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Monday, August 26, 2013

Ala. Supreme Court Tramples Controlling Precedent In Forcing Judge Off VictoryLand Forfeiture Case


Judge Thomas Young
The Alabama Supreme Court repeatedly violated its own precedent in ruling last Friday that Macon County Circuit Judge Thomas Young must step down from a forfeiture case involving February's law-enforcement raids at VictoryLand casino.

Attorney General Luther Strange filed a petition for a writ of mandamus, seeking Young's recusal after the judge refused to approve a search warrant at VictoryLand. Under Alabama law, mandamus is the appropriate vehicle for seeking a trial judge's recusal, but it is an "extraordinary remedy that will not lie unless the petitioner can show a clear right to legal relief." In order to clear that high bar, petitioner must show that a judge's alleged bias is "personal," not "judicial."


Strange did not come close to showing that Young exhibited personal bias. Rather, the AG repeatedly pointed to examples of Young's judicial actions with which he did not agree. That does not meet the standard of personal bias required by law, but the Alabama Supreme Court granted Strange's petition anyway. (See the court's opinion at the end of this post.)


This is just the latest in a long line of preposterous rulings that show Alabama's high court no longer makes any pretense of being a fair and impartial tribunal.  Rather, it is a rubber stamp for corporate interests, especially those who support Strange, former Governor Bob Riley, and their favored law firm, Bradley Arant of downtown Birmingham.


Why does Bradley Arant care about raids at non-Indian gaming facilities in Alabama? It all comes down to cash. Published reports show that Bob Riley funneled $536,115 in taxpayer dollars to the firm for gambling-related work in 2010. Since Strange took office in January 2011, he has shipped $364,000 to his former firm for work on gambling cases.


Do Riley and Strange--with the help of Bradley Arant--have the pull to cause Alabama's high court to ignore controlling law on important issues? The answer appears to be yes.


Let's consider a few key cases that should have forced the Supreme Court to deny Strange's petition:


* Ex parte Army Aviation Center Federal Credit Union, 477 So. 2d 379 (Ala., 1985)--This case holds that "mandamus is an extraordinary remedy that will not lie unless the petitioner can show a clear legal right to relief." A review of the Supreme Court's ruling in the VictoryLand matter reveals that Strange failed to show a clear legal right to relief. In fact, the high court's finding is based largely on Judge Young's response to the AG's petition, not on any showing from the AG himself. The Supreme Court claims that Young made a number of incorrect rulings from the bench--and failed to show proper deference to the high court itself--but those are not grounds, under the law, for forcing recusal.


The Ex parte Army Aviation Center case also states: "There must be no other adequate remedy. . . . Mandamus is not a substitute for appeal." Strange clearly has another adequate remedy in the VictoryLand forfeiture case. If Young rules that cash and electronic-bingo machines should be returned to the casino, Strange can appeal that order. The law cannot be more clear--mandamus is not a substitute for appeal. But Luther Strange is using it for exactly that. 


* Ex parte Duncan, 638 So. 2d 1332 (Ala., 1994)--This case holds that "for Duncan to demonstrate a clear right to the relief sought by the mandamus petition, he must show the appearance of impropriety by showing that the alleged bias, hostility, or prejudice is "personal" rather than "judicial." The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'"


Here is a fictional example of a personal bias that stems from an extrajudicial source: Judge Smith is hearing a case styled Bob's Automotive v. Fred's Bank. Attorneys for Bob's Automotive seek recusal, showing that Judge Smith's daughter works for Fred's Bank. Furthermore, they show that when Judge Smith was in private practice, he and his firm represented Fred's Bank on a number of occasions. Even if Judge Smith believes he can hear the case in an impartial fashion, this is the kind of personal bias that raises the "appearance of impropriety" under Alabama law. Judge Smith should step down, and if he doesn't, an appellate court has legal grounds to issue a writ of mandamus that forces him to step down.


Luther Strange points to no such personal bias that would require Judge Young's recusal. So why did the Alabama Supreme Court grant Strange's petition? The only conclusion we can reach is that the high court is crooked, perhaps tainted by cash from Indian gaming facilities, and it has been for a long time.


The Supreme Court's actions in the VictoryLand matter are both unlawful and inconsistent. The Houston Economic Development Association (HEDA) last year sought the recusal of Judge Mike Conaway in a forfeiture case involving Center Stage Alabama in Dothan. In that instance, Luther Strange tried to make sure that Conaway did NOT recuse himself, even though potential personal bias clearly was present. Here is how we summed it up in an April post, noting the AG's radically different approaches to Judge Conaway in Houston County and Judge Young in Macon County:



What's the difference between Judge Conaway and Judge Young? Former Governor Bob Riley, one of Strange's close Republican allies and an avowed gaming opponent, appointed Conaway to the bench. Sonny Reagan, who now is Strange's chief lieutenant in the attorney general's office, interviewed Conaway for the judicial position while serving in the Riley administration.

How did the Supreme Court react to signs that Judge Conaway might exhibit personal bias? It let him stay on the case and did so in a cowardly fashion--declining to hear HEDA's petition, without explanation.

In the case of Judge Young, the high court heard the case and found personal bias where none existed--and where, in fact, none even was alleged. 

Many Alabamians probably are too enraptured with the upcoming college football season to concern themselves with blatant corruption on our state's highest court. But the stark truth is this: Our all-Republican appellate courts continue to use tax dollars to trash state law and trample the rights to due process and equal protection that our supposed to be guaranteed by the U.S. Constitution.

But this is not just a matter of civil rights. It almost certainly involves a number of federal crimes, including mail and wire fraud, honest-services fraud, obstruction of justice, conspiracy, and more. 

Here is a scary thought: Strange filed his mandamus petition in late March, but the Alabama Supreme Court waited until late August--almost five months--to issue its corrupt ruling. Did the justices know that Alabamians would be distracted by football in late August, so they intentionally held their VictoryLand ruling until then?

Do the justices see us as a bunch of saps who will allow our obsession with college football to blind us to corruption that is right under our noses?

Are the justices right about that?


33 comments:

Robby Scott Hill said...

And they continue to make this shit up as they go...

Anonymous said...

"Politicians and diapers should be changed frequently and all for the same reason." Jose' Maria de Eqa de Queiroz.

Anonymous said...

How does the AL Supreme Court expect us to follow their rulings if they don't follow their rulings.

Anonymous said...

I bet you are right, LS, about SC waiting until beginning of football season to release this.

Anonymous said...

Why do so many Alabamians automatically vote GOP on appellate courts? I'm guessing its because many white folks are terrified of street crime, which they assume is committed by blacks, and they want "tough on crime" judges to fry those thugs "until their eyes pop out." Never mind that two of our three appellate courts have little or nothing to do with criminal cases. And never mind that "tough on crime" judges are conducting a white-collar crime spree . . . against us!

Anonymous said...

Glad you used the "C word" (crime) to describe the Supreme Court's actions here. Would love to see the e-mail and phone traffic going back and forth between Team Riley/Strange and the courts.

Anonymous said...

You've heard of "cooking the books"? This is "cooking the law." You start with a predetermined outcome and figure out a way to get there, no matter how crooked the path you take.

Anonymous said...

This is more or less the same bunch that screwed the public on the ExxonMobil case. Why should we expect them to behave any differently now?

Anonymous said...

To answer your questions:

1. Yes, the justices see us as a bunch of saps.

2. And yes, the justices are right about that.

Anonymous said...

Thanks for an analysis we are not likely to read anywhere else, LS. The mainstream media certainly isn't going to report the truth about what the Supreme Court has done.

Anonymous said...

LS, How will the next judge to hear the case be chosen and by whom?

Anonymous said...

If you can only read two paragraphs in this post, please read these:

"Strange did not come close to showing that Young exhibited personal bias. Rather, the AG repeatedly pointed to examples of Young's judicial actions with which he did not agree. That does not meet the standard of personal bias required by law, but the Alabama Supreme Court granted Strange's petition anyway. (See the court's opinion at the end of this post.)

"This is just the latest in a long line of preposterous rulings that show Alabama's high court no longer makes any pretense of being a fair and impartial tribunal. Rather, it is a rubber stamp for corporate interests, especially those who support Strange, former Governor Bob Riley, and their favored law firm, Bradley Arant of downtown Birmingham."

Anonymous said...

I wish Judge Young had not responded to Luther's petition. That just gave the Supreme bullies an opportunity to use his words against him. Was Judge Young required to respond?

legalschnauzer said...

That's a good question, @9:49. I believe the answer is no, he did not have to respond. The process is governed by Rule 21 of the Alabama Rules of Appellate Procedure, which states in part:

"If the judge or judges named respondents do not desire to appear in the proceeding, they may so
advise the clerk and all parties by letter, but the petition shall not thereby be taken as admitted."


http://judicial.alabama.gov/library/rules/ap21.pdf

Anonymous said...

Glad you included Bradley Arant in this sleazy stew. Never underestimate that firm's power to engage in corruption. The full name of the firm should be "Bradley Arant Whores & Thugs."

legalschnauzer said...

Good question, @9:45. That process is described on p. 19 of the Supreme Court's ruling. The presiding judge in the circuit will notify the next senior judge that he is to take the case. If that judge is disqualified, he notifies the next senior judge . . . and the process continues until they find a judge who is not disqualified.

Anonymous said...

This is what you get with judicial immunity. These judges are accountable to no one. And you can only appeal their bogus rulings to the U.S. Supreme Cout, which wouldn't hear a case like this in a million years. Sad state of affairs.

legalschnauzer said...

Here is an important piece of law I forgot to mention in post:


"All judges are presumed to be impartial and unbiased." Woodall v. State, 730 So.2d 627 (Ala.Crim.App.1997), aff'd in relevant part, 730 So.2d 652 (Ala.1998). The burden in on the party making a motion to recuse to establish that the trial judge is biased or prejudiced against the defendant"


The burden here was on Luther Strange to show that Young was biased against him, and it has to be a "personal bias," outside the judicial realm. Young made discretionary rulings against Strange, but that is not grounds for recusal under the law. Even Strange did not allege that the judge has a personal bias against him or his office.

Anonymous said...

LS, you must have laughed out loud at that passage about judges "presumed to be impartial and unbiased."

What a crock!

legalschnauzer said...

Yes, @10:39, that did make me spew. And yes, it is a crock, in the real world. But in theory, that is relevant law in the VLand matter.

Molli said...

Late Friday they assigned Judge Ray D. Martin to the case via an electric filing. What does anyone know of this Tallapoosa judge is is expected to retire soon?

legalschnauzer said...

That's interesting, Molli. The process for assignment to another judge is presented on p. 19 of the SC order, and the way I read it, it should go to the next most senior judge in the circuit. But Judge Martin is from outside the circuit? Did the other judges in the circuit recuse themselves? If they weren't disqualified by law, I see no reason for them to recuse.

Anonymous said...

This ruling in Macon County, in conjunction with the one that kept Judge Conaway on the case in Houston County, is simply indefensible. No way the Alabama judiciary can explain this one away--and that leaves us with no reasons to trust our courts.

Anonymous said...

"Bad government is like night=crawlers, they both breed at night." Author Unknown.

Molli said...

Ray Martin is in Circuit 5 as is Tom Young.I meant to say above that he is rumored to retire and not run in the next race.

Anonymous said...

Seems pretty clear that Big Luther is going to keep getting recusals until he finds a judge who will issue the order he wants.

Anonymous said...

"Attention Kmart judge shoppers! We now have a bluelight special on Aisle 5--six Supreme Court justices for the price of one! Better hurry, Luther Strange already is on the aisle, buying up all the judges!"

Anonymous said...

Judge Martin ruled in a case against Victoryland in 2009 & the Supreme Court overturned that order! Martin should recuse himself due to this fact. But the more curious issue is the Supreme Court ruled in favor of an "ELECTRONIC BINGO" case. If electronic bingo were illegal how could the court have an opinion at all?

Anonymous said...

So much for the idea of Roy Moore restoring a sense of fairness and morality to the Supreme Court. Ole Roy is just as big a whore for Riley Inc. as the rest of 'em.

legalschnauzer said...

You raise a compelling point, @11:46. Do you have a link to that 2009 case. As you say, why would the court even consider an issue that involved illegal electronic bingo?

Anonymous said...

the south is smart alright

bingo is an electronic money laundering of 'real' and so it really counts

the federal reserve is artificial in selling americans credit as debt and americans buy this product

bingo gives the criminals in the south that have bonded with the 'southern american natives' the real power to make whatever the 'money' can 'buy' happen for what the 'old money' families say is what the 'society is to be'

why the gop has been able to monopolize and compete with the fed, families fighting and the secret gambling money laundering is the real story

incredible reporting LEGAL MURPHY THE SCHNAUZER southern leader, the money in the south is a gambing bingo operation for the criminals that pay the so called 'courts' to do what RICO does best all the way to the top Roaches In Robes

in two words, bow wow!

Anonymous said...

Here is the link to above mentioned case:
http://caselaw.findlaw.com/al-supreme-court/1504612.html

legalschnauzer said...

Thanks for sharing @1:04. I haven't read the whole case yet, but from a quick scan, it appears the Supreme Court adopted the sheriff's definition of bingo, which it found was in keeping with Amendment 744.