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.