Filed - Houston Emergency Motion to Stay

8/14/2019 Filed - Houston Emergency Motion to Stay

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No. 1090444

IN THE SUPREME COURT OF ALABAMA

D AVID B ARBER , SPECIAL PROSECUTOR FOR T ASK FORCE ON ILLEGAL G AMBLING,

Appellant,

V .

THE COOPERATIVE DISTRICT OF HOUSTON COUNTY – COUNTRY CROSSING PROJECT;

HOUSTON ECONOMIC DEVELOPMENT A SSOCIATION; AND THE HOUSTON COUNTY

COMMISSION,

Appellees.

EMERGENCY MOTION TO STAY ALL PROCEEDINGS PENDING

DISPOSITION OF APPLICATION FOR REHEARING AND ISSUANCE OF

MANDATE

On interlocutory appeals from the Circuit Court of Houston

County

(The Honorable P.B. McLauchlin, Dale County Circuit Judge,sitting by appointment)

(Nos. CV-2009-379, CV-2010-03 (consolidated))

____________________________

John M. Tyson, Jr.

Martha Tierney

Edgar Greene

OFFICE OF GOVERNOR BOB RILEY

600 Dexter Avenue

Montgomery, Alabama 36130(334) 242-7120

(251) 574-8400 (fax)

(334) 242-2335 (fax)

Attorneys for Appellant John

Tyson, Jr., Special Prosecutor

E-Filed

02/10/2010 @ 10:11:57 AM

Honorable Robert Esdale

Clerk Of The Court





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phrasing of those questions strongly implies that the

circuit court has prejudged those issues contrary to this

Court’s rulings.

This Court should stay the circuit court’s

impermissible shadow proceedings pending this Court’s own

resolution of those issues pursuant to Appellees’

application for rehearing. In support of this Emergency

Motion to Stay All Proceedings, Tyson states as follows:

PROCEDURAL HISTORY

1. Appellees sought to enjoin the execution of a

warrant directing the search and seizure of illegal

gambling machines at the Country Crossing casino. They

filed an action for declaratory and injunctive relief in

Houston County Circuit Court, Case No. CV-2010-03 (the

“Declaratory Judgment Action”), but all Houston County

Circuit Judges recused from that case.

2. Therefore, the Appellees’ attorneys met ex parte

with Dale County Circuit Judge McLauchlin who consolidated

the Declaratory Judgment Action with a closed case about a

bond issue, Case No. CV-2009-379, and issued a TRO against

the search warrant.



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3. Appellant Barber appealed that TRO and another TRO

entered to correct technical errors in the first TRO.

4. Taking up Barber’s first appeal, this Court

unanimously held that the circuit court lacked subject

matter jurisdiction and ordered the Declaratory Judgment

Action dismissed in its entirety. The Court’s order listed

both the bond action’s case number and the Declaratory

Judgment Action’s case number. The Court explained that

the circuit court “lack[ed] subject matter jurisdiction to

interfere with a criminal proceeding by civil action.”

Order of January 15, 2010, attached as Exhibit A . The

Court reasoned that “[w]here the court lacks subject-matter

jurisdiction the order appealed from is void.” Id. Because

the circuit court lacked subject matter jurisdiction, the

Court “vacate[d] the order, dismiss[ed] the action and

dismiss[ed] this appeal.” Id.

5. Appellees moved for rehearing of this Court’s

order. They requested that the Court clarify whether it

had ordered the bond action dismissed, the Declaratory

Judgment Action dismissed, or both. Appellees also asked

the Court to reconsider its decision to the extent it had

ordered the Declaratory Judgment Action dismissed.



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Specifically, Appellees argued that the circuit court has

jurisdiction to grant the Appellees a declaratory judgment

that their gambling devices are legal.

6. Shortly before Appellant’s opposition to the

application for rehearing was due in this Court, Appellees

moved the circuit court to set a hearing to schedule trial

proceedings and for expedited discovery. Appellees also

noticed the depositions of John Tyson and David Barber.

7. On February 9, 2010, Appellant filed an opposition

to the application for rehearing before this Court.

Appellant explained that this Court’s dismissal of the

underlying action was proper because Appellees’ Complaint

in the Declaratory Judgment Action requests relief that

would require the circuit court to impermissibly

superintend law enforcement. Appellant noted that this

Court had ruled that “a court may not interfere with the

enforcement of criminal laws through a civil action;

instead, the party aggrieved by such enforcement shall make

his case in the prosecution of the criminal action.” Tyson

v. Victoryland, --- So. 2d ---, No. 1090548, at 4-5 (Ala.

February 5, 2010). “A declaratory judgment will generally

not be granted where its only effect would be to decide





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dint of Appellees’ application for rehearing. On February

9, the court ordered that these issues would include:

“whether or not the case is still pending on rehearing

before the Supreme Court,” “whether or not the case . . .

is still pending or was dismissed by the Supreme Court of

Alabama by order of January 15, 2010,” and, critically, the

merits question of “whether or not law enforcement . . .

can seize private property before it has been determined

whether or not the possession or use of the private

property is legal or illegal by court decision.” Order of

February 9, attached as Exhibit C.

11. On February 10, the circuit court unilaterally

amended its previous order to include additional questions

for the February 18 hearing. The wording of these

questions is anything but neutral. These new questions

include “whether the seizure of property, the possession of

which and use of is legal, is unreasonable and violated the

Fourth amendment of the U.S. Constitution” and “whether an

arrest of a person for possession of or use of property

known to be legal is without probable cause.” Order of

February 10, attached as Exhibit D.



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12. Appellant moved the circuit court to stay the

February 18, 2010 hearing pending this Court’s disposition

of Appellees’ application for rehearing. See, e.g., Landis

v. North American Co., 299 U.S. 248 (1936) (stay of

proceedings to await the decision of another court is

within the inherent power of the court). The circuit court

denied that request, and this emergency motion to stay

followed. See Ex. B. at 35-36.

ARGUMENT

13. This Court should stay all proceedings in the

circuit court pending its disposition of Appellees’

Application for Rehearing and the issuance of the mandate.

Otherwise, circuit court proceedings will continue as if

the Court granted the petition for rehearing. Cf. V.R. v.

State, 852 So.2d 194, 199 (Ala. Crim. App. 2002) (“we

stayed the proceedings in the circuit court so that we

could address the State's argument on rehearing”). A stay

of the circuit court proceedings will avoid duplicative

litigation, prevent the waste of State and judicial

resources, and provide for the orderly resolution of the

issues that Appellees have raised in both this Court and

the circuit court.







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seize machines it believes to be illegal, and whether the

circuit court has jurisdiction over Appellees’ remaining

declaratory judgment claims, if any -- are the exact same

questions that Appellees have posed to this Court.

Accordingly, no one is served by allowing joint

consideration of those issues. If the circuit court enters

an order before this Court does, it will serve no purpose

given the fact that this Court will already be ruling on

the same issues. And, if this Court issues an order on

rehearing before the circuit court rules, then the circuit

court will not have authority to reach a contradictory

order. Either way, any proceedings in the circuit court

will have been a waste of time and resources -- including

law-enforcement resources that should be expended

investigating illegal gambling, rather than briefing

meritless motions filed by Appellees in the circuit court.

Moreover, the circuit court’s mere act of holding such

proceedings will undermine the respect that is owed to

rulings of this Court.

18. In short, the circuit court is taking upon itself

the purported authority to readjudicate the Court’s rulings

in this case and in the case of Tyson v. Victoryland, ---





12

Montgomery, Alabama 36130

(334) 242-7120

(251) 574-8400 (fax)

(334) 242-2335 (fax)

Attorneys for Appellant JohnM. Tyson, Jr., Special

Prosecutor





EXHIBIT A









EXHIBIT B



Houston Economic Development Association v.David Barber, et al.

February 9, 2010

Reagan Reporters, LLCPhone: 334-262-7556

Fax: 334-262-4437www.reaganreporters.com



IN THE CIRCUIT COURT OF

HOUSTON COUNTY, ALABAMA

HOUSTON ECONOMIC

DEVELOPMENT ASSOCIATION

& HOUSTON COUNTY

COMMISSION,

Plaintiff,

vs. CASE NO.

38-CV-2010-000003.00

DAVID BARBER; et al.,

Defendants.

* * * * * *

TELECONFERENCE,

taken in the Offices of the State Capitol ,

600 Dexter Avenue, Alabama State Capitol

Room NB-06, Montgomery, Alabama, before

Jenny Cone, Certified Court Reporter and

Notary Public in and for the State of

Alabama at Large, on January 9, 2010,

commencing at 10:33 a.m.

R E A G A N R E P OR T E R S , L L C

3 3 4 . 2 6 2 . 7 5 5 6w w w . r e a g a n r e p o r t e r s . c o m

TELECONFERENCE -- 1/9/10 1

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c531d3fd-bcd5-4627-a6bb-39d

Houston Economic Development Association v. David Barber, et al. - 2/9/2010

www.reaganreporters.com

334-262-7556 Reagan Reporters, LLC 334-262-4437

2 (Pages 5 to 8)

Page 5

1 MR. SOMERVILLE: Melanie,2 hi. This is Will Somerville. How are3 you?4 MELANIE DAVIS: Good. How5 are you?

6 MR. SOMERVILLE: I'm fine.7 I've got Will Matthews and Gary Sherrer.8 MELANIE DAVIS: Okay.9 MR. SOMERVILLE: And I10 guess -- who else do we have on the line?11 MR. TYSON: We have John12 Tyson, who's here with Sonny Reagan.13 MELANIE DAVIS: Okay.14 MR. TYSON: Also in the room15 with me, but not speaking, will be Mike16 Pennington, Martha Tierney, and Tony17 Goubil. We also have a court reporter

18 here, Jenny Cone, Certified Court19 Reporter, just to make sure. Don't know20 that she's necessary. The Court may have21 already found a court reporter; but I've22 been wishing I had one in another23 proceeding, so we took the liberty of

Page 6

1 getting one this time.2 MELANIE DAVIS: All right.3 Let me get the Judge, okay?4 MR. TYSON: All right.

5 THE JUDGE: Hello?6 MR. SOMERVILLE: Morning,7 Judge.8 THE JUDGE: Yes, sir.9 MR. SOMERVILLE: This is10 Will Somerville and Will Matthews --11 THE JUDGE: Okay.12 MR. SOMERVILLE: -- for the13 Houston Economic Development Association,14 Gary Sherrer for Houston County and the15 Development District of Houston County, I16 believe; and then John Tyson, Mike

17 Pennington, Sonny Reagan, and Martha18 Tierney for the -- for Tyson, I guess.19 THE JUDGE: Okay, sir.20 MR. TYSON: Your Honor, this21 is John Tyson. Mr. Pennington will not22 be speaking. He is here with us, and we23 wanted you to know that. But I think for

Page 7

1 the most part, I will be speaking on2 behalf of this side, though Mr. Reagan3 and Ms. Tierney are actual members of the4 task force themselves.5 I also have present with me,

6 Your Honor, Mr. Tony Goubil, who is the7 chief investigator in Mobile County8 District Attorney's office, and as I9 mentioned to your receptionist, we do10 have a court reporter here, Ms. Jenny11 Cone -- C-O-N-E.12 THE JUDGE: Okay. What have13 we got?14 MR. SOMERVILLE: Judge, we15 just -- there's some -- this is Will16 Somerville. Is there a court reporter in17 your chambers as well?

18 THE JUDGE: Nah-uh.19 MR. SOMERVILLE: We've got20 -- and I want to make sure Ms. Cone can21 understand what I'm saying.22 MR. TYSON: She's shaking23 her head yes, she can understand

Page 8

1 everybody loud and clear. We're on2 speakerphone here in a conference room.3 MR. SOMERVILLE: Is she also4 making a tape recording of this?

5 MR. TYSON: She -- she says6 yes, she is.7 MR. SOMERVILLE: Your Honor,8 there's some question, I guess, that --9 or at least raised by Mr. Tyson as to10 whether this -- this case is pending and11 whether we can go forward with the12 depositions we've noticed for this13 Friday.14 THE JUDGE: Uh-huh.15 MR. SOMERVILLE: I just want16 to -- they've filed a motion to dismiss

17 on the ground that we've asked for a18 rehearing, for one thing, and also on the19 ground that the Supreme Court, they20 claim, dismissed both cases. There are21 two cases. There's the 2010 declaratory22 judgment case that we filed. There's23 also the 2009 bond validation







3 (Pages 9 to 12)

Page 9

1 proceeding.2 THE JUDGE: Uh-huh.3 MR. SOMERVILLE: And I just4 want to make clear to the Court -- and I5 think the Court will agree -- first of

6 all, that the 2010 case is not on7 rehearing. In fact, at our petition for8 rehearing, we said because no appeal has9 been taken from any order entered in the10 2010 action, the Court's reference to the11 action plainly referred only to the bond12 validation action.13 Accordingly -- and we told14 the Supreme Court this -- we are15 proceeding on the assumption that the16 declaratory judgment action, that is the17 2010 action, remains pending. And so

18 there's no basis for concluding that we19 ask for a rehearing in the 2010 case20 unless somehow the Supreme Court tells us21 that, no, we did dismiss it, and -- and22 they certainly haven't told us that.23 We've gotten no indication from the

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1 Supreme Court at this point that we are2 not to proceed in the 2010 declaratory3 judgment action.4 And let me say this also:

5 If the Supreme Court meant what Commander6 Tyson is saying -- I'm calling him7 Commander because he's the commander of 8 the task force -- then it -- it wouldn't9 have remanded -- we've got these two10 other cases, the Cornerstone case that11 was in exactly the same posture as ours,12 a declaratory judgment action trying to13 determine the validity of the electronic14 bingo machines. The Supreme Court15 remanded that case for further16 proceedings in the trial court.

17 The same thing with the18 Surles case. That was also a declaratory19 judgment case that the Supreme Court just20 decided. They don't mean that you can't21 have a declaratory judgment action to22 determine the legality of electronic23 bingo because there are two cases where

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1 they remanded it to the trial court to2 determine exactly that.3 Now then, Mr. Tyson also4 claims -- or Commander Tyson also claims5 that this Court doesn't have

6 jurisdiction, okay, because somehow this7 is law enforcement or something. I'm8 going to quote you verbatim from Mr.9 Tyson's press release following Judge10 Thompson -- Federal Judge Thompson's11 denial of our motion for a temporary12 restraining order.13 Here's what he said. This14 is what Mr. -- what Commander Tyson said:15 If Country Crossing wants to seek a court16 ruling now on the legality of the17 machines, then its facilities should

18 remain closed until a court proceeding is19 fully and finally concluded. The task 20 force will not stand by and allow21 criminal activity to proceed with22 impunity.23 Your Honor, that is exactly

Page 12

1 what we're doing here. We are closed.2 We want to get a court ruling that we're3 -- that our machines operate properly.4 We're doing exactly what Mr. -- what

5 Commander Tyson told us to do in his6 press release, and now he's saying we7 can't even do that.8 Well, the position he's9 trying to put us in, frankly, is that10 he's like a military dictator. The11 Supreme Court, according to him -- and I12 don't think we think -- I don't think we13 believe that the Supreme Court would do14 such a thing.15 According to him, he's16 saying that the Supreme Court says, well,

17 you guys, you have a choice. Either18 close down and you can't get a ruling, or19 stay open and I'll take all your stuff.20 And the only remedy you have then is down21 the road sometime, year -- year from now,22 whatever, you can have a hearing on your23 civil forfeiture. Well, by then, we've







4 (Pages 13 to 16)

Page 13

1 lost all of our business.2 According to Mr. Tyson,3 Commander Tyson, he's able to shut down4 businesses by simply bringing the5 military power of the state to bear with

6 seeing 200, 300 state troopers to our7 facility, however many he sent, shutting8 us down without a warrant, which is what9 he did the other night, and making us10 stay closed until we get a judicial11 determination.12 But now he's saying we can't13 even get a judicial determination. It's14 like a Catch-22. He's like the -- here's15 the other thing. He's -- he's a military16 dictator in another sense. While the17 elected Attorney General of this state

18 has declared that our facility is legal,19 and that, I mean elected by all people of 20 the state -- and that, incidentally, is21 in election -- in an election that Mr.22 Tyson lost, ran for that position. Now23 he is --

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1 MR. TYSON: Your Honor, Your2 Honor, Your Honor, this is Tyson.3 MR. SOMERVILLE: I haven't4 finished yet.

5 MR. TYSON: I understand,6 but I want to object. I mean, you know,7 we can talk about me all you want to in8 another place, but -- but picking on me9 and calling me, I guess I'll call them10 names, really doesn't seem to advance the11 issues that are before the Court.12 THE JUDGE: Let's don't have13 any ad hominem attacks. Let's just stick 14 with the issues involved.15 MR. SOMERVILLE: Your Honor,16 this is not an ad hominem attack. And

17 with all respect, he's -- Mr. Tyson18 has -- has -- he's taken -- he's in a19 position -- he's acting contrary to what20 the Attorney General has said. He's21 taken a different position from the22 Attorney General. He's exercising the23 military power of the state.

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1 MR. TYSON: Your Honor, I2 have no military power. I'm sorry. He3 keeps saying that, and he wants to say4 that. And that is classic ad hominem5 arguments. It has nothing to do with

6 this case. I don't claim any military7 powers, never had any military powers,8 don't want any military powers.9 I am in -- at the request of 10 the Governor, leading the Governor's task 11 force on illegal gambling, and if there's12 any power there, it is police power that13 is in use in every circuit in this state14 every day. So again, I renew my15 objection to these mischaracterizations16 of who we are and what we do.17 MR. SOMERVILLE: Your Honor,

18 this is purely a request by us to get19 declaratory relief from a court and20 consistent with what Mr. Tyson has said21 we're entitled to do or should do in his22 press release, and I think we're entitled23 to that. Again, we have a situation

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1 where if we're not permitted to do that,2 we have a situation where Mr. Tyson can3 threaten with force to shut -- to seize4 equipment.

5 And I might add, this is6 equipment that the Alabama Supreme Court7 has twice declined to hold as illegal.8 In both the Cornerstone and the Surles9 case, the Alabama Supreme Court said that10 it is up for the lower court to determine11 whether or not this equipment meets the12 sixth factor of bingo test enunciated in13 that -- in the Cornerstone case.14 I would point out that on15 Page 25, Footnote 7 says in the16 Cornerstone case that the -- of question

17 is whether the machines comply with the18 six-factor bingo test, and in the final19 footnote in the Surles case, it also says20 that they are not ruling on whether any21 game or machine is legal or illegal under22 Alabama law.23 Therefore, Mr. Tyson's







5 (Pages 17 to 20)

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1 blanket assertion and the assertion2 that's the basis of his shutting down3 electronic bingo facilities, his4 assertion that the machines have been5 declared illegal by the Alabama Supreme

6 Court is simply not true, and we are,7 again, asking for a declaratory judgment8 to prove that that's true before we9 reopen.10 THE JUDGE: Okay.11 MR. TYSON: Your Honor, this12 is Tyson. Is it my turn to respond?13 THE JUDGE: Yes.14 MR. TYSON: Well, first, I'd15 like to say good morning, Your Honor. I16 look forward to meeting you face to face17 one day soon.

18 Let me -- let me though run19 down a few things that we think that are20 important. We have, of course, though21 filed the motion to dismiss all this, and22 we have also filed oppositions to the23 motions to -- to set hearings even. And

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1 I believe that you have those.2 But as far as salient facts3 are concerned, one, this case or these4 cases are still on appeal. The rehearing

5 request is pending. Our response to the6 rehearing is due today. The only course7 of action that makes any sense is to wait8 until the Supreme Court rules. And what9 I understand about such things is that10 there is no jurisdiction to entertain11 anything at the trial court level when12 jurisdiction has been vested in the13 court, in the Supreme Court, at their14 request. So we're getting way ahead of 15 ourselves by trying to do things16 simultaneously, I guess is the way to

17 phrase it.18 Now, second thing I'd like19 to note is that the Supreme court, as I20 understand it, said to and ordered the21 dismissal of these actions, and as we22 read it, there are two case numbers23 there. Case No. CV-00-379. To repeat

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1 that, CV-09-379. And then CV-10-003.2 Again, to repeat that, CV-10-003.3 I believe those are two4 different cases, two different case5 numbers. It includes the so-called dec

6 action, I believe, that is specifically7 what we're here about today, and the8 Court specifically ruled, quote, Trial9 court lacks subject matter jurisdiction10 to interfere with a criminal proceeding11 by a civil action. Where the Court lacks12 subject matter jurisdiction, the order13 appealed from is void. Consequently, we14 vacate the order, dismiss the action, and15 dismiss the appeal. And for that reason,16 the Court didn't feel it necessary to go17 any further.

18 Now, the third point that we19 want to make is that in other recent20 decisions, the Supreme Court has, in21 fact, ruled that there is no jurisdiction22 to enjoin or declare the law in a23 criminal proceeding or that could affect

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1 a criminal proceeding or a potential2 criminal proceeding except the criminal3 proceeding itself or possibly the4 forfeitures that are attendant with

5 criminal proceedings.6 So on three different7 levels, we don't have jurisdiction. We8 have clear comments from the Supreme9 Court. We think then, Your Honor, that10 everything else is a nullity, everything,11 including discovery. I think the other12 side has begun to notice depositions.13 The scheduling conference.14 I mean, if we're right about15 the way we read this order, Your Honor,16 we have a scheduling conference in a case

17 that doesn't exist. I don't know -- I18 don't know what vehicle they have to even19 invoke your jurisdiction in the first20 place since it has been dismissed.21 So a quick comment22 on -- there are comments about my press23 comments. If you'll check the record,







6 (Pages 21 to 24)

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1 Your Honor, the press release that I had2 regarding whatever it was that Mr.3 Somerville was discussing actually4 predates the Supreme Court's opinion in5 Macon County which says point-blank that

6 such declaratory judgment actions are7 impermissible -- impermissible in a8 proceeding like this.9 We are -- we are learning as10 we go. We are updating our comments as11 the Court has specifically commented.12 I'm not making this up. This is language13 that is coming from our very own Supreme14 Court.15 So, Your Honor, I would16 request again that all of these17 proceedings be dismissed, and if -- if

18 you're not inclined to dismiss them and19 enter further orders, I'd request that20 those orders be stayed and allow us time21 to file whatever extraordinary writs are22 appropriate.23 THE JUDGE: Okay.

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1 MR. SOMERVILLE: Your Honor,2 if I might, this is Will Somerville3 again. First of all, there was4 no -- this Court entered no appealable

5 order in the 2010 case, therefore it6 could not have been on appeal. Nothing7 to appeal.8 The order -- the Court's9 injunction, temporary restraining order,10 was entered in the 2009 case, okay? And11 so it doesn't make any sense to say that12 there was anything before the Supreme13 Court then because there was no14 appealable order, and if there's no15 appealable order, then the Supreme Court16 doesn't have jurisdiction.

17 So -- and again, we've told18 the Supreme Court in our petition for19 rehearing of the 2009 order that we are20 going to proceed as if this case, the21 2010 case, is still pending, and22 therefore, that's what we're doing.23 Second of all, the Court

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1 rule -- the Court cannot have meant that2 you can't have a declaratory judgment3 action in a matter like this because it4 remanded both the Surles case and the5 Cornerstone case for proceedings

6 consistent with the declaratory judgment7 action.8 And while whatever day the9 Macon County case came down, I think the10 day after that, the Court denied the11 petition for rehearing in Cornerstone12 which meant that the Cornerstone case has13 got to go down for the declaratory14 judgment action to proceed in the trial15 court and the Surles -- handed down the16 Surles case also. I believe that was the17 day after the Macon County case was

18 decided.19 So both -- in both of those20 cases, the Supreme Court has held that21 you can have a declaratory judgment22 action filed relative to the legality of 23 electronic bingo machines. So I don't

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1 think that what Mr. Tyson says is correct2 at all, that the Court has ruled you3 can't have that, because the Court has4 directed the trial court in both those

5 cases to have precisely that kind of 6 proceeding.7 MR. TYSON: Your Honor,8 Tyson again. If I might, we -- on his9 first point, we specifically understand10 that the cases, the 2009 case, the 201011 case, were consolidated and that we12 expressly appealed both cases. And13 rather than my learned opponent and I14 arguing about what the Supreme Court15 says, these things are pending in front16 of the Supreme Court, and my

17 recommendation is that we have the18 Supreme Court tell us exactly what it19 meant when it rules on the application20 for rehearing as we -- as we get into21 this matter. Now, in --22 MR. SOMERVILLE: That will23 be several months from now --







7 (Pages 25 to 28)

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1 MR. TYSON: Excuse me.2 Excuse me.3 MR. SOMERVILLE: I'm sorry.4 Are you not finished?5 MR. TYSON: No, sir, I'm

6 not. Now, insofar as the comments about7 remanding Cornerstone and Surles, it's8 not an unusual thing for appellate court9 to remand things, to order the lower10 courts to conform their orders to the11 order of the Supreme Court. I mean, that12 happens every day.13 So that's not particularly14 unusual. It's expected, and I would15 think that what the lower courts would do16 would be to follow the express language17 of the Supreme Court's decisions and

18 honor the Supreme Court's order and19 comments that the orders are vacated, the20 actions are dismissed, and the appeals21 are dismissed.22 Again, Your Honor, it is23 interesting that -- that we're in court,

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1 but there is no case in court. And so I2 repeat what I've told you before.3 THE JUDGE: Let me say this:4 It looks like the first issue is whether

5 or not we're in court, and then if we are6 in court, whether or not the Tyson versus7 Macon County prevents a circuit judge8 from -- from peremptorily staying a9 criminal proceeding to hear a declaratory10 judgment.11 And it seems like those are12 the two issues that are mainly the13 primary issues involved before you go any14 further. And what we've got, the way15 this -- all of this has been going is an16 absolute legal quagmire, and frankly,

17 I've never seen anything like it in my 3318 or 34 years on the bench is how something19 could get so unraveled.20 And the only way I know to21 resolve this is I'm going to set this for22 a hearing on all of these issues. You23 can't probably do it over the phone, and

Page 27

1 you can't probably do it without having2 some written briefs and some pleadings,3 which I don't really have the benefit too4 much of any pleadings.5 So I'm going to set it for a

6 hearing, 9:30, February 18th, to hear all7 these issues. Basically, the issue will8 be whether or not there is a case9 pending, whether or not the Supreme Court10 did, in fact, dismiss the whole11 everything. And the other is if -- find12 that they didn't do it, whether or not13 the case Tyson versus Macon County14 Greyhound Park precludes a circuit judge15 from staying a seizure of property before16 that property has been declared illegal,17 or the use of that property has been

18 declared illegal, by anyone as far as the19 legislature or the courts are concerned.20 And those basically are the21 two issues that are involved before me22 that have to be resolved before you could23 go forward. So I'm setting it for

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1 February 18 at 9:30 in Houston County,2 and I'm going to call down there and see3 if I can get a courtroom and a court4 reporter.

5 Everyone should file briefs6 setting out most of your arguments that7 you've had here today on the phone. And8 if either side wants to file some kind of 9 mandamus for prohibition or whatever10 extraordinary writs you want to file11 against me before the Supreme Court12 between now and then, you're welcome to13 do all that.14 But this is the only way I15 know how to get what I'm doing resolved.16 I don't know about all these other cases

17 that are hanging out there, but the only18 way I know to get what I'm doing resolved19 is for everybody to meet at the Houston20 County Courthouse -- that will be next21 Thursday at 9:30 -- and we ferret out22 these two main issues, whether they23 dismissed the case when they did whatever







8 (Pages 29 to 32)

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1 they did, when I more or less quashed the2 search warrant and prevented the first3 seizure. And whole -- my whole basis4 there was I did not think you could seize5 property until that property had been

6 declared illegal by somebody besides just7 the law enforcement people saying it's8 illegal.9 This is not like in -- they10 try to make an analysis this is like11 methamphetamine or marijuana. It's not12 like that. Marijuana and methamphetamine13 been declared illegal for as long as I've14 been a judge, I think since 1901 maybe.15 These electronic paper bingo machines16 have never been declared illegal by17 anybody.

18 So the question is can you19 seize a property before somebody's20 determined it illegal, but the question21 before that is did the Supreme Court say22 that the trial judges cannot restrain law23 enforcement from seizing property at all

Page 30

1 in a civil action. And that's what we've2 got before us. We never have really all3 gotten together in a courtroom somewhere4 with briefs to ferret out these issues,

5 and so that's where I'm going to6 proceed.7 MR. SOMERVILLE: Your Honor,8 this is Will Somerville. May I ask for9 one clarification or --10 THE JUDGE: Yes.11 MR. SOMERVILLE: -- or make12 one clarification of our position?13 THE JUDGE: Yes, sir.14 MR. SOMERVILLE: And that15 would be that while we would contend that16 the -- that the law enforcement, there

17 should be a provision for restraining law18 enforcement from making an illegal19 seizure, we also would say that even if 20 there's not, that Tyson is arguing that21 there can't even be a declaratory22 judgment.23 THE JUDGE: That's what I

Page 31

1 just said. Based on the Tyson versus2 Macon County, that's the other issue as3 to whether you can even -- in a civil4 declaratory judgment action, can you rule5 on -- on the case that just came out, the

6 Tyson versus Macon County. That's -- the7 rulings in that case are sitting out8 there, too, and we'll look at that, too,9 how that affects all this.10 MR. SOMERVILLE: Thank you,11 Your Honor.12 MR. TYSON: Your Honor,13 Tyson again. For -- for clarification14 then, if I understand the impact of your15 ruling, is that you are expressly ruling16 against our request that you dismiss17 these proceedings.

18 THE JUDGE: Yes, sir. I'm19 going to have a --20 MR. TYSON: Yes, sir.21 THE JUDGE: In effect, I'm22 not going to dismiss them today. I'm23 going to have a hearing February 18th

Page 32

1 to -- right now, I'm not dismissing2 anything, if that answers your question.3 MR. TYSON: You're not --4 you're not -- you're not dismissing, so

5 you're not ruling on our dismissal6 request.7 THE JUDGE: No, sir. What8 I'm going to do is have a hearing where9 everybody can show up group to group --10 MR. TYSON: Yes, sir.11 THE JUDGE: -- about two or12 three issues I just put before us.13 MR. TYSON: Yes, sir.14 THE JUDGE: Then I can rule15 on them one way or another. And I don't16 know how I'm going to rule. But then

17 after that -- and if for some reason the18 Supreme Court says that the cases have --19 were dismissed or they say that whatever20 they want to say they say, then that, you21 know, resolves that. But until that22 happens, I'm going to set it down for the23 hearing like I just said so I can, with







9 (Pages 33 to 36)

Page 33

1 everybody present, and hopefully y'all2 will file some briefs before that time.3 Then I can -- we can have a4 full-scale hearing and have a ruling on5 those three issues, because it is that

6 important. It's very important. Not so7 much about whether you have bingo or not8 but whether or not the process is -- what9 the -- whether or not the process is one10 provided for in the law; that is, that11 you can seize property whether it's been12 declared legal or illegal and then again,13 whether or not in a civil action you can14 restrain law enforcement from doing that15 before anything's been determined legal16 or illegal. And right now, I'm not17 really sure where that stands, but like I

18 said, it's a legal quagmire.19 And once a ruling's made on20 that, and if you go by the -- the Tyson21 versus Macon County case, it almost --22 they almost say that the only time you23 can restrain somebody is if

Page 34

1 the -- there's a unconstitutional city2 ordinance or something like that.3 But anyway, those -- we need4 to have it. As far as my cases or these

5 cases are concerned is have the issues6 clearly defined, and hopefully if 7 somebody has to rule on them upstairs,8 they can make a definite ruling rather9 than leaving us all out here waiting10 around in this legal quagmire.11 MR. SOMERVILLE: Your Honor,12 we have -- this is Will Somerville again.13 We have some depositions scheduled for14 this Friday.15 THE JUDGE: Uh-huh.16 MR. TYSON: Your Honor --

17 MR. SOMERVILLE: We think 18 they could help elucidate some of the19 issues that the Court is asking for20 consideration of.21 THE JUDGE: I think you're22 probably going to have to put off those23 depositions.

Page 35

1 MR. SOMERVILLE: Thank you,2 Your Honor.3 THE JUDGE: Yes.4 MR. TYSON: Your Honor,5 Tyson again. I do understand what you've

6 said about withholding judgment on the7 dismissal, but on the further orders and8 on everything that is going on in this9 proceeding, we would request that you10 issue a stay, that is, stay the11 implementations of your go-forward12 orders, and then that would allow us to13 have the case, I think, properly14 positioned to challenge with15 extraordinary writs and finish the work 16 in the Supreme Court.17 THE JUDGE: I'm going to

18 just go on and set it down like I said,19 and then y'all -- and -- and I think 20 everybody can be ready to file briefs and21 argue, and then if y'all want to file22 something --23 MR. TYSON: Then I

Page 36

1 understand that, Your Honor, as a denial2 of my request that these proceedings be3 stayed.4 THE JUDGE: I'll deny your

5 request to stay until we have the hearing6 next --7 MR. TYSON: Yes, sir.8 THE JUDGE: -- next9 Thursday.10 MR. TYSON: Yes, sir.11 THE JUDGE: And I'm just12 going to contact the clerk and just tell13 her to set it down for a hearing.14 Everybody knows what the hearing's15 about.16 MR. TYSON: All right. Did

17 I also understand that you instructed the18 other side not to go forward with19 depositions?20 THE JUDGE: Right.21 MR. TYSON: All right. All22 right. Thank you, Your Honor.23 THE JUDGE: And if y'all







10 (Pages 37 to 39)

Page 37

1 transcribe this, would y'all send me a2 copy of it?3 MR. TYSON: Oh, certainly.4 Certainly, Your Honor. We --5 THE JUDGE: Make sure I know

6 what all we said.7 MR. SOMERVILLE: I'm going8 to go ahead and request a copy of it9 right now, Ms. Cone.10 MS. CONE: Okay.11 MR. TYSON: She said okay.12 I'm not sure you could hear her voice,13 but she said okay.14 THE JUDGE: Okay. Well, I'm15 going to call the clerk down there and16 see if we can get us a courtroom and a17 court reporter, and then I'm going to

18 show up and then we'll see what happens.19 MR. TYSON: All right.20 Thank you, Your Honor.21 MR. SOMERVILLE: Thank you,22 Your Honor, Judge.23 THE JUDGE: Yes, sir. Thank

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1 you.2 MR. SOMERVILLE: Thank you.3 THE JUDGE: Okay. Bye.4 (End of teleconference.)

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1 * * * * * * * *2 REPORTER'S CERTIFICATE3 * * * * * * * *4

5 STATE OF ALABAMA

6 COUNTY OF MONTGOMERY7 I, Jenny Cone, Certified8 Court Reporter and Notary Public in and9 for the State of Alabama at Large, do10 hereby certify that the foregoing is a11 true and accurate excerpt of the12 proceedings as taken stenographically by13 me at the time and place aforementioned.14 15 This 9th day of January,16 2010.17 _________________________________

18 Jenny Cone19 Certified Court Reporter (Lic.20 #108) and Notary Public21 State of Alabama at Large22

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EXHIBIT C



IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA

HOUSTON ECONOMIC

DEVELOPMENT,)

HOUSTON COUNTY

COMMISSION,)

THE COOPERATIVE DISTRICT OF, )

Plaintiffs, )

)

V. ) Case No.: CV-2010-000003.00

)

BARBER DAVID, SPECIAL

PROSECUTOR,)

TROY KING, ATTY GENERAL, )

Defendants. )

ORDER

ON THE COURT'S OWN MOTION, ALL MOTIONS WILL BE HEARD FEBRUARY 18,

2010 AT 9:30 A.M. IN THE HOUSTON COUNTY COURTHOUSE AND SPECIFICALLY

ANY OTHER ISSUE THE COURT WILL CONSIDER THE FOLLOWING:

1. WHETHER OR NOT THE CASE OF HOUSTON ECONOMIC DEVELOPMENT

ASSOCIATION, ET AL VS. DAVID BARBER, ET AL, CASE NO. CV-2010-3 IS STILL

PENDING OR WAS DISMISSED BY THE SUPREME COURT OF ALABAMA BY ORDER OF

JANUARY 15, 2010, OR WHETHER OR NOT THE CASE IS STILL PENDING ONREHEARING BEFORE THE SUPREME COURT.

2. WHETHER OR NOT A DECLARATORY JUDGMENT ACTION MAY LIE IN CIRCUIT

CIVILCOURT TO DETERMINE WHETHER THE ELECTRONIC PAPERLESS BINGO

MACHINES IN QUESTION ARE LEGAL AND COMPLY WITH RECENT ALABAMA

SUPREME COURT DECISION SETTING OUT THE CRITERIAFOR ELECTRONIC

PAPERLESS BINGO MACHINES.

3.WHETHER OR NOT LAW ENFORCEMENT,THROUGH THE GOVERNOR'S TASK

FORCE, CAN SEIZE PRIVATE PROPERTY BEFORE IT HAS BEEN DETERMINED

WHETHER OR NOT THE POSSESSION OR USE OF THE PRIVATE PROPERTY ISLEGAL

OR ILLEGAL BY COURT DECISION OR LEGISLATIVE ACT, IF THERE IS A LEGITIMATEQUESTION AS TO ITS LEGALITY OR ILLEGALITY.

4. WHETHER OR NOT THE CIRCUIT COURT IN HOUSTON COUNTY HAS

JURISDICTION TO TAKE TESTIMONY AND ISSUE A RULINGAS TO WHETHER OR NOT

THE BINGO MACHINES ARE LEGAL OR ILLEGAL.

ELECTRONICALLY FILED2/9/2010 2:42 PM

CV-2010-000003.00CIRCUIT COURT OF

HOUSTON COUNTY, ALABAMCARLA H. WOODALL, CLERK





EXHIBIT D



IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA

HOUSTON ECONOMIC

DEVELOPMENT,)

HOUSTON COUNTY

COMMISSION,)

THE COOPERATIVE DISTRICT OF, )

Plaintiffs, )

)

V. ) Case No.: CV-2010-000003.00

)

BARBER DAVID, SPECIAL

PROSECUTOR,)

TROY KING, ATTY GENERAL, )

Defendants. )

ORDER

ORDER OF FEBRUARY 9, 2010 IS AMENDED AS FOLLOWS:

ON THE COURT'S OWN MOTION, ALL MOTIONS WILL BE HEARD FEBRUARY 18,

2010, AT 9:30 A.M. IN THEHOUSTON COUNTY COURTHOUSE AND SPECIFICALLY,

AMONG ANY OTHER ISSUES, THE COURT WILL CONSIDER THE FOLLOWING:

1. WHETHER OR NOT THE CASE OF HOUSTON ECONOMIC DEVELOPMENT

ASSOCIATION, ET AL. VS. DAVID BARBER, ET AL, CASE NO. CV-2010-3, IS STILLPENDING OR WAS DISMISSED BY THE SUPREME COURT OF ALABAMA BY ORDER OF

JANUARY 15, 2010, OR WHETHER OR NOT THE CASE IS STILL PENDING ON

REHEARING BEFORE THE SUPREME COURT.

2.WHETHER OR NOT A DECLARATORY JUDGMENT ACTION MAY LIE IN CIRCUIT

CIVIL COURT TO DETERMINE WHETHER THE ELECTRONIC PAPERLESS BINGO

MACHINES IN QUESTION ARE LEGAL AND COMPLY WITH RECENT ALABAMA

SUPREME COURT DECISION SETTING OUT THE CRITERIA FOR ELECTRONIC

PAPERLESS BINGO MACHINES.

3. WHETHER OR NOT LAW ENFORCEMENT, THROUGH THE GOVERNOR'S TASK

FORCE, CAN SEIZE PRIVATEPROPERTY BEFORE IT HAS BEEN DETERMINEDWHETHER OR NOT THE POSSESSION OR USE OF THE PRIVATE PROPERTY IS LEGAL

OR ILLEGAL BY COURT DECISION OR LEGISLATIVE ACT, IF THERE IS A LEGITIMATE

QUESTION AS TOITS LEGALITY OR ILLEGALITY.

4. WHETHER OR NOT THE CIRCUIT COURT IN HOUSTON COUNTY HAS

JURISDICTION TO TAKE TESTIMONY AND ISSUE A RULING AS TO WHETHER OR NOT

THE BINGO MACHINES ARE LEGAL OR ILLEGAL.

5. BRIEFS TO BE FILED WITH COURT FEBRUARY 17, 2010.

ELECTRONICALLY FILED2/10/2010 8:59 AMCV-2010-000003.00

CIRCUIT COURT OFHOUSTON COUNTY, ALABAM

CARLA H. WOODALL, CLERK



6. WHETHER THE SEIZURE OF PROPERTY, THE POSSESSION OF WHICH AND USE

OF IS LEGAL, IS UNREASONABLE AND VIOLATED THE4TH AMENDMENT OF THE U.S.

CONSTITUTION.

7. WHETHER AN ARREST OF A PERSON FOR POSSESSION OF OR USE OF

PROPERTY KNOWN TO BE LEGAL IS WITHOUT PROBABLE CAUSE.

8. WHETHER THERE IS A LEGAL REMEDY IN THE STATE OF ALABAMA TO

PREVENT AN UNREASONABLESEIZURE OF KNOWN LEGAL PROPERTY OR AN

ARREST WITHOUT PROBABLE CAUSE BY THE GOVERNOR'S TASK FORCE.

DONE this 10th day of February, 2010.

/s P. B. MCLAUCHLIN

CIRCUIT JUDGE

Documents

Filed - Houston Emergency Motion to Stay