Post on 14-Jul-2020
No. ________
__________________________________________
IN THE SUPREME COURT OF ALABAMA
────────────────────────────────────────
EX PARTE STATE OF ALABAMA
────────────────────────────────────────
(IN RE:
STATE OF ALABAMA, Plaintiff,
v.
$223,405.86 U.S. CURRENCY, ET AL., Defendants.)
────────────────────────────────────────
On Petition for a Writ of Mandamus to
the Circuit Court of Macon County (CV-13-900031)
(The Honorable Tom Young, Circuit Judge, Presiding)
════════════════════════════════════════════════
STATE OF ALABAMA’S PETITION FOR WRIT OF MANDAMUS
════════════════════════════════════════════════
LUTHER STRANGE
Alabama Attorney General
John C. Neiman, Jr.
Alabama Solicitor General
Andrew L. Brasher
Alabama Deputy Solicitor Gen’l
Henry T. Reagan II
John L. Kachelman III
Alabama Deputy Attorneys Gen’l
OFFICE OF ATTORNEY GENERAL
501 Washington Avenue
Montgomery, Alabama 36130
(334) 353-2187
(334) 242-4891 (fax)
jneiman@ago.state.al.us
E-Filed 03/27/2013 @ 05:46:34 PM Honorable Robert Esdale Clerk Of The Court
i
TABLE OF CONTENTS
Table of Authorities .................................... iii
Introduction .............................................. 1
Statement of the Facts .................................... 3
A. Background on Alabama gambling law and
Cornerstone. ..................................... 4
B. Judge Young enters two injunctions
protecting VictoryLand from enforcement of
Cornerstone in 2010. ............................. 5
C. Judge Young refuses to issue a search
warrant when VictoryLand reopens in 2013. ........ 7
D. Judge Young does not fully follow this
Court’s order, criticizes this Court’s
decision, and disparages law enforcement
for pursuing these matters. ..................... 11
Statement of the Case .................................... 12
Statement of the Issue ................................... 15
Standard of Review ....................................... 15
Reasons the Writ Should Issue ............................ 16
A. The State has a clear legal right to Judge
Young’s recusal, and he has an imperative
duty to recuse. ................................. 16
1. A reasonable person would question
Judge Young’s impartiality because he
failed to follow this Court’s
directives relating to the warrant. ........ 17
2. A reasonable person would question
Judge Young’s impartiality based on
his comments about the State’s
motivations and this Court’s decision. ..... 21
ii
3. A reasonable person would question
Judge Young’s impartiality because of
his history with VictoryLand
“electronic bingo” cases. .................. 26
B. The State lacks another adequate remedy,
and this Court has jurisdiction to enter
the writ. ....................................... 29
Conclusion ............................................... 30
iii
TABLE OF AUTHORITIES
Cases
Barber v. Cornerstone Comm. Outreach,
42 So. 3d 65 (Ala. 2009) ............................ 4, 5
Barber v. Houston Cnty. Econ. Dev. Assoc.,
No. 1090444 (Ala. Jan. 15, 2010) ...................... 27
Barber v. Jefferson Cnty. Racing Ass’n,
960 So. 2d 599 (Ala. 2006) ............................. 4
C.D.S. v. K.S.S.,
978 So. 2d 782 (Ala. Civ. App. 2008) .................. 19
City of Columbus v. Hayes,
587 N.E.2d 939 (Ohio App. 1990) ....................... 21
Ex parte Integon Corp.,
672 So. 2d 497 (Ala. 1995) ............................ 15
Ex parte Monsanto,
862 So. 2d 595 (Ala. 2003) .................... 16, 22, 25
Ex parte Shelton,
814 So. 2d 251 (Ala. 2001) ............................ 26
Ex parte State,
No. 1120498, __ So. 3d ___, 2013 WL 765747
(Ala. Mar. 1, 2013) ............................... passim
In re DaimlerChrysler,
294 F.3d 697 (5th Cir. 2002) ...................... 21, 25
Liteky v. United States,
510 U.S. 540 (1994) ................................... 22
People v. Gurga,
530 N.E.2d 1059 (Ill. App. 1988) .................. 21, 26
State v. 825 Electronic Gambling Devices,
Nos. 1091430 & 1091432 (Ala. July 1, 2010) .. 1, 2, 19, 29
iv
Tyson v. Jones,
60 So. 3d 831 (Ala. 2010) .............................. 7
Tyson v. Macon Cnty. Greyhound Park,
43 So. 3d 587 (Ala. 2010) .......................... 6, 27
United States v. Holland,
655 F.2d 44 (5th Cir. Unit B 1981) .................... 22
United States v. Robin,
553 F.2d 8 (2d Cir. 1977) ............................. 19
United States v. Torkington,
874 F.2d 1441 (11th Cir. 1989) ................ 20, 25, 26
Statutes
ALA. CODE § 12-3-9 ......................................... 30
Rules
ALA. CANON JUD. ETHICS 3 .................................... 16
Other Authorities
Bryan Lyman, VictoryLand: Electronic bingo or slot
machines? Battle destined for courtroom,
MONTGOMERY ADVERTISER, Dec. 16, 2012 ..................... 24
1
INTRODUCTION
The State wants to litigate this “electronic bingo”
case as expeditiously as possible, in front of an impartial
trial judge. This mandamus petition is necessary because a
reasonable person would question whether the judge
currently assigned to the case can dispense justice with
the required degree of fairness. Judge Tom Young already
has twice failed to fully comply with this Court’s orders
relating to the case at hand. He has criticized this
Court’s decision requiring him to issue a search warrant
relating to this matter. And he has questioned the State’s
motives in bringing this case, in documents he filed with
the appellate courts. These actions follow a practice,
going back several years, in which Judge Young has
repeatedly blocked enforcement of Alabama’s gambling laws
with respect to the VictoryLand casino without
justification.
Courts do not exercise their mandamus and reassignment
powers lightly. But they do not hesitate to do so when a
judge undermines “the appearance of justice.” Order, State
v. 825 Electronic Gambling Devices, Nos. 1091430 & 1091432
(Ala. July 1, 2010), at 10 (internal quotation marks
2
omitted) (attached as Tab 7). This happened in an
“electronic bingo” case from Greene County three years ago,
when a circuit judge’s failures to follow this Court’s
mandates resulted in an order reassigning the matter to
another judge. See id. at 9-10. This should happen again,
in this equally extraordinary case. This Court ordered
Judge Young to “immediately” sign the State’s proffered
search warrant, and to maintain the confidentiality of the
mandamus proceedings pending further order. Tab 1 – Exh A.
Yet instead of taking the few moments needed to
“immediately” sign a warrant he had already reviewed, he
opted to attend a television show. When he did sign the
warrant the following morning, he did so in a way that
ensured premature disclosure of sealed proceedings in this
Court.
When considered in light of his comments about this
case and his past record in similar matters, Judge Young’s
failures create the same concerns that justified the
reassignment of the similar case from the Greene County
judge three years ago. In declining to recuse himself,
Judge Young wrongly claimed that the Court of Criminal
Appeals had “affirmed” his decision. Tab 2 at 2. He also
3
separately accused the State of bringing this case because
of “political agendas.” Tab 1 – Exh E at 4. He previously
denigrated one of this Court’s decisions involving
VictoryLand as “shock[ing]” and “alarm[ing].” Tab 1 – Exh
G. In light of these actions and others addressed below, it
is reasonable to question whether Judge Young can
impartially apply this Court’s precedents in any case
involving “electronic bingo” at the VictoryLand casino.
This case is extraordinary. The writ of mandamus should
issue, and Judge Young should recuse, because of
circumstances unique to him.
STATEMENT OF THE FACTS
Judge Young’s recent actions respecting the warrant are
sufficient grounds, by themselves, to cause reasonable
persons to doubt that he can impartially dispense justice
in this context. But these circumstances should also be
assessed against the backdrop of his previous actions taken
with respect to “electronic bingo” in general and the
VictoryLand casino in particular. As explained below, since
2010, Judge Young has repeatedly failed to follow this
Court’s precedents, has repeatedly criticized the law he is
sworn to uphold, and has repeatedly denigrated state
4
officials for enforcing this Court’s gambling-related
decisions.
A. Background on Alabama gambling law and Cornerstone.
The gambling industry frequently has tried to “evade[]”
Alabama’s prohibition on gambling by asserting that
“loophole[s]” in the law are much larger than they in fact
are. Barber v. Jefferson Cnty. Racing Ass’n, 960 So. 2d
599, 606 (Ala. 2006); see also Op. of the Justices, 795 So.
2d 630, 643 (Ala. 2001) (rejecting attempt to legalize
certain forms of video gambling). This happened most
recently with respect to so-called “electronic bingo.”
Gambling interests opened casinos offering machines that
played and looked like illegal slot machines, but claimed
that these machines were internally playing a game called
“electronic bingo.” Their slot machines were legal, these
interests claimed, because constitutional amendments make
charitable “bingo” legal in certain localities.
Three years ago, this Court addressed the industry’s
attempt to evade the law. The Court held that these
amendments create only a “narrowly construed” exception to
the State’s general prohibition on gambling. Barber v.
Cornerstone Comm. Outreach, 42 So. 3d 65, 78 (Ala. 2009)
5
(“Cornerstone”). This Court then defined “bingo” in a way
that made clear that the fast-paced, highly profitable game
the gambling interests were trying to promote was not the
“bingo” game the local amendments make legal. Id. at 86.
B. Judge Young enters two injunctions protecting
VictoryLand from enforcement of Cornerstone in 2010.
The first relevant actions Judge Young took respecting
these issues occurred in 2010, shortly after this Court
decided Cornerstone. At that time, the State enforced the
law against Macon County Greyhound Park, Inc., which does
business under the name VictoryLand. VictoryLand was
offering “electronic bingo” under an amendment that was for
present purposes indistinguishable from the amendment
considered in Cornerstone.
1. Judge Young first issued an injunction while the
State was in the very midst of ensuring VictoryLand’s
compliance with the Cornerstone decision, through a seizure
early on the morning of January 29, 2010. Before police
could conduct the operation, VictoryLand’s lawyers, at 3
a.m., apparently contacted Judge Young. See Tab 1 at 8; Tab
6 at 18. He entered a TRO, at 5 a.m., enjoining the State
from enforcing the law. See id. at 18-19. Several Judges
6
sit in the Fifth Judicial Circuit, where VictoryLand is
located, but Judge Young was the one who received
VictoryLand’s early-morning call and ruled on its request.
This Court promptly vacated Judge Young’s TRO on
jurisdictional grounds. See Tyson v. Macon Cnty. Greyhound
Park, 43 So. 3d 587 (Ala. 2010). VictoryLand then closed.
2. Later that spring, Judge Young took action to
protect VictoryLand again. As the State alleged in its
recusal motion below -- and Judge Young did not deny -- on
March 4, 2010, VictoryLand announced that it would reopen
its “electronic bingo” operations at 1:00 p.m. on the
following day. See Tab 1 at 8 ¶ 19. On the morning of March
5, the district attorney in Macon County obtained a TRO
preventing the Commander of the Governor’s Task Force on
Illegal Gambling from enforcing the law against VictoryLand
when it reopened. Id. Judge Young had admitted that he was
not even assigned to that case; it was assigned to Judge
Perryman. See Tab 2 at 4. Yet Judge Young assumed
responsibility for the case and granted the TRO 15 minutes
before the casino had announced it would reopen. See Tab 1
– Exh F.
7
Judge Young later entered a preliminary injunction, and
this Court reversed. See Tyson v. Jones, 60 So. 3d 831,
837-38, 852 (Ala. 2010). The judge reacted by issuing an
order saying he was “shocked and alarmed” by this Court’s
decision. Tab 1 – Exh G. He expressed his “concerns of the
slippery slope created by this Supreme Court Order, wherein
any Governor is given unfettered power to usurp the
authority of a constitutional officer duly elected by the
citizens when said Governor simply disagrees with the
lawful methodology of that officer in performing his or her
duties.” Id. He concluded that he could “find[] no
provision in our Constitution which intends to create a
czar.” Id.
When the injunction was lifted, VictoryLand again shut
down rather than subject itself to law enforcement.
C. Judge Young refuses to issue a search warrant when
VictoryLand reopens in 2013.
When VictoryLand was closed, the State continued to
enforce the Cornerstone decision. Nonetheless, VictoryLand
reopened in December 2012 with machines that did not even
attempt to satisfy Cornerstone. See Ex parte State, No.
1120498, __ So. 3d ___, 2013 WL 765747, at *2-*7 (Ala. Mar.
8
1, 2013). The State’s attempt to obtain a warrant to seize
the machines led to Judge Young’s renewed involvement in
these matters.
Judge Young became involved even though the State did
not initially seek the warrant from him. In early 2013,
state officers approached Judge Ray Martin, whom they
understood to be the Presiding Judge of the Fifth Judicial
Circuit, and asked to present him with an application for a
warrant. See Tab 1 – Exh B at 1-2. Judge Martin informed
the officers that according to governing circuit practice,
Judge Young was the only circuit judge who could consider
an application involving VictoryLand. See id. at 2.
The officers therefore approached Judge Young. See id.
They presented him with an affidavit, supported by a video
depicting the machines, and a proposed warrant. See id.
Although the game shown on the video could not reasonably
be called “bingo” under Cornerstone, Judge Young declined
to issue the warrant. The officers understood him to say he
was basing his decision on two conclusions. First, he
posited that Cornerstone was not clear enough to assist him
with his determinations whether machines of this sort are
9
legal. See id. at 2-3. Second, he stated that the Macon
County Sheriff had approved the machines. See id.
The State then asked the Court of Criminal Appeals to
issue a writ of mandamus compelling Judge Young to issue
the warrant. See Ex parte State, 2013 WL 765747, at *9.
Because of the confidential nature of the warrant process,
the Court of Criminal Appeals conducted those proceedings
under seal. Judge Young defended his decision by asserting
that the Macon County “Sheriff along with an expert for
Victoryland declared publicly on television that these
machines complied with the six-point test as set out in
Cornerstone.” Tab 9 – Exh C at 2. Judge Young also made
insinuations about the State’s motivations, urging the
“Court not to get caught up in the politics of our public
officials or the gaming industry” and arguing that “[t]he
Fourth Amendment is sacred and should not be the subject of
political agendas of Governors, Task Force, Attorney
Generals, or multi-million dollar industries.” Id. at 2.
After the Court of Criminal Appeals summarily denied
the petition, the State exercised its right to seek a writ
of mandamus in this Court. Ex parte State, 2013 WL 765747,
at *9. That case also proceeded under seal. Id. at *1. In
10
describing his reasons for denying the warrant, Judge Young
again asserted that “the Sheriff, along with an expert for
Victoryland, publicly declared on television that these
machines complied with the six-point test as set out in
Cornerstone.” Tab 1 – Exh E at 1. Judge Young repeated that
“[t]he Fourth Amendment is sacred and should not be the
subject of political agendas of Governors, Task Force,
Attorney Generals, or multi-million dollar industries.” Id.
at 4.
This Court granted the State’s petition and issued two
directives that are critical for present purposes. First,
this Court ordered Judge Young “to act immediately upon the
receipt of this order to issue the warrant.” Tab 1 – Exh A.
Second, in bolded and italicized type, this Court ordered
that because of the confidentiality of a search-warrant
application, “this proceeding and this order shall remain
under seal until further order of this Court following the
execution of the warrant.” Id. The Court directed the
Supreme Court Marshal to deliver the order to Judge Young
and the Attorney General. Id.
11
D. Judge Young does not fully follow this Court’s order,
criticizes this Court’s decision, and disparages law
enforcement for pursuing these matters.
After the Attorney General’s Office received the
Court’s order, the investigators who previously sought the
warrant immediately went to the Macon County Courthouse to
meet with the judge. Tab 1 – Exh B at 3-4, Exh C at 3-4.
When Judge Young finished court, the investigators tried to
discuss this Court’s order with him. Id. Although he saw
the investigators and walked past them, he left without
signing the search warrant. Id. He told them he was “late
for a show.” Tab 1 – Exh B at 3.
The investigators then left the judge two voice mails,
and he returned them later that evening and agreed to meet
the next morning. See Tab 1 – Exh B at 3-4. They convened
at Judge Young’s house. Id. at 4. Instead of simply signing
the warrant, the Judge wrote a note on the end of it
expressing his negative views about the State’s evidence
and disclosing the existence of the mandamus order. Judge
Young wrote that he was signing with “the greatest judicial
reluctance” and did “not believe that this application for
search warrant provides sufficient probable cause.” Tab 1 –
Exh D at 2. He ended by stating that this Court’s decision
12
to require him to grant the warrant was “improper according
to the law.” Id.
Judge Young also made oral statements to the
investigators about his negative view of law enforcement
and the appellate courts. He said this Court had created a
“slippery slope” by ordering him to sign the warrant. He
also stated that the State was “playing politics” and had
political motivations in seeking the warrant. Tab 1 – Exh B
at 4.
Before the seizure was complete, lawyers representing
VictoryLand and KC Development LLC filed an undocketed
motion with Judge Young requesting that he require the
State to return their property. See Tab 3. He entered an
order requiring the State to maintain the property pending
a hearing. See Tab 4.
STATEMENT OF THE CASE
This petition arises from the proceeding the State
filed seeking forfeiture of the machines. See Tab 5. The
proceeding has been assigned, once again, to Judge Young.
He has consolidated this forfeiture action with KC
Development LLC’s motion for return of property. See Tab 8.
13
The State requested that Judge Young recuse himself in
light of the circumstances described above. See Tab 1. KC
Development filed an opposition. See Tab 8. Judge Young
held a hearing on the recusal motion on March 19, 2013. On
the same day, he verbally announced, see Tab 6, and later
entered a written order, see Tab 2, detailing the reasons
for his nonrecusal.
Judge Young addressed only one of his two failures to
follow this Court’s directives. He did not address his
decision to disclose the existence of these proceedings on
the warrant. Meanwhile, in explaining why he did not issue
the warrant “immediately,” Judge Young said he was
“scheduled to appear on a local television show at 6:00
p.m.,” 15 minutes after court had adjourned and the
officers had arrived. Tab 2 at 2. He also claimed that his
signing of the warrant the following morning was “probably
record time for when most judges sign anything.” Tab 6 at
17.
Judge Young also addressed the State’s concerns that he
had made improper statements about the State’s decision to
proceed with this case. The judge did not deny that he made
these statements, including his assertions about the
14
State’s political motivations and “agenda[].” Tab 2 at 2.
The judge instead stated that his comments were made in a
judicial proceeding, directed toward both parties, and did
not reflect bias “towards either party.” Id.
Finally, Judge Young addressed the State’s concerns
about actions he had taken in 2010. As to the first TRO,
Judge Young stated that he had concluded that the Commander
of the Governor’s Task Force on Illegal Gambling had made
misrepresentations to him about his intentions to search
VictoryLand. Id. at 2-3. As to the second TRO, Judge Young
stated, among other things, that he had issued it against
the Governor’s Task Force rather than the Attorney General.
Id. at 3. Judge Young also stated that the reason he had
assumed responsibility for the case, even though Judge
Perryman had received the initial assignment, was that
Judge Perryman had asked “this Judge to handle the matter
due to his familiarity with the circumstances.” Id.
The State is filing this mandamus petition within 10
days of the Court’s order, and thus well within a
“presumptively reasonable time” under Rule 21 of the
Alabama Rules of Appellate Procedure.
15
STATEMENT OF THE ISSUE
A judge must recuse when a person of ordinary prudence
in his position, knowing all the facts, would find a
reasonable basis for questioning his impartiality. Judge
Young did not follow two of this Court’s directives in this
case, has criticized the Court’s decisions in this matter
and others involving “electronic bingo” and VictoryLand,
and has made unfounded accusations that the State has
“political” motivations for bringing this action. Should
Judge Young have recused?
STANDARD OF REVIEW
This Court will issue a writ of mandamus when there is
“(1) a clear legal right in the petitioner to the order
sought; (2) an imperative duty upon the [trial court] to
perform, accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked juris-
diction of the court.” Ex parte Integon Corp., 672 So. 2d
497, 499 (Ala. 1995).
16
REASONS THE WRIT SHOULD ISSUE
A. The State has a clear legal right to Judge Young’s
recusal, and he has an imperative duty to recuse.
This Court should require Judge Young’s recusal and
reassign this case to an impartial jurist who can
efficiently try this matter and faithfully apply this
Court’s precedents. The Canons of Judicial Ethics require a
judge’s recusal “in a proceeding in which his
disqualification is required by law or his impartiality
might reasonably be questioned.” ALA. CANON JUD. ETHICS
3(C)(1). “Specifically, the Canon 3(C) test is: ‘Would a
person of ordinary prudence in the judge’s position knowing
all the facts known to the judge find that there is a
reasonable basis for questioning the judge’s
impartiality?’” Ex parte Monsanto, 862 So. 2d 595, 606
(Ala. 2003).
Judge Young’s actions in the warrant proceedings,
combined with his actions in similar cases involving
VictoryLand and “electronic bingo,” create an appearance of
impartiality. Judge Young has failed to follow two
directives from this Court relating to the warrant
proceedings. He has criticized this Court’s decision and
made unfounded accusations, in documents filed with the
17
appellate courts, about the State’s motivations for
prosecuting this case. Those circumstances, by themselves,
are enough to require recusal. But particularly when
considered against the backdrop of Judge Young’s orders
regarding VictoryLand in 2010, his decision to remain in
the case is a manifest abuse of discretion.
1. A reasonable person would question Judge Young’s
impartiality because he failed to follow this Court’s
directives relating to the warrant.
The most critical consideration requiring Judge Young’s
recusal is his failure to fully comply with two of this
Court’s mandates regarding the warrant.
First, he did not act “immediately” to issue the
warrant. Tab 1 – Exh A. Judge Young has not disclosed when
he received this Court’s order. But this Court directed the
Marshal to deliver the order to Judge Young, id., and the
Marshal hand-delivered the order to the Attorney General’s
Office that same day. When state agents approached Judge
Young immediately after they received the order, he refused
to see them. His proffered explanation was his scheduled
appearance on a television show. Tab 2 at 2. Although he
has justified his actions by saying he met with the agents
the following morning, this Court’s order did not tell him
18
to sign the warrant “within 24 hours.” This Court directed
him to take action “immediately” upon “receipt.” Tab 1 –
Exh A.
Second, despite this Court’s directive that the
proceedings remain sealed “until further order of this
Court,” Tab 1 – Exh A, “[t]he copy of the warrant submitted
to this Court contains a handwritten notation by Judge
Young disclosing the fact of this proceeding and this
Court’s February 15 order.” Ex parte State, 2013 WL 765747,
at *19 n.13. He wrote this note “despite the fact that that
warrant necessarily was to be served on third parties prior
to any ‘further order’ of this Court unsealing these
matters.” Id. Judge Young’s notation went far beyond
explaining his signature on the warrant. It recounted the
history of the sealed proceedings, not only in this Court,
but also in the Court of Criminal Appeals. Tab 1 – Exh D
at 2.
The content of Judge Young’s note was problematic for
additional reasons. It went out of its way to state that
Judge Young did “not believe that this application for
search warrant provides sufficient probable cause.” Id. It
represented that this Court was requiring him to issue the
19
warrant despite his personal view that it was “improper
according to the law.” Id.
These considerations put this case in the same category
as another series of cases involving “electronic bingo,” in
which it became necessary to reassign a case from a Greene
County judge to another circuit judge. See Order, State v.
825 Electronic Gambling Devices, Nos. 1091430 & 1091432
(Ala. July 1, 2010), at 9-10 (attached as Tab 7). In the
course of a forfeiture proceeding, a circuit judge
repeatedly entered injunctions against the State’s
enforcement of the Cornerstone decision, despite numerous
orders from this Court holding that he had no jurisdiction
to issue these injunctions. See id. at 1-8. Citing the
Court of Civil Appeals’ decision in C.D.S. v. K.S.S., 978
So. 2d 782 (Ala. Civ. App. 2008), and the test from United
States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc),
this Court concluded that the judge’s actions compelled
reassignment to another judge. See Order, 825 Electronic
Gambling Devices, at 9-10.
The Eleventh Circuit has adopted and expanded upon the
same test that this Court utilized in 825 Electronic
Gambling Devices. The pertinent factors include: (1)
20
whether the judge would have difficulty putting his
previous views aside during the proceedings that follow;
(2) whether reassignment is “appropriate to preserve the
appearance of justice”; and (3) whether the benefits from
reassignment, in terms of promoting fairness, are
outweighed by concerns of judicial economy. United States
v. Torkington, 874 F.2d 1441, 1446-47 (11th Cir. 1989) (en
banc). The same general principles apply regardless of
whether the question is recusal at the outset of a case or
reassignment after appellate review. “Although the events
that make it necessary to terminate a judge’s participation
in a case differ in” the cases of reassignment and recusal,
“the reason the judge should not participate is the same:
the judicial system has the obligation of preserving public
confidence in the impartial and fair administration of
justice.” Id. The Eleventh Circuit further explained that
this test required reassignment in that case because the
judge “questioned the wisdom of the substantive law he had
to apply and challenged the government’s decision to
prosecute” in the first place. Id. at 1447.
Numerous other courts have reassigned cases, based on
similar principles, when judges have not followed appellate
21
mandates. See In re DaimlerChrysler, 294 F.3d 697, 701 (5th
Cir. 2002) (“Although it is certainly true that the
district court agreed to abide by any ruling that this
court makes, the failure of the district court to address
our earlier opinion on this matter, and the court’s
response to the mandamus petition, convinces us that,
notwithstanding all good faith efforts on the part of the
district court, it would be exceedingly difficult for the
district court to regain some impartiality in this case.”);
People v. Gurga, 530 N.E.2d 1059, 1060-61 (Ill. App. 1988)
(holding that because the trial court “failed to comply
with the mandate of this court,” the hearing on remand must
“be conducted by a different judge”); City of Columbus v.
Hayes, 587 N.E.2d 939, 942 (Ohio App. 1990) (“Since the
trial judge has made it perfectly clear that he does not
intend to follow the mandate of this court, it is apparent
that any further proceedings in which he participates will
prejudice the appellant.”).
2. A reasonable person would question Judge Young’s
impartiality based on his comments about the State’s
motivations and this Court’s decision.
This case presents additional circumstances, above and
beyond Judge Young’s admitted reluctance to follow the
22
mandate in some respects and outright failure to do so in
others, compelling recusal. Judge Young has attacked the
motives of law enforcement in bringing this case, has
criticized this Court’s decision, and has refused to apply
Cornerstone to undisputed facts because of something he
claimed he saw on TV. In light of the totality of these
circumstances, a reasonable person would conclude that
Judge Young will not be able to impartially apply this
Court’s decisions in the forfeiture proceedings to come.
Although “[t]he general rule is that bias sufficient to
disqualify a judge must stem from an extrajudicial source,”
there “is an exception where such pervasive bias and
prejudice is shown by otherwise judicial conduct as would
constitute bias against a party.” United States v. Holland,
655 F.2d 44, 47 (5th Cir. Unit B 1981) (internal quotation
marks omitted). This Court has explained that statements
made and actions conducted in judicial proceedings require
recusal when “‘they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.’”
Monsanto, 862 So. 2d at 606 n.11 (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)). To be clear, in light of
Judge Young’s failure to comply with this Court’s
23
directives and evident bias from extrajudicial sources, the
State does not need to show additional “deep-seated
favoritism or antagonism” to have a right to mandamus
relief. But for various reasons, the statements Judge Young
has made here, and his associated course of conduct,
satisfy even this test.
First, Judge Young has assumed responsibility for every
known past case relating to the State’s enforcement of
Alabama’s gambling laws against VictoryLand’s “electronic
bingo” operations. When agents sought a warrant from the
former presiding judge in the circuit, he told them they
would have to see Judge Young. See Tab 1 – Exh B at 1-2.
After the State executed the search warrant, VictoryLand
filed its undocketed motion for return of property with
Judge Young, and he assumed jurisdiction over it. See Tab
3, 8. When the State filed its forfeiture action, the court
assigned it to Judge Young.
Second, Judge Young denied the warrant based not on
independent legal judgment, but on conclusions offered on
television by two extrajudicial sources -- VictoryLand’s
hired “expert” and the Macon County Sheriff. As this Court
has noted, it is improper for a judge to rely on
24
extrajudicial statements in any situation. Ex parte State,
2013 WL 765747, at *15. It was especially problematic here
because, as this Court has noted, Judge Young chose to
“accept[] the opinion of Sheriff Warren” without ever
making an attempt to apply Cornerstone himself. Id. at *16.
And it just so happens that Judge Young appears to have
been incorrect about those TV comments. Neither
VictoryLand’s expert nor the Sheriff of Macon County
appears to have claimed that VictoryLand’s gambling devices
comply with Cornerstone. See Bryan Lyman, VictoryLand:
Electronic bingo or slot machines? Battle destined for
courtroom, MONTGOMERY ADVERTISER, Dec. 16, 2012, available at
2012 WLNR 27118391 (Sheriff’s lawyer says Cornerstone does
not apply because “[w]e have a different constitutional
amendment, and a different set of rules and regulations”).
Third, Judge Young responded to the State’s attempts to
seek review on the warrant by accusing the State, on three
separate occasions, of pursuing this case because of a
political agenda. Tab 1 – Exh B at 4, Exh E at 4; Tab 9 –
Exh C at 3. He did so not only in oral comments to
investigators, but in formal documents submitted to this
Court and the Court of Criminal Appeals. His false and
25
unsupported accusations could only have been based on
extrajudicial statements from third parties, and it is
implausible that he came up with them “based on his own
observations during the performance of his judicial
duties.” Monsanto, 862 So. 2d at 631-32 (internal quotation
marks omitted). This reality buttresses the case for
recusal. The Eleventh Circuit has required reassignment
when the trial judge “challenged the government’s decision
to prosecute.” Torkington, 874 F.2d at 1447. Likewise, the
Fifth Circuit held reassignment to be necessary, even when
the trial judge said he would “abide by any ruling that”
the appellate court made, when the judge demonstrated
“hostility” towards a party in “response to the petitions
for writ of mandamus.” DaimlerChrysler, 294 F.3d at 701.
Fourth, Judge Young did not confine his criticism to
the executive branch. In his annotation to the warrant, he
wrote that this Court’s order was “improper according to
the law” and that he was abiding by it with “the greatest
judicial reluctance.” Tab 1 – Exh D at 2. He later claimed
in a written order that the Court of Criminal Appeals had
“affirmed” his decision, id., even though a summary “denial
[of a petition for a writ of mandamus] does not operate as
26
a binding decision on the merits.” Ex parte Shelton, 814
So. 2d 251, 254-55 (Ala. 2001) (alteration in original)
(internal quotation marks omitted). Under the totality of
the circumstances, it is more than reasonable to question
whether Judge Young will faithfully apply this Court’s
other precedents, such as Cornerstone, if he is charged
with holding the forfeiture trial. He has not denied that
he told the State that he does not believe that Cornerstone
is clear enough to be applied to VictoryLand’s gambling
activities. See Tab 1 – Exh B at 2-3. When the judge
“question[s] the wisdom of the substantive law he ha[s] to
apply,” reassignment is required. Torkington, 874 F.2d at
1447; see also Gurga, 530 N.E.2d at 1060 (judge called
appellate decision not “rational, probable, logical”).
3. A reasonable person would question Judge Young’s
impartiality because of his history with VictoryLand
“electronic bingo” cases.
The case for recusal is cemented by Judge Young’s
history. This is not an isolated incident. His record of
interfering with law enforcement and questioning this
Court’s decisions regarding VictoryLand and “electronic
bingo” goes back to 2010.
27
As in 2013, in 2010 Judge Young was involved in every
known case concerning the State’s enforcement of the law
against VictoryLand. It was Judge Young who received the
call from VictoryLand’s attorneys at 3 a.m., when police
first tried to seize the machines. See Tab 6 at 18. It was
Judge Young who issued the injunction two hours later, at 5
a.m. -- much more quickly than what he would later claim to
be his “probabl[e] record time” in complying with this
Court’s warrant order. Id. at 17. It was Judge Young who
issued another ex parte TRO four months later protecting
VictoryLand, even though that case had been assigned to
another judge. See id. at 19-20; Tab 2 at 3.
On the merits, each of the actions Judge Young took in
2010 was just as unjustified as his more recent actions
regarding VictoryLand. When Judge Young issued the first
injunction, this Court had already issued an opinion
holding that courts have no jurisdiction to interfere with
the executive branch’s enforcement of the criminal laws.
See Order, Barber v. Houston Cnty. Econ. Dev. Assoc., No.
1090444 (Ala. Jan. 15, 2010) (cited in Tyson v. Macon Cnty.
Greyhound Park, 43 So. 3d 587, 591 (Ala. 2010)). When Judge
Young issued the second injunction ex parte, his “previous
28
experience” with the first VictoryLand case did not render
him more qualified than Judge Perryman to decide the issues
concerning the Governor’s powers. Tab 2 at 3.
In 2010, Judge Young’s criticisms of this Court and law
enforcement were just as severe as they are now. Judge
Young did not merely state his disagreement with this
Court. His order said he was “shocked” and “alarmed.” Tab 1
– Exh G. He also claimed that the Court’s decision had made
the Governor a “czar.” Id.
Standing alone, any one of these incidents might not
have been sufficient to justify recusal and mandamus. But
the totality of these facts compels these extraordinary
measures. Judge Young has consistently entered orders to
protect VictoryLand from law enforcement and, specifically,
enforcement of this Court’s opinion in Cornerstone. He has
credited extrajudicial statements on TV instead of applying
Cornerstone to the facts himself. He has registered his
strong disagreement with this Court’s gambling-related
decisions, and he already has not fully followed this
Court’s orders with respect to the warrant. He has made
false and scandalous accusations about the State’s
29
motivations for bringing this case, accusations that have
no basis in the record before him.
Even if Judge Young currently believes that he can
apply the law in good faith, these facts made it incumbent
on him to recuse himself from this case to to “preserve the
appearance of justice.” Order, 825 Electronic Gambling
Devices, at 10 (internal quotation marks omitted). A
reasonable observer would readily be concerned that Judge
Young would experience “difficulty putting his previous
views and findings aside” when he presides over this
forfeiture trial. Id. at 9. Given that this case has only
recently begun, reassignment is a remedy that is fully in
“proportion to” the “gain in preserving the appearance of
fairness.” Id. Judge Young’s recusal is necessary to
preserve the public perception of justice and to move this
case to its proper conclusion.
B. The State lacks another adequate remedy, and this Court
has jurisdiction to enter the writ.
Mandamus is the appropriate means of addressing these
problems. A mandamus petition is the vehicle to challenge a
trial judge’s failure to recuse. See Ex parte Crawford, 686
So. 2d 196, 198 (Ala. 1996). The amount in controversy in
30
the underlying civil-forfeiture case, more than $200,000 in
seized currency alone, means that the petition is properly
filed in this Court. See ALA. CODE § 12-3-9. And the State
lacks an adequate remedy via appeal. The judge who presides
over this case will not only issue critical rulings on
evidentiary matters and questions of law, but will also
serve as the finder of fact if a trial is necessary.
Justice will not be served if that finder of fact has
failed to fully follow this Court’s orders, has disparaged
the State for bringing the action, has relied on
extrajudicial statements, and has gone out of his way to
criticize this Court’s rulings relating to the subject
matter of the case.
CONCLUSION
This Court should issue the writ of mandamus, require
Judge Young to recuse himself, and reassign this matter to
another judge.
31
Respectfully submitted,
LUTHER STRANGE
Alabama Attorney General
By:
s/ John C. Neiman
John C. Neiman
Alabama Solicitor General
OF COUNSEL:
Andrew L. Brasher
Alabama Deputy Solicitor General
Henry T. Reagan II
John L. Kachelman III
Alabama Deputies Attorney General
OFFICE OF ATTORNEY GENERAL
501 Washington Avenue
Montgomery, Alabama 36130
(334) 353-2187
(334) 242-4891 (fax)
jneiman@ago.state.al.us
32
CERTIFICATE OF SERVICE
On March 27, 2012, I filed a copy of this petition via
the Appellate Courts e-Filing System (ACES). I have sent a
copy to Respondent and all attorneys of record via email
(on March 27) or U.S. Mail (on March 28), as noted:
The Honorable Thomas F. Young, Jr., Circuit Judge
201 Madison Street
Alexander City, AL 35010
K. C. Economic Development
Joe C. Espy, III
William M. Espy
Espy, Melton & Williams
P.O. Box 5130
Montgomery, AL 36130
jespy@mewlegal.com
wespy@mewlegal.com
John M. Bolton, III
Charlanna W. Spencer
Hill, Hill, Carter, Franco, Cole & Black, P.C.
P.O. Box 116
Montgomery, AL 36101
jbolton@hillhillcarter.com
cspencer@hillhillcarter.com
Fred D. Gray
Stanley Gray
Gray, Langford, Sapp, McGowan, Gray,
Gray & Nathanson, P.C.
P.O. Box 830239
Tuskegee, AL 36083
fgray@glsmgn.com
33
Segway Gaming Systems of Alabama, LLC
F. Lane Finch, Jr.
Hand Arendall
2001 Park Place, Ste. 1200
Birmingham, AL 35203
lfinch@handarendall.com
Gateway Gaming
Mark E. Hoffman
2229 First Ave N
Birmingham, AL 35203
mhoffmanatty@yahoo.com
Select Electronic Devices, Inc.
Cusimano, Keener, Roberts, Knowles, & Raley, LLC
Christie Knowles
153 S. 9th St.
Gadsden, AL 35901
christie@alalawyers.net
Crimson Sky, LLC
Robert David Segall
Shannon Lynn Holliday
Copeland, Franco, Screws & Gill
P.O. Box 347
Montgomery, AL 36101-0347
segall@copelandfranco.com
holliday@copelandfranco.com
Victory Technology Group
Matthew Clay McDonald
Kenneth Scott Steely
Jones Walker, LLP
P.O. Box 46
Mobile, AL 36601-0046
mmcdonald@joneswalker.com
ksteely@joneswalker.com
North American Midway Entertainment-
All-Star Amusement, Inc.
c/o CT Corporation System
2 North Jackson St., Suite 605
Montgomery, AL 36104
34
American Amusements Co.
Craig R. Izard
P.O. Box 130277
Birmingham, AL 35213-0277
craigizard@msn.com
Cole Kepro International, LLC
4170 Distribution Circle N
Las Vegas, NV 89030
s/ John C. Neiman
OF COUNSEL
TAB 1
1
IN THE CIRCUIT COURT FOR THE FIFTH JUDICIAL CIRCUIT
MACON COUNTY, ALABAMA
STATE OF ALABAMA,
Petitioner,
vs.
$ 223,405.86 U.S. CURRENCY
&
1,615 ELECTRONIC GAMBLING et al,
Defendants.
Found In the Possession Of:
Macon County Greyhound Park, Inc. d/b/a
Quincy’s 777 / VictoryLand
8680 County Road 40
Shorter, AL 36075
KC Economic Development. LLC
8680 County Road 40
Shorter, AL 36075
AND Ownership Interests in Which Are
Believed to Be Claimed By:
Gateway Gaming, LLC
135 Kiowa Lane
Piedmont, SC 29673
Select Electronic Devices, Inc.
2055 Boggs Road
Duluth, GA 30096
Segway Gaming Systems
P.O. Box 8972
Greenville, SC 29601
Worldwide Game Technology Corp.
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Case No. CV- 2013-900031.00
ELECTRONICALLY FILED3/4/2013 2:35 PM
CV-2013-900031.00CIRCUIT COURT OF
MACON COUNTY, ALABAMADAVID LOVE, JR., CLERK
2
6933 SW 179th Avenue Road
Dunnellon, FL 34432
American Amusement
1406 Fort Crock Road S. Suite 103
Bellevue, NE 68005
Cole Kepro International, LLC
4170 Distribution Circle North
Las Vegas, NV 89030
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MOTION FOR RECUSAL
The State of Alabama respectfully requests that Honorable Judge Tom Young, Jr. recuse
himself from the above-captioned proceedings. As grounds therefore, the State would show unto
the Court as follows:
I. Standard for Recusal
1. In relevant part, the Canons of Judicial Ethics provide as follows:
CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE
APPEARANCE OF IMPROPRIETY IN ALL HIS ACTIVITIES.
A. A judge should respect and comply with the law and should conduct
himself at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.
B. A judge should at all times maintain the decorum and temperance
befitting his office and should avoid conduct prejudicial to the
administration of justice which brings the judicial office into disrepute.
C. A judge should not allow his family, social, political, or other
relationships to influence his judicial conduct or judgment. He should
not lend the prestige of his office to advance the private interests of
others; nor should he convey or permit others to convey the impression
that they are in a special position to influence him. He should not testify
voluntarily as a character witness at any hearing before any court, or
judicial or governmental commission.
3
CANON 3C. DISQUALIFICATION:
(1) A judge should disqualify himself in a proceeding in which his
disqualification is required by law or his impartiality might reasonably
be questioned, including but not limited to instances where:
(a) He has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding…
2. In Ex parte Duncan, 638 So. 2d 1332 (Ala. 1994), the Alabama Supreme Court
stated the following concerning Canon 3.C(1):
“Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal
is required when ‘facts are shown which make it reasonable for
members of the public or a party, or counsel opposed to question
the impartiality of the judge.’”
638 So. 2d at 1334 (quoting Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala. 1982)).
3. The standard for recusal is objective: “Whether a reasonable person knowing
everything that the judge knows would have a reasonable basis for questioning the judge's
impartiality.” Ex parte Bank of America, N.A., 39 So. 3d 113, 117 (Ala. 2009) (citations and
quotations omitted). “The focus of inquiry, therefore, is not whether a particular judge is or is
not biased toward the petitioner; the focus is instead on whether a reasonable person would
perceive potential bias or a lack of impartiality on the part of the judge in question.” Id.
(citations and quotations omitted.)
4. The State of Alabama and the public in general have a reasonable basis to question
Judge Young’s ability to be fair and impartial in this matter. The problem is not only that Judge
Young has already expressly stated that he does not believe the State’s evidence rises to the level
of probable cause, and that he expressed a strong reluctance to so much as sign the search
warrant in this matter even after the Supreme Court of Alabama ordered him to do so. Judge
4
Young has also taken actions and made comments in this and other proceedings that would make
reasonable members of the public or a party or counsel question the impartiality of Judge Young.
II. Judge Young’s Refusal To Sign the Search Warrant and His Actions and
Commentary After Being Ordered to Sign a Search Warrant Indicate a Prejudice and
Bias Toward the State’s Evidence in this Case
5. On January 25, 2013, the State of Alabama filed its Petition for a Writ of Mandamus
after Judge Young refused to sign a search warrant for the VictoryLand casino. The Supreme
Court of Alabama issued a sealed Order on February 15, 2013, directing Judge Young to sign the
search warrant “immediately” and further ordered that “this proceeding and this order shall
remain under seal until further order of this Court following the execution of the warrant.”
(no emphasis added) See Exhibit A. (Supreme Court Order dated February 15, 2013).
6. The sealed Supreme Court Order was hand delivered by the Marshall for the
Supreme Court of Alabama on the afternoon of Friday, February 15, 2013. After the Attorney
General’s Office received its copy of the Supreme Court Order, the two investigators that had
previously presented Judge Young with probable cause evidence in support of the search warrant
immediately went to meet with Judge Young again at the Tallapoosa County Courthouse. The
investigators waited outside of Judge Young’s courtroom for the Judge to conclude court and
then attempted to present the search warrant to Judge Young for his signature as ordered by the
Supreme Court. See Exhibits B & C. (Affidavits of Agent Sisson and Agent Fleming).
7. When Judge Young stepped down from his bench, one of the investigators followed
the Judge out of the courtroom, calling his name several times, in an effort to get his attention
and discuss the search warrant. Despite the Supreme Court of Alabama’s Order to sign the
warrant “immediately,” Judge Young refused to speak with the investigators and told them, “I
don’t have time for this right now, I will see y’all later.” Judge Young went on to say that he
5
was “late for a show” and he exited the building. Even though he was in the physical presence of
the investigators, Judge Young refused to “immediately” sign the search warrant as ordered by
the Alabama Supreme Court. Id.
8. After leaving several telephone messages for Judge Young, one of the investigators
received a return phone call from Judge Young later that evening and the Judge agreed to meet
on Saturday, February 16, 2013. Id.
9. The investigators met with Judge Young the next morning and presented the search
warrant for the Judge’s signature. Instead of simply signing the search warrant as ordered by the
Supreme Court, the Judge wrote a long note on the bottom of the warrant where he expressed his
strong negative views about the State’s evidence and went on to disclose the existence of the
sealed mandamus proceeding on the face of the warrant even though the Supreme Court Order
stated “this proceeding and this order shall remain under seal until further order of this
Court following the execution of the warrant.” (no emphasis added) See Exhibits A & D.
(Supreme Court Order and Search Warrant).
10. On the face of the search warrant, Judge Young wrote that he was signing with “the
greatest judicial reluctance” and did “not believe that [the] application for search warrant
provides sufficient probable cause.” He ended his note by declaring the State’s case and the
Supreme Court’s Order was “improper according to the law.” See Exhibit D.
11. In addition to his written comments, Judge Young made several verbal statements
to the investigators about his views on the State’s evidence and “political motivations” of the
Attorney General. The Judge said the Supreme Court had created a “slippery slope” by ordering
him to sign the search warrant over his own objections to the State’s evidence. The Judge also
made several comments regarding the State’s motivation for pursuing the search warrant. He
6
stated that the Attorney General was “playing politics” and that he questioned the Attorney
General’s motivations as being political. See Exhibit B.
12. Judge Young’s comments, accusations, and insinuations would lead a reasonable
person to question his impartiality in these proceedings. The comments indicate a direct
personal bias or prejudice against the State’s evidence in this matter. His written comments on
the warrant also indicate his strong preconceived judgment of the State’s evidence and his biased
views of pursuing criminal or civil actions against the VictoryLand casino. As such, Canon
3(C)(1) of the Canons of Judicial Ethics requires him to disqualify himself from presiding over
any further proceedings in this matter.
III. Judge Young’s Written Response to the State’s Petition for Writ of Mandamus Indicate a
Prejudice and Bias Toward the State’s Evidence and Applicable Law of this Case and
Make it Reasonable to Question His Impartiality
13. After Judge Young initially refused to sign the search warrant, the State of
Alabama filed a Petition for a Writ of Mandamus on January 25, 2013. In his response to the
State’s Petition for Writ of Mandamus, Judge Young submitted a four page letter that clearly
gave an appearance that he would not be fair and impartial to the State’s evidence. See Exhibit E.
(Judge Young letter dated February 4, 2013).
14. In the letter, Judge Young wrote “after reviewing the affidavit in support of the
search warrant and viewing video evidence, this Court declined to issue the search warrant”
because the Judge believed the evidence presented to him was “inadequate.” Judge Young went
on to base his conclusion on the proposition that the Macon County Sheriff, along with an expert
for VictoryLand, had publicly declared on television that the machies were legal. He then went
on to say that “In the instant case, given the fact that the Constitutional Amendment which
provides for bingo being played at VictoryLand allows the Sheriff to make a determination as to
7
the nature of the bingo, and further, given the fact that he has publicly declared the machines
presently located at that location to comply with the Supreme Court guidance in Cornerstone,
there is clearly a lack of suftlcient probable cause to warrant such an extraordinary writ.” Id. The
Judge thus improperly pointed to, interpreted, and accepted extrajudicial information that was
not before him in contradiction of the State’s sworn evidence in deciding to deny the warrant.
Judge Young went on to accuse the Attorney General and the previous representatives of the
State in the past and present VictoryLand gambling cases that have come before him of seeking
the warrant as part of a political agenda, a clear indication of personal bias against the State in
this matter: “The Fourth Amendment is sacred and should not be the subject of political agendas
of Governors, Task Forces, Attorney Generals or multi-million dollar industries. “ Id.
15. Judge Young also clearly stated that he was not personally willing to determine
the legality of these machines under the circumstances here presented, stating that “The
Petitioner, in essence, is asking this Court to sign an Order declaring these machines to be illegal,
when there has been no such decision on this issue by any Court,” and further stating that “In
requesting this search warrant, the Petitioner has asked the Circuit Court to cross a threshold that
they are not willing to cross in determining the legality of the machines.” Id. In finally signing
the search warrant, on February 16, 2013, Judge Young again accused the Attorney General of
“playing politics” and of having improper motivations. See Exhibit B (Affidavit of Sisson)
16. Judge Young’s own written words clearly express “a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” Moreover, they show that he has already prejudged the key issues and questioned
the State’s motivations. He should therefore recuse himself from this matter as required by
Cannon 3(C)(1).
8
IV. Judge Young’s Cumulative Actions in This and Other Cases Involving VictoryLand
Indicate a Cumulative Prejudice and Bias Toward the State on Gambling Issues, and
Toward the State’s Evidence and the Law Applicable to this Case
17. On January 29, 2010, state police arrived at VictoryLand to seize illegal gambling
machines located in the casino. Before the officers could enter the premises, they were served
with a TRO signed by Judge Young enjoining state police from enforcing the law of Alabama at
VictoryLand. See Tyson v. Macon County Greyhound Park, Inc., d/b/a Victoryland, 43 So.3d
587 (Ala. 2010).
18. Six days later, the Supreme Court of Alabama overruled Judge Young and vacated
his TRO. The Court specifically ruled that Judge Young “lack[ed] subject-matter jurisdiction to
interfere with a criminal proceeding by civil action.” Id.
19. On March 4, 2012, Victoryland announced that it would reopen at 1:00 p.m. on
March 5, 2010. On the morning of March 5, 2010 – approximately 15 minutes before the time
VictoryLand announced it would reopen – Judge Young acted on an ex parte basis and entered
another TRO which enjoined state police from entering the VictoryLand casino to enforce the
criminal laws of Alabama. Judge Young acted and issued the TRO although another Judge
(Circuit Court Judge Perryman) had been assigned the case. The state police continued to be
enjoined until a final hearing on March 22, 2010, where Judge Young issued a lengthy Order
continuing the injunction and stripping a gubernatorial appointed special prosecutor and the state
police of any authority in enforcing criminal laws in Macon County. See Exhibit F. (Judge
Young Order dated March 5, 2010)
9
20. Once again, on July 30, 2010, the Supreme Court of Alabama reversed Judge
Young’s improper Order and ordered him to issue an Order consistent with the findings of the
Supreme Court. See Tyson v. Jones, 60 So.3d 831 (Ala. 2010).
21. On August 5, 2010, Judge Young finally issued an Order pursuant to the reversal by
the Supreme Court. In his Order, Judge Young was critical of both the Supreme Court of
Alabama and the Alabama Governor’s efforts to direct state police to enforce the criminal laws
against illegal gambling at the VictoryLand casino:
This Court would be remiss if it did not express its concerns of the
slippery slope created by this Supreme Court Order, wherein any
Governor is given unfettered power to usurp the authority of a
constitutional officer duly elected by the citizens when said
Governor simply disagrees with the lawful methodology of that
officer in performing his or her duties. This Court finds no
provision in our Constitution which intends to create a czar.
See Exhibit G.
22. Judge Young’s cumulative record of clearly erroneous actions requiring reversal by
the Supreme Court of Alabama in this and previous matters concerning alleged illegal gambling
activities at the VictoryLand casino, together with his repeated criticisms of State officials
seeking to enforce Alabama’s anit-gambling laws against Victoryland, would cause any
reasonable person to question Judge Young’s impartiality in matters pertaining to gambling at
Victoryland. Because the Judicial Canons seek to avoid any appearance of impartiality, Judge
Young should recuse himself from any further matters involving VictoryLand and allegations of
illegal gambling.
Conclusion
The Judicial Canons seek to assure the public that a judge is not partial, biased,, or
presumptive regarding the facts of a case. The clear objective standard of the Judicial Canons is
10
to requires recusal if a reasonable person would perceive potential bias or prejudice in a judge
handling a political matter. Judge Young’s actions are replete with examples, both directly from
his own writings and conversations and indirectly from his track record of clearly erroneous
decisions, that demonstrates an appearance of impartiality to hear the matters that will be
discussed and argued in this case, a hostility toward the Attorney General’s office, and a clear
prejudgment of key issues, such as the Sheriff of Macon County’s legal authority to redefine
“bingo” despite this Court’s rulings in Barber v. Cornerstone Community Outreach v. Barber, 42
So.3d 65 (Ala. 2009), and City of Piedmont v. Evans, 642 So.2d 435 (1994). In light of the
forgoing, to avoid any appearance of bias or impropriety, and to promote public confidence in
the integrity and impartiality of the judiciary, the State respectfully requests Judge Young to
recuse himself from this case.
Respectfully submitted,
LUTHER STRANGE (STR003)
ATTORNEY GENERAL
s/ Henry T. Reagan
HENRY T. REAGAN (REA021)
Deputy Attorney General
Counsel for the State of Alabama
OF COUNSEL:
Henry T. Reagan
John Kachelman III
John Gibbs
Office of the Attorney General
501 Washington Avenue
Post Office Box 300152
Montgomery, AL 36130-0152
(334) 242-7300
(334) 242-4890 – FAX
sreagan@ago.state.al.us
11
CERTIFICATE OF SERVICE
I hereby certify that I have on this date notified the above and foregoing on:
Joe C. Espy, III
William M. Espy
Espy, Melton & Williams
P.O. Box 5130
Montgomery, AL 36130
jespy@mewlegal.com
wespy@mewlegal.com
John M. Bolton, III
Charlanna W. Spencer
Hill, Hill, Carter, Franco, Cole & Black, P.C.
P.O. Box 116
Montgomery, AL 36101
jbolton@hillhillcarter.com
cspencer@hillhillcarter.com
Gateway Gaming
c/o Mark E. Hoffman
2229 First Ave N
Birmingham, AL 35203
Fred D. Gray
Stanley Gray
Gray, Langford, Sapp, McGowan, Gray,
Gray & Nathanson, P.C.
P.O. Box 830239
Tuskegee, AL 36083
fgray@glsmgn.com
Segway Gaming Systems of Alabama, LLC
c/o F. Lane Finch, Jr.
2001 Park Place Ste1200
Birmingham, AL 35203
North American Midway Entertainment-All-
Star Amusement, Inc.
c/o CT Corporation System
2 North Jackson St. , Suite 605
Montgomery, AL 36104
Select Electronic Devices, Inc.
c/o Christie Knowles
153 S. 9th St.
Gadsden, AL 35901
by placing a copy of same in the United States Mail, certified and addressed to their regular
mailing addresses, on this 4th day of March, 2013.
s/ Henry T. Reagan
HENRY T. REAGAN
OF COUNSEL
ELECTRONICALLY FILED3/4/2013 2:35 PM
CV-2013-900031.00CIRCUIT COURT OF
MACON COUNTY, ALABAMADAVID LOVE, JR., CLERK
TAB 2
ELECTRONICALLY FILED3/19/2013 9:52 AM
46-CV-2013-900031.00CIRCUIT COURT OF
MACON COUNTY, ALABAMADAVID LOVE, JR., CLERK
TAB 3
IN THE CIRCUIT COURToF' MACON COUNTY, ALABAMA.
IN RE:SEARCHWARRANT FORQUINCY' S 777 CASTNO LOCATEI)AT VTCTORYLAND8680 COUNTY ROAD 40SHORTER, ALABAMA
CASE NO,
MOTION FOR RETURN O4' SIEZED pROpERTy.AND AI\'YA}[P ALL APPROPRIATE RELIEF
Pursuant to Ala. R. Crim. P, 3,13, and asserting rights under the Alabama and United
States Constitutions, Petitioners respectfully move for a return of all seized property; for a
restraining order to stop removal of propertyi and a stay of all removal efforts until a hearing on
the merits.
Petitioners are KC Economic Development, LLC and Macon County Greyhound Park,
Inc, Macon County Greyhound Park, Inc., operates and has operated a lawful facility at
Victoryland in Macon County, Alabama, including bingo as authorized under an Amendment to
the Alabama Constitution.
Officers under the direction and control of the Attorney General of the State of Alabama
have obtained, and are executing, a search warrant on the Victoryland premises, They are
removing or seeking to remove equipment and materials from those premises. Attached hereto
as Exhibit A is a copy of such warrant and related documents.
Application for said search warant was denied by this Court and by the Court of
Criminal Appeals. However, the Supreme Court of Alabama ordered the issuance of such a
warrant.
Petitioners state that (1) the warrant was not, and is not, supported by probable cause as
required by law; (2) the search wanant is moot, is stale, is untimely, and is void based upon
procedural and substantive defective procedure in the obtaining of it, including its issuance by
writ of mandamus; (3) the information on which the search warrant was based is stale and no
longer sufficient for a search warant; (4) the acts of the Attorney General and those acting under
his direction and in concert with him are in violation of the Petitioners' equal protection and due
process rights, and other rights and privileges available under the Alabama and United States
Constitutions; (5) the acts of the Attorney General and those acting under his direction and in
concert with him are in violation of the Fourth Amendment to the United States Constitution and
the State of Alabama; and (6) there is property on the premises that is not covered by the search
warrant,
Petitioners further state that any removal of property from Victoryland will unduly and
unfairly interfere with the lawful business that is canied on at such facility. This would
constitute ineparable harm to the Petitioners, thus making it appropriate for this Court to
maintain the status quo wtil such time as this Court can hear and determine the merits of this
matter.
Petitioners request a hearing and the opportunity to be heard in that the Petitioners have
not previously been heard. Petitioners further requests any and all relief to which they are
entitled, including an immediate order directing that the State:
A. Refrain from removing any property from the premises;
B. Vacate the premises;
C. Take no further action whatsoever in regard to the search warrant without further
order from the Court; and
D. Return any property that has been removed.
Respectfully subrnitted on the 19th day of February, 2013,
OF COUNSEL \JONE OF THE ATTORNEYS FORPETITIONERS
OF COUNSEL:
Fred D. GrayStanley GrayGRAY, LANGFORD, SAPP, MoGOWAN, GRAY, GRAY & NATHANSON, P.C.P,O. Box 830239Tuskegee, AL 36083 -0239Telephone: 33 4-727 -4830Facsimile : 33 4 -7 27 -587 7fgray@glsmgn.com
Joe Espy, IIIWilliam M. EspyMelton, Espy & Williams, PCPost Office Drawer 5130Montgomery, AL 36103'felephone : 33 4 -263 -6621Facsimile : 33 4 -263 -7 252jespy@mewleeal,comwespy@mewlegal.com
John M. Bolton,IIICharlanna SpencerHill, Hill, Carter, Franco, Cole & BlackTelephone : 33 4 -83 4 -7 600Facsimile : 33 4-262- 4389jbolton@hillhillcarter. comcspencer@hillhil lcarter. com
CERTIFICATE OF SERVICE
I hereby certify that the foregoing has been served on this the lgth day of February, 2013,via hand delivery on the following:
Luther StrangeHenry ("Sonny") Reagan, Jr.
Alabarna Attomey General's Office501 Washington AveMontgomery, AL 36130
OF CO
TAB 4
TAB 5
ELECTRONICALLY FILED2/25/2013 9:55 AMCV-2013-900031.00
CIRCUIT COURT OFMACON COUNTY, ALABAMA
DAVID LOVE, JR., CLERK
EXHIBIT A
ELECTRONICALLY FILED2/25/2013 9:55 AMCV-2013-900031.00
CIRCUIT COURT OFMACON COUNTY, ALABAMA
DAVID LOVE, JR., CLERK