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) john_tyson@mobile-da.org tmorgan@districtattorney.org martha_tierney@mobile-da.org Attorneys for Appellant State of Alabama

E-Filed 06/29/2010 @ 03:44:12 PM Honorable Robert Esdale Clerk Of The Court

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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

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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

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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.

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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

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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

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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

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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

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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).

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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.

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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) john_tyson@mobile-da.org tmorgan@districtattorney.org martha_tierney@mobile-da.org

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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 greggriggers@yahoo.com wwdjr@ldllc.com

John Bolton Charlanna Spencer jbolton@hillhillcarter.com cspencer@hillhillcarter.com Attorneys for Greenetrack Will Somerville Attorney for Bally Gaming, Inc. wsomerville@bakerdonelson.com 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 troyking@ago.state.al.us

s/ John M. Tyson, Jr. OF COUNSEL

 

TAB A

TAB B

TAB C

TAB D

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 john_tyson@mobile-da.org tmorgan@districtattorney.org martha_tierney@mobile-da.org Attorneys for State of Alabama

CERTIFICATE OF SERVICE I hereby certify that I have this date served the above and foregoing via the AlaFile System, which will serve all counsel of record, and will send copies via U.S. Mail to parties that have not appeared on the AlaFile system.

s/ John M. Tyson, Jr. OF COUNSEL