Lawyers for VictoryLand were surprised by a citation in a motion to vacate an injunction that had halted raids by the governor's task force at the Macon County facility. The citation was to a case styled Surles v. Ashland, and that was curious because the decision in Surles had not been released at the time the task force's motion was filed.
The episode suggests that someone at the Alabama Supreme Court was working in conjunction with the governor's office. This would not be the first time we've seen reports about possible improper communications between Riley's office and the Supreme Court. It also is not the first time we've seen signs that Alabama's highest court is fully capable of acting in a corrupt fashion.
Bob Martin, editor and publisher of the Independent, says the task force motion was time stamped at 1:55:15 on January 29. The Surles decision was not released until 2:04 on January 29. Writes Martin:
According to Supreme Court Rules and policies no one, including attorneys in a case are permitted to see or be told the details of a decision other than the justices and the court staff. Although attorneys for both sides are notified the result of a case two hours prior to its release, they are not told the details and lawyers with whom I talked said it would take clairvoyant skills for a lawyer to be confident enough to cite a case by only having knowledge about which side won or lost.
Martin noted previous signs of apparent collusion between the governor's office and the high court:
This is not the first time in the governor's bingo war that someone at the court has been accused of making an improper exparte communication with Riley or his lawyers.
A previous matter involved a judge assignment in a case brought by the governor and his task force on gambling against an electronic bingo operation at White Hall in Lowndes County.
Chief Justice Cobb had appointed Jefferson County Circuit Judge Robert Vance to take the case primarily because he was already handling a similar matter in Walker County.
Last August this newspaper received information that on or about July 29, 2009, the governor, a party to the lawsuit, placed a telephone call to one or more of the justices, urging them to overrule Cobb and remove Vance from the case.
The information we received was that the phone call was while the governor was in Washington and that one of the lawyers hired to advise his gambling task force, may have been with the governor at the time.
A communication with a judge in a case by a party or a lawyer for one side without the lawyers representing other parties being present violates all kinds of judicial ethics rules and laws.
That is alarming, and so is the fact that the governor always seems to prevail on gambling issues before the Alabama Supreme Court. Consider the case styled John M. Tyson, Jr. v. Macon County Greyhound Park, Inc., d/b/a VictoryLand, which was released on February 4. The majority in that case found that Macon Circuit Court does not have subject-matter jurisdiction over an action seeking to enjoin the enforcement of criminal laws of the State of Alabama. That decision opened the door for future raids at VictoryLand.
But a dissent authored by Justice Thomas A. Woodall, and joined by Chief Justice Sue Bell Cobb, makes clear that the decision in Tyson conflicts with a number of previous appellate rulings. Writes Woodall:
In recent years, Alabama appellate courts have exercised jurisdiction in cases distinguishable in no material respect from this case. In those cases, not a single Judge or Justice has questioned the subject-matter jurisdiction of the trial court. The Court's departure today from that practice is, in my opinion, unnecessary and, under the facts of this case, unfair to Macon County Greyhound Park, Inc., d/b/a VictoryLand ("VictoryLand"), whose duly licensed bingo operation is at risk of irreparable harm because of a difference of opinion between the Macon County law-enforcement officials and the commander of Governor Riley's Task Force on Illegal Gambling, John M. Tyson, Jr. Therefore, I respectfully dissent.
Woodall even cites a case where Tyson, acting as district attorney of Mobile County, was granted the same kind of declaratory relief that VictoryLand was seeking in the recent matter:
The majority does not discuss State ex rel. Tyson v. Ted's Game Enterprises, 893 So. 2d 355 (Ala. Civ. App. 2002), [*14] aff'd, Ex parte Ted's Game Enterprises, 893 So. 2d 376 (Ala. 2004). In that case, it was Tyson, then acting as district attorney of Mobile County, who invoked the civil jurisdiction of the Mobile Circuit Court by seeking "a judgment declaring that . . . machines owned and distributed by Ted's [were] illegal 'slot machines' and 'gambling devices' under Alabama's criminal gambling statutes." Tyson, 893 So. 2d at 358. In its opinion, which rendered a judgment in favor of the State, the Court of Civil Appeals held that "the State's right to seek a declaratory judgment with respect to [such] matters" was "particularly appropriate" given "the invasive power the State wields when it seeks to enforce statutory provisions against its citizens." Tyson, 893 So. 2d at 362. In so holding, the court was well aware that "[t]he trial court's entry of a judgment adverse to the State [would], if not reversed . . . , have an adverse impact on how the State enforces the criminal gambling statutes as to other machines." Tyson, 893 So. 2d at 362 n.5. I am aware of no authority that would allow one party to a dispute to seek a resolution of that dispute through a declaratory-judgment action, while denying that same [*15] right to the other party to the dispute. In other words, if Tyson had that right, so does VictoryLand.
Woodall seems to be pointing out that the Alabama Supreme Court is willing to overlook its own precedent--when Gov. Bob Riley wants it to.
None of this is a surprise to us. We've written extensively about corruption in Alabama's Republican-dominated appellate courts. (See here and here.) I've seen in my own cases how Alabama appellate courts will ignore their own procedures and precedents when it is politically expedient to do so.
Not only do our appellate courts generate unlawful rulings, but we now have direct evidence that indicates the Supreme Court is colluding with the governor's office on matters of significant public interest.
Is there any reason to believe that justice is being done in the Alabama Supreme Court's rulings on electronic bingo? We sure don't see one.
Is there reason to believe that the governor's office is interfering with actions of the Alabama Supreme Court, making a mockery of the notion of separation of powers in our state? The answer to that question clearly is yes.