Tracia Carter-Shepherd v. Royal Furniture Company and State of Alabama

Rel: November 7, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2025-2026
_________________________

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_________________________

Tracia Carter-Shepherd

v.

Royal Furniture Company and State of Alabama

Appeal from Jefferson Circuit Court
(CV-22-900008)

FRIDY, Judge.

Tracia Carter-Shepherd ("the employee") appeals from a judgment

of the Jefferson Circuit Court ("the trial court") insofar as it denies her

constitutional challenges to certain portions of the Alabama Workers'
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Compensation Act ("the Act"), Ala. Code 1975, § 25-5-1 et seq. We affirm

the trial court's judgment.

Procedural History

On January 3, 2022, the employee filed in the trial court a

complaint against Royal Furniture Company ("the employer") in which

she sought workers' compensation benefits under the Act. On September

24, 2024, the parties filed and submitted to the trial court a petition to

approve a settlement agreement that had been reached by the parties; a

copy of the settlement agreement was attached to the petition and

provided, among other things, that the parties agreed that the employer

would pay to the employee a lump-sum amount of $50,000 in settlement

of her claims against the employer and that the employee's attorney "is

entitled to a fee of the above referenced lump-sum settlement to be

determined by [the trial court], plus any expenses incurred as a result of

this litigation." The settlement agreement further represented that the

lump-sum payment, "after reduction of attorney fees and expenses

incurred, leave[s] a balance of $42,184.14 to be paid to [the employee]."

On September 25, 2024, the trial court entered a judgment in which it,

among other things, "approve[d] the proposed settlement and the

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proposed attorney's fee for [the employee's] attorney" and entered

judgment in accordance with the terms of the settlement agreement and

the petition the parties had filed.

On September 25, 2024, the employee filed a motion 1 requesting

that the trial court award her attorney a fee in the amount of 16% of the

gross settlement proceeds and that it do so by holding Ala. Code 1975, §

25-5-90(a), a part of the Act, unconstitutional.2 On October 8, 2024, the

employee filed an amended motion in which she also challenged as

1The employee's motion indicates that the motion was brought by

the employee, "by and through counsel, and her counsel undersigned on
their own behalf." We note that there is no indication that the employee's
counsel sought to be added as a plaintiff or that the employee's counsel
was added as a plaintiff in the trial court; nor has the employee's counsel
attempted to appeal the trial court's judgment as an appellant.

2Section 25-5-90(a) provides:

"Unless otherwise provided in [the Act], no part of the
compensation payable under [Article 3] and Article 4 of [the
Act] shall be paid to an attorney for the plaintiff for legal
services, unless upon the application of the plaintiff, the judge
shall order or approve of the employment of an attorney by
the plaintiff; and in such event, the judge, upon the hearing
of the complaint for compensation, either by law or by
settlement, shall fix the fee of the attorney for the plaintiff for
his or her legal services and the manner of its payment, but
the fee shall not exceed 15 percent of the compensation
awarded or paid."
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unconstitutional the Act's nonseverability statute, Ala. Code 1975, § 25-

5-17. 3 The State's Attorney General was served with the amended

motion, and, on October 30, 2024, the State's Attorney General filed a

brief defending the constitutionality of the Act. See Ala. Code 1975, § 6-

6-227 (providing, in pertinent part, that, "[i]f the statute … is alleged to

be unconstitutional, the Attorney General of the state shall … be served

with a copy of the proceeding and be entitled to be heard"). The employer

also filed a response in opposition to the employee's motion seeking to

hold § 25-5-90(a) unconstitutional. On January 15, 2025, the employee

filed a reply brief in support of her amended motion. On March 21, 2025,

following a hearing, 4 the trial court entered a judgment in which it

concluded that the employee "has not carried her burden of proving that

the fee cap in the … Act is unconstitutional" and that, "[c]onsequently,

[the employee's] further arguments that the 'non-severance' clause in the

3Section 25-5-17 provides: "The provisions of [the Act] are expressly

declared not to be severable. If any provision of [the Act] shall be
adjudged to be invalid by any court of competent jurisdiction, then this
entire act shall be invalid and held for naught."

4A transcript of the March 21, 2025, hearing does not appear in the

record on appeal. The employee indicated on her notice of appeal that
she would not order a transcript.
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… Act is unconstitutional are rendered moot." On April 14, 2025, the

employee filed her notice of appeal to this court.

Issues

The employee argues on appeal that § 25-5-17 is unconstitutional

because it violates the right to petition secured by the First Amendment

to the United States Constitution and that the legislative cap on

attorney's fees in § 25-5-90(a) violates the doctrine of separation of

powers set forth in the Alabama Constitution of 2022.

Standard of Review

In Crenshaw v. Sonic Drive In of Greenville, Inc., [Ms. SC-2024-

0081, Dec. 6, 2024] ___ So. 3d ___, ____ (Ala. 2024), our supreme court

stated, in pertinent part:

"Initially, we note that 'acts of the legislature are
presumed constitutional.' State ex rel. King v. Morton, 955 So.
2d 1012, 1017 (Ala. 2006). ' "In reviewing the constitutionality
of a legislative act, this Court will sustain the act ' "unless it
is clear beyond reasonable doubt" ' " ' that the act violates the
constitution. Id. (quoting Dobbs v. Shelby Cnty. Econ. &
Indus. Dev. Auth., 749 So. 2d 425, 428 (Ala. 1999), quoting in
turn White v. Reynolds Metals Co., 558 So. 2d 373, 383 (Ala.
1989), quoting in turn Alabama State Fed'n of Labor v.
McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815 (1944))."

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Discussion

We first address the employee's argument that the fee cap imposed

by § 25-5-90 is unconstitutional because it violates the separation-of-

powers doctrine. Article III, § 42, of the Alabama Constitution of 2022

provides:

"(a) The powers of the government of the State of
Alabama are legislative, executive, and judicial.

"(b) The government of the State of Alabama shall be
divided into three distinct branches: legislative, executive,
and judicial.

"(c) To the end that the government of the State of
Alabama may be a government of laws and not of individuals,
and except as expressly directed or permitted in this
constitution, the legislative branch may not exercise the
executive or judicial power, the executive branch may not
exercise the legislative or judicial power, and the judicial
branch may not exercise the legislative or executive power."

The employee argues that the regulation of attorney's fees is a function

of the judicial branch of government and that § 25-5-90 constitutes a

legislative trespass into a function reserved to the judiciary.

Before we proceed to consider the merits of the employee's

constitutional arguments, we first address a jurisdictional argument

raised by the Attorney General. The Attorney General argues on appeal

that the employee lacks standing to challenge the fee cap. We note that

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the issue of standing was not raised before the trial court in this case and

was not addressed by that court; however, " '[s]tanding represents a

jurisdictional requirement which remains open to review at all stages of

the litigation.' " State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025,

1028 (Ala. 1999) (citations omitted). Our supreme court has

acknowledged that, to establish standing to bring a challenge on

constitutional grounds, a party must first demonstrate the existence of

" 'an actual, concrete and particularized "injury in fact" -- "an invasion of

a legally protected interest." ' " Town of Cedar Bluff v. Citizens Caring for

Children, 904 So. 2d 1253, 1256-57 (Ala. 2004) (quoting Alabama

Alcoholic Beverage Control Bd. v. Henri-Duval Winery, LLC, 890 So. 2d

70, 74 (Ala. 2003)) (emphasis omitted). The Attorney General contends

that, in the present case, the employee is not injured by the imposition of

the fee cap in § 25-5-90, which, he says, operates to ensure the employee

a larger percentage of the settlement amount than she will receive if the

fee cap is declared unconstitutional.

The employee asserts in her reply brief that the fee cap forbids her

from "acting as she wishes" to pay a lawyer "what she wishes" and that

it therefore affects her right to contract privately for legal representation.

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See Article I, § 22, Ala. Const. 2022 (providing, in pertinent part, that no

law impairing the obligations of contracts shall be passed by the

legislature); Ex parte McCain, 804 So. 2d 186, 189 (Ala. 2001)

(recognizing that "[t]he right to appear through privately retained

counsel in a civil matter is embedded in Article I, § 10, Ala. Constitution,

1901," and that that " 'constitutional right to be represented by counsel

… cannot be unduly impinged' " (quoting Loreno v. Ross, 222 Ala. 567,

570, 133 So. 251, 253 (1931))).

In Goodyear Tire & Rubber Co. v. Moore, 900 So. 2d 1239, 1240

(Ala. Civ. App. 2004), this court confirmed that an employer in a workers'

compensation case has no standing to obtain review of the calculation of

the attorney's fee awarded to the worker's attorney because it pays no

portion thereof. In Rush v. Heflin, 411 So. 2d 1295, 1297 (Ala. Civ. App.

1982), this court recognized that, if an attorney's fee was awarded that

exceeded the amount allowed by the Act, "it is a matter for correction

between the employee and his attorney." Thus, this court has

acknowledged that § 25-5-90 relates to the contractual relationship

between an employee proceeding under the Act and his or her attorney.

We cannot conclude that, under the circumstances of the present case, in

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which the employee requested an order awarding her attorney a certain

amount pursuant to that relationship and in which that requested order

was prohibited by the operation of § 25-5-90, the employee lacks standing

to challenge that statute. Accordingly, we proceed to consider the merits

of the employee's constitutional challenge to § 25-5-90.

The employee argues that § 25-5-90 violates § 42 by permitting the

legislative branch of the government to usurp the authority of the judicial

branch to regulate lawyers and the legal profession, including the

reasonableness of attorney's fees. To establish the judicial branch's

authority in that regard, the employee first cites Ala. Const. 2022, Art.

VI, § 150, which provides:

"The supreme court shall make and promulgate rules
governing the administration of all courts and rules governing
practice and procedure in all courts; provided, however, that
such rules shall not abridge, enlarge or modify the
substantive right of any party nor affect the jurisdiction of
circuit and district courts or venue of actions therein; and
provided, further, that the right of trial by jury as at common
law and declared by section 11 of the Constitution of Alabama
1901 shall be preserved to the parties inviolate. These rules
may be changed by a general act of statewide application."

In further support of her argument that regulating attorney's fees

is a function of the judicial branch, the employee cites Diamond Concrete

& Slabs, LLC v. Andalusia-Opp Airport Authority, 181 So. 3d 1071 (Ala.

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Civ. App. 2015), in which this court addressed the reasonableness of an

attorney's fee awarded pursuant to Ala. Code 1975, § 8-29-6, which

provides for the "payment of reasonable attorneys' fees" in cases

involving remedies for contractors and subcontractors to recover

payments that are improperly withheld by a party contractually

obligated for the payment. 181 So. 3d at 1074-75. In that case, this court

confirmed that the determination of whether an attorney's fee was

reasonable was within the sound discretion of the trial court, and we

outlined the criteria that a trial court might consider in reaching its

determination on that issue. Id. at 1075. The employee asserts that, in

Diamond Concrete, "although the legislature statutorily authorized that

a fee could be awarded, regulating the amount of the fee was seen clearly

as a function of the judiciary." The employee's brief, p. 37. We note,

however, that, in Diamond Concrete and other cases cited by the

employee in support of that assertion, the legislature statutorily

authorized the award of a "reasonable" attorney's fee, and the judiciary

was charged with determining whether, under the circumstances

involved in each of those cases and in consideration of certain relevant

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factors, the award was reasonable, in accordance with the language of

the applicable statute.

Unlike the statutes at issue in the cases cited by the employee, §

25-5-90 does not provide for the award of a "reasonable attorney's fee."

We note, however, that, like in Diamond Concrete, in which this court

confirmed that the question whether the fee awarded was reasonable was

within the trial court's discretion, "[t]he trial court has broad discretion

in awarding an attorney fee in a workers' compensation case so long as

the award does not exceed 15% of the compensation awarded or paid."

Osorio v. K & D Erectors, Inc., 882 So. 2d 347, 351 (Ala. Civ. App. 2003).

Thus, we cannot conclude that the discretionary function of the judiciary

in awarding an attorney's fee is negated in workers' compensation cases

by the application of § 25-5-90. Indeed, the employee acknowledges on

appeal that judicial discretion is involved in the application of § 25-5-90.

She asserts, however, that limits placed on that discretion by imposing

the 15% cap could, in certain circumstances, limit the judiciary's ability

to award a "reasonable fee." She cites in support of her assertion

Castellanos v. Next Door Co., 192 So. 3d 431, 433 (Fla. 2016), in which

the Florida Supreme Court declared a legislatively imposed fee cap in

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workers' compensation cases unconstitutional on the basis that it

violated due process, as being illustrative of a situation in which a fee cap

may result in the award of an unreasonable fee.

In Castellanos, the Florida statute at issue limited a claimant's

ability to recover attorney's fees to an amount on a sliding scale based on

the amount of the workers' compensation benefits obtained and resulted

in an award to the worker's attorney in that case of a fee in the amount

of $1.53 per hour for 107.2 hours of work. 192 So. 3d at 433. Notably,

under the Florida workers' compensation laws at issue in Castellanos,

the workers' compensation claim was adjudicated by the Judge of

Compensation Claims, an official of Florida's executive branch of

government, and the fees were to be paid by the employer. Id. at 437. The

Florida Supreme Court concluded that the statute in that case created

an unconstitutional, irrebuttable presumption in violation of due process

of law. Id. Unlike in Castellanos, however, the employee in the present

case has voluntarily abandoned on appeal any arguments in support of a

due-process challenge against § 25-5-90. Thus, we cannot conclude that

the legal conclusions in Castellanos are informative in our consideration

of the present appeal.

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Moreover, the employee in the present case failed to present any

assertions of fact or arguments either to the trial court or to this court

indicating that the award of attorney's fees to her attorney within the

15% cap imposed by § 25-5-90 is unreasonable under the circumstances

presented in this case. Thus, her arguments that the fee cap could create

a situation like that presented in Castellanos do not merit a finding that

§ 25-5-90 is unconstitutional, either on its face or as applied to her, based

on that possibility. See Weldon v. Ballow, 200 So. 3d 654, 659 (Ala. Civ.

App. 2015) (acknowledging the difference between an "as applied"

constitutional challenge to a statute, which is based on the facts of a

particular case, and a "facial" constitutional challenge to a statute, which

is based on whether the statute is always unconstitutional, regardless of

the particular facts).

The employee also points to the Alabama Rules of Disciplinary

Procedure and the Alabama Rules of Professional Conduct in support of

her assertion that it is the unique role of the judiciary to regulate the

legal profession, including the reasonableness of attorney's fees. She cites

the Preamble to the Alabama Rules of Disciplinary Procedure, which

provides, among other things, that the "Supreme Court of Alabama has

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inherent responsibility to supervise the conduct of lawyers who are its

officers" and that the "purpose of lawyer discipline and disability

proceedings is to maintain appropriate standards of professional conduct

to protect the public and the administration of justice from lawyers who

have demonstrated … that they are unable or are likely to be unable to

properly discharge their professional duties." The Alabama Rules of

Disciplinary Procedure provide, among other things, that discipline may

be imposed for violation of the Alabama Rules of Professional Conduct.

Rule 2(b), Ala. R. Disc. P. The employee also cites Rule 1.5(a) of the

Alabama Rules of Professional Conduct, which provides, in pertinent

part, that "[a] lawyer shall not enter into an agreement for, or charge, or

collect a clearly excessive fee" and provides factors to consider in

determining whether a fee is excessive. She argues that those rules

support a finding that § 25-5-90 interferes with the judiciary's regulation

of attorney's fees.

The Supreme Court of Kansas was presented with a similar

argument in Injured Workers of Kansas v. Franklin, 262 Kan. 840, 876,

942 P.2d 591, 616 (1997), when it considered whether the provision in the

Kansas Workers' Compensation Act that allowed for graduated

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contingency-fee rates for attorneys representing injured workers

interfered with the Kansas Supreme Court's inherent power to regulate

the practice of law. That court disposed of the argument that the limit on

the contingency fees at issue conflicted with the judicial power to regulate

attorney's fees, thereby violating the separation-of-powers doctrine, by

concluding that the Kansas Rules of Professional Conduct allow for the

statutory regulation of contingency fees and are thereby consistent with

a statute that limits contingency-fee rates. 262 Kan. at 876, 942 P.2d at

616. We reach a similar conclusion.

In the present case, the employee notes that, although the Alabama

Rules of Professional Conduct are drafted by the Board of Commissioners

of the Alabama State Bar, see Ala. Code 1975, § 34-3-80, those rules

"shall not be effective until approved by the Supreme Court." Ala. Code

1975, § 34-3-81. The employee must concede then that the Alabama

Supreme Court approved Rule 1.5(c) of the Alabama Rules of Professional

Conduct, which provides, in pertinent part, that "[a] fee may be

contingent on the outcome of the matter for which the service is rendered,

except in a matter in which a contingent fee is prohibited by paragraph

(d) or other law." (Emphasis added.) Thus, the Alabama Supreme Court

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approved that portion of those rules that explicitly acknowledges that

laws may prohibit a contingent attorney's fee. The Editors' Notes

accompanying Rule 1.5 provide that "[a]pplicable law may impose

limitations on contingent fees, such as a ceiling on the percentage." See

Scope of the Alabama Rules of Prof'l Conduct (providing that the

"[c]omment accompanying each Rule explains and illustrates the

meaning and purpose of the Rule"). Thus, a statute like § 25-5-90 that

regulates or limits contingency-fee rates is consistent, and does not

conflict, with the judicial regulation of attorney's fees in the Alabama

Rules of Professional Conduct.

We note that a case cited by the employee on appeal -- Injured

Workers Association of Utah v. State, 374 P.3d 14 (Utah 2016) -- reached

a different conclusion than this court and the Supreme Court of Kansas

in Injured Workers of Kansas v. Franklin, despite a comment to Rule 1.5

of the Utah Rules of Professional Conduct that also indicated that

applicable law may impose limitations on attorney contingency fees. In

that case, the Supreme Court of Utah concluded that a sliding-scale fee

schedule and an overall cap on the maximum amount of attorney's fees

for attorneys representing injured workers that was created by the Utah

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Labor Commission, a body of the executive branch of Utah's state

government, and the authorizing statute that delegated the authority to

regulate those fees to the Utah Labor Commission, were

unconstitutional. 374 P.3d at 16. In reaching that conclusion, the

Supreme Court of Utah first acknowledged that the Constitution of the

State of Utah granted that court the exclusive authority to govern the

practice of law. Id. at 20. It then overruled Thatcher v. Industrial

Commission, 115 Utah 568, 207 P.2d 178 (1949), in which that same

court had previously concluded that, "under the version of the Utah

Constitution then in effect, the Utah Supreme Court did not have the

exclusive power to regulate [attorney's] fees." 374 P.3d at 21. The Utah

Supreme Court proceeded to conclude that "the regulation of attorney

fees falls squarely within the practice of law" such that the constitutional

separation-of-powers doctrine forbids the legislature from regulating

attorney's fees and that the fee schedule authorized by the legislature

and created by the Utah Labor Commission was invalid. Id. at 22.

The Utah Supreme Court acknowledged its own power to adopt a

scheme regulating attorney's fees and proceeded to consider certain

policy considerations presented by the Labor Commission in support of

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the adoption of a fee schedule. Id. at 22-23. The employee in the present

case recites portions of those policy considerations in her brief on appeal.

Those statements by the Utah Supreme Court are not instructive in the

present case, however. Unlike in the Utah case, the employee fails to

point to any portion of the Alabama Constitution that grants the

Alabama Supreme Court exclusive authority to regulate the practice of

law such that this court could consider the separation-of-powers analysis

in that case instructive or could proceed to consider the merits of a fee

schedule as the Utah Supreme Court did in Injured Workers Association

of Utah v. State. Indeed, the "Power to Make Rules" in Art. VI, § 150, of

the Alabama Constitution of 2022 specifically provides that the rules

outlined therein "may be changed by a general act of statewide

application."

The employee also cites in support of her constitutional arguments

Irwin v. Surdyk's Liquor, 599 N.W.2d 132 (Minn. 1999), in which the

Supreme Court of Minnesota declared unconstitutional a statutory

scheme providing a set formula for attorney's fees, with a maximum

amount of $13,000. In that case, the Supreme Court of Minnesota

recognized that the rules governing the legal profession fall within the

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judicial power exclusively reserved to the court and that, even if it were

to read the statutory scheme at issue in that case as allowing review by

that court, its review power would be limited to solely determining

whether the statutory formula had been properly applied by the

compensation judge, a member of the executive branch who hears

workers' compensation claims, and the Workers' Compensation Court of

Appeals, an independent agency of the executive branch with exclusive

jurisdiction to hear all appeals allowed under the Minnesota Workers'

Compensation Act, see Minn. Stat. § 175A.01. 599 N.W. 2d at 140-41.

Ultimately, the Minnesota Supreme Court noted that it did "not take

issue with the actual percentage or dollar limitations adopted by the

legislature" in the workers' compensation scheme, but it concluded that

"[l]egislation that prohibits [it] from deviating from the precise statutory

amount of awardable attorney fees impinges on the judiciary's inherent

power to oversee attorneys and attorney fees by depriving [it] of a final,

independent review of attorney fees" and that the legislative delegation

of attorney-fee regulation exclusively to the executive branch of

government violated the Minnesota Constitution's separation-of-powers

doctrine. Id. at 141-42.

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The employee cites Goodyear Tire & Rubber Co. v. J.M. Tull Metals

Co., 629 So. 2d 633, 637 (Ala. 1993), for the proposition that the Act "is

based on the Minnesota act and that 'the Minnesota construction of [the

Minnesota act] is of persuasive value to this court.' " The employee's brief,

p. 26. Our supreme court responded to a similar assertion in Ex parte

Woodward Iron Co., 277 Ala. 133, 136, 167 So. 2d 702, 704 (1964), by

acknowledging that "the procedure under Minnesota statutes is different

from ours in many respects." Unlike the Minnesota statutory scheme at

issue in Irwin, Alabama's statutory scheme does not provide that

workers' compensation claims are heard by members of the executive

branch and contains no formula to be applied to calculate attorney's fees.

As discussed above, the employee has failed to point to a provision of our

laws that exclusively reserves the power to create rules governing the

legal profession to the judiciary. Thus, we do not find Irwin of significant

persuasive value in this case.

No more persuasive is the employee's citation to Pennsylvania

caselaw analyzing Pennsylvania's medical-malpractice laws. Indeed, in

Seitzinger v. Commonwealth, 25 A.3d 1299, 1304-06 (Pa. Commw. Ct.

2011), the Commonwealth Court of Pennsylvania concluded that a

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statute that placed a 20% ceiling on contingency fees that attorneys could

claim in workers' compensation proceedings did not violate the

separation-of-powers doctrine, largely based on the Pennsylvania

Supreme Court's approval of that portion of Rule 1.5 of Pennsylvania's

Rules of Professional Conduct that is the same as Alabama's Rule 1.5(c),

cited above. That court also concluded that the challenges to the statutory

scheme in that case were facial in character, and that the provision at

issue did not conflict with the Pennsylvania Supreme Court's rule

permitting reasonable attorney's fees in general, but that, in application,

the ceiling on attorney's fees may provide for reasonable fees as that

concept was reflected in Rule 1.5 of the Pennsylvania Rules of

Professional Conduct. 25 A.3d at 1307.

Like in Seitzinger, in the present case, the employee does not

present any argument indicating that § 25-5-90, as applied, operates in

a manner that impinges upon the judiciary's right to regulate attorney's

fees. Moreover, our supreme court has acknowledged the legislature's

right, under its police power, to regulate attorney's fees pursuant to the

Act. In Woodward Iron Co. v. Bradford, 206 Ala. 447, 450-51, 90 So. 803,

805 (1921), our supreme court denied a challenge to the constitutionality

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of the fee cap in a predecessor to the Act; it concluded that, because the

workers' compensation act at that time was not mandatory and the

parties had elected to operate under and abide by that act, they had

waived the right to any constitutional objections to the fee cap therein. It

stated also, however: "[W]e do not mean to hold, if this act was mandatory

instead of elective, that the state would not have the right, under its

police power, to regulate the attorney's fees under same." 206 Ala. at 451,

90 So. at 805. The employee asserts that that statement in Woodward

amounts only to dicta. The supreme court in Woodward cited in support

of its statement, however, Boone v. State, 170 Ala. 57, 63, 54 So. 109, 111

(1911), in which the Alabama Supreme Court stated, in pertinent part:

"It is the established doctrine of the Supreme Court of the
United States, the final authority on the subject, that the
liberty of contract is not universal, and is subject to
restrictions passed by the Legislature in the exercise of its
power to protect the safety and welfare of the people. There
are manifold restraints to which every person is subject for
the common good. Jacobson v. Massachusetts, 197 U.S. 11, 25
Sup. Ct. 358, 49 L. Ed. 643 [(1905)]; Williams v. Arkansas, 217
U.S. 79, 30 Sup. Ct. 493, 54 L. Ed. 673 [(1910)]. In Frisbie v.
United States, 157 U.S. 160, 15 Sup. Ct. 586, 39 L. Ed. 657
[(1895)], the court says: 'It is within the undoubted power of
government to restrain some individuals from all contracts,
as well as all individuals from some contracts. It may deny to
all the right to contract for the purchase of lottery tickets; to
the minor the right to assume any obligations, except for the
necessaries of existence; to the common carrier the power to

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make any contract releasing himself from negligence; and,
indeed, may restrain all engaged in any employment from any
contract in the course of that employment which is against
public policy. The possession of this power by government in
no manner conflicts with the proposition that, generally
speaking, every citizen has a right freely to contract for the
price of his labor, services, or property.' "

Thus, our supreme court outlined the police power of the legislature.

Our supreme court also applied the police power in upholding that

portion of the predecessor to the Act addressing attorney's fees in

Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924). It stated,

in pertinent part:

"Nor do we find reason to declare the act violative of the
free right to contract, in that it provides that no part of the
compensation payable thereunder shall be paid to attorneys
except with the approval of the court; or because it arbitrarily
fixes compensation without regard to the extent of the injury
suffered by the employee; or because it limits the amount to
be recovered for medical attention; or because it denies
remedy or compensation for two weeks immediately next after
the injury, which it does not do except in cases in which
disability lasts for less than four weeks -- all of which
propositions are asserted rather than argued in the brief. The
following considerations justifying acts of this character
under the police power were stated in [a headnote to Jensen
v. Southern Pacific Co., 215 N.Y. 514, 109 N.E. 600 (1915)]:

" 'It protects both employer and employee, the
former from wasteful suits and extravagant
verdicts, the latter from the expense,
uncertainties, and delays of litigation in all cases,

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and from the certainty of defeat if unable to
establish a case of actionable negligence.' "

212 Ala. at 109, 101 So. at 881.

In Sokoll v. Humphrey, Lutz & Smith, 337 So. 2d 362, 364 (Ala. Civ.

App. 1976), this court acknowledged that the fee cap in the predecessor

to the Act had been upheld against constitutional attack in both

Woodward and Chapman. Additionally, this court stated, in pertinent

part:

"Limitation of attorneys' fees in workmen's compensation
cases has also been upheld as a valid exercise of the police
power by the United States Supreme Court in Yeiser v.
Dysart, 267 U.S. 540, 69 L. Ed. 775, 45 S. Ct. 399 [(1925)]. See
also 159 ALR 912, 926; and 7 Am. Jur. 2d Attorneys at Law §
252.

"Fee-limitation in workmen's compensation cases exists
for reasons well stated in Larson, The Law of Workmen's
Compensation, § 83.11, as follows:

" 'When, however, this practice [the rule that one
pays one's own legal fees as attorney and client
may contract] is superimposed upon a closely
calculated system of wage-loss benefits, a serious
question arises whether the social objectives of the
legislation may to some extent be thwarted. The
benefit scales are so tailored as to cover only the
minimum support of the claimant during
disability. There is nothing to indicate that the
framers of the benefit rates included any padding
to take care of legal and other expenses incurred
in obtaining the award.'

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CL-2025-0272

"As the United States Supreme Court stated through
Justice Holmes in Yeiser v. Dysart, supra:

" 'The Court adverts to the fact that a large
proportion of those who come under the statute
have to look to it in case of injury and need to be
protected against improvident contracts, in the
interest not only of themselves and their families
but of the public. ...' ([267 U.S. at 541,] 45 S. Ct. at
400)."

337 So. 2d at 364-65.

In consideration of the above cases and our supreme court's

approval of the language in Rule 1.5 of the Alabama Rules of Professional

Conduct, we cannot conclude that § 25-5-90 is unconstitutional as

violative of the separation-of-powers doctrine. Rather, it appears to this

court that the limitation on attorney's fees in § 25-5-90 amounts to a valid

exercise of the legislature's police power that is consistent with the

judiciary's authority to make and promulgate rules governing the

administration, practice, and procedure in all courts. We therefore affirm

the trial court's judgment insofar as it declined to hold § 25-5-90

unconstitutional.

The employee also argues that § 25-5-17 is unconstitutional. As the

basis for her argument, the employee asserts that, if she were successful

in invalidating § 25-5-90, she would risk losing the entire remedy

25
CL-2025-0272

afforded to her by the Act for any future work injury based on the

nonseverable nature of the Act. The Attorney General argues in response

that, because the employee failed to establish that § 25-5-90 is

unconstitutional, her challenge to § 25-5-17 is moot. We agree.

" ' " 'A moot case or question is a case or question in or on
which there is no real controversy; a case which seeks to
determine an abstract question which does not rest on
existing facts or rights, or involve conflicting rights so far as
plaintiff is concerned.' " Case v. Alabama State Bar, 939 So.
2d 881, 884 (Ala. 2006) (quoting American Fed'n of State,
County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104
So. 2d 827, 830-31 (1958)). "The test for mootness is commonly
stated as whether the court's action on the merits would affect
the rights of the parties." Crawford v. State, 153 S.W.3d 497,
501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860
S.W.2d 83, 84 (Tex. 1993)). "A case becomes moot if at any
stage there ceases to be an actual controversy between the
parties." Id. (emphasis added) (citing National Collegiate
Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999)).

" '... "A moot case lacks justiciability." Crawford, 153
S.W.3d at 501. Thus, "[a]n action that originally was based
upon a justiciable controversy cannot be maintained on
appeal if the questions raised in it have become moot by
subsequent acts or events." Case, 939 So. 2d at 884 (citing
Employees of Montgomery County Sheriff's Dep't v. Marshall,
893 So. 2d 326, 330 (Ala. 2004)).' "

K.L.R. v. K.G.S., 201 So. 3d 1200, 1203 (Ala. Civ. App. 2016) (quoting

Chapman v. Gooden, 974 So. 2d 972, 983-84 (Ala. 2007)).

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CL-2025-0272

The employee argues that, even if § 25-5-90 is not held to be

unconstitutional, the constitutionality of § 25-5-17 is due to be considered

pursuant to her assertion that it violates the "right to petition" in the

First Amendment to the United States Constitution. The employee's

reply brief, p. 9. We note, however, that the basis of her argument on this

issue is that anyone who successfully exercises his or her right to petition

by challenging any portion of the Act is denied the remedies of the

remaining portions of the Act. The employee's challenge to § 25-5-90

having failed, her challenge to the constitutionality of § 25-5-17 is merely

abstract; no real controversy remains. See K.L.R., supra. Accordingly, we

conclude that the employee's constitutional challenge to § 25-5-17 on

appeal is moot.

Based on the foregoing, the trial court's judgment is affirmed.

AFFIRMED.

Edwards, Hanson, and Bowden, JJ., concur.

Moore, P.J., recuses himself.

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