In a motion filed June 5, Strange says the lawsuit against him and Governor Robert Bentley is frivolous, has no support in the law, and was filed for purposes of harassment. Rule 11 of the Federal Rules of Civil Procedure (FRCP) gives courts the authority to impose sanctions on parties, lawyers, or both under certain circumstances. (See motion for sanctions at the end of this post.)
Tuskegee Mayor Johnny Ford and other plaintiffs say their case is solidly grounded in fact and law. They claim Strange has caused "economic devastation" in Macon County by closing the VictoryLand casino during a February raid, seizing 1,600 electronic-bingo machines and more than $220,000 in cash. Plaintiffs also claim that Bentley's executive order, appointing Strange to enforce gambling laws in all 67 counties, usurped the authority of the Macon County sheriff and violated residents' voting rights.
Donald LaRoche, plaintiff's' attorney from Brockton, Massachusetts, said the motion for sanctions is a continuation of intimidation tactics that Strange has employed since the lawsuit was filed. Strange contends that a U.S. Supreme Court case styled Presley v. Etowah County Commission, 502 U.S. 491 (1992) precludes the plaintiffs' claims. But LaRoche argues otherwise, and in a response to the Rule 11 motion, he states:
On behalf of the plaintiffs, I have previously responded to your Rule 11 letter and our position has not changed: Presley is inapplicable here and the Attorney General's actions are a violation of federal law, which we intend to prove at trial after engaging in wide-ranging discovery permitted by the federal rules of civil procedure.
Are the words in bold above driving Luther Strange's motion for sanctions? Is he pulling out some questionable ethical stops in an effort to avoid the kind of "wide-ranging discovery" that could reveal the real reasons he and former GOP Governor Bob Riley launched a crusade against non-Indian gaming that now has lasted five years . . . and counting?
This much seems clear: Strange has been much more antagonistic than Bentley in attacking the lawsuit; we've seen nothing in the record that indicates Bentley has joined in the motion for sanctions. Is that because Bentley has no record of taking campaign cash from Indian gaming interests, such as the Alabama Poarch Creeks (Strange) and the Mississippi Choctaws (Riley)? Is that because Bentley has made no overt efforts to protect market share for Indian gaming by raiding and trying to close non-Indian facilities?
Here perhaps is the gist of Strange's argument for sanctions:
Plaintiffs are . . . without legal basis when they allege that the Defendants have effected a “de facto” replacement of the Macon County Sheriff. . . . Plaintiffs do not and cannot allege that the sheriff is no longer in office or has been deprived of all the powers of a sheriff. All Plaintiffs allege is that other executive-branch officials, and the Justices of a unanimous Alabama Supreme Court, have determined that the sheriff misinterpreted Alabama’s gambling laws when he publicly announced that the machines at issue were legal. . . . That was not even a “transfer of decision-making power” between state officials for the purposes of the Voting Rights Act. . . . But in any event, Presley holds that even when a State transfers power between officials, the State will not be deemed to have engaged in a de facto replacement of the official who lost power so long as that official “retains substantial authority. . . ." Plaintiffs do not allege that the Macon County sheriff no longer has substantial authority. Plaintiffs’ Voting Rights Act claims are thus frivolous as a matter of law.
Is it possible that Strange will prevail on the voting-rights argument? Yes, it is. Does that mean that plaintiffs' claims are frivolous? No, it does not--and Strange's motion makes no citation to law that supports its contention that the lawsuit is frivolous.
The Macon County plaintiffs do not rely on the Voting Rights Act alone. They also raise civil-rights claims of purposeful discrimination and fundamental unfairness.
Is Strange, in his motion for sanctions, playing loose with the facts? Consider the first section in bold above. It states that the Alabama Supreme Court has determined that the sheriff of Macon County "misinterpreted Alabama's gambling laws when he publicly announced that the machines at issue were legal."
When did the Alabama Supreme Court make such a determination? What was the case, and when was it decided? If our state's highest court actually has made such a determination, it has escaped my attention--and apparently that of the Macon County plaintiffs.
Is Strange playing loose with the relevant law here? Consider the second section in bold above. Strange argues that Presley holds there is no de facto replacement of a public official as long as the official retains substantial authority. But that's not what Presley says. Here is what it does say:
We need not consider here whether an otherwise uncovered enactment of a jurisdiction subject to the Voting Rights Act might under some circumstances rise to the level of a de facto replacement of an elective office with an appointive one, within the rule of Bunton v. Patterson. For present purposes it suffices to note that the Russell County Commission retains substantial authority, including the power to appoint the county engineer and to set his or her budget. The change at issue in Russell County is not a covered change.
The Supreme Court issued a limited ruling in Presley. It said that the changes in Presley were not covered by the Voting Rights Act, but it said circumstances in future cases might rise to the level that would require preclearance under the act. The court declined to offer a "bright line rule" that would guide public officials in future cases. It simply said that the circumstances in Presley did not amount to a covered change.
In other words, Strange is hanging his legal hat on pretty weak stuff when he relies on Presley because it offers little in the way of precedent. The Supreme Court did in Presley pretty much what it would do eight years later in Bush v. Gore, which decided the 2000 presidential election. On that occasion, the court said (in so many words), "Here is our finding in this case, under these circumstances, but it is not to be used as guidance in future cases."
The Macon County plaintiffs claim that the usurpation of their sheriff's powers goes way beyond that described in Presley. And they claim discovery will prove that Strange and Bentley violated federal law.
Strange clearly disagrees with the plaintiffs' claims, but that does not mean they are frivolous--and Strange cites no authority to support his contention that they are frivolous.
That could cause a reasonable observer to conclude that Luther Strange wants no part of a discovery process in the Macon County lawsuit.