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

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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.

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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