|Judge Thomas Young|
You might think that Alabama's chief law-enforcement officer would be above judge shopping. But you would be wrong.
In fact, events leading up to two gambling-related hearings this week indicate Attorney General Luther Strange is an ardent judge shopper. And that should cause reasonable citizens to question the quality of arguments Strange plans to present before the courts.
What evidence suggests that "Big Luther" is practicing the low art of judge shopping? As Exhibit A, consider a hearing that is scheduled today before Macon County Circuit Judge Thomas Young. The hearing originally was set on VictoryLand's motion that its property is due to be returned after Strange's office seized electronic-bingo machines, money, and other items in a February 19 raid. But Strange filed a motion for Judge Young to recuse himself, and today's hearing now is expected to focus only on that issue
As Exhibit B, let's consider a hearing that is scheduled for Thursday before Houston County Circuit Judge Mike Conaway. Officials with Center Stage Alabama are seeking the return of 600 electronic gaming devices and $283,000, which were seized in a raid last July. In that matter, Strange has steadfastly opposed the recusal of Judge Conaway.
Why does the attorney general want a judge in Macon County to step down from a gambling case, while he wants a judge in Houston County to stay put? Well, it appears "Big Luther" is a pretty unprincipled guy. Actually, he does seem to have one principle, and it goes something like this: "I want cases to be heard only by judges who rule in my favor. All other judges must be removed because of 'bias.'"
What is Luther Strange really up to with all the drama of gambling raids? The folks at Dothan-based Rickey Stokes News recently summed it up pretty well, in our view:
While the Attorney General says the operation [at Center Stage] is illegal, he has yet to file any criminal charges in the case. However, he is working for a civil forfeiture of the machines and the equipment. This is a way to circumvent his having to prove the legality of the machines. We have to only take the politician's words because he can't put up or shut up in a criminal proceeding.
With the AG facing shaky facts and law, perhaps that's why he is focused heavily on the pursuit of friendly judges. What is the law on recusal of a judge? Well, it's filled with all sorts of high-minded language that sounds good in theory. But the reality often is muddled and subjective. The basics can be found in a case styled Matter of Sheffield, 465 So. 2d 350 (Ala. Sup. Ct, 1984):
Recusal is required . . . when "facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge. . . ." Specifically, the . . . recusal test is: "Would a person of ordinary prudence in the judge's position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality?"
Alabama courts also have held that "recusal is not required by a mere accusation of bias unsupported by substantial fact." Crowell v. May, 676 So. 2d 941 (Ala. Civ. App., 1996).
Published reports indicate that Strange's recusal motion in Macon County is based almost entirely on the fact that Judge Young ruled against him on an application for a search warrant at VictoryLand. But we've seen no evidence that Young's ruling was contrary to fact or law--or that it was driven by bias. In fact, it was a discretionary ruling, and the Alabama Court of Criminal Appeals agreed with Young's finding. The raid took place only after the Alabama Supreme Court granted Strange's writ of mandamus, forcing Young to approve the search warrant.
(For what it's worth, the Alabama Alcoholic Beverage Control Board also agreed with Young. It granted VictoryLand a liquor license, stating that it could not find the facility was engaging in illegal activity.)
Evidence of bias on Judge Young's part--supported by substantial fact--might be presented at today's hearing or at some point in the future. But for now, it's hard to see any lawful grounds for him to step down from the VictoryLand case.
As for the matter in Houston County, it presents some troubling facts regarding recusal. Judge Conaway was appointed to the bench by former Governor Bob Riley, who spent much of his last two years in office launching a crusade against non-Indian gaming at facilities such as Center Stage. During the appointment process, former Riley adviser Sonny Reagan interviewed Conaway; Reagan now works for the attorney general's office and serves as chief prosecutor on the Center Stage case.
To summarize: Substantial evidence suggests Judge Conaway owes his spot on the bench to Sonny Reagan--and Mr. Reagan now is arguing against Center Stage before Judge Conaway. Do attorneys for Center Stage have the kind of "substantial fact" that goes beyond a "mere accusation of bias"? If they don't, it's hard to imagine a party in Alabama who would.
Despite that, the Alabama Supreme Court has found that Conaway can stay on the Center Stage case. With that as a backdrop, it seems Strange has no grounds for Judge Young's recusal in Macon County.
But as we noted earlier, Strange is an unprincipled guy, and he's trying to get Young off the case anyway. We should know pretty soon if the attorney general is successful. If he is, we will know just how far the rule of law has sunk in this state.
(Update at 1:45 p.m. CST on 3/19/13)
Macon County Judge Thomas Young this morning denied Attorney General Luther Strange's request to recuse himself from the VictoryLand seizure case. Here is a report from al.com:
Macon County Judge Tom Young Turns Down AG's Request . . .