|VictoryLand in Macon County
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.