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.