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Transcript of 031510 Exhibits Tyson Motion Stay 030810 Vance Order
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EXHIBIT A
ELECTRONICALLY FILED3/15/2010 12:20 PMCV-2009-900019.00
CIRCUIT COURT OFLOWNDES COUNTY, ALABAM
RUBY JONES, CLERK
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No. ________
IN THE SUPREME COURT OF ALABAMA
EX PARTE STATE OFALABAMA;BOB RILEY,GOVERNOR,STATE OFALABAMA;JOHN
M.TYSON,SPECIAL PROSECUTORFORTASK FORCE ON ILLEGAL GAMBLING PER
GOVERNOR'S EXECUTIVE ORDER#44;EMORY FOLMAR,ADMINISTRATOR OF THE
ALABAMAALCOHOLIC BEVERAGE CONTROL (ABC)BOARD; AND COL.CHRISTOPHER
MURPHY,DIRECTORDEPARTMENT OF PUBLIC SAFETY(IN RE:RILEY, ET AL. V.CORNERSTONE COMMUNITY OUTREACH INC., ET AL.
AND
STATE OFALABAMA V.CHAD DICKIE, ET AL.)
PETITION FOR A WRIT OF MANDAMUS
To the Circuit Court of Lowndes County
(Honorable Robert S. Vance, Circuit Judge for Jefferson
County, sitting by appointment)
(Nos. 09-900019, 09-900027)
ORAL ARGUMENT NOT REQUESTED____________________________
Henry T. Reagan
OFFICE OF GOVERNORBOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
(334) 242-7120
(334) 242-2335 (fax)
Attorney for Petitioner
Governor Bob Riley
John M. Tyson, Jr.
Timothy W. Morgan
Martha Tierney
OFFICE OF GOVERNORBOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
(251) 574-3307(251) 574-3311 (fax)
Attorneys for Petitioners
E-Filed
03/15/2010 @ 11:06:03 AM
Honorable Robert Esdale
Clerk Of The Court
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TABLE OF CONTENTS
Table of Authorities ...................................... iIntroduction .............................................. 1Statement of Facts ........................................ 3A. The Task Force. ....................................... 3B. The Task Forces investigation in White Hall. ......... 7C. Cornerstone files the Injunction Action. .............. 7D. Barber files the Forfeiture Action. ................... 8E. This Courts decision in the first appeal. ............ 9F. The trial courts order on remand. ................... 10Issue Presented .......................................... 15Standard of Review ....................................... 16Reasons the Writ Should Issue ............................ 16A. The special prosecutors have authority to
represent the State and the Riley defendants. ........ 161. The prosecution and defense of these cases does
not conflict with the AGs and DAs statutory
duties. ......................................... 182. The trial court violated separation-of-powers
principles. ..................................... 223. The Constitution would give the Governor ultimate
control over this litigation if his directives
conflicted with the AGs. ....................... 26B. This court has jurisdiction to issue a writ of
mandamus, and there is no other adequate remedy. ..... 30Conclusion ............................................... 30Certificate of Service ................................... 32
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TABLE OFAUTHORITIES
Cases
Baker v. Carr,369 U.S. 186 (1962) .............................. 24, 25
Barber v. Cornerstone Community Outreach,
Nos. 1080805 & 1080806, ___ So. 3d ___,
2009 WL 3805712 (Ala. Nov. 13, 2009) ............. passim
Birmingham-Jefferson Civic Ctr. Auth. v. City of
Birmingham,
912 So. 2d 204 (Ala. 2005) ........................... 24
Britnell v. Ala. State Bd. of Educ.,374 So. 2d 282 (Ala. 1979) ........................... 19
Ex parte Cent. States Health & Life,
594 So. 2d 80 (Ala. 1992) ............................ 30
Ex parte Integon Corp.,
672 So. 2d 497 (Ala. 1995) ........................... 16
Ex parte Weaver,
570 So. 2d 675 (Ala. 1990) ............... 19, 23, 27, 28
Mobil Oil Corp. v. Kelley,
353 F. Supp. 582 (S.D. Ala. 1973) .................... 23
Piggly Wiggly No. 208, Inc. v. Dutton,
601 So. 2d 907 (Ala. 1992) ....................... 23, 24
Tyson v.Macon County Greyhound Park,
No. 1090548, ___ So. 3d ___,
2010 WL 415271 (Ala. Feb. 4, 2010) ................... 11
Statutes
ALA.CODE 12-17-184 .............................. 6, 17, 21
ALA.CODE 12-17-212 ................................... 5, 6
ALA.CODE 12-17-216 ................................. passim
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ii
ALA.CODE 28-3-40 ........................................ 5
ALA.CODE 28-3-43 ........................................ 5
ALA.CODE 32-2-2 ......................................... 4
ALA.CODE 32-2-22 ........................................ 5
ALA.CODE 36-13-9 ........................................ 4
ALA.CODE 36-15-1 ................................... 18, 19
ALA.CODE 36-15-21 .............................. 18, 19, 28
ALA.CODE 41-15B-2 .................................. 28, 29
Other AuthoritiesALA.CONST. Art. III, 42 ................................. 22
ALA.CONST. Art. III, 43 ................................. 23
ALA.CONST. Art. V, 112 .................................. 27
ALA.CONST. Art. V, 113 .......................... 12, 22, 27
ALA.CONST. Art. V, 120 .................................. 27
ALA.CONST. Art. V, 137 .................................. 27
RulesALA.R.APP.P. 21 ......................................... 15
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1
INTRODUCTION
This is the second time this matter has come before
this Court. These cases arise from the execution of a war-
rant by agents of the Alabama Alcoholic Beverage Commission
and the Alabama Bureau of Investigation against an elec-
tronic bingo casino in Lowndes County. The agents were
working in coordination with the Governors Task Force on
Illegal Gambling, an interdepartmental team of executive-
branch officials the Governor assembled to enforce Ala-
bamas anti-gambling laws on a uniform, statewide basis.
The Task Forces Commander is a Special Prosecutor with
statewide jurisdiction. The Commander was initially David
Barber, a supernumerary district attorney, and is now peti-
tioner John Tyson, the District Attorney of Mobile County.
The Task Force also includes supernumerary district attor-
neys Ed Greene and Tim Morgan, and assistant district at-
torney Martha Tierney of Mobile County.
In a prior appeal relating to this investigation, this
Court addressed a preliminary injunction that gambling in-
terests obtained against the Governor and Task Force mem-
bers. See Barber v. Cornerstone Community Outreach, Nos.
1080805 & 1080806, ___ So. 3d ___, 2009 WL 3805712 (Ala.
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Nov. 13, 2009). This Court reversed, holding that the gam-
bling interests had not established even a reasonable
chance that their machines play charity bingo authorized
under local Amendments to the Alabama Constitution. In the
process, the Court rejected the gambling interests
argument that only the Attorney General, and not the Gover-
nors appointees, had the authority to represent the
States interests in these matters before this Court. The
Court reasoned that the record and briefs do not contain
or reflect an effort by Attorney General King to instruct
the Riley defendants not to appeal from the trial courts
judgment against them, and he specifically does not seek
to intervene as a party in this case and does not take a
position on the merits of this appeal. Id. at *2 n.4.
But on remand, the trial court ignored this Courts
analysis, held that the Governors appointees had no au-
thority to prosecute the matter, and ordered the AG to
superintend the case whether he wanted to or not. The
court held that every pleading the DA and supernumerary DAs
had filed was a nullity because they had not obtained
express authorization of the Attorney General beforehand.
(Tab A at 12.) Although the AG has thus far chosen not to
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exercise any right he may have to appear in this case, the
trial court perceived a conflict between the AG and Gover-
nor and direct[ed] the Attorney General to come in off the
sidelines and decide how the States interests are best
represented in these cases. (Id. at 13.)
In trying to micromanage a complex executive-branch
relationship when neither of the executive officers in-
volved asked it to do so, the trial court violated
separation-of-powers principles. And as often happens when
one branch steps into anothers sphere, the result was
error. The court misconstrued the decisions the AG has
made, misinterpreted statutes authorizing the Governor to
take these actions, and created a constitutional crisis
where there was none. This Court should remedy the sit-
uation and restore the proper separation of executive and
judicial powers with a writ of mandamus.
STATEMENT OF FACTS
A. The Task Force.The facts surrounding the Task Forces creation provide
important context here. As this Court has noted, [o]n De-
cember 30, 2008, Governor Bob Riley issued Executive Order
No. 44 creating the Governors Task Force on Illegal Gam-
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bling. Barber, 2009 WL 3805712, at *1. The Governor was
concerned because gambling interests have tried to evade
Alabama law by asserting, falsely, that for-profit slot
machines qualify as charity bingo under local const-
itutional amendments. Therefore, utilizing his statutory
power to give, by his executive order, to existing agen-
cies and instrumentalities of the state government, such
powers and duties which are not in conflict with the Const-
itution of Alabama and which are not specifically prohi-
bited by the then existing statutes, ALA. CODE 36-13-9,
the Governor issued Executive Order 44. (Tab B.)
Executive Order 44s stated goal was to promote
uniform statewide enforcement of Alabamas prohibition on
gambling. (Id. at 3.) The Task Force therefore includes
three types of officers with statewide jurisdiction:
1. Director of Public Safety. First, the Task Force
includes the Director of Public Safety and agents and in-
vestigators he may designate. (Tab B at 3.) The Director
serves at the Governors pleasure. ALA. CODE 32-2-2.
State Troopers fall within the Department of Safetys
purview, and they have the powers of peace officers in
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this state and may exercise such powers anywhere within the
state. Id. 32-2-22.
2. ABC Administrator. The Task Force also includes the
Administrator of the Alcoholic Beverage Control Board and
any agents he chooses to designate. (Tab B at 3.) ABC
operates throughout the State. See ALA.CODE 28-3-43(a).
Board members may be suspended or removed by the Governor
at his pleasure. Id. 28-3-40. The Boards agents make
arrests and execute search warrants and have the same
authority as designated to peace officers. Id. 28-3-
43(a)(6).
3. Special Prosecutors. The Task Force also has aCommander who serves as Special Prosecutor. Under Execu-
tive Order 44 as originally written, the Commander was to
be a supernumerary district attorney. (Tab B at 3.) Su-
pernumerary DAs are former DAs who meet certain qualifi-
cations. See ALA.CODE 12-17-212. They have and exercise
all the duties, power and authority of district attorneys.
Id. 12-17-216. They shall, if requested by the Gover-
nor, Chief Justice, or Attorney General, conduct investi-
gations and appear in any circuit court for the prose-
cution of any criminal case or the prosecution or defense
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of any case in which the state is interested. Id. The
Governor or the AG, as well as any justice of this Court or
a judge of a Court of Appeals, may also request a super-
numerary DA to perform duties as those prescribed for as-
sistant attorneys general. Id. Governor Riley initially
appointed supernumerary DA David Barber as Task Force
Commander, and Barber served in that role when the two ac-
tions under review were commenced. (Tab C.)
Barber later resigned, and the Governor amended Execu-
tive Order 44 to provide that a sitting DA could also be
appointed as Commander and Special Prosecutor. (Tab D.)
He did so under Section 12-17-184(10) of the Alabama Code,
which says a DA has the duty [t]o go to any place in the
State of Alabama and prosecute any case or cases, . . .
when called upon to do so by the Attorney General or the
Governor of the State of Alabama, and to attend sessions of
courts and transact all of the duties of the district
attorney in the courts whenever called upon by the Attorney
General or Governor to do so. The Governor therefore ap-
pointed John M. Tyson, Jr., the current Mobile County DA,
to serve as Commander and Special Prosecutor. (Tab E.)
Governor Riley has since appointed supernumerary DAs Tim
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Morgan and Edgar Greene as Special Prosecutors, and Martha
Tierney, an Assistant DA from Mobile County, as Assistant
Special Prosecutor. (Id.)
B. The investigation in White Hall.The White Hall Entertainment Center is a casino in
Lowndes County. The gambling interests assert that the ca-
sinos machines play legal bingo. But during an under-
cover investigation, Task Force agents developed probable
cause to believe that the machines were illegal. Accord-
ingly, an ABC Agent working with the Task Force obtained a
warrant to seize the machines, servers, and other items at
White Hall. (Tab F.)
The next day, ABC agents and agents of the Alabama
Bureau of Investigation, acting in conjunction with the
Task Force when it was still led by Barber, executed the
warrant. They seized approximately 105 machines, along
with the servers to which the machines were attached, over
$500,000 in cash, and records of illegal gambling activity.
(Tab K.)
C. Cornerstone files the Injunction Action.During the seizure, the casinos purported operator,
respondent Cornerstone Community Outreach, Inc., filed a
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complaint that the Circuit Court for Lowndes County
docketed as No. CV-2009-900019. (Tab G.) This petition
will refer to that case as the Injunction Action.
Cornerstone named Governor Riley, Commander Barber, Direc-
tor of Public Safety Chris Murphy, and ABC Administrator
Emory Folmar as defendants (the Riley defendants). Cor-
nerstone sought an injunction requiring the defendants to
return the machines and forbidding them from interfering
with the casinos operations. (Id. at 89.) Freedom Trail
Ventures, Ltd. (FTV), claiming an ownership interest in
the seized items, also moved to intervene and sought
similar relief. (Tabs H & I.)
After a hearing, the trial court, former Justice
Kennedy presiding, granted Cornerstone and FTV a prelim-
inary injunction. (Tab J.) The Riley defendants appealed
to this Court.
D. Barber files the Forfeiture Action.While the appeal in the Injunction Action was pending,
Barber filed an action seeking forfeiture of the machines
on the States behalf. (Tab K.) The circuit court dock-
eted that case as No. CV-2009-900027, and this petition
will refer to it as the Forfeiture Action.
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By the time Barber filed the Forfeiture Action, Justice
Kennedy had asked the Administrative Office of Courts to
assign the Injunction Action to another judge. After
initially the Injunction Action to Judge Robert Harper,
Chief Justice Cobb assigned both cases to Judge Robert
Vance of the Circuit Court for Jefferson County.
E. This Courts decision in the first appeal.This Court eventually reversed the preliminary
injunction and, in so doing, addressed jurisdictional is-
sues that are relevant here. Henry Reagan, the Governors
Deputy Legal Advisor, had appeared as appellate counsel for
the Governor. Barber had appeared for the other three de-
fendants. On this basis, Cornerstone and FTV had filed a
motion to dismiss the appeals, arguing that only the
attorney general is authorized to appeal the trial courts
ruling. Barber, 2009 WL 3805712, at *4 n.2. When the
Riley defendants opposed the motion, the AG submitted an
amicus brief addressing the issues. (Tab L.) As this
Court put it, the AG took no issue with Governor Rileys
hiring his own legal counsel or appearing in litigation
involving the State, but urged this Court to reject the
Governors argument that he is vested with the authority to
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appoint attorneys who may name and advance the States
legal position outside the direction and control of the
Attorney General. Barber, 2009 WL 3805712, at *2 n.4
(quoting Tab L at 2324).
This Court denied Cornerstone and FTVs motion to
dismiss. The Court said it was not necessary to address
the questions the AG had raised in light of two consider-
ations. First, Governor Riley is a party to this case,
and had duly appealed a judgment entered against him
through his deputy legal counsel. Barber, 2009 WL 3805712,
at *2 n.4. Second, the record and briefs do not contain
or reflect an effort by Attorney General King to instruct
the Riley defendants not to appeal from the trial courts
judgment against them, and he specifically does not seek
to intervene as a party in this case and does not take a
position on the merits of this appeal. Id. (quoting Tab
L at i, 1).
F. The trial courts order on remand.On remand, the trial court issued an order, sua sponte,
in both actions. Significantly, it entered that order af-
ter this Courts decision in Tyson v. Macon County Grey-
hound Park, No. 1090548, ___ So. 3d ___, 2010 WL 415271
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(Ala. Feb. 4, 2010), which held that courts have no juris-
diction to entertain civil actions seeking declaratory and
injunctive relief of the kind Cornerstone and FTV had re-
quested. While recognizing that decisions relevance to
the Injunction Action, the trial court stated that it per-
ceive[d] its possible jurisdiction to address the issue of
whether the Governors Task Force on Illegal Gambling is
constitutionally authorized to take the actions made the
basis of the complaint in the Injunction Action. (Tab M.)
The trial court also stated that these constitutional ques-
tions could also affect the Task Forces standing to bring
the civil forfeiture action. (Id.) The court therefore
ordered the parties to submit simultaneous memoranda
addressing, as pertinent here, whether Ala. Code 12-17-
216 and Governors Executive Order 44 -- on which the
creation of the Task Force is based -- conflict in any way
with provisions of the Alabama Constitution. (Id.) The
order gave no further hints about which constitutional pro-
visions the trial court believed might be in play.
The State and Riley defendants made two points in
response. (Tab N.) First, they observed that the consti-
tutionality of 12-17-216 of the Alabama Code and Execu-
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tive Order 44 were not at issue. Section 12-17-216 -- the
provision authorizing the Governor to direct supernumerary
DAs to litigate cases -- was no longer relevant because
that provision had authorized Barbers appointment, and by
the time of the response, Barber had resigned. (Id. at 8.)
Tysons appointment had been governed by a different
statute. Likewise, Executive Order 44 was not at issue
because the warrant had been obtained by an ABC Agent, not
by the Task Force per se. (Id. at 7.)
Second, the State and the Riley defendants noted that
in light of the Constitutions grant of [t]he supreme
executive power of this state to the Governor, ALA.CONST.
Art. V, 113, there was no argument that either of those
provisions was unconstitutional. The gambling interests
had raised no such argument, and to the extent they did in
the future, the State and Riley defendants requested an
opportunity to offer a full response. (Tab N at 10.)
On the same day, Cornerstone and FTV submitted their
own memorandum in response to the courts order. (Tab O.)
They attached an affidavit of John Andrews, District Attor-
ney for Lowndes County, stating that he had decided not to
bring criminal charges against Cornerstone himself. (Tab O
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Exh. 4.) Cornerstone and FTV argued that the Governor had
no authority to direct a Supernumerary DA to investigate
and prosecute the civil-forfeiture case.
The trial court had served the AG with its order
requesting views on the constitutionality of 12-17-216
and Executive Order 44. The AG expressly waived his right
to respond. (Tab P.)
Other than to ask for briefing on jurisdictional
questions that are not pertinent to this mandamus petition,
the trial court never asked for briefing on any subject
other than whether Ala. Code 12-17-216 and Governors
Executive Order 44 -- on which the creation of the Task
Force is based -- conflict in any way with provisions of
the Alabama Constitution. (Tab M.) Nor did it ask for or
receive further briefing, or hold a hearing, after the par-
ties submitted their simultaneous briefs in response to its
order calling for briefing on that subject.
But six business days after the parties submitted their
memoranda, the court issued a 13-page order did not resolve
the question on which it had called for briefing. Instead,
that Order disqualified the Special Prosecutors, on stat-
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utory grounds, from representing the State and Riley de-
fendants. (Tab A.)
The court stated that while the use of ABC Agents and
State Troopers to conduct the seizure was unproblematic,
the court was concerned with the Governors efforts to
appoint a Special Prosecutor. (Tab A at 7.) The court
had reviewed the brief the AG had submitted to this Court
during the preliminary-injunction appeal (Tab L), and
concluded that in filing the Answer and Counterclaim in
the Declaratory Judgment Action, the Petition in the
ForfeitureAction, and all other filings in these actions,
attorney Barber did so without express authorization of the
Attorney General. (Tab A at 12.) Barbers filings, the
court said, must thus be regarded as a nullity. (Id.)
Likewise, the court held that Tyson could not represent the
State or the Riley defendants because the AG had not
affirmatively and expressly authorized him to do so in
advance. (Id.) The court concluded that the attorneys
who have appeared for the Governmental Parties may not
continue to represent these parties in the Declaratory
Judgment Action, nor may they prosecute the Forfeiture
Action, unless the Attorney General expressly ratifies what
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they have done up to this point and authorizes them to
continue in this representation. (Id.)
The court then required the AG to appear in these cases
and assume direction and control of them. (Id. at 13.)
The court acknowledged that it may not dictate what the
Attorney Generals decisions must be, but concluded that
it could direct the Attorney General to come in off the
sidelines and decide how the States interests are best
represented in these cases. (Id.) The court gave the AG
until March 22, 2010, to advise the Court and the parties
of his position, and stated that it would thereafter de-
termine the course of further proceedings in these related
cases. (Id.)
The court issued the order on March 8, 2010. This man-
damus petition, submitted seven days later, is timely under
Rule 21(a)(3) of the Alabama Rules of Appellate Procedure.
ISSUE PRESENTED
Whether, in light of the AGs decision not to directly
intervene in these cases, the trial court erred in deter-
mining that a district attorney and supernumerary district
attorneys had no authority to represent the States inter-
ests at the Governors direction.
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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). Because each of these elements is
present here, this Court should issue the writ.
REASONS THEWRIT SHOULD ISSUE
A. The special prosecutors have authority to represent theState and the Riley defendants.
The Special Prosecutors have a clear right to represent
the State and the Riley defendants, and the trial court had
an imperative duty to allow them to do so. The Alabama
Codes plain terms give the Special Prosecutors authority
to proceed. Section 12-17-216 says a supernumerary DA
shall, if requested by the Governor, conduct investiga-
tions and appear in any circuit court for the prosecu-
tion of any criminal case or the prosecution or defense of
any case in which the state is interested. ALA.CODE 12-
17-216. Section 12-17-184(10) makes it the duty of every
sitting DA, when called upon by the Governor, to go to any
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place in the State of Alabama and prosecute any case or
cases and attend sessions of courts and transact all of
the duties of the district attorney in the courts. Id.
12-17-184(10). Barber and Greene, as supernumerary DAs,
and Tyson, as a sitting DA, were all duly requested by the
Governor to represent the State in these cases. (Tab E.)
The Code thus expressly authorized their representation of
the State and the Riley defendants.
The trial courts contrary conclusion was based on non-
textual limitations that the court read into the statutes.
It created these limitations from whole cloth in a
professed attempt to avoid wad[ing] into a constitutional
quagmire. (Tab A at 11.) But in doing so, the court
created a quagmire where none had previously existed. The
AG has never sought to take over this litigation. He has
made the decision to allow the Special Prosecutors to
proceed while continuing to monitor the cases. Indeed, he
explained in his amicus brief in the prior preliminary-
injunction appeal that he would decline to intervene in
what he described as a test case brought by Barber. (Tab
L at 2.) As a result, the court below had no need to
resolve the theoretical question of which constitutional
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office -- the Governor or AG -- would have ultimate control
over this litigation in the event that an express conflict
arose within the executive branch about the direction this
case should take. No such conflict has arisen. In re-
fusing to accept the AGs informed decision not to super-
intend, the trial court accorded insufficient respect to
the way the AG has exercised his discretion in this case.
And in entering an order compelling the AG to directly
intervene, the trial committed a serious violation of the
separation of powers.
1. The prosecution and defense of these cases doesnot conflict with the AGs and DAs statutory
duties.
In concluding that the Special Prosecutors had no power
to proceed, the trial court misinterpreted two statutes
setting out the AGs powers. The first says that the AG
will attend to all cases in which the State is concerned,
ALA.CODE 36-15-1(2), and the second says that all litiga-
tion concerning the State is under the direction and con-
trol of the Attorney General, id. 36-15-21. The Special
Prosecutors representation of the Governmental Parties
does not conflict with those provisions in any way.
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Nothing in those statutes requires the AG to formally
appear in every case involving the State. Most cases in-
volving the State are litigated at the trial-court level by
DAs without the AGs advance approval or direct involve-
ment. That is so not only because of practical considera-
tions, but also because of what the statutes say. The
words attend to, found in 36-15-1(2), do not necessar-
ily mean appear in. They instead mean that the AG is to
monitor cases involving the State and ensure that the
States interests are represented. Similarly, this Court
has held that 36-15-21s statement that State-related
litigation is under the direction and control of the
Attorney General does not require that the AG actually
litigate every case involving the State. See Britnell v.
Ala. State Bd. of Educ., 374 So. 2d 282, 285 (Ala. 1979).
Instead, 36-15-21 does no more than give the AG dis-
cretion to appear and, if he deems it appropriate, super-
intend the litigation. See Ex parte Weaver, 570 So. 2d
675, 684 (Ala. 1990). The trial court thus erred when it
ruled that Barbers filings were a nullity because he had
submitted them without express authorization of the Attor-
ney General. (Tab A at 12.)
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Nor was there any basis for the trial courts assertion
that the Special Prosecutors are acting with unfettered
independence and are not answerable to the AG. (Tab A
at 11.) The Special Prosecutors are DAs. They are acting
with no more independence than any DA has in any run-of-
the-mill case in which the AG has not directly super-
intended. Whether or not the AG would have the right to
superintend this case if he chose to do so, the fact is
that he has thus far decided not to. His choice to let the
Special Prosecutors proceed was within his prerogative and
must be respected.
That conclusion is compelled by this Courts decision
in the preliminary-injunction appeal. The Court there re-
jected the gambling interests assertion that because of
the AGs duty to attend to and direct all litigation
involving the State, only he could represent the Riley de-
fendants in the appeal. The Court observed, among other
things, that the record and briefs do not contain or
reflect an effort by Attorney General King to instruct the
Riley defendants not to appeal from the trial court's judg-
ment against them, and he specifically does not seek to
intervene as a party in this case and does not take a po-
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sition on the merits of this appeal. Barber, 2009 WL
3805712 at *2 n.4. This Court thus necessarily rejected
the trial courts theory that the Special Prosecutors need
the AGs express authorization. Instead, this Court held
that no justiciable issue of authority arises unless the AG
has instruct[ed] them not to proceed, or the AG has
otherwise sought to intervene in the litigation. The AG
has done neither of those things, so the trial courts
order was contrary to this Courts decision.
It makes no difference that the Special Prosecutors did
not consult with the Lowndes County DA before proceeding in
these cases, and it makes no difference that the Lowndes
County DA, who has not appeared in these cases, has now
submitted an affidavit stating that he previously decided
not to file criminal charges against Cornerstone himself.
(Tab O Exh. 4 at 2.) The Code provisions that authorized
the Governor to direct the special prosecutors, ALA.CODE
12-17-184(10) & 12-17-216, say nothing about requiring
the Governor and Special Prosecutors to consult with the
local DA. Indeed, 12-17-184(10) expressly requires any
sitting DA, including the DA of Lowndes County, to litigate
a case if the Governor so directs. The Lowndes County DAs
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affidavit does not state that he objects to the Task Force
Commanders prosecution of the civil-forfeitureproceeding.
Cf. Tab O Exh. 4 at 2 (stating merely that he decided not
to bring any criminal charges himself). But even if he
did object, nothing in the Alabama Code would allow him to
overrule the Governors directive. If any statute purport-
ed to do so, it would be unconstitutional. See ALA.CONST.
Art. V, 113 (The supreme executive power of this state
shall be vested in a chief magistrate, who shall be styled
The Governor of the State of Alabama.).
There was thus no basis for the trial court to conclude
that the Special Prosecutors had no authority to represent
the State and the Riley defendants.
2. The trial court violated separation-of-powersprinciples.
The trial court compounded its error when, on top of
misconstruing the choices the AG has made, it direct[ed]
the Attorney General to come in off the sidelines. (Tab A
at 13.) Section 42 of the Constitution says [t]he powers
of the government of the State of Alabama shall be divided
into three distinct departments, ALA.CONST. Art. III, 42,
and Section 43 provides that the judicial [branch] shall
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never exercise the . . . executive powers, id. 43. In
ordering the AG to exercise his authority in this way, the
trial court violated these principles.
This Court has explained that in light of Sections 42
and 43, a court may not direct an executive officers
manner of exercising discretion or to compel the per-
formance of a duty in a certain manner where the perform-
ance of that duty rests upon an ascertainment of facts, or
the existence of conditions, to be determined by an officer
in his judgment or discretion. Piggly Wiggly No. 208,
Inc. v. Dutton, 601 So. 2d 907, 911 (Ala. 1992). That is
precisely what the trial court did here. The AGs power to
intervene in litigation is discretionary, not mandatory.
In cases in which it exists, his superintendment power is
simply the power to discontinue [a case] if and when, in
his opinion, this should be done. Weaver, 570 So. 2d at
680 (emphasis added) (internal quotation marks omitted).
The AG has wide discretion in determining what actions he
should take in protecting what he conceives to be the best
interest of the State of Alabama and the citizens thereof.
Mobil Oil Corp. v. Kelley, 353 F. Supp. 582, 586 (S.D. Ala.
1973). Just as mandamus will not lie to compel a
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prosecuting attorney to institute a criminal prosecution
if he chooses not to do so, Piggly Wiggly, 601 So. 2d at
910 (internal quotation marks omitted), the trial court
could not order the AG to formally intervene here.
Indeed, whether the AG should exercise any discretion
to superintend in a given case is a nonjusticiable politic-
al question that a court has no jurisdiction to resolve.
As this Court has explained, the[t]he presence of one or
more of the factors from Baker v. Carr, 369 U.S. 186
(1962), indicates that a question is political, that is,
one reserved for, or more suitably determined by, one of
the political branches of government. Birmingham-Jeffer-
son Civic Ctr. Auth. v. City of Birmingham, 912 So. 2d 204,
215 (Ala. 2005). Several of the factors are present here.
There is, as an initial matter, the impossibility of
deciding whether the AG should intervene without an
initial policy determination of a kind clearly for non-
judicial discretion. Baker, 369 U.S. at 217. The AGs
decision not to superintend the case marks a prototypical
exercise of discretion by an executive-branch official, and
a court may not reverse it.
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There is also the impossibility of a courts
undertaking independent resolution of this question with-
out expressing lack of the respect due coordinate branches
of government. Baker, 369 U.S. at 217. It is not as if
the AG made no decision about this case: he affirmatively
decided not to intervene at this time. The trail court,
calling the AGs stance curious, ordered him to make a
different decision and choose a different approach. (Tab A
at 12.) The respect due to the executive branch precluded
the court from commandeering the AG in that way.
There is, finally, an unusual need for unquestioning
adherence to a political decision already made. Baker,
369 U.S. at 217. The Governor has directed the Special
Prosecutors to proceed, and the AG has publicly acknow-
ledged his ongoing observation of the proceedings and his
decision not to intervene at this time. The trial courts
order was based on its belief that the Governor and AG have
expressed different viewpoints about electronic bingo and
its belief that it could force the AG to oppose the
Governors efforts. (Tab A at 1213.) But the AG has cho-
sen not to intervene, and the separation of powers preclud-
ed the court from undoing that decision.
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3. The Constitution would give the Governor ultimatecontrol over this litigation if his directives
conflicted with the AGs.
If this case were to raise a conflict between the
Governor and AG, it would only be because the trial courts
order would have unnecessarily forced that conflict to
occur. As of now, there is no conflict, and no need for
this Court or any other court to decide which const-
itutional officer should have ultimate authority over this
litigation. The constitutional quagmire about which the
trial court was so concerned would arise only if its order
were allowed to stand -- and only if, as a result, the Go-
vernor and AG took different views about the future of
these cases. If this Court grants the writ on the grounds
discussed above, there will be no need to address what
would happen if that situation arose.
Nevertheless, to the extent that the trial courts
reasoning assumed that the AGs views would necessarily
prevail in that circumstance, the Governor submits, with
due respect for the AG and his Office, that this assumption
was wrong. The Constitution says [t]he supreme executive
power of this state shall be vested in a chief magistrate,
who shall be styled The Governor of the State of
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Alabama. ALA.CONST. Art. V, 113. The Constitution also
says [t]he governor shall take care that the laws be
faithfully executed. Id. 120. The Constitution makes
the attorney-general an officer of the executive branch,
id. 112, and does not say that the AG can override the
Governors supreme executive power. The Constitution
simply says that the AG shall perform such duties as may
be prescribed by law. Id. 137. It follows, then, that
if a conflict were to arise between the Governor and AG
about the course of litigation, the Constitution would
require the Governors views to prevail.
This Courts decision in Ex parte Weaver, 570 So. 2d
675 (Ala. 1990), admittedly has language that could be used
to support the contrary proposition. But Weaver need not
be read in a way that conflicts with the Constitution. It
is true that in that case, the Court held that in the event
of a conflict between the AG and the Insurance Commissioner
-- a gubernatorial appointee -- the AGs views were to
prevail. But Weaver did not involve a situation, like the
one here, in which the Governor himself had expressly di-
rected executive officials to enforce the law, statewide,
in a particular way.
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To the extent Weaver actually held that the AGs views
would prevail in these circumstances, that aspect of its
holding would need to be overruled if the issue had to be
reached. That holding could not be reconciled with the
Constitutions language. As Justice Houston observed in
his Weaver dissent, [w]hen considered in the light of the
Governors constitutional mandate, the seemingly broad
power granted to the attorney general by [Ala. Code] 36-
15-21 to direct and control litigation is clearly re-
stricted. 570 So. 2d at 688 (Houston, J., dissenting).
In the years since Weaver, the Legislature has recog-
nized that the Constitution does not give the AG power to
overrule the Governor in State-related litigation. Section
41-15B-2(i) of the Alabama Code states that [a]ny con-
flicting prior law notwithstanding, the Governor, or the
Attorney General with the consent of the Governor, shall
file any litigation necessary to effectuate the compelling
interest of the State of Alabama to recover tobacco-related
damages incurred by the state or pursue any other legal
cause of action in which the state has an interest. ALA.
CODE 41-15B-2(i) (emphasis added.) The same provision
states that the Governor may institute or participate in
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any civil litigation in which the state has an interest.
Id. It also specifies if the AG fails to bring litigation
requested by the Governor, the Governor may institute it
himself. Id. The AG has previously argued that this
statute is limited to tobacco litigation. (Tab L at 19
23.) Even if the statute could be read in that limited
way, the statute at least demonstrates that the Legislature
believes that the Constitution does not make the AGs liti-
gation decisions binding on the Governor.
The foregoing suggests that the trial courts decision
to disqualify the Governors selected attorneys was
contrary not only to governing statutes, but to the Const-
itution as well. But this Court need not and should not
decide whether the Governor or AG holds the ultimate trump
card at this time. In the very least, the lower court
erred when it held that in spite of their directive from
the Governor, the Special Prosecutors needed the AGs
express authorization before proceeding. (Tab A at 12.)
The trial courts contrary decision would force the courts
to decide a significant constitutional dispute that other-
wise does not exist.
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B. This court has jurisdiction to issue a writ of
mandamus, and there is no other adequate remedy.
Mandamus is the proper remedy. The trial court dis-
qualified the Special Prosecutors and declared their fil-
ings a nullity. This Court has held that the correct
method for seeking review of a lower courts ruling on a
motion to disqualify an attorney . . . is by a petition for
writ of mandamus only. Ex parte Cent. States Health &
Life, 594 So. 2d 80, 81 (Ala. 1992). As Central States
explains, mandamus is the only available remedy here.
CONCLUSION
Because the Special Prosecutors have a clear right to
represent the State and the Riley defendants, this Court
should issue a writ of mandamus ordering the trial court to
vacate its order holding that the Special Prosecutors have
no authority to represent their clients and declaring their
filings a nullity.
Respectfully submitted,
s/ Timothy W. Morgan
Supernumerary District
Attorney and Special
Prosecutor
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OF COUNSEL:
John M. Tyson, Jr.
Timothy W. Morgan
Martha Tierney
OFFICE OF GOVERNOR BOB RILEY600 Dexter Avenue
Montgomery, Alabama 36130
(251) 574-3307
(251) 574-3311 (fax)
Attorneys for Petitioners
State of Alabama, Governor Bob Riley,John M. Tyson, Jr., Emory Folmar, and
Chris Murphy
Henry T. Reagan
OFFICE OF GOVERNOR BOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
(334) 242-7120
(334) 242-2335 (fax)
Attorney for Petitioner Governor Bob Riley
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document
has been served on this 15th day of March, 2010, to the
following by email or by other delivery method as noted:
Collins Pettaway, Jr.
Chestnut, Sanders, Sanders, & Pettaway, LLC.
P.O. Box 1290
Selma, AL 36702-1290
Robert D. Segall
Lee H. Copeland
J. David Martin
Shannon L. Holliday
Copeland, Franco, Screws & Gill, P.A.P.O. Box 347
Montgomery, Alabama 36101-0347
Joe Espy, III
William M. Espy
Melton, Espy, & Williams, P.C.
P.O. Drawer 5130
Montgomery, AL 36103
The Honorable Troy King
Office of the Attorney General
500 Dexter Avenue
Montgomery, Alabama 36130
The Honorable Robert S. Vance
Jefferson County Courthouse, Room 330
716 Richard Arrington, Jr. Blvd. N
Birmingham, Alabama 35203
(via hand delivery or US Mail)
s/ Tim Morgan
OF COUNSEL
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TAB A
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IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA
Cornerstone Community )Outreach, Inc., et al, )
)
Plaintiff, )
)
v. ) CV-2009-9000019
)
)
Bob Riley, et al, )
)
Defendants. )
_________________________________________________________________
State of Alabama, )
)
Plaintiff, )
)
v. ) CV-2009-9000027
)
)
Chad Dickie, et al, ))
Defendants. )
ORDER
This order comes after consideration of the parties filings made in response to theprior order of February 11, 2010, in these related cases.
In the first of these cases, Cornerstone Community Outreach, Inc., et al, v. Riley(CV-09-900019)(hereafter referred to as the Declaratory Judgment Action), thisCourt, though retired Justice Mark Kennedy, previously entered a preliminary
injunction that was thereafter appealed. The following facts come from theSupreme Courts opinion in Barber v. Cornerstone Community Outreach, Inc., ---
ELECTRONICALLY FILED3/8/2010 9:58 AM
CV-2009-900019.00CIRCUIT COURT OF
LOWNDES COUNTY, ALABAMRUBY JONES, CLERK
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So.3d ----, 2009 WL 3805712 (Ala., Nov. 13, 2009):
On December 30, 2008, Governor Bob Riley issued Executive Order No. 44creating the Governor's Task Force on Illegal Gambling (the TaskForce). Theorder stated that the purpose of the Task Force was promoting and supportinguniform statewide enforcement of Alabama's anti-gambling lawsand to carry outthe Alabama Constitution's strongpublicpolicy against lottery schemes and illegalgambling. The order created a special prosecutor to serve as the commander ofthe Task Force, who, in that capacity, is empowered to have statewidejurisdiction to conduct investigations, attend any regular, adjourned or specialsession of any circuit court . . . for the investigation of or the prosecution of anycriminal case or the prosecution or defense of any case related to gamblingactivity in the State of Alabama. Governor Riley appointed former JeffersonCounty District Attorney David Barber as Task Force commander.
Cornerstone Community Outreach, Inc. (Cornerstone), obtained a license fromthe Town of White Hall in Lowndes County to operate a bingo-gaming facility,which is known as the White Hall Entertainment Center (the EC). An LCDscreen outside the EC advertises that the EC offers HOT SLOTS! for itscustomers. The EC contains several hundred electronic gaming machines that areplayed by hundreds of customers every day. Cornerstone purportedly obtained itslicense so that it could operate charity bingo games in accordance withAmendment No. 674, Ala. Const. 1901 (Local Amendments, Lowndes County, 3, Ala. Const. 1901 (Off.Recomp.)).
Pursuant to its mandate, the Task Force on March 19, 2009, executed a searchwarrant on the EC and confiscated approximately 105 electronic gaming
machines, the servers to which those machines were attached, over $500,000 inproceeds from the games played at the EC, and various records kept byCornerstone.
Id. at *1.
Evidence presented in the preliminary injunction hearing also showed that neitherthe Alabama Attorney General nor any member of his staff was on the Task Force
that conducted the raid, and that Lowndes County District Attorney John Andrewswas not involved,either. District Attorney Andrews, in fact, has recently submittedan affidavit in which he testified to the following:
1. He inspected the bingo machines in question before the White Hall
Entertainment Center opened, and spokewith variousindividuals about how
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the machines worked;
2. He exercised his prosecutorial judgment not to bring any criminal charges
relating to the operation of the machines;
3. He has never been contacted by anyone connected with the GovernorsTaskForce to discuss investigating or closing the White Hall facility; and
4. He did not even know of the Task Force raid until it had been accomplished.
Also brought out during the preliminary injunction hearing was evidence that theraid was conducted pursuant to a search warrant signed by the Lowndes County
district judge. The warrant was based on an affidavit provided to the judge by Mike
Reese, who is a Lieutenant with the Alabama Alcoholic Beverage Control Board,Enforcement Division. Once the warrant was obtained, members of the ABC and
the Alabama Bureau of Investigation conducted the raid.
Again quoting from the Supreme Courts Cornerstone opinion:
In the early afternoon on March 19, 2009, Cornerstone filed an action in theLowndes Circuit Court against Governor Riley, in his official capacity, Barber,in his official capacity as the Task Force commander, and certain other membersof the Task Force in their official capacities (collectively the Riley defendants).Cornerstone sought, among other things, a declaratory judgment and preliminary
and permanent injunctive relief regarding the seizure of the electronic gamingmachines by the Task Force. Specifically, Cornerstone requested a judgmentdeclaring that its bingo operation at the EC is permitted under Amendment No.674, Ala. Const.1901, and whether the electronic gaming machines seized by theTask Force constitute illegal slot machines under 13A-12-27, Ala.Code 1975.Cornerstone requested a preliminary injunction restraining the Task Force fromany further interference with its operation at the EC during the pendency of thisaction and directing the Task Force to returnall the seized machines, servers, andrecords based on its belief that the machines are legal under Alabama law.
Freedom Trail Ventures, Ltd. (FTV), subsequently filed a motion to intervenein the action, alleging that it owned at least some of the machines seized by the
Task Force and that it had leased those machines to Cornerstone. The trial courtgranted FTV's motion for the limited purpose of allowing it to participate in thepreliminary-injunction phase of the proceeding.
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Id. at * 1-2.
In response, the defendants in theDeclaratory Judgment Action filed anAnswerand
Counterclaim, on April 20,2009. The defendants counterclaimseeks a declaratoryjudgment that the games being played at the White Hall facility constituted illegalgaming rather than bingo under Amendment 674, that the machines used wereillegal gambling devices, and that the items seized during the raid are properly the
subject of forfeiture proceedings.
The defendants Answer and Counterclaim was signed by David Barber,Supernumerary District Attorney, Special Prosecutor and Commander of the
Governors Task Force on Illegal Gambling and Gubernatorially Appointed
Attorney, on behalf of all Defendants. Recently, John M. Tyson, Jr., Martha
Tierney, and Edgar Greene filed a notice of appearance as Special Prosecutors forthe Governors Task Force on Illegal Gambling. (The Court understands from
media accounts that David Barber is no longer with the Governors Task Force,although Mr. Barber has not yet filed a motion to withdraw).
Also pending before the Court is the related case of State of Alabama v. ChadDickie, et al (CV-09-900027), which is a forfeiture action brought pursuant toAla.
Code 13A-12-30(referred to hereafteras theForfeiture Action). The complaint,which seeks the forfeiture of both money and gambling devices, was signed byDavid Barber, as Commander and Special Prosecutor of Governors Task Force
on Illegal Gambling and as Supernumerary District Attorney with AuthorityConferred by Gubernatorial Appointment, ex rel. State of Alabama. In this caseas well, John M. Tyson, Jr., Martha Tierney, and Edgar Greene recently filed a
notice of appearance as Special Prosecutors for the Governors Task Force onIllegal Gambling.
Cornerstone Community Outreach, Inc., and Freedom Trail Ventures, Ltd., as thedefendants in the Forfeiture Action, have filed motions to dismiss the complaint.Each motion asserts, inter alia, that Petitioner and its counsel lack the legal
authority to assert this forfeiture petition. The motions remain pending.
This Court must eventually address the extent to which further proceedings in theseactions are affected by the Supreme Courts Cornerstone decision and itssubsequent decision ofTyson v. Macon County Greyhound Park, Inc.,--- So.3d ----,
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2010 WL415271 (Ala.,Feb. 4, 2010). Even before reaching those issues, however,
this Court must address whether counsel of record for the Governmental Parties(i.e., the defendants in the Declaratory Judgment Action and the State of Alabama
in the Forfeiture Action) can in fact appear and represent those parties.
This inquiry begins with Executive Order 44, which Governor Riley signed onDecember 29, 2008. The Executive Order generally provides the following:
1. The Governors Task Force on Illegal Gambling is created for the
purpose of promoting and supporting uniform statewide enforcement ofAlabamas anti-gambling laws and to carry out the Alabama Constitutionsstrong public policy against lottery schemes and illegal gambling. The
Director of the Department of Public Safety and the Administrator of the
Alcoholic Beverage Control Board, and such agents as each maydesignate,are included in the Task Force. Among the responsibilities of the Task
Force are to serve as a resource for local prosecutors and law enforcementofficials who request assistance in the investigation and prosecution ofgambling-related offenses and to provide technical assistance,
investigative support, law enforcement personnel, and any other assistancerequested by local authorities reasonably necessary to enforce Alabamas
anti-gambling law.
2. A supernumerary district attorney is designated as a Special
Prosecutor and Commander of the Task Force. Pursuant to Ala. Code 12-17-216, this Special Prosecutor shall have statewide jurisdiction and ishereby authorized, with the support of the Task Force, to conduct
investigations, attend any regular, adjourned or special session of any circuitcourt, in anyof the judicialcircuits of Alabama forthe investigation of or theprosecution or defense of any case related to gambling activity in the State
of Alabama.
The statute cited therein, Ala. Code 12-17-216, provides the following:
Supernumerary district attorneys shall take the oath of office prescribed by theconstitution for judicial officers and shall have and exercise all the duties, powerand authority of districtattorneys ofthe judicial circuitsor circuitcourts and shall,upon request of the Governor, the Chief Justice of the Supreme Court or theAttorney General, conductinvestigations, attend anyregular, adjourned or special
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session of any circuit court in any of the judicial circuits of Alabama for theinvestigation of or the prosecution of any criminal case or the prosecution ordefense of any case in which the state is interested. The Governor, any memberof the Supreme Court or courts of appeals or the Attorney General may request a
supernumerary district attorney to perform duties as thoseprescribed for assistantattorneys general, either in their respective offices or at such other places withinor without the state as such officials may assign him. When on such specialassignment at therequest or designationof one of theaforementioned officials andperforming duties as those prescribed for assistant attorneys general, thesupernumerary district attorney shall have all the powers and authority of anassistant attorney general and shall be entitled to the same amount of sick leaveand annual leave that accrues to an assistant attorney general; and, whileperforming such duties at the request of the Attorney General, he shall bedesignated as a special assistant attorney general.
Governor Riley signed Amendment 1 to this Executive Order on January25, 2010.Among other things,this amendment recognizes theGovernors authority to appoint
district attorneys or assistant district attorneys to serve as Special Prosecutorspursuant to Ala. Code 12-17-184(10), which provides as follows:
It is the duty of every district attorney and assistant district attorney, within thecircuit, county, or other territory for which he or she is elected or appointed:
* * *
(10) To go to any place in the State of Alabama and prosecute any case or cases,or work with any grand jury, when called upon to do so by the Attorney Generalor the Governor of the State of Alabama, and to attend sessions of courts andtransact all of theduties of thedistrict attorney in the courts whenever called uponby the Attorney General or the Governor to do so.
(The Court understands that the basis for this amendment is the fact that Mr. Tyson recently appointed by the Governor to serve as the Commander and Special
Prosecutor of the Task Force remains the current District Attorney for MobileCounty, thus rendering the supernumerary district attorney statute inapplicable).
Certain goals of the Executive Order, as amended, appear uncontroversial, such as
coordinating investigative efforts of various executive agencies and serving as aresource for local law enforcement authorities. That certain personnel connected
with the Task Force participated in the raid of March 19, 2009, moreover, does notconcern the Court at this juncture because there is independent statutory authority
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enabling personnel to act as peace officers in obtaining and executing on the search
warrant.
As discussed above, for example, the search was conducted pursuant to a warrantissued to Mike Reese, withthe ABC Board, an executive agencywith statewidelawenforcement authority. See, e.g., Ala. Code 28-3-43(a)(6)(ABC Board mayappointagents, inspectors or investigatorsand commission themto make arrests and
execute search warrants). The warrant was executed by ABC agents and AlabamaState Troopers, who are under the direction of the Alabama Department of Public
Safety, also an agency with defined law enforcement authority. See, e.g., Ala.Code 32-2-22 (statetroopers have statewide powers of peace officers); see alsoRobertsv. State ex rel. Cooper, 253 Ala. 565, 568, 46 So.2d 5, 7 (Ala. 1950)(dealing with
a predecessor provisionofAla. Code 13A-12-30, the Supreme Court held that the
members of the highway patrol named, while acting under the written authoritygiven by the governor, were clothed with authority as peace and law enforcement
officers to seize said gambling devices and report their seizure to the solicitor of thecounty wherein they were seized and on such report he was authorized to file suitseeking their condemnation and destruction).
On the other hand, this Court is concerned with the Governors efforts to appoint
a Special Prosecutor as defined in the Executive Order, as amended. In consideringthe impact of such efforts, it is necessary to focus on the office of the StatesAttorney General. The duties of the Attorney General are generally spelled out by
statute. For example, [h]e or she shall also attend to all cases other than criminalthat may be pending in the courts of this state, in which the state may be in anymanner concerned. Ala.Code 36-15-1(2). Moreover, [a]ll litigation concerning
the interest of the state, or any department of the state, shall be under the directionand control of the Attorney General. Ala. Code 36-15-21.
Beyond this statutory authority, the Courts attention turns to Ex parte Weaver, 570So.2d 675 (Ala.1990), which is particularly instructive sincethat case also involveda dispute between the Governor and the Attorney General, as the following
describes:
The plaintiffs in the original case are subscribers for health care benefits withBlue Cross and Blue Shield of Alabama (Blue Cross). They brought a classaction seeking a declaratory judgment and an order directing refunds of excessreserves alleged to be held by Blue Cross. The plaintiffs claimed that Blue Cross
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had accumulated an illegal and/or excessive profit and/or reserve and surplus inexcess of the amount allowed by statute in Alabama, or required for the solvencyof the plan and that Blue Cross's board of directors was not a representativecross-section of the population, as is required by statute.
Blue Cross moved to dismiss the complaint, alleging, among other things, thatthesubscribers had failed to exhaust administrative remedies in the AlabamaInsurance Department and had failed to join the Alabama Insurance Department.In response to the motion, the subscribers amended their complaint and addedtheInsurance Department as a defendant.
In March 1989, the circuit court entered orders certifying the plaintiffs' class;directing the Insurance Department to perform certain tasks under certainprocedural rules and to report to the court; entering partial summary judgment infavor of the plaintiffs; and denying all other pending motions. The partialsummary judgment in favor of the plaintiffs was entered by the trial judge on the
issue of liability, i.e., he held as a matter of law that Blue Cross was illegallycalculating reserves.
Blue Cross filed a petition for writ of mandamus or prohibition or both, in theCourt of Civil Appeals. Mike Weaver, as Commissioner of Insurance, in June1989 filed an appeal or, in the alternative, a petition for a writ of mandamus fromthe Court of Civil Appeals to vacate the trial court's order.
Attorney General Don Siegelmanfiled a motion on October 12, 1989, inthe Courtof Civil Appeals to dismiss the appeal and the alternative petition for writ ofmandamus brought by the Department of Insurance. Briefs were filed and oralargument was held on November 14, 1989, in the Court of Civil Appeals on theissue of control of litigation of the Insurance Department. The Court of CivilAppeals granted the motion to dismiss, ruling that the attorney general has thepower to manage and control all litigation on behalf of the State of Alabama andall of its departments.
The petition for writ of mandamus before us seeks to vacate the decision of theCourt of Civil Appeals. We must determine whether the attorney general of theState of Alabama has the authority to move to dismiss the State InsuranceDepartment's proceedings in the Court of Civil Appeals over the objection of thecommissioner of insurance.
Id. at 676-77.
After an extensive review of both Alabama law and decisions from other jurisdictions, the Supreme Court denied the mandamus petition filed by the
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Commissioner of Insurance:
We have carefully reviewed the law and the precedents in this case. Theoverwhelming authority supports the decision of the Court of Civil Appeals thatthe attorney general has the power to manage and control all litigation on behalfof the State of Alabama. We hold that the attorney general of the State ofAlabama has the authority to move to dismiss the State Department of Insurance'sproceedings inthe Court of Civil Appeals over the objection of the commissionerof insurance.
We recognize that there may be times when the Governor disagrees with theattorney general about matters in litigation. Although we determine that theattorney general is authorized to direct the course of all litigation involving theState and its agencies, the Governor, as chief magistrate of the State, mayintervene in any such litigation. Rule 24, A.R.Civ.P. As an intervenor, the
Governor may express his views and take positions contrary to those argued bythe attorney general.
Id. at 684.
Even though the Governor was not a named party in the Weaver litigation, theholding is persuasive here. Rejected there was the argument that the Governor asthe States chief magistrate has the right under the Constitution to hire counsel
other than the Attorney General to represent the Commissioner of Insurance. See570 So.2d at 678. Further, as Justice Houston recognized in dissent, the positionstaken by the Commissioner are to be regarded as those of the Governor:
Under this constitutional and statutory structure, the Governor, as the supremeexecutive responsible under the Constitution for the execution of the lawsof thisState, acts by and through agency and departmental heads, who serve as vehiclesby which the Governor carries out his constitutional mandate. By executing hispower to appoint and to remove, the Governor ensures that the executivedepartments and agencies implement his decisions and adhere to his policies andhis interpretations of the laws so that his decisions may be faithfully executed.The act of any of these subordinate executives is the act of the Governor himself.
Id. at 685 (Houston, J., dissenting).
The Weaverdecision was recently cited in Chapman v. Gooden, 974 So.2d 972(Ala. 2007), in addressing the Attorney Generals ability to moot a pending dispute
involving the Secretary of State by assuming an interpretation of the Alabama
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Constitution in line with the plaintiffs position. The following excerpt for the
Gooden opinion reflects the Supreme Courts continued regard for the AttorneyGeneral as the States lead lawyer:
However, [t]he attorney general is . . . the chief law officer of the state, and onhim are conferred various authorities and duties in connection with instituting andprosecuting, in the name of the state, suits and other proceedings . . . for thepreservation and protection of the rights and interests of the state. Ex parteWeaver, 570 So.2d675, 679 (Ala.1990) (quoting State ex rel.Carmichael v. Jones,252 Ala. 479, 484, 41 So.2d 280, 284 (1949)) (emphasis added). See, e.g.,Ala.Code 1975, 36-15-21. Essentially all litigation concerning the interest ofthe state or any department thereof [lies] under the direction and control of theattorney general. 570 So.2d at 679-80 (quoting State ex rel. Carmichael, 252Ala. at 484, 41 So.2d at 284).
That the attorney general has the power to formulate legal policy for the State,and, in connection therewith, the power to bind state officers and departments inlitigation is well established. 570 So.2d at 681 (discussing with approval Feeneyv. Commonwealth, 373 Mass. 359, 368, 366 N.E.2d 1262, 1267 (1977)). In Ex
parte Weaver, supra, this Court held that the attorney generalhad the authority tomove to dismiss the State Department of Insurance's [appeal/mandamus petition]in theCourt of Civil Appeals over the objection of thecommissioner of insurance.570 So.2d at 684. In so doing, it relied on State ex rel. Carmichael v. Jones:
In [Jones], the attorney general brought a mandamus action tocompel the trial court to enter a consent judgment in a casepending between the State Department of Revenue and several
defendants. The question presented was whether the attorneygeneral was authorized and empowered to settle a pending suit bythe State filed by him in his official capacity for the collection ofan unliquidated tax claim, by taking a consent judgment in thecause for less than the amount sued for and claimed to be due bythe revenue department. This Court held that the attorneygeneral, as the chief law officer of the state, was fully empoweredto make any bona fide disposition of the cause as in his judgmentmight be deemed to be to the best interest of the state unlessinhibited by organic law.
Ex parte Weaver, 570 So.2d at 679 . . . .
Gooden, 974 So.2d at 988.
The Court now returns toAla. Code 12-17-216. The Governmental Parties assert
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that this statute is no longer in play given that attorneys Tyson and Tierney,
respectively the District Attorney and the Assistant District Attorney for MobileCounty, are acting pursuant to Ala. Code 12-17-184(10). The Court disagrees,
becausethe Answer and Counterclaim in the Declaratory Judgment Action, and thePetition in the Forfeiture Action, were filed by attorney Barber whose appointmentto act ostensibly on behalf of the State of Alabama, and officials thereof, waspursuant toAla. Code 12-17-216.
In its order of February 11, 2010, this Court mused about possible constitutional
infirmities of this statute. Certainly, if interpreted broadly enough, complications ofa constitutional magnitude could arise. The Court agrees with the parties, however,thatit should if possible avoid constitutional questions. After careful consideration,
the Court concludes that it need not wade into a constitutional quagmire. Rather,
proper interpretation of the statute allows it to skirtpast anyconstitutional challengewhile at the same time preserving the proper role of the States constitutional
officers, as described above.
While several officials have the apparent right to request or designate a
supernumerary attorneygeneral to perform duties underAla. Code 12-17-216, thisCourt concludes that any such person so designated may perform such duties only
subject to the direction and control of the Attorney General. This statute does notenable a supernumerary district attorney to act beyond the Attorney Generalsauthority. It must be remembered that the Attorney General may direct and control
the actions and positions of district attorneys throughout the State. See, e.g., Ala.Code 36-15-14, 36-15-15 & 36-15-21; see also Graddick v. Galanos, 379 So.2d592,594 (Ala. 1980). To somehow givea supernumerary districtattorneyunfettered
independence from this control makes no sense.
Indeed, to useAla. Code 12-17-216 in an effort tocreate a new kind of prosecutor,
who acts purportedly on behalf of the State but who is answerable to anyone otherthan the Attorney General, would fly in the face of authorities such as Weaver,Gooden, and the above-referenced statutes conveying broad powers to the Attorney
General over litigation involving the State. Given such powers as have historically
been given to the Attorney General, which Ala. Code 36-15-1.1 explicitlyconfirms, such an interpretation ofAla. Code 12-17-216 is untenable.
While the Attorney General has not appeared in these actions, this Court has
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The Governor does have the authority under Ala. Code 36-15-21 to employ personal counsel to
represent his interests. As the Supreme Court recognized in Weaver, 570 So.2d at 684, eventhough theAttorney General has thepower to direct the course of litigation involving the State andits agencies, the Governor may intervene to express his views and take positions that may becontrary to those of the Attorney General.
12
reviewed the Attorney Generals amicus curiae brief submitted to the Supreme
Court. From that, the inescapable conclusion is that in filing the Answer andCounterclaim in the Declaratory Judgment Action, the Petition in the Forfeiture
Action, and all other filings in these actions, attorney Barber did so without expressauthorization of the Attorney General. Such filings must thus be regarded as anullity, just as if they had been filed by a private citizen who claimed to represent theState.
Further, while the appearance of attorneys Tyson and Tierney in these cases is under
a different statute, Ala. Code 12-17-184(10), the same result applies. LowndesCounty has a District Attorney who has not recused himself and who has in factlooked into this matter, deciding not to pursue litigation. The only officer who can
second-guess the district attorney in this regard is the Attorney General. The
Governor lacks the authority to create his own prosecutor whenever a districtattorney takes a legal position that is not to his liking. While Ala. Code 12-17-
184(10) authorizes the Governor to designate a district attorney (or an assistantdistrict attorney)to go anywhere in the statein theperformance of statutorily-definedduties, it again must be remembered that the Attorney General retains ultimate
authority, as discussed above. Particularly when a district attorney is requested togo into another county, the orderly exercise of such authority is crucial to avoid the
chaos arising from conflicting legal positions.
Accordingly, theattorneys who have appeared forthe Governmental Parties may not
continue to represent these parties in theDeclaratory Judgment Action, nor may theyprosecute the Forfeiture Action, unless the Attorney General expressly ratifies whatthey have done up to this point and authorizes them to continue in this
representation.1
TheAttorney General has for whatever reason assumed a curious stance. While
complaining of the Governors actions in the Supreme Court, and in the media, the
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Attorney General has made no effort to defend the States interests in these cases.
He is under a duty to do so. Ala. Code 36-15-1(2) provides in part that theAttorney General shall attend to all cases other than criminal that may be pending
in the courts of this state, in which the state may be in any manner concerned . . .(emphasis added). Further, underAla. Code 36-15-21, [a]ll litigation concerningthe interest of the state, or any department of the state, shall be under the directionand control of the AttorneyGeneral (emphasisadded). Especially since these cases
involve claims raised against theGovernor and theheadsof two state agencies,thesestatutory obligations may not be ignored.
The Attorney General is therefore directed to assume the direction and control ofthe States interests in these cases. This Court, of course, may not dictate what the
Attorney Generals decisions must be; as the Weaver decision makes clear, such
decisions are pursuant to the Attorney Generals prerogative. This Court can,however, direct the AttorneyGeneral to come in offthe sidelines and decidehow the
States interests are best represented in these cases.
Accordingly, by March 22, 2010, the Attorney General is to advise the Court andthe parties of his position, in view of this order and of his statutory duties describedabove. The Court will thereafter determine the course of further proceedings in
these related cases.
DONE and ORDERED on this 8th
day of March, 2010.
/s/ Robert S. Vance, Jr.Circuit Judge
copies:
The Honorable Troy KingCounsel for the Parties
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SEARCH WAI RANTSTATE OF ALABAMA
2^^* JUDICIAL CIRCtJITTO A N Y L A W E N F O R C E M E N T O m C E R W I TH IN T HE S T A T E OF A L A B A M A :
Affidavit in support of application for a search warrant having been make before me, andthe Coiiit'sfinding hat groiinds for the issuance exist or that there is probable cause to believethat they exist, yon are hereby ordered and authorized to forthwith search:T H E FO L L O W IN G P L A C E :White Hall Eatertaimnent Center. 6967 US Highviray 80 W , White Hall , LowndesCounty, Alabania,J:o include al l buildingSj, offices, storage facilities, storage containers, trashreceptacles, vaults,'aiid safe ' ' " """A N D TO SEIZE T H E FO L L O W I N G P R O P E R T Y S H O U L D IT B E F O U N D :Illegal gambling devices, illegal gambling machines, slot machines, computers, computerhardware computer software, servers, network devices, and other computer peripheral devices;White Hall Players Club cards, records of White Hall Players Clubmembers, handvwrittenrecords, notes, balance sheets, accounting books, employee records, surveillance data, leases,rentalflgi-eemeiits hat would be evidence of.possession of a gambling device, simple gamblingor promotbig gambling, as described in the AJabama rn'minnl C.nt^p.; other equipment andrecords located at the' stated location that contains data, in whatever format they may exist,related to the operation of illegal gambling devices, illegal gambling machines, and slotrnachines; records, in whatever format they may exist, related to the winnings, losses, paymentmethods, including but not limited to Department of the Treasury Internal Revenue Service FormW-2G's, and U.S. Currency apparently obtained through the use or operation of any illegalgambling devices, illegal gambling machines or slot machines, or other illegal gambling activityupon said premises.SEIZURE IN PLACE:In the alternative to a search and seizure, due to thelgrgelSnmber of suspected illegalgambling devices, illegal gambling machines, and slpJ-n:Iachines, and to protect the machines andtheir electrical and computer wiring sj ^ortJfMtfthe possibility of any physical damage during aseizure and removal of same, a 'Jsei mr tfpiace'' is hereby authorized for a reasonable period oftime, not to exceed ten n'0}^M)fOT^e State to complete the the examination of said machinesand to seize a reasonabl|,im5ber ofactual machines as well as any of the other specifiedmaterial set out h reifiaDCr .
""""" Judge, 2nd Judicial Circuit.
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Y ou are herebyftirtherordered to make a retum of this warrant and an inventory of al l propertyseized hereunder to a Judge of the 2"* Judicial C ircuit within ten (10) days of execution.This warrant may be executed at any time of the day or night.I SSU ED TO : U Mike Reese at g ^ ' ^ V o'clock M . , this the " T a y of March,2009.
,,2"'^ JudiQS: ! Circuit
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IN TH E CIRCUIT CO URT O F LO WNDES CO UNT Y, AL AB AM A
CO RNERSTO NE CO MMUNITYO U T R E A C H , INC.,
Plaintiff,Civil ActionNo.: CV-09-900019v.
BO B RILEY, G O VERNO R,STATE O F A L A B A M A ;DAVID BARBER, SPECIALPRO SECUTO R FO R TASK FO RC EO N IL L E GA L G AM BLING PERG O V E R N OR 'S E X E C U T I V EORDER #44; EM OR Y FO LM AR ,ADMINISTRATO R ALABAMAB E V E R A G E C O N T R O L B O A R D ;C O L . CHRISTOPHER MURPHY,DIRECTO R, DEPARTMENTO F PUBICS A F E T Y ,Defendants.
AMEN DED VERIFIED CO M PLAINT FO R TEM PO RA RY RESTRAININGO RDER AND O TH E R REL IEFComes now Plaintiff, Cornerstone Community Outreach, Inc. ("Cornerstone")
and files this verified complaint seeking a temporary restraining order, preliminary andpermanent injimctions, and declaratory relief. Plaintiff says unto the court as follows:
PARTIES1. Cornerstone is a non-profit organization, tax exempt, organized and
operating under the laws of the State of Alabama. Cornerstone is located and doesbusiness in Lowndes County, Alabama. Cornerstone operates charity bingo games inWhite Hall, Alabama pursuant to Alabama Constitutional Amendment 674, Constitutionof Alabama of 1901.
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2. The Defendants are all State officials, including the governor, in charge ofa department or agency of the State of Alabama, located in Montgomery County,Alabama. Defendants Barber, Folmar, and Murphy are members of the Task Force onIllegal Gambling created by Governor Riley's Executive Order N o. 44.
JURISDICTION3. This complaint is brought pursuant to the provisions of Ala . Code 6-6-
220, et seq. (1975), Declaratory Judgments, Ala. Code 6-6-500, et seq. (1975),Injunctions, Ala. R. Civ. P. 57, Declaratory Judgments, and Ala. R. Civ. P. 65,Injunctions, together with all applicable statutes and common law.
FACTS4. Cornerstone obtained a license fi"om the Town of White Hall, Alabama
and operates a bingo gaming facility called the White Hall Entertainment Center ("WhiteHall EC") , located at 6999 U .S . Highway 80 West, White Hall, Alabama 36040. WhiteHall EC is licensed pursuant to the authority granted to the Town of White Hall byAlabama Constitutional Amendment 674, and the Town of White Hall's BingoCommission and Rules.
5. On December 29, 2008, Governor Bob Riley entered Executive Order N o.44 that created a Task Force on Illegal Gambling ("Task Force") to purportedly promoteuniform statewide enforcement of Alabama anti-gambling laws. The Task Force iscomposed of a Special Prosecutor and Task Force