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Wednesday, February 20, 2013

Did AG Luther Strange and Alabama Supreme Court Skirt The Law In Launching A Raid At VictoryLand?


Roadblocks go up at VictoryLand
Did Alabama Attorney General Luther Strange follow proper procedures in seeking a search warrant, which was executed yesterday morning, for the VictoryLand casino in Macon County?

Did the Alabama Supreme Court follow established law in ordering that the search warrant move forward?

Did Strange have valid grounds for filing a lawsuit, announced yesterday, with the aim of shutting down casinos operated by the Poarch Band of Creek Indians?

The answer to all three questions, based on our initial research, appears to be no. In light of yesterday's events, can Alabamians cite reasons to have faith in our chief law-enforcement officer and our highest court? I can't think of any.

According to press reports, Strange first sought a search warrant via Macon County Circuit Court, and his petition was denied due to lack of probable cause. He then sought an order through the Alabama Court of Criminal Appeals that would force the Macon County court to issue the warrant--and that, too,  was denied. Finally, the Alabama Supreme Court gave Strange what he wanted, forcing Macon County Circuit Judge Tom Young to issue the search warrant.

How did that happen? Strange sought an interlocutory order called a writ of mandamus, which is deemed under Alabama law an "extraordinary writ" that is to be issued only under limited circumstances. If granted, a writ of mandamus means a high court essentially tells a lower court, "You must take this action--now."

The procedure for seeking such a writ is governed by Rule 21 of the Alabama Rules of Appellate Procedure, and two provisions seem particularly pertinent to the VictoryLand issue. Rule 21(a)(1) states:

Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made by filing a petition with the clerk of the appellate court having jurisdiction thereof with certificate of service on the respondent judge or judges and on all parties to the action in the trial court.

VictoryLand appears to qualify as a party to the action, and that means it should have been served with a copy of the petition. Did that happen in this case? We've seen nothing in press reports that indicates it did.

More about the procedure governing a writ of mandamus is found at Rule 21(b):

If the court is of the opinion that the writ should not be granted, it shall deny the petition. Otherwise, it shall order that an answer to the petition be filed by the respondents within the time fixed by the order. . . . The clerk shall advise the parties of the dates on which briefs are to be filed, if briefs are required, and of the date of oral argument. The proceeding shall be given preference over ordinary civil cases.

Was VictoryLand given an opportunity to file an answer to Strange's petition? Was it given an opportunity to file briefs or engage in oral argument? We've seen no signs that it was. VictoryLand's rights appear to have been short-circuited in a unilateral process that is contrary to law.

Did the Alabama Supreme Court have grounds for granting Strange's petition? If so, we can't find them.

Denial of a search warrant is a proper subject for a mandamus petition. Ex Parte State of Alabama (In Re: State of Alabama v. A.R.C. (2003). But a high court is required to exercise considerable restraint in considering such a request. The general rule is as follows:

"Mandamus is a drastic and extraordinary writ to be issued only where there is a clear, legal right in the petitioner to the order sought; only where there is an imperative duty upon the respondent to perform, accompanied by a refusal to do so; only where there is a lack of another adequate remedy; and only where there is properly invoked jurisdiction of the court. Ex parte Army Aviation Center Federal Credit Union, 477 So. 2d 379 (Ala. 1985)."

Did Luther Strange have "a clear, legal right" to a search warrant for VictoryLand? The circuit judge in Macon County did not think so, and a high court is to override him only under "drastic and extraordinary" circumstances. Case law makes it clear that a high court, on a mandamus petition, is not to substitute its judgment for that of a lower court:

Generally, the writ will not be used to control or review discretionary acts by a lower court. Ex parte Edwards, 20 Ala.App. 567, 568, 104 So. 53, 54 (1925).

The Alabama Supreme Court has enumerated a very few exceptions to this rule, and none of them appears to apply to the VictoryLand matter, especially in light of this overriding principle:

We state again that only the rarest of circumstances merit intervention by mandamus. . . . We also point out that circumstances involving alleged errors of judgment, or errors in the exercise of judicial discretion, would not constitute grounds for invoking supervisory mandamus. Ex parte Nice, 407 So.2d 874 (Ala., 1981)

We have not been able to review all of the documents in the VictoryLand petition, but Strange almost had to be claiming that the trial court made an error in judgment or in the exercise of judicial discretion. If that was the case, the Alabama Supreme Court had no lawful grounds for granting the petition.

As for Strange's lawsuit involving the Poarch Creek Indians, it can only be for show, distraction, or both.  The Poarch Creeks are a federally recognized Indian tribe, operating as a sovereign nation with its own system of government and bylaws. And yet, Strange filed the case in state court.

How does Luther Strange figure that the State of Alabama has jurisdiction over the Poarch Creek Indians? That one is a head scratcher. Is it coincidence that Strange issued a press release on the Poarch Creek lawsuit on the same day he conducted a raid at VictoryLand? Probably not. One event apparently provided a smokescreen for the other.

What's a reasonable Alabamian to think? Well, our state has a "proud heritage" of electing public officials who are thugs, phonies, charlatans, or buffoons. Luther Strange seems determined to prove that he fits in all four categories.

60 comments:

Barb said...

Couldn't wait to read your take on this, LS. Spot on.

Anonymous said...

What are the chances of Luther Strange and the Alabama Supreme Court following the law on this? Does the word "zilch" mean anything to your readers?

Anonymous said...

Got up early to catch your analysis on this . . . you didn't disappoint.

Anonymous said...

LS,

Great article! What recourse does Victory Land have now for appeal since the warrant was signed by the Alabama Supreme Court? Can they take their appeal to the US. Supreme Court? If not does this mean that the Alabama Judicial system can break the law without fear of prosecution or penalty?

Anonymous said...

I hope all who voted for this regime are happy to see the real side and agenda of the dictators they elected. This is not just about VictoryLand, but a so-called justice system gone out of control.

D.M.

legalschnauzer said...

Anon at 7:43--

The warrant wasn't signed by the Alabama Supreme Court. The court issued an extraordinary writ that ordered the Macon County circuit judge to issue the search warrant. Not sure about all of VictoryLand's options, but I feel certain they have quite a few. No. 1 probably would be a petition to have seized property returned. A motion for reconsideration to the Alabama Supreme Court might be a possibility. A federal lawsuit probably is in the offing. As this post notes, VictoryLand's rights to due process almost certainly were trampled. An appeal to SCOTUS is likely to be a waste of time and money, but McGregor and his lawyers have no shortage of options. Also, citizens of Macon County could take legal action, as could other Alabama citizens. If I were a vendor doing business at VictoryLand, I would consider federal legal action.

Spasmoda said...

You nailed it, LS. Luther Strange has no clothes!

Anonymous said...

I think public reaction will be McGregor's greatest ally. I sense this is angering a lot of people who don't care one way or another about gambling.

Philbert said...

Why don't we do away with trial courts and let the Alabama Supreme Court decide everything?

Anonymous said...

I hereby issue a Writ of Kiss My Mandamus upon Luther J. Strange.

The respondent is ordered to kiss my mandamus, forthwith, at high noon on I-65, near the I-85 interchange in Montgomery.

Respondent may bring industrial-strength Chapstick, for said mandamus requires considerable puckering.

My mandamus gleefully accepts this court's jurisdiction and will yield to this exercise of said court's discretion.

Done and ordered.

TLR said...

Does this mean VictoryLand was granted a liquor license, but you have to shoot your way through a wall of state troopers to get a drink?

Anonymous said...

Agree with @7:57.

Anonymous said...

I agree with Anon 7:57. I think public outrage is Milton McGregors and Johnny Fords best weapon. If they want to plan a Million Man Protest March on the Capitol I will be happy to attend.

Bo said...

The Schnauzer has spoken . . . and it was good.

Anonymous said...

People dumped on Bradley Bryne because they were tired of Riley's BS. It's the whole reason Bentley is in office. Now, Luther is continuing Riley's BS. Will backfire on him eventually.

Leonard said...

Did I miss the news about a raid on Greenetrack?

HLM said...

This sums it up:


"Was VictoryLand given an opportunity to file an answer to Strange's petition? Was it given an opportunity to file briefs or engage in oral argument? We've seen no signs that it was. VictoryLand's rights appear to have been short-circuited in a unilateral process that is contrary to law."

Anonymous said...

Gotta give the Alabama Supremes credit. Those judges no longer make any effort to appear impartial or fair.

legalschnauzer said...

Interesting report from Bill Britt at Alabama Political Reporter:

http://www.alreporter.com/al-politics/political-news/state-news/4236-a-secret-supreme-court-vote-leads-to-raid-of-victoryland.html

Anonymous said...

Does anyone else now suspect that all of the Alabama Supreme Court's bingo rulings over the past four years have been bogus?

Anonymous said...

Why is it that every time I hear "Alabama Supreme Court" mentioned, I have visions of the scene in "Planet Of The Apes" where Charlton Heston is trying to make his point to the ape tribunal?

D.M.

Anonymous said...

I did not think the casino's on the indian property could be touched. It is like a reservation..I tell you Alabama has ALWAYS had dirty politicians from the beginning and looks like it is not going to change. We have more things to worry about here in this state than bingo and gambling. Put it to a vote.. When will that come up again where we can vote on if we want a lottery or gambling.. Will that ever show up again on the ballot?

Anonymous said...

I guess Luther solved 3 of his main issues on Tuesday. 1. VictoryLand is out of business. 2. The ABC Board no longer has to rule on the liquor license for VictoryLand. 3. Addressed criticism over his unwillingness to raid Indian Casino's. All of our voices need to be heard in the next election.

Anonymous said...

Love Luther's comment, in his press release, that the "rule of law" must prevail in Alabama. I guess that doesn't apply to VictoryLand's right to be heard on the writ of mandamus.

Big Luther wouldn't know the rule of law if it bit him on the ass.

Anonymous said...

@9:27--

I think Luther caused himself more problems than he solved yesterday. He just doesn't know it yet.

Anonymous said...

At 9:17, these thugs will never allow voting on a lottery or gambling to happen. They will lose control. So they lie to the populous. That's where the problem lies, the people need to know the truth about what these criminals are doing. I doubt they would stand behind the criminal neocons then. The people would also then begin to understand why Siegleman was railroaded. Too much money and control at stake if the right thing is to be done here. LS why are there never names and faces put to the Indians who are funding all this?

legalschnauzer said...

Anon at 9:53--

Good question. I think we do know some of the names and faces. Jack Abramoff and Michael Scanlon are two of them. We know the leaders of the Mississippi Choctaws and the Poarch Creeks. The US Justice Department has been asleep at the wheel for about 13 years . . . and counting.

Anonymous said...

George Burger was a lobbyist who was heavily involved with Indian gaming, the Riley crowd, etc. But guess what? He mysteriously caught a virus in Hawaii and died.

George Burger took a lot of secrets with him to the Great Beyond:

http://jacksonville.com/tu-online/stories/020207/spg_7736054.shtml

Anonymous said...

Adultery is illegal in Alabama. Are the troopers gonna raid Luther and Jessica Medeiros Garrison?

Anonymous said...

So how much money did Big Luther and his jack booted storm troopers steal this time? These actions are what you expect if the Nazis suddenly took over state government.

Anonymous said...

@9:46 I would tend to agree with you except for having witness the legal process in Alabama over the last 3 years. I now realize that the citizens of this state have ZERO influence over the legal system. As Legal states in his many articles the Legal system is controlled by the legal tribunal who are not interested in the rule of law.

legalschnauzer said...

Anon at 10:06--

Is adultery really illegal in Alabama? Does that mean it's against "the rule of law"?

Anonymous said...

In retrospect why don't we just go ahead and secede and thus allow the rest of the country's IQ to go up a few points. The Alabama Theocratic Republic: Where there's a 10 Commandments display on every street corner; gambling is an abomination except in Mississippi; ignorance is a virtue; justice is public enemy No. 1; and God's will is the answer to this question and every other one: Why are we so freakin' stupid? ATR's elected state leaders, chosen after voting hours at the Baldwin County Courthouse, will eventually be tattooed with the following numbers from the aforementioned 10 Commandments: 1 ("no other gods" with the exception of Bob Riley)- 2("no graven images" with the exception of 10 Commandments monuments) - 3 ("not take the Lord's name in vain" with exceptions relating to various state oaths and criminal proceedings) - 4 ("keep the Sabbath" which all will think is Sunday and which leaves them free on Saturday to break the commandments they won't be marked with for obvious reasons, namely, killing, adultery, stealing, false witness and coveting)- 5 ("honor father and mother"). Thus a "5 Commandment" state government ought to serve ATR well, that is, at least as well as it serves us now.

Anonymous said...

George Burger was described as a "Democratic consultant," but he worked with Jack Abramoff and Michael Scanlon. Go figure.

Burger had taken a job with the PGA and was at a golf tournament in Hawaii when he contracted bacterial spinal meningitis and later died. Go figure.

This was in 2007, about the time the U.S. attorney firings, the Siegelman appeal, the Abramoff investigation and all sorts of interesting stuff was heating up. Karl Rove was under intense pressure. Go figure.

http://www.nytimes.com/2005/05/13/politics/13abramoff.html

Anonymous said...

Big Luther wouldn't know the rule of law if Jessica Medeiros Garrison put it in his lap.

I hear she's well acquainted with Luther's lap.

James Greek said...

Bob Riley did the same thing Luther Strange has done in 2010!

legalschnauzer said...

Anon at 10:28--

I think you are onto something. The Alabama Theocratic Republic seems to fit, too.

Perhaps our currency could be called the "Luther."

"You want a court decision to go your way? That will cost you 100,000 luthers."

Anonymous said...

@10:18, hah! You made my day.

Maybe we all could be forced to attend the South Huntsville Institute of Theocracy (S.H.I.T.)

Anonymous said...

Jessica has served under Luther for some time now. Sadly, her husband did not appreciate the time she spent debriefing Luther as his head aide. The final straw for their marraige was when he discovered that they had been doing some informal polling.

legalschnauzer said...

Anon at 10:50--

I would reprimand you for going in the gutter, but I can't stop laughing. Will get around to it eventually.

Anonymous said...

Re: George Burger

Professional golfers and tour officials travel the globe, around the clock, and when's the last time you heard of one of them contracting spinal meningitis, much less dying from it?

I would say George Burger had something put in his burger out in Hawaii.

Barb said...

Someone's having just a little too much fun with the Jessica/Luther story--and I'm loving it!

Anonymous said...

@ 10:12 funny you say that because if you trace back to the origins of this sick regime ie neoconservative thugs, you will find that they were the same group who funded, covered for and gave refuge to the Nazis. Ideologies never changed and strategies are same too!

Anonymous said...

Jessica: "oooohhhhh Luther. Show me your mandamus!"

Luther: "I only show my briefs to you baby!"

Anonymous said...

All you people that think this is gonna hurt Luther politically are wrong. I hear that Luther had Jessica do a telephone survey for him that shows lots of people approve of the raid. The reason we haven't hard about it is that Luther told Jessica to sit on his poll for a long time.

Anonymous said...

Anal sex and bj's are too. That's why they keep trying to rewrite our constitution!

Anonymous said...

Aren't lawyers supposed to report misconduct within their profession, including the kind present here? Where is the Alabama State Bar? Isn't it supposed to police its members, such as Luther Strange? What about the Judicial Inquiry Commission? Isn't is supposed to police judges who make unlawful rulings?

Why do we have to rely upon a journalist/blogger--a non-lawyer--to tell us the truth about the actions of our top "justice officials"? LS, I certainly appreciate your work, but why are the legal watchdogs out to lunch?

Anonymous said...

I like Johnny Ford. He rocks! Can't wait to see his federal lawsuit. Hope he can get Jesse J and Al Sharpton down here. And if there's a Johnny Cochran type lawyer still living and breathing, I hope Johnny finds him.

Anonymous said...

"Show me your mandamus!"

Hee, hee, hee

Anonymous said...

I'm hearing the Alabama Supreme Court has unsealed documents in the case. Luther apparently wanted everything sealed so his work could be done without the benefit of sunlight.

Anonymous said...

They used an 1899(!) precedent. Aren't we under the 1901 constitution??? Wouldn't a case from 1899 have zero bearing????

Anonymous said...

After seeing how he approached all of this, Luther has no mandamus. No mandamus at all. None.

Anonymous said...

I would love for a national audience to hear about Strange Luther's dealings. As much as it would pain me to see my former state receive more negative press, I am afraid that the only way one can remove Luther and Company (and those like him) is national exposure.

Far too many Alabamians are unaware of the magnitude of this corruption, and this information needs brought to everyone's attention.

legalschnauzer said...

This really is the kind of story that needs reporting from the NY Times, WaPO, LA Times, USA Today, etc. Certainly from AJC. Alabamians who care should look up the names of key reporters and editors and contact them via e-mail.

Anyone is welcome to include links to any of my posts. I make sure that my work gets around, but this needs to be a statewide community effort.

I have a post coming in the a.m. that explains how this situation violates Fourth Amendment to U.S. Constitution. This goes way beyond Milton McGregor and VictoryLand. It's big, fundamental stuff.

Anonymous said...

I couldn't agree with you more.

Anonymous said...

Post of the year???

Anonymous said...

Four Boobs = one Luther.

Anonymous said...

There are many chapters through out the state, if that one is not in close proximity to you...

Anonymous said...

@ 1050
DR case sealed? If not, it may shed light on a lot of things...so to speak

Anonymous said...

And Big Luther starts this mess and goes out of town?? Wow!!