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No. ________
IN THE SUPREME COURT OF ALABAMA
STATE OF ALABAMA
Appellant,
V.
825 ELECTRONIC GAMBLING DEVICES, ET AL.,
Appellees.
STATE OF ALABAMA’S EMERGENCY MOTION TO STAY OR VACATE INJUNCTION AGAINST LAW ENFORCEMENT AND FOR SUPPLEMENTAL
RELIEF, INCLUDING REMOVAL OF TRIAL JUDGE; AND MEMORANDUM IN SUPPORT THEREOF
On appeal from the Circuit Court of Greene County
(Hon. Eddie Hardaway, Jr., CV-2010-20) _____________________________
John M. Tyson, Jr.
Timothy W. Morgan Martha Tierney OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, Alabama 36130 (251) 574-3307 (251) 574-3311 (fax) [email protected] [email protected] [email protected] Attorneys for Appellant State of Alabama
E-Filed 06/29/2010 @ 03:44:12 PM Honorable Robert Esdale Clerk Of The Court
2
INTRODUCTION
Yesterday – yesterday – this Court ruled in no
uncertain terms that Judge Eddie Hardaway had no
jurisdiction to restrain the State from exercising all law
enforcement options normally available to it in a seizure.
Therefore, in the order attached as Tab A, this Court
vacated all orders Judge Hardaway had entered preventing
the Governor’s Task Force on Illegal Gambling from
exercising control over the illegal gambling machines at
Greenetrack. On this, the very next day, with the Task
Force engaged in investigation and taking custody of the
illegal machines, and with statewide law-enforcement
officers in harm’s way in an active law-enforcement
operation, Judge Hardaway has simply disregarded this
Court’s order, again defying the authority of this Court.
He has reentered the same injunction under a different
pretense.
Defiance of this Court will continue to be repeated
indefinitely unless this Court exercises its supervisory
authority and removes Judge Hardaway from all matters
involving Greenetrack. The State asks for exactly that
3
relief, along with an order from this Court vacating or
staying today’s injunction, and seeks both on an emergency
basis. State officers currently remain at Greenetrack,
prepared to complete taking possession of illegal gambling
devices located at that facility. The criminal justice
system cannot function when lower courts can so blatantly
defy this Court’s mandates without swift and decisive
consequences.
FACTS AND PROCEDURAL HISTORY
In the wake of yesterday’s order in Nos. 1091316 and
1091317 holding that Judge Hardaway had no subject-matter
jurisdiction to enter orders in these cases restraining law
enforcement, state officers arrived at Greenetrack shortly
after 8:00 a.m. this morning, June 29, 2010. The law-
enforcement officers found, in plain view, illegal slot
machines that had been seized in place. The machines were
operating in the Greenetrack facility, which was open to
the public. The officers took possession of the machines
by surrounding them with crime-scene tape and placing
exhibit stickers on them. The machines were connected to
4
servers that officers removed from the facility, and the
officers were in the process of removing machines from the
facility.
During the law-enforcement operation, State officials
were served with another order from Judge Hardaway, which
is attached hereto at Tab B. Although this was a law-
enforcement operation regarding seized equipment and not a
discovery procedure, today’s order purports to restrain law
enforcement under the guise of limiting the State’s ability
to conduct “discovery” in these cases until a scheduling
conference to be held on August 17, 2010. The order states
that until the scheduling conference or the “parties
otherwise agree to a schedule for discovery,” the State is
“directed to cease and refrain from conducting any
discovery in this matter.” Tab B at ¶ 4. The trial court
further stated that it was modifying its order “of June 3,
2010” in this respect.1 Id. It also says that “[a]ny and
all property seized and removed subsequent to the telephone
conference of June 29, 2010, and purportedly pursuant to
1 As noted in the State’s prior submissions in Nos. 1091316 & 1091317, the order is in fact dated June 4, 2010.
5
said paragraph 3 of the prior Order, shall be restored and
returned.” Id. The order also refused to recognize that
the undersigned Special Prosecutors have been validly
appointed by the Governor to represent the State in this
matter. The order instead stated that the Special
Prosecutors could only participate as “assistant counsel”
to District Attorney Griggers. Id. at ¶ 2.
Out of respect for the judicial system, state officers
then ceased removing machines from the facility. But
because the machines have already been seized and are
within the control of the State, and because there is a
need to protect this evidence from alteration and other
actions by Greenetrack or any other person, the officers
have remained in the Greenetrack building, guarding the
seized items. The officers have been instructed to remain
in the building, so that the inspection and removal of the
seized illegal gambling devices can be completed as soon as
Judge Hardaway’s order is vacated. Members of the public
have gathered at Greenetrack, and the situation is tense.
As noted in the State’s prior submissions in these appeals,
certain elected officials have represented that attempts to
6
enforce the law against Greenetrack would be met with
violent resistance.
The State has filed an appeal of the new order, and its
notice of appeal and docketing statement are attached at
Tab C. (At the time the State filed this motion, the
notice of appeal and docketing statement had been faxed to
the circuit clerk in Greene County, and hard copies were in
transit to the clerk’s office.) The State is hereby asking
this Court to vacate the order immediately or to stay it
during this new appeal. The State is also asking this
Court to enforce its decisions in Nos. 1091316 and 1091317
by vacating or staying the new order and by removing Judge
Hardaway from this case.
At 2:44 this afternoon, the State filed a motion with
Judge Hardaway asking him to stay today’s injunction. A
file-stamped copy of the State’s motion is attached as Tab
D. Judge Hardaway has not yet ruled on the motion. As
noted in the State’s prior submissions in this appeal,
Judge Hardaway has previously failed to grant any stay of
his prior injunctions against law enforcement at
Greenetrack. Moreover, in light of the exigent
7
circumstances here, it would be impracticable for the State
to wait on Judge Hardaway to rule on the motion before
seeking relief in this Court.
ARGUMENT
This Court retains jurisdiction to enforce its mandate
and to vacate Judge Hardaway’s order, and the State has
taken a separate appeal from the new injunction as well.
The State therefore respectfully requests that the Court
vacate or stay Judge Hardaway’s new order as soon as
possible.
Yesterday’s decision from this Court could not have
been clearer. Although the trial court was aware of the
order, it entered an order blatantly contrary to it in at
least three respects.
First, the order enjoins the executive branch’s
enforcement of the criminal law. This Court has repeatedly
held that trial courts have no subject-matter jurisdiction
to enter such orders. See Tyson v. Macon County Greyhound
Park [Ms. 1090548, Feb. 4, 2010], ___ So. 3d ___ (Ala.
2010). This Court reaffirmed that longstanding rule in no
8
uncertain terms yesterday. The trial court cannot defy
that rule under the guise of regulating “discovery” any
more than it could defy that rule under the guise of
granting a “seizure in place.” The State has already
seized these illegal gambling devices, and the State is not
required to obtain “discovery” about evidence that it has
already seized.
Second, the trial court’s new order refused to
recognize that the undersigned Special Prosecutors have
been directed by the Governor to represent the State in
these actions, and instead held that the undersigned could
only participate as “assistant counsel” to District
Attorney Griggers. As this Court held yesterday, any such
suggestion is directly contrary to this Court’s decision in
Ex parte State [Ms. 1090808, May 21, 2010], ___ So. 3d ___
(2010). Yesterday’s order rejected DA Griggers’ argument
that the undersigned attorneys have no standing to
represent the State.
The trial court’s order of today has interrupted a
critical, sensitive, ongoing criminal investigation. The
trial court has done so in circumstances in which threats
9
have been made against the State by local officials. The
need for this Court’s swift resolution of this matter could
not be more urgent. The balance of the equities thus
decidedly favors vacating or staying the trial court’s
order immediately.
The Court should also remove Judge Hardaway from this
case. An appellate court may require reassignment of a
case on remand when “such an order is in aid of [the
Court’s] appellate jurisdiction to enforce compliance with
this court's previous opinions or orders.” C.D.S. v.
K.S.S., 978 So. 2d 782, 789 (Ala. Civ. App. 2007). In
determining whether a judge should be reassigned, the Court
may consider:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Id. at 790 (internal quotation marks omitted); accord Ex
parte State, 988 So. 2d 597, 601–04 (Ala. Crim. App. 2007).
10
The law mandates reassignment here. In issuing his rulings
in this case, Judge Hardaway has defied this Court’s
precedents issued in prior cases, and has defied this
Court’s decision of yesterday in this very case. His
actions today establish that he will not conform his
rulings in this case to the law as stated by this Court.
If the rule of law is to be preserved and Alabama’s
criminal laws are to be enforced, Judge Hardaway’s
injunction must be vacated immediately, Judge Hardaway must
be recused from all matters involving Greenetrack, and this
case must be assigned to a judge who will administer
justice impartially and without any appearance of
impropriety.
CONCLUSION
The State thus respectfully requests that this Court:
(1) vacate or stay Judge Hardaway’s order of June 29, 2010;
(2) remove Judge Hardaway from this case; and (3) issue
such other relief as the Court may deem proper.
Respectfully submitted,
s/ John M. Tyson, Jr.
11
Attorney for Appellant State of Alabama
John M. Tyson, Jr. Timothy W. Morgan Martha Tierney OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, Alabama 36130 (251) 574-3307 (251) 574-3311 (fax) [email protected] [email protected] [email protected]
12
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document has been served on this 29th day of June, 2010, to the following by email or by other delivery method as noted:
Gregory S. Griggers Woodford Dinning Office of the District Attorney 17th Judicial Circuit [email protected] [email protected]
John Bolton Charlanna Spencer [email protected] [email protected] Attorneys for Greenetrack Will Somerville Attorney for Bally Gaming, Inc. [email protected] IGT, Inc. c/o National Registered Agents, Inc. 150 South Perry St. Montgomery, Alabama 36104 Cadillac Jack, Inc. c/o CT Corporation System 2 North Jackson St. Suite 605 Montgomery, Alabama 36104 Attorney General Troy King [email protected]
s/ John M. Tyson, Jr. OF COUNSEL
IN THE CIRCUIT COURT OF GREENE COUNTY, ALABAMA STATE OF ALABAMA, Plaintiff, v. 825 ELECTRONIC GAMBLING DEVICES, et al., Defendants.
))))))))))
CIVIL ACTION NUMBER: CV-2010-20
EMERGENCY MOTION TO STAY
Petitioner State of Alabama, by and through John M. Tyson, Jr., hereby moves this Court
to stay its Order dated June 29, 2010, pending disposition of the appeal of that Order by the
Supreme Court of Alabama. In support of this motion, Petitioner offers the following grounds:
1. This Court entered an order in this action on June 29, 2010.
2. Petitioner is filing a notice of appeal of that order to the Supreme Court of Alabama.
3. This Court’s Order is inconsistent with the order of the Supreme Court of Alabama
dated June 28, 2010.
4. This Court’s order is inconsistent with the decision of the Supreme Court of Alabama
in Ex parte State, Case No. 1090808.
5. The State has substantial likelihood of success on the merits.
6. The Court’s order prevents law enforcement from carrying out its responsibilities in
enforcing Alabama criminal law. Accordingly, irreparable harm will result if the
order remains in place, and no harm will result to the other parties if the order is
stayed. The public interest certainly weighs in favor of a stay. A balancing of the
equities supports a stay.
ELECTRONICALLY FILED6/29/2010 2:44 PM
CV-2010-000020.00CIRCUIT COURT OF
GREENE COUNTY, ALABAMAETTA B. EDWARDS, CLERK
7. Given that law enforcement officers are presently at Greenetrack, there is a
compelling need for an immediate ruling by the Court on this motion.
Respectfully submitted this 29th day of June, 2010.
s/ John M. Tyson, Jr. John M. Tyson, Jr. Tim Morgan Martha Tierney OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, Alabama 36130 Phone (251) 574-3307 Fax (251) 574-3311 [email protected] [email protected] [email protected] Attorneys for State of Alabama