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Tuesday, June 30, 2015

Here is how VictoryLand should fight back against Luther Strange and the Alabama Supreme Court

Milton McGregor
Alabama Attorney General Luther Strange filed a notice of appeal within 24 hours of last week's circuit-court ruling favoring the VictoryLand casino in a forfeiture case. Does that mean VictoryLand officials should sit back and wait for another negative ruling from the Alabama Supreme Court, which repeatedly has violated the state constitution and its own precedents to rule in favor of Strange and former Governor Bob Riley on non-Indian gaming issues?

I don't think so, and that's because the Alabama Rules of Civil Procedure (ARCP) provide a remedy that should be a fit for VictoryLand. In fact, if I were in charge of the legal team for owner Milton McGregor, the remedy would have been sought a long time ago.

What am I talking about? Well, let's first return to last week's ruling from Circuit Judge William Shashy, finding that VictoryLand has been denied equal protection of the law under both the Alabama Constitution and the Fourteenth Amendment to the U.S. Constitution. That means VictoryLand has been treated unfairly under the law, and as a result, it has suffered significant civil damages--and those probably total in the tens, maybe the hundreds, of millions of dollars.

As attorney general, Luther Strange and members of his prosecutorial staff likely are immune from a lawsuit--even though two leaders of his anti-gambling unit, Sonny Reagan and Gene Sisson, have been forced out amid allegations that they acted corruptly in the investigation of House Speaker Mike Hubbard.

But who has been pulling Luther Strange's strings? Who has been encouraging the attorney general to unlawfully target VictoryLand, and who has benefited from the casino being closed for roughly 28 months?

Judicial immunity likely protects members of the Alabama Supreme Court from a lawsuit. But who is pulling their strings? Who has encouraged them, over and over, to rule contrary to law in a way that has heaped devastation upon VictoryLand and its former employees?

Any individuals who are operating unlawfully "behind the curtain" might face liability that likely would reach into the eight or nine figures.

Who has been causing this massive economic harm to VictoryLand and its employees? The casino has a right to find out, and Alabama civil procedure provides a mechanism for doing just that.

It's called Rule 27 ARCP ("Discovery before action or pending appeal"). The rule allows a person or entity to seek "preaction discovery" to determine if it has a case against someone, what the nature of the case might be, and who might be among the defendants. In other words, it allows anyone who thinks he might have a cognizable legal claim to conduct discovery--via depositions, requests for production of documents, etc.--to determine if he has grounds for a lawsuit and against whom the suit should be directed.

Here is the long-winded version of what Rule 27 is about:

A person who desires to perpetuate that person’s own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner’s interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it, (4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or Rule 35 from the persons named in the petition.

As the title states, Rule 27 is appropriate either before an action or pending an appeal. Well, Luther Strange's actions have VictoryLand now facing an appeal. So casino officials have every right to seek information that will either help with their appeal or with a future claim against those who have caused them damages. Also, the proper venue for such a petition likely would be Macon County.

Are there possible downsides to a Rule 27 filing? Perhaps, and the biggest one is that the petition could wind up on appeal before the same high court that already is cheating VictoryLand. But our research  indicates the Alabama Supreme Court's own rulings provide support for the notion that VictoryLand is entitled to conduct "preaction discovery" under Rule 27.

We have more on that coming up.

The bottom line? Parties who are being cheated by a dysfunctional court system--and that includes VictoryLand or anyone else--have a right to seek information that might identify the individuals or entities who are causing them harm. VictoryLand has the legal resources to pursue a Rule 27 petition, and in my view, it is way past time for doing so.

(To be continued)


Anonymous said...

This is a pretty darned interesting idea, Mr. Schnauzer. I bet it would make some sphincters tighten around Alabama.

Spiffy said...

Thanks for the education on this. Had no idea this was a possibility. Is this something anyone can do?

legalschnauzer said...

Yes, Spiffy, anyone can do it--at least on paper and if you get over hurdles that the law and the court will put before you. Probably the biggest hurdle for a lot of regular folks is that discovery can be very expensive. For that reason, and others, this isn't something to play around with. You need to have a pretty good idea that you have a cognizable legal claim.

Anonymous said...

You don't have a clue what you are talking about--as usual.

legalschnauzer said...

Please identify yourself, @10:05 (so we know your credentials), and tell us how I'm wrong.

Anonymous said...

So I guess you're saying that you are a smarter lawyer than Joe Espy?

legalschnauzer said...

No, I didn't say I was a lawyer at all--because I'm not. And I didn't say I'm smarter than Joe Espy. My point is to let the public known about a legal option that is not well known and is available to VictoryLand--and to anyone else who finds themselves in a situation where they think they have a legal claim, but they aren't certain about it.

Anonymous said...

Maybe McGregor needs to put you on a hefty retainer for legal services.

legalschnauzer said...

Hah, that's a good one, @3:19. Of course, I'm not a lawyer, so I can't provide legal services. But I am a journalist, and my goal is to show that the law provides a mechanism for seeking information on a possible future case or for assistance with an appeal. In VictoryLand's case, Rule 27 might provide a way to go on the offensive, rather than being on the defensive all the time.