An Alabama Lawyer in the United States Supreme Court
| Publication year | 2020 |
| Pages | 0046 |
The Case
There was nothing exceptional about the case at first.
Mike and Wanda Dobson bought a house in Fairhope. The house came with a Terminix termite bond. Terminix inspected the house prior to closing and gave it a clean bill of health. Shortly after closing, the Dobsons commenced remodeling the house and found active termites in the floors, walls, ceiling, and roof decking. I filed suit against Terminix for them in the Circuit Court of Baldwin County. Terminix hired Joey Jones and Julian Motes of Sirote Permutt.
I commenced the usual preparation for trial, but unknown to me, Terminix had other plans for the case. To my dismay, Terminix soon filed a motion to stay for arbitration.
After a quick refresher on Alabama's statute barring the enforcement of pre-dispute arbitration agreements, I confidently argued that the Dobsons could not be required to arbitrate their claim because the transaction did not "involve" interstate commerce sufficient to invoke the preemptive Federal Arbitration Act. I pointed to the fact that the case involved Alabama buyers and sellers of an Alabama house. Terminix replied that Terminix was a national company and that the chemical used to treat the termites was made in Arkansas. Circuit Judge Jim Reid denied the Terminix motion without much debate.
I was again surprised when Terminix sought review in the Alabama Supreme Court. That court affirmed Judge Reid and I resumed my preparation for trial, curious about our procedural detour on an issue I thought to border on frivolous. As it turned out, the fun had just begun.
Certiorari
I was even more perplexed when on December 23, 1993, Terminix filed a petition for writ of certiorari in the United States Supreme Court. A few days later, it became apparent that we were caught up in a carefully-orchestrated Terminix plan.
I received a call from The Public Citizen, a public interest law firm in Washington founded by Ralph Nader. The caller explained that there were four other petitions for certiorari then pending in the Supreme Court raising the same issue: what facts "involve" interstate commerce under the Federal Arbitration Act? The caller explained that The Public Citizen assists "underdog" clients pro bono on issues affecting consumer rights. They would provide me background advice and support in opposing the Terminix petition. I understood that I needed their help. My brother, Johnny, and I were then a two-man firm, with an office in Bay Minette. The Terminix petition was filed by a new member of their team, H. Bartow Farr, III, a Washington regular before the Supreme Court who had clerked for Chief Justice William Rehnquist. He had served as Assistant Solicitor General. He has now argued 32 cases in the Supreme Court and lists Dobson as one of his top...
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