Issuance Of A Search Warrant At VictoryLand Casino Moves Alabama One Step Closer To A Police State

VictoryLand in Macon County

The Alabama Supreme Court has introduced a police state here in the Heart of Dixie--at least if the court's recent ruling on a search warrant at the VictoryLand casino is to be taken seriously.

Our guess is that the opinion in Ex parte State of Alabama (CR-12-0607), which was released last week, is not meant to be taken seriously. Its central message--that a trial-court judge must issue a search warrant whether he finds probable cause or not--is so flagrantly unconstitutional that future high courts are likely to ignore the ruling, knowing that it can't possibly set precedent.

A close reading of the opinion, which can be viewed at the end of this post, leaves the impression that it is a politically driven fraud upon the public. The document seems to be targeted only at VictoryLand and its owner, Milton McGregor, with no basis in actual law or concern about broader application.

Ex parte State of Alabama is our equivalent to the Bush v. Gore ruling that decided the 2000 presidential election. In that instance, the U.S. Supreme Court, in so many words, said, "This is a one-time ruling that is to have no precedential bearing on future cases. We had a desired outcome in mind, and we couldn't reach it via established law, so we pulled this out of our fannies."

That is essentially what the Alabama Supreme Court is saying with its VictoryLand ruling. The opinion is 46 pages long, but it boils down to these words that are found on page 44:

The Alabama Constitution and the Alabama Legislature decide the criminal law applicable in each of the 67 counties in this State. A circuit judge is not free to frustrate the enforcement of the criminal law by refusing to issue warrants necessary or appropriate to its enforcement in his or her circuit.

That would be news to the gentlemen who wrote the Fourth Amendment to the U.S. Constitution, which protects against unlawful searches and seizures. The Fourth Amendment requires that any warrant be judicially sanctioned and supported by probable cause. If a judge finds that probable cause is lacking, it is his duty to "frustrate" overzealous law-enforcement officers and protect the targets of unlawful searches.

Macon County Circuit Judge Thomas Young made it clear that he found probable cause to be lacking when representatives from the office of Attorney General Luther Strange approached him seeking a search warrant for VictoryLand. Following are Young's exact words, included in his response to Strange's petition for a writ of mandamus with the Alabama Supreme Court:

In the instant case, given the fact that the Constitutional Amendment which provides for bingo being played at Victoryland allows the Sheriff to make a determination as to the nature of the bingo, and further, given the fact that he has publicly declared the machines presently located at that location to comply with the Supreme Court guidance in Cornerstone, there is clearly a lack of sufficient probable cause to warrant such an extraordinary writ.

Here is the crux of Young's finding in ruling against Strange's application for a search warrant:

The Petitioner, in essence, is asking this Court to sign an Order declaring these machines to be illegal, when there has been no such decision on this issue by any Court.

Is Young correct when he states that no court has ruled that the machines at VictoryLand constitute illegal activity? He must be because the Alabama Supreme Court does not counter that statement anywhere in its 46-page ruling. In fact, the high court acknowledges in a footnote on page 28 of its opinion that Alabama law on electronic bingo is so muddled that Young had almost no way of knowing what the law prohibits--much less that the evidence before him represented probable cause that the law was being violated. From the high court's footnote:

A judge considering an application for a search warrant necessarily must determine what it is that the law prohibits and then decide whether the evidence before the judge amounts to "probable cause" to believe that the conduct or items at issue fall within that prohibition. In the typical dispute over the propriety of a search warrant, the latter, factual issue predominates. The issue of what it is that extant law prohibits typically is a function solely of the terms of an applicable criminal statute and commonly is not in question. Here, however, the question of exactly what the law prohibits is at the fore and is a function not only of criminal statutes prohibiting "slot machines" and "gambling devices" but also of constitutional provisions permitting "bingo."

Faced with unclear law, and affidavits from Strange's underlings that he apparently determined were of dubious value, Young took a conservative approach and denied the search-warrant application. In so doing, he tried to spare a private enterprise from a government intrusion that he felt was unlawful.

You might think that our all-Republican Supreme Court--made up of conservatives who presumably want to keep government out of citizens' lives--would support such a cautious approach. But you would be wrong.

Starting on page 34 of its opinion, the Alabama Supreme Court lists eight issues upon which Young erred in denying Luther Strange's search warrant. Throughout 12 pages of explanation on these issues, the Supreme Court does not cite one Alabama case that supports its contention that Young erred.

In fact, the entire opinion includes only one citation to relevant Alabama law regarding Young's findings--and the high court butchers that. The case in question is styled Ex parte Nice, 407 So.2d 874 (Ala., 1981), and the court cited it in an effort to show that Young's denial of a search-warrant application represented "judicial usurpation of power" and "a gross disruption in the administration of criminal justice."

That line of thinking, to put it kindly, is preposterous. On page 34 of its opinion, the Alabama Supreme Court cites Marbury v. Madison, one of the most famous cases in American history, for its proposition that "it is a judge's duty to acknowledge what the law is and to decide how it applies to the facts before him." That is precisely what Young did, so how is that a "judicial usurpation of power."

The high court also acknowledges that Young was correct in stating that Strange could pursue a warrantless seizure under his "plain view" authority--if he truly believed the machines were operating illegally. Therefore, how did Young contribute to a "gross disruption in the administration of criminal justice"?

In fact, the Alabama Supreme Court violated the primary finding in Nice. Here is the crux of that case:

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.

Law does not get much more clear than that: Mandamus is appropriate in only the "rarest of circumstances and is not to be invoked for "alleged errors of judgment" or "errors in the exercise of judicial discretion." So why did the Alabama Supreme Court cite eight errors in judgment that Young allegedly committed? Perhaps it's because mandamus is not all that rare when it is used to help Luther Strange. Perhaps it's because our high court, which was unmasked as corrupt in the infamous ExxonMobil ruling of 2007, has no problem violating its own precedent--when it serves certain political purposes.

Judge Young clearly did not "frustrate" the enforcement of criminal law. He simply refused to rubber stamp a search-warrant application that he found to be lacking probable cause. He had the authority to make such a finding and the duty to protect VictoryLand from an unlawful search. That left Luther Strange with multiple options: (1) Conduct a "plain view" seizure; (2) Rework his search-warrant application to meet the standards of probable cause.

If the Alabama Supreme Court's ruling was not about the frustration of law enforcement, what was it about? We can come to only one conclusion: This is a continuation of the crusade against non-Indian gaming that former Governor Bob Riley and his allies launched in 2008. It's driven by the fact that Indian gaming interests, as admitted by GOP felon Jack Abramoff in his 2011 book, poured some $20 million into Alabama to get Riley elected. Luther Strange is Riley's most visible ally currently in office, and he has picked up where the former governor left off--with a blatantly unlawful effort to protect market share for Indian gaming interests.

This is about payoffs, paybacks, kickbacks, bribery, and all sorts of other ugly words. It also might be about extortion if Indian gaming interests are getting their way by holding damaging information over the heads of Bob Riley and his allies. It clearly has nothing to do with the law. And anyone who seriously reads the Alabama Supreme Court's opinion can see that.

Alabama Supreme Court VictoryLand Search Warrant by

Even State AG Luther Strange Seemingly Is Aware That VictoryLand Raid Rests On Shaky Legal Ground

Macon County Judge Thomas Young

Alabama Attorney General Luther Strange must not be too confident that the results of his raid on the VictoryLand casino will hold up. He shouldn't be, of course, given that the Alabama Supreme Court acted in a flagrantly unconstitutional fashion when it ordered Macon County Circuit Judge Thomas Young to approve a search warrant on VictoryLand.

The new findings of a state regulatory board provide VictoryLand with additional ammunition for its argument that electronic-bingo machines at the facility legal. Meanwhile, Strange is seeking to have Judge Young removed from the case.

How will it all shake out? We will know more on March 19, when a hearing is set on VictoryLand's motion to have its property returned.

We know this much already: Luther Strange is acting like a desperate man--and perhaps he has good reason to behave that way. After all, the Alabama Alcoholic Beverage Control Board (ABC) has announced that it approved a liquor license for the VictoryLand casino.  In making its ruling, ABC found that it could not conclude the activities at VictoryLand are illegal.

On one hand, the ABC ruling might seem like a moot point, in the aftermath of Strange's raid. But Charlanna Spencer, an attorney for the casino, said the ABC decision supports VictoryLand’s argument that it is operating within the law. Attorneys for casino owner Milton McGregor are likely to emphasize that in their argument at the March 19 hearing.

Is VictoryLand likely to have its property returned? Strange must be concerned about it because he is asking Judge Young to recuse himself. Reports the Montgomery Advertiser:

Deputy Attorney General Sonny Reagan, in the motion, questions whether Young can be fair and impartial. 

“Judge Young’s cumulative record of clearly erroneous actions requiring reversal by the Supreme Court of Alabama in this and previous matters concerning alleged illegal gambling activities at the VictoryLand casino, together with his repeated criticisms of state officials seeking to enforce Alabama’s anti-gambling laws against VictoryLand, would cause any reasonable person to question Judge Young’s impartiality in matters pertaining to gambling at VictoryLand,” Reagan wrote.

The AG's recusal motion has a few problems. One, Young's ruling on the search-warrant application was not clearly erroneous. It was a discretionary ruling supported by relevant facts and law. It also was supported by the Alabama Court of Criminal Appeals, which denied the AG's petition for a writ of mandamus. That the Alabama Supreme Court ultimately granted mandamus does not remotely require Young's recusal; we are aware of no evidence indicating that Judge Young has a conflict of interest or personal bias against the state. Two, the mere fact that Young ruled against the AG on a search warrant does not justify recusal, under the law. Three, even the Alabama Supreme Court found in its 46-page ruling that the law is muddled on electronic bingo, raising this question: How could Young be expected to find probable cause that a law was being violated when even the state's high court cannot seem to identify solid law related to electronic bingo in Macon County?

From a public-relations standpoint, the AG's recusal motion makes him look like a world-class hypocrite. Reports the Montgomery Advertiser:

Joe Espy, an attorney representing VictoryLand, noted that the state opposed a similar recusal motion in Houston County last year. The Houston County Economic Development Authority requested Circuit Judge Mike Conaway to step away from a case involving electronic bingo at the Center Stage facility near Dothan. The group alleged Conaway had ties to local businessmen who were anti-gambling and had been appointed by Gov. Bob Riley, who initiated efforts to shut down gambling in the state.

At the time, Attorney General Luther Strange’s office argued that even if proof of such allegations could be found that would not disqualify Conaway from the case.

“The state’s position was adamant that the judge not be recused,” Espy said, accusing the attorney general of being more interested in winning the case “rather than being consistent and fair.”

Our guess is that Judge Young will refuse to step away from the case, and in our view, that would be the correct decision. If Strange puts the matter before his buddies on the Alabama Supreme Court, they might force Young to recuse.

But that brings us to perhaps the two key questions on the VictoryLand matter: How long will the Alabama Supreme Court continue to overrule circuit judges--not to mention the Alabama Court of Criminal Appeals--so that Luther Strange can have his way? Will the state's high court reach a point where even it is embarrassed by an AG's office that clearly is driven by political motivations?

Luther Strange's actions in recent days indicate those questions are firmly planted in the back of his mind. He is leading the state's judiciary toward a potential PR disaster. How long will the public tolerate a high court that repeatedly abuses procedure by substituting its discretion for that of local judges? How long will the public tolerate a high court that puts its stamp of approval on government intrusions that appear to be unlawful because they are not grounded in probable cause?

Alabamians long have displayed a preference for control at the local level, for the authority of small government over the heavy hand of big government. Alabamians long have cast disapproving eyes at government intrusions on private affairs. That means the ice, at some point, is likely to get thin under the feet of Luther Strange and the Alabama Supreme Court.

We might be reaching that point pretty soon.

VictoryLand Forfeiture Case Will Determine If Alabama Courts Have Any Integrity Left At All

Milton McGregor

The VictoryLand forfeiture case, going on this week in the courtroom of Montgomery Circuit Judge William Shashy, will determine if the Alabama court system has a shred of integrity left.

On the surface, the case is about electronic-bingo equipment. VictoryLand maintains that its machines, equipment and cash were unlawfully seized in a February 2013 raid conducted by Attorney General Luther Strange. The AG's office maintains the equipment represents illegal gambling devices and should be destroyed.

The real entity on trial, however, is the Alabama court system--and the judges who rule over it.

That's because the facts and law in the VictoryLand case are stunningly straightforward--and they have been since Strange's operatives stormed the Macon County facility roughly 19 months ago.

As we showed in a post yesterday, the law clearly shows that VictoryLand and owner Milton McGregor have the correct position here. According to the Montgomery Advertiser, Strange's office does not even have a certified electronic-gaming expert to counter VictoryLand's testimony.

The e-bingo machines in question were operating lawfully, under a constitutional amendment approved in 2003 by Macon County voters, and never should have been seized. In fact, no one even questioned their legality for seven years. That happened only after former governor Bob Riley decided to launch a crusade against non-Indian gaming during his last two years in office.

Riley had been the beneficiary of millions of campaign dollars from Indian gaming interests, much of it funneled through GOP felon Jack Abramoff, so his raids apparently were based on politics and not the law. If the law accounts for anything in Alabama, the machines will be returned to VictoryLand as soon as possible.

Moreover, it's clear that Macon County Circuit Judge Thomas Young was correct in 2013 to deny Strange's request for a search warrant--and the Alabama Supreme Court was wrong to force Young to sign the search warrant and then step down from the case.

The key facts and law on this case can be examined in a series of posts we wrote last year about the VictoryLand case. Nothing about the fundamental law and facts has changed since then, and the only questions are: (1) Will Shashy rule according to law and order VictoryLand's equipment returned? and (2) Will the Alabama Supreme Court correctly deny Strange's inevitable appeal?

The high court has consistently violated its own precedent to side with Strange and Riley in their crusade against non-Indian gaming facilities--which appears driven by the huge sums of money both have received from Indian gaming interests.

Does that mean the all-Republican Alabama Supreme Court is tainted by Indian gaming cash? Is it possible something has caused the high court to change, and it now will rule lawfully for VictoryLand?

How easy is the law in the VictoryLand case? Here are the two overriding issues:

(1) Strange claims that the casino's machines violate state statues that outlaw slot machines and illegal gambling devices. But e-bingo in Macon County was approved by a constitutional amendment, and the Alabama Supreme Court has ruled repeatedly that a constitutional amendment overrides a state statute. To use gaming lingo, the constitutional nature of the Macon County law "trumps" anything Strange can come up with of a statutory nature.

(2) Strange claims the game played on the machines does not match what commonly is defined as bingo. But again, Amendment 744 ("Bingo Games in Macon County) takes care of that issue. The amendment states:

The sheriff shall promulgate rules and regulations for the licensing and operation of bingo games within the county. The sheriff shall insure compliance pursuant to any rule or regulation and the following requirements . . .

Judge Young, in denying Strange's application for a search warrant, addressed this issue:

In the instant case, given the fact that the Constitutional Amendment which provides for bingo being played at Victoryland allows the Sheriff to make a determination as to the nature of the bingo, and further, given the fact that he has publicly declared the machines presently located at that location to comply with the Supreme Court guidance in Cornerstone, there is clearly a lack of sufficient probable cause to warrant such an extraordinary writ.

In other words, it's up to the sheriff to decide if a certain game meets the definition of bingo. And the Macon County sheriff has ruled in the affirmative.

That, plus the fact that a constitutional amendment trumps a state statute, means Strange never had any lawful grounds to seize VictoryLand's equipment--and he certainly has no grounds to keep it.

This is a high-profile case that is being closely watched both in Alabama and beyond. Will Alabama courts finally get it right on such an easy case? If they don't, will it be time for the U.S. Department of Justice to launch an investigation, perhaps of Luther Strange, his associates, and the Alabama Supreme Court?

We don't know the answer to the first question. But the answer to the second question definitely is yes.

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?

VictoryLand Judge Young Recusal by Roger Shuler

The Remnants Of Alabama High Court's Credibility Will Be Riding On Luther Strange's Recusal Petition

Judge Thomas Young

To no one's surprise, Attorney General Luther Strange has filed a petition asking the Alabama Supreme Court to force the recusal of Macon County Circuit Judge Thomas Young in the VictoryLand seizure case.

Will the state's high court grant the petition? Well, that probably depends on how the justices answer the following questions:

* Do they care about retaining what is left of their tattered credibility?

* Are they concerned about signs that they are engaging in a criminal conspiracy?

In other words, do the justices of the Alabama Supreme Court have any shame? We already know the answer to that question regarding Luther Strange. He is one of the most shameless judge shoppers in the history of the American justice system.

Strange proved that last week when he filed a petition for a writ of mandamus that would force Judge Young off the VictoryLand case. That comes on the heels of Young's denial of a search warrant application from Strange's office, a Supreme Court writ forcing Young to approve the search warrant on VictoryLand property, and Young's refusal to recuse himself from the case.

How ironic is all of this? Strange's office, in a similar case involving the Center Stage facility in Houston County, has been fighting to make sure Circuit Judge Mike Conaway does NOT recuse himself. 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.

Translation: Mike Conaway is a friendly judge for Luther Strange; in fact, a reasonable observer could find plenty of grounds to question Conaway's impartiality in the Center Stage case. But the Supreme Court has allowed him to stay on board.

Meanwhile, we've seen no sign that Judge Young is biased toward one party or another, but he did refuse to rubber stamp a search warrant for the attorney general's office, on the grounds that he could find no probable cause that criminal acts were being committed at VictoryLand. Still, Luther Strange wants Young off the case, and few observers will be surprised of the high court sides with the AG.

The irony of all this has not gone unnoticed in Houston County, even in the mainstream media. In a piece titled "Tables turned in Macon County judge bingo battle," Dothan Eagle reporter Lance Griffin writes:

According to court documents, the Attorney General argues that Young’s refusal to sign a search warrant for the VictoryLand raid, his initial reluctance to sign the warrant after being ordered to do so by the Alabama Supreme Court, and written comments placed on the warrant itself indicate a bias against the state.

“On the face of the search warrant, Judge Young wrote that he was signing with ‘the greatest judicial reluctance’ and ‘did not believe that (the) application for search warrant provides sufficient probable cause.’ He ended his note by declaring the State’s case and the Supreme Court’s order was ‘improper according to the law,’” the Attorney General states in his motion for Young’s recusal. 

The motion goes on to allege Young made statements to investigators that questioned the Attorney General’s motives for obtaining the warrant.

None of that, of course, proves bias or "the appearance of impropriety" on Young's part. The judge's comments only show that (a) He disagrees with the AG's contentions that probable cause exists in the VictoryLand matter--a reasonable finding given that no court has found the facility's electronic-bingo machines to be illegal; (b) He believes the state's high court is setting a dangerous precedent by issuing an "extraordinary writ" to override the ruling of a local judge.

If the Alabama Supreme Court's actions in the Center Stage case mean anything, its ruling on the VictoryLand matter should be a no-brainer. Last December, the high court denied a petition from the Houston Economic Development Association (HEDA) to have Conaway removed from the Center Stage case; in fact, Conaway is expected to rule soon on motions involving the seizure of cash and machines at the casino near Dothan.

How did the Supreme Court deal with efforts to get Conaway off the case in Houston County? It simply declined to hear the appeal, with no explanation.

For the sake of consistency, we should expect to see the high court act the same way in the Macon County matter, right? A reasonable person should expect a decision stating that the court declines to hear the appeal, offering no explanation and leaving Young on the case, right?

Well, yes . . . if the court cares about maintaining some semblance of credibility with the public. But we've signs that court doesn't care one iota what the public thinks. It's main interest seems to be serving the interests of its political soul mates, such as Luther Strange and Bob Riley.

As for the possibility, however slim, that the court might get nabbed in a criminal conspiracy . . . we doubt the justices are concerned about that, either. But the public should be concerned about it--and a ruling that forces Judge Young off the Macon County case will add to the mounting evidence that something smells mighty foul with the Alabama Supreme Court.

We will address that issue in an upcoming post.


(To be continued)

Roy Moore Should Be Known As "Hypocrisy Judge" In The Wake of Ruling On VictoryLand Forfeiture

Judge Roy Moore

Perhaps no public figure in modern American history has used Christianity to attain power quite like Judge Roy Moore of Alabama.

Therefore, you might expect that Moore is well versed in the teachings of the New Testament and lives his life accordingly. But based on a recent Alabama Supreme Court order in a forfeiture proceeding involving the VictoryLand casino, you would be wrong.

As chief justice, Moore signed an order that forced Macon County Circuit Judge Thomas Young off the VictoryLand matter. We've already shown the order conflicts with long-standing Alabama precedent--and it even includes a bold-faced lie, which makes you wonder how serious Roy Moore really is about the Ten Commandments and their warning against "bearing false witness."

But that's not all. We now have evidence that suggests Roy Moore should forfeit his nickname, "The Ten Commandments Judge." A more fitting title, it appears, would be "The Hypocrisy Judge."

As one who professes to be a devout Christian, Moore should be familiar with one of Jesus' best- known teachings. It comes from Matthew 7:3--"Why do you see the speck that is in your brother’s eye, but do not notice the log that is in your own eye?"

The meaning is clear: Christians are not to judge others, especially without stopping to scrutinize their own behavior first. Does Roy Moore follow that directive? Not even close.

In its VictoryLand order, the Alabama Supreme Court repeatedly chastises Judge Young for failing to show proper deference to a higher judicial body--and Roy Moore signs his name to the order, front and center as chief justice. This is the same Roy Moore whose previous reign as chief justice ended when he refused to obey a federal-court order that he remove his Ten Commandments monument from the Alabama Judicial Building.

As recently as August 21, 2013, on the 10th anniversary of the monument controversy, Moore still was defiant, claiming that he was right on the matter and federal courts were wrong. In other words, Roy Moore made disrespectful statements about the federal judiciary just as the VictoryLand order was about to be issued. (It's dated August 23.)

What do Moore and his colleague say about Judge Thomas Young, of Macon County? (See the full order at the end of this post.) Here is part of it:

Judge Young has consistently criticized this Court's decisions regarding the litigation involving VictoryLand. He has indicated that he was "shocked and alarmed" at our decision in Tyson v. Jones, that our decision in Cornerstone was "not clear" and "did not assist him," and that the application for a search warrant this Court directed him to sign was insufficient and "improper." Most telling, Judge Young violated this Court's previous directives by failing to act immediately upon the receipt of our February 15, 2013, sealed order "to issue the warrant" and, contrary to our directive that the proceeding and order remain under seal until further order of this Court, wrote a note on the face of the warrant that would disclose the fact and nature of the proceedings in this Court to VictoryLand and presumably others prior to the "further order of this Court."

Were Roy Moore's colleagues on the Alabama Supreme Court, knowing Moore's continuing history of defying and criticizing a federal court, able to sign the VictoryLand order with straight faces? Did Moore himself sign the order without noticing the slightest trace of irony?

As "The Hypocrisy Judge," Roy Moore seems to think he can do just about anything--and no one will notice that he's a phony.

VictoryLand Judge Young Recusal by Roger Shuler

Forced Exit Of Judge Young In VictoryLand Case Butchers Precedent On "Personal Bias" Standard

Judge Thomas Young

During the prosecution of a 1987 capital-murder case, an Alabama judge made statements from the bench that indicated he believed the defendant's actions to be "heinous, atrocious, and cruel." The judge then overrode the jury's verdict of life in prison and sentenced the defendant, Joe Cecil Duncan Jr., to death.

Duncan eventually received a retrial and filed a petition for writ of mandamus, asking the Alabama Supreme Court to force the trial judge off the case because his statements from the bench had demonstrated prejudice. The Supreme Court refused, stating that the judge's remarks did not represent the kind of "personal bias" that would "reasonably call his impartiality into question" and force recusal.

That appellate ruling, styled Ex parte Duncan, 638 So. 2d 1132 (Ala., 1994), established black-letter law that governs recusal of an Alabama judge. 

A citizen might assume that the justices on today's Alabama high court are well acquainted with the finding in Ex parte Duncan. After all, their predecessors established the law, and under the doctrine of stare decisis, the current-day justices are bound to abide by it.

So how did the high court release an order last week that obliterated the binding precedent of the Duncan case? How did the court force Macon County Circuit Judge Thomas Young off the VictoryLand forfeiture case when no "personal bias" was even alleged, must less shown?

The only answer we can fathom is that our all-Republican high court is so corrupted by political and financial considerations that it no longer takes its legal duties seriously.

Last Friday's ruling in Ex parte State of Alabama makes clear that Attorney General Luther Strange makes no showing, or even allegation, of personal bias against Judge Young. (See full order at the end of this post.) Rather, Strange repeatedly disagrees with Young's interpretation of the law regarding the AG's request for a search warrant at VictoryLand.

The Supreme Court follows suit, claiming Young erroneously applied the law in several instances and exhibited a lack of deference toward the high court itself. The court then issues the writ of mandamus, forcing Young off the case so that "the appearance of justice will be preserved." In reaching such a conclusion, the Supreme Court cites a litany of federal cases that are not applicable or binding in the VictoryLand matter.

What is applicable and binding? It's Ex parte Duncan, but the high court goes to considerable lengths to ignore it. We won't make the same mistake here.

At the heart of the Duncan case was the murder of a state trooper named Elizabeth Cobb. The trial involved disturbing evidence, and the judge apparently allowed himself to get carried away with statements from the bench. Here, from an appellate ruling some seven years after the murder, is a portion of what he said about the circumstances surrounding Elizabeth Cobb's murder:

You know, I just ask myself one simple question; if we got news that they were slaughtering cattle this way in the stockyard, what would the reaction be? Would we say that that's heinous, atrocious and cruel? I would.

Many citizens probably would agree with the judge's statement. But that's not what we expect to hear from someone who is charged with being an impartial arbiter from the bench. Neither is this:

Now the murder in this case was premeditated, it was diabolical, methodical, heartless, cruel, cold, deliberate, it was planned. It was a planned execution and slaughter of an innocent young lady while she quietly and peacefully waited unsuspectingly on the sacred grounds of a little country church on the Sabbath evening. . . . There was no excuse, there was no justification, for a vile, conscienceless, pitiless murder.

The judge left no doubt about where he stood--and you can see where the defendant might not want him to preside over a retrial. But the Alabama Supreme Court found in Ex parte Duncan that the judge's statements did not disqualify him. That's because his statements came in his judicial capacity, not from an extrajudicial source that might lead to personal bias. From the Supreme Court's 1994 ruling:

Therefore, 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.

The high court then took it a step farther:

In this case, we cannot say, as a matter of law, that the trial judge's statements in and of themselves show bias, hostility, or prejudice toward Duncan; therefore, we cannot say that Duncan has demonstrated a clear legal right to have the trial judge remove himself. The trial judge's statements arose out of a judicial proceeding, not from an extrajudicial source; and although the trial judge's expressed opinions may have been better left unsaid, in our opinion the remarks he made do not show bias, hostility, or prejudice against Duncan arising from a "personal," i.e., extrajudicial, source.

In concluding, the Supreme Court said the burden was on Duncan to make a clear showing that recusal was required--and he failed to reach that high bar. The same bar was set for Luther Strange, and like Duncan, he failed to reach it.

Like Duncan, Strange based his mandamus petition on Judge Young's statements and actions from the bench. But he never came close to showing that Young had a "personal bias" that could be traced to an "extrajudicial source." Strange, in fact, did not even try to make such a showing.

How did the Alabama Supreme Court get around that slight problem. By ignoring Ex parte Duncan altogether and pretty much creating law from the bench. 

In other words, our Republican justices did exactly what they vow, as "strict constructionists," to never do--they legislated from the bench.

Actually, they probably did far worse than that. We will stipulate that the justices on Alabama's high court are not ignorant, and they surely know how to conduct relatively simple legal research. If that's the case, it means they knew the correct legal standard for recusal in the VictoryLand forfeiture matter and chose to ignore it. That can only mean external forces are influencing the court's decisions, which would constitute fraud, obstruction of justice, conspiracy, and perhaps other federal crimes.

Many Alabamians reflexively have voted Republican in recent years on statewide judicial races--probably from a misguided notion that conservative justices will be tough on street crime. We now know that creates an environment where justices themselves can engage in white-collar crime that endangers us all.

VictoryLand Judge Young Recusal by Roger Shuler

Documents Related To AG's Raid At VictoryLand Prove Luther Strange Trampled All Over The Law

Raid at VictoryLand

Attorney General Luther Strange makes the extraordinary assertion in documents related to this week's VictoryLand raid that an Alabama circuit judge has no discretion in the issuance of a search warrant, as long as the application is presented in the proper form.

If the application adheres to certain technical requirements, Strange claims, a circuit judge must approve the search warrant. That was the attorney general's primary argument in seeking a writ of mandamus that would force a Macon County judge to approve the warrant. The Alabama Supreme Court apparently agreed because it issued the writ, ordering Judge Thomas Young to sign off on the search.

The high court unsealed documents in the case yesterday, and the Montgomery Advertiser posted them to its Web site last night. A review of the documents shows that, as we suggested in a post yesterday, Strange and the Alabama Supreme Court trampled legal procedure and precedent in their haste to shut down VictoryLand's electronic-bingo operation.

Most stunning was Strange's claim that a circuit judge essentially must play the role of rubber stamp when law-enforcement officials present him with a search-warrant application that meets minimum technical requirements. In such a situation, Strange suggests, a judge has no authority to determine if the contents of the application show "probable cause" to believe a crime has been committed.

In Luther Strange's world, a judge is supposed to sign any form that law enforcement places before him--as long as all the boxes are properly filled in. Strange must not be familiar with the Fourth Amendment to the U.S. Constitution, which guards against searches and seizures that are not judicially sanctioned and supported by probable cause.

With the apparent intention of proving that the U.S. Constitution does not apply in Alabama, Strange turns in his petition to Rule 3.9 of the Alabama Rules of Criminal Procedure and to Code of Alabama 15-5-5. He claims that both prove Judge Young had a mandatory duty to approve the search warrant at  VictoryLand. On page 13 of his petition for a writ of mandamus, Strange titles the key section "The trial court has an imperative duty to issue the warrant, and the State has a clear right to the issuance of the warrant."

Unfortunately for the attorney general, his citations to law do not say what he wants them to say. In fact, upon close reading, Strange's own petition undercuts his argument. The two sections of Alabama law that Strange cites essentially say the same thing--and the heart of it is this, taken from the rules of criminal procedure:

If the judge or magistrate is satisfied that probable cause to believe that grounds for the application exists, the judge or magistrate, in the case of a warrant issued on affidavit, shall issue a warrant naming or describing the person and particularly describing the property and the place to be searched.

Strange claims that use of the word "shall" means that issuance of the warrant is mandatory. But the clear language of the full rule shows a warrant "shall" issue only when a judge or magistrate is "satisfied that probable cause . . . exists."

Reaching into the way-back machine, Strange pulls out a case from 1899--Benners v. State, 26 So. 942 (Ala., 1899)--for the proposition that a judge has a duty to approve a warrant application that is "regular in form, and full in substance."

Benners is so old that we can't find it on the Web, but Strange makes no showing in his petition that the ancient state case precludes a judge from fulfilling his Fourth Amendment duty to make a determination on probable cause. Even Strange seems to acknowledge this when he writes:

As the Benners decision shows, it has long been the law of this State that when a circuit court is confronted with an affidavit from the State establishing probable cause to issue a warrant, the court has no discretion to decline to issue the warrant.

This is a poor attempt at legal hocus pocus. Strange claims, on the one hand, that a judge "has no discretion to decline to issue the warrant." But he admits that comes only after the judge is "confronted with an affidavit from the State establishing probable cause."

Despite much huffing and puffing, Strange concedes Judge Young had the discretion to determine whether the attorney general's office had met the requirements for probable cause--and the judge decided in the negative.

In a letter responding to Strange's petition, Judge Young says he denied the search warrant application for two primary reasons:

* Another law-enforcement officer, the sheriff of Macon County, had found the machines to be legal;

* The attorney general, if convinced that the bingo machines were illegal, could exercise his "plain view" authority to take action against VictoryLand.

The Petitioner, in essence, is asking this Court to sign an Order declaring these machines to be illegal, when there has been no such decision on this issue by any Court. If these machines were of such an illegal nature, as cited in the extensive briefs of the Attorney General, then why does the Attorney General need a warrant? This business is for public invitees and a search warrant would not be required if these machines were in plain sight and illegal.

Judge Young concludes with this big-picture statement:

The Fourth Amendment is sacred and should not be the subject of political agendas of Governors, Task Force(s), Attorney Generals or multi-million dollar industries. No Judge would issue a search warrant in any case under the aforementioned circumstances because of lack of probable cause establishing illegal activity nor should said Judges be ordered to do so.

Finally, Young made his feelings clear in a handwritten note at the bottom of the search warrant he was forced to approve. The warrant can be viewed at the end of this post, but here is how Young's note reads:

Based on the conflict in information known to this court at this time, I do not believe that this application for a search warrant provides sufficient probable cause. One month ago, based on this information, I declined to issue the warrant and the Criminal Court of Appeals supported the decision when they denied the Attorney General's first writ of mandamus, by unanimous decision. No new information has been provided to this date. The Supreme Court has now issued to this Court a Writ of Mandamus requiring the Court to sign the same warrant, despite this Court's opinion that it is improper according to the law. This Court will, as always, follow the mandates of the Supreme Court, although, it does so with the greatest judicial reluctance.

Documents in the VictoryLand matter make it clear that Strange disagreed with Judge Young's ruling--and the Alabama Court of Criminal Appeals' ruling that unanimously upheld it. Strange is entitled to disagree and seek redress. But his contention that Young did not have discretion to make the ruling is preposterous.

That the Alabama Supreme Court apparently agreed with such a flagrantly unconstitutional notion should frighten everyone living within the borders of this state.

VictoryLand Search Warrant by

Luther Strange Embarks On a Wild Shopping Binge In Search Of Friendly Judges For Gambling Cases

Judge Thomas Young

(Updated at 1:40 p.m. CST on 3/19/13. See update at end of post.)

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 . . . 

Federal Lawsuit Alleges Agents For Luther Strange Unlawfully Destroyed Property in VictoryLand Raid

The February raid at VictoryLand

Agents of the Alabama Attorney General's Office damaged or destroyed property in a February raid at the VictoryLand casino, according to a federal lawsuit filed by Tuskegee Mayor Johnny Ford and other residents of Macon County.

The lawsuit also contends the Alabama Supreme Court wildly misinterpreted an 1899 case that was central to its order that forced Macon County Circuit Judge Thomas Young to approve a search-warrant application from Attorney General Luther Strange.

Lawyers for the Macon County residents make a compelling case that Strange's agents violated the terms of a search warrant that they never should have been granted in the first place.

According to the federal complaint--prepared by attorneys Donald LaRoach, of Brockton, Massachusetts, and Christopher Ford, of Tuskegee--Strange's agents seized 1,600 electronic-bingo machines and more than $220,000 in cash during a February 19 raid. (The full lawsuit can be viewed at the end of this post.) In the process, the complaint states, agents went beyond the boundaries of the  search warrant. From page 24 of the lawsuit:

During the raid, agents destroyed VictoryLand property and closed its pari-mutuel wagering operation and its restaurant, even though those businesses were not the subject of the search warrant and Defendants have never questioned the legality of those operations. 

Pursuant to the terms of the search warrant and an order entered by the Macon County Circuit Judges, the Attorney General's agents were supposed to preserve the integrity of the machines for later testing and take care not to damage any of the equipment. 

Instead, agents under the direction and control of the Attorney General cut the wires from a number of machines and damaged and destroyed others.

While representatives of the AG's office were acting like thugs during the VictoryLand raid, they were acting like con men in courtroom proceedings, according to the federal lawsuit. As an example, Ford's lawyers point to the AG's reliance on a case styled Benners v. State ex. rel. Heflin, 124 Ala. 97 (1899).

Attorneys for the AG's office cited Benners for the proposition that it authorized the Alabama Supreme Court to issue a writ of mandamus, forcing Judge Young to approve a search warrant in Macon County. But lawyers for Ford point out that Benners dealt with an arrest warrant, not a search warrant, and the heart of the Benners finding was overturned 10 years later. On top of that, the adoption of subsequent federal and state laws appear to make Benners a non-factor in the modern-day courtroom.

In summary, Benners apparently has not been good law in Alabama for more than 100 years--but the state's highest court used it to justify giving Luther Strange a search warrant. Here is how the Ford lawyers explain it:

The Benners case dealt with arrest warrants, not search warrants. And the Benners case forced a local justice of the peace to issue an arrest warrant, something the Supreme Court subsequently described as "a purely ministerial act" and only appropriate there because the justice of the peace "had no judicial discretion in the matter." Ten years later, the Alabama Supreme Court recognized that Benners does not apply when judicial discretion is at issue. The subsequent case limiting the Benners decision is not mentioned in the Attorney General's brief, apparently because he did not want them to read it. Moreover, the Benners case pre-dates the application of the Fourth Amendment to the states, the Alabama search warrant statutes, and the Alabama Rules of Criminal Procedure.

The actions of Luther Strange, his surrogates, and the Alabama Supreme Court have been highly questionable in the VictoryLand matter for quite some time. They become even more so when you read the complaint in Mayor Johnny Ford's federal lawsuit.

Macon County Lawsuit Re Luther Strange by Roger Shuler

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.

Big Luther Strange Tells A Whopper Of A Falsehood About High Court's Ruling On VictoryLand Search

Luther Strange

Alabama's attorney general is known as "Big Luther" Strange because he stands 6-foot-8. Perhaps the reason for Strange's nickname should be his tendency to tell enormous lies about politically charged cases involving his office.

The most recent example comes with Strange's statements about the impact of the Alabama Supreme Court's recent decision that forced a circuit judge to sign a search warrant for the VictoryLand casino in Macon County. Strange proclaimed in a press release that the ruling was a final determination that electronic bingo is illegal in Alabama and should "end the debate."

Strange's comments, to put it mildly, are a crock of barnyard excrement. How do we know? The words of the Alabama Supreme Court prove it. And those are the same justices who were willing to stretch the U.S. Constitution's Fourth Amendment past the breaking point to give "Big Luther" a search warrant.

First, let's consider Strange's full statement to the public about what the search-warrant ruling meant:

This decision should end the debate on whether so-called 'electronic bingo' is illegal. It is illegal and local officials cannot create rules to make it legal. The only question now is whether the Legislature will enact tough penalties so that people will think twice before they engage in large-scale slot-machine gambling in the future.

How far off base is the attorney general on this one? About as far off base as you can get, given that the ruling had almost nothing to do with the alleged illegality of electronic-bingo machines at VictoryLand--or anywhere else in Alabama. How do I know? Well, I read the Supreme Court's opinion, and I invite readers to do the same; it's available at the end of this post.

Ironically, one reason the high court issued a writ of mandamus in the case is that it found Circuit Judge Thomas Young erred when he claimed the attorney general's office essentially was asking him to declare the VictoryLand machines illegal. In fact, the Supreme Court found, the issue was whether probable cause existed for a search warrant--nothing more, nothing less. From page 40 of the text:

Judge Young errs as a matter of law in refusing to issue the warrant in this case on the ground that to do so would be "in essence ... declaring these machines to be illegal." The quoted premise is incorrect. The issuance of a search warrant does not constitute a binding adjudication that an offense has occurred or a binding declaration that an activity or item is illegal. It is only a determination for purposes of the issuance of the search warrant.

The Supreme Court did not stop there. It explained that its ruling was not a finding that VictoryLand's activities were illegal--and it certainly was not a determination about electronic bingo in general:

As explained in Marshall v. Herndon, discussed supra, the issuance of a search warrant is not binding on either the court itself or the parties in an ensuing criminal case in which the defendant wishes to question whether an activity or item is illegal. See also, e.g., United States v. Del Valle, 587 F.2d 699, 701(5th Cir. 1079) (explaining that decision whether to issue search warrant is limited to the question of the issuance of the warrant and does not dispose of the issue whether the defendant did in fact commit the alleged crime).

Let's boil this down to its essence and compare the statements of Luther Strange to those of the Alabama Supreme Court:

Luther Strange: This decision should end the debate on whether so-called 'electronic bingo' is illegal. It is illegal and local officials cannot create rules to make it legal. 

Alabama Supreme Court: The issuance of a search warrant does not constitute a binding adjudication that an offense has occurred or a binding declaration that an activity or item is illegal.

If you live in Alabama and sense an odd sensation in your hindquarters, it's probably because Luther Strange is blowing smoke up your rectum.

We have shown, beyond a doubt, that Alabama's chief law-enforcement officer is willing to lie to gain a public-relations edge in the battle over electronic bingo. Why does Strange need a public-relations edge? Probably because even he realizes the machines at VictoryLand are legal, based on a constitutional amendment allowing electronic bingo in Macon County.

A reasonable Alabamian should ask this question: If Luther Strange is willing to lie in an official press release about the Supreme Court's actions, what else is he lying about? How deep does Luther Strange's dishonesty go?

Alabama Supreme Court VictoryLand Search Warrant by Roger Shuler