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  8. Franklin goes to jail, then who is the sheriff? How does that work?

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  9. The corner is next in line to replace the sheriff in the event something happens.

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  10. The corner is next in line to replace the sheriff in the event something happens.

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  11. chunn is a good guy...he will get the job done until whatever governor steps in after this bentley ordeal settles

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    Replies
    1. Reckon how long the impeachment process will take?

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  12. eToro is the most recommended forex trading platform for beginning and established traders.

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