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