031510 Exhibits Tyson Motion Stay 030810 Vance Order

8/9/2019 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)

[email protected]

Attorney for Petitioner

Governor Bob Riley

John M. Tyson, Jr.

Timothy W. Morgan

Martha Tierney

OFFICE OF GOVERNORBOB RILEY

600 Dexter Avenue


(251) 574-3307(251) 574-3311 (fax)

[email protected]

[email protected]

[email protected]

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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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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23

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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24

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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25

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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27

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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28

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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29

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


(251) 574-3307

(251) 574-3311 (fax)

[email protected]

[email protected]

[email protected]

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


(334) 242-7120

(334) 242-2335 (fax)

[email protected]

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

[email protected]

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

[email protected]

Joe Espy, III

William M. Espy

Melton, Espy, & Williams, P.C.

P.O. Drawer 5130

Montgomery, AL 36103

[email protected]

The Honorable Troy King

Office of the Attorney General

500 Dexter Avenue


[email protected]

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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3

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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4

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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5

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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7

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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8

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

Documents

031510 Exhibits Tyson Motion Stay 030810 Vance Order