Thursday, April 14, 2016

AL Supreme Court's recent ruling against VictoryLand provides an example of corruption that even Robert Bentley and Mike Hubbard cannot approach

Milton McGregor announces that he intends to reopen
VictoryLand, despite recent ruling against him
from the Alabama Supreme Court
Alabama Governor Robert Bentley is the target of a federal investigation related to a sex scandal and possible misuse of public resources. House Speaker Mike Hubbard is under a 23-count indictment for alleged violations of state ethics laws. With that in mind, you might think the executive and legislative branches are the centers of sleaze in "The Heart of Dixie." But you could be wrong; that "distinction" might belong to the third prong of Alabama government--the judicial branch.

Or should we call it the judicial sewer? This blog started in summer 2007 largely because of gross corruption my wife, Carol, and I experienced in state courts (Shelby County), thanks to our a criminally inclined neighbor, Mike McGarity. (McGarity apparently has covered up his criminal record to work for years at Blue Cross and Blue Shield of Alabama; BC/BS spokesperson Koko Mackin is quoted in the press about a number of topics, but I've never seen her address the company's tendency to hire criminals.) McGarity sued me when we resisted his efforts to take our property for his own use, and Judges Mike Joiner and Dan Reeves handled the matter so corruptly, to favor McGarity lawyer Bill Swatek, that it launched our 16-year battle for justice.

No matter how badly members of the executive and legislative branches might behave--and Bentley and Hubbard have proven they can behave pretty badly--I don't think those "public servants" ever will be able to top their brethren in the judiciary when it comes to sleaze.

I was reminded of that sad fact recently when the Alabama Supreme Court ruled against the VictoryLand casino in a civil-forfeiture proceeding. The Macon County facility, owned by Milton McGregor, argued that a 2013 raid under the direction of Attorney General Luther Strange was illegal--and the casino's electronic-bingo machines, servers, cash, and other equipment were due to be returned. Trial-court judge William Shashy had ruled in VictoryLand's favor on equal-protection grounds--and that finding seemed unassailable since evidence tended to show that Strange had targeted VictoryLand, while similar facilities in other counties were allowed to continue operating.

But the Alabama Supreme Court, which has consistently ruled in the state's favor since former Gov. Bob Riley launched a crusade against non-Indian gaming facilities in 2008, continued along its dubious path. That both Riley and Strange received significant campaign support from Indian gaming interests . . . well, the public is supposed to believe that, and the resulting raids against the tribes' privately held competitors, are coincidental.

The high court's ability to creatively ignore its own precedent--not to mention the language of voter-approved constitutional amendments making e-bingo legal in certain counties--never has ceased to amaze. But Roy Moore and the Gang--not to be confused with Kool and the Gang--outdid themselves this time.

By issuing an 83-page opinion, "Roy's Rogues" must have figured that everyone in Alabama quickly would become too glassy eyed to finish the whole thing. But your humble blogger finished the whole thing--and found it about as appetizing as trying to stuff a Denny's Grand Slam breakfast and a Burger King Double Whopper down your throat, at the same time.

The whole document--which if you dare to try, is available for full reading at the end of this post--might be the most brazen example of corruptness in Alabama history. And believe me, there is a lot of competition for that "honor." We won't try to explain everything that is unlawful about the ruling--that would take more than a week's worth of posts. But let's address a few key issues that will give you the general idea:

(1) A fruitless assault on equal protection

The high court cites some 10 cases in an effort to defeat the trial court's equal-protection argument. But none of the high court's cases is close to being "apposite" (to borrow a lawyerly term) with the issues in the VictoryLand matter.

One is a criminal case on the circumstances surrounding a plea bargain. One is from the World War II era, and involves confiscation of enemy property. Another is a civil case involving allegations that a city ordinance violated equal protection of mentally retarded residents at a group home. Another involves a businessman's failure to pay occupational tax.

And get this: One case, from Georgia, involves the discriminatory striking of blacks as prospective jurors. The case, Whitus v. Georgia, 385 U.S. 545 (1967) actually struck a blow for racial justice in the Deep South. But the Alabama Supreme Court, in 2016, cited it to help deny jobs to thousands of black Alabamians in Macon County.

What do these cases have in common with issues found in the VictoryLand case? Not a thing. But they helped the Alabama Supreme Court fill up 83 pages worth of rubbish.

(2) The prosecution of people vs. the prosecution of entities

Next, the high court presents a series of cases that purportedly provide guidance on application of equal-protection concepts. But they all involve issues related to the prosecution of individuals; they have nothing to do with a raid on an entity, and the resulting civil forfeiture of property.

Consider a case styled Oyler v. Boles, 368 U.S. 448 (1962) about a man who had been prosecuted as a habitual offender under a "three strikes" law in West Virginia. The petitioner argued that similarly situated individuals were not treated as habitual offenders. The U.S. Supreme Court disagreed, stating:

The allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses. This does not deny equal protection due petitioners under the Fourteenth Amendment. . . . 
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

The Alabama Supreme Court cites four more cases that repeat the "race, religion, or other arbitrary classifiction" standard. But that obviously cannot apply in the VictoryLand matter. How can a  casino be the victim of purposeful discrimination based on race, religion, or other attributes that apply to people, not entities? It can't, although McGregor might have a solid argument that Strange discriminated against him because he is not of Indian heritage--and does not fit into the arbitrary classification of "Luther Strange campaign donor."

Most of the cases the Alabama Supreme Court cites are criminal in nature. But the VictoryLand matter, at best, might be called a "quasi criminal" matter. Luther Strange has not attempted to prosecute any individuals, he has charged no one with a crime. In the end, the case involves civil forfeiture, not crimes.

(3) What did the prosecutor know--and when did he know it?  

Perhaps by accident, the Alabama Supreme Court provides some clarity when it cites Oyler for its holding that "a failure to prosecute others because of a lack of knowledge of their prior offenses" does not amount to an equal-protection violation.

So did the Attorney General's Office know that other gaming facilities were using machines similar to those at VictoryLand--and purposefully chose not to interfere with them?

The high court's ruling mentions witness statements and statements from the AG's own attorney that indicate the answer to that question is yes. According to the Supreme Court's own case citation, that represents an equal-protection violation. And it suggests Shashy's equal-protection order was correct and should not have been overturned.

(4) One side presents uncontroverted evidence--and still loses

The high court makes no attempt to appear fair in handling trial evidence. Its ruling indicates at least two witnesses for VictoryLand testified they attended Greenetrack in Greene County and played games similar to those in Macon County--and they received no interference from law enforcement. The ruling gives no indication that the state countered that evidence at trial, so VictoryLand clearly should have prevailed on its selective-prosecution argument.

Why did VictoryLand not prevail? It can only happen via court corruption.

The Supreme Court first admits that the trial court properly could consider multiple affidavits entered at a postjudgment hearing, showing that other casinos were operating machines similar to those that had been seized at VictoryLand. (See page 16 of ruling). One paragraph later, the court states--without citing any supporting law--that it can take notice of its own prior decisions (See page 17 of ruling).

These prior decisions were not entered as evidence at trial, and the high court repeatedly chastises Shashy for making findings that are not supported by evidence. The Alabama Supreme Court then does that very thing.

(5) Alabama law, contrary to the Supreme Court's finding, allows for consideration of legislative and voter intent

The high court cites a litany of federal cases from various circuits--none of which is binding law in Alabama state court--in an effort to show that it is improper for a court to consider legislative and voter intent when interpreting the constitution.

In fact, Alabama's own law says such consideration is both proper and encouraged. One such finding predates the 20th century. (See State v. Sayre, 24 So. 89, 1897.) This Alabama Supreme Court's own oft-cited finding in Barber v. Cornerstone Community Outreach, 42 So. 3d 65 (2009) cites Sayre, as follows:

The object of all construction is to ascertain and effectuate the intention of the people in the adoption of the constitution. The intention is collected from the words of the instrument, read and interpreted in the light of its history.

The court then goes on to state in Cornerstone:

It is a well-settled rule of interpretation, applicable to constitutions as well as statutes, that it is permissible in ascertaining their purpose and intent to look to the history of the times, the existing order of things, the state of the law when the instrument was adopted, and the conditions necessitating such adoption.

There you have it: The Alabama Supreme Court is so corrupt it can't even get its own recent, celebrated case right. Is it any wonder that a recent report about Milton McGregor's intentions to reopen VictoryLand, regardless of what the court says, contains the following?

Macon County Sheriff Andre Brunson, who believes voters in Macon County approved electronic bingo when they passed a 2003 constitutional amendment, said Monday his office was prepared to vet and approve electronic bingo machines for the facility.

“Since VictoryLand was illegally shut down, we won a ruling last year by Judge Shashy, who was appointed to hear our case by the Alabama Supreme Court," Brunson said. "Last week, the same justices chose not to uphold the ruling of the very judge they appointed. Everyone agrees this Supreme Court ruling is very flawed and dishonest. And so the legal process will move forward. At the end of the day, we will be successful. . . . "

Brunson’s attorney James Anderson also spoke at the event, calling the Supreme Court’s ruling “a flawed opinion,” and claimed that justices ignored more than 100 years of legal precedence basing rulings on the intent of those who voted to approve the constitutional amendment.

Over the next few months, quite a few Alabamians are likely to catch themselves saying something like "Boy, that Mike Hubbard was nothing but a con man and a grifter" or "Robert Bentley is even more embarrassing than the buffoonish governors we've had in the past." But remember this: Hubbard and Bentley might not be the worst sleazoids in the state. That "honor" likely belongs to the nine justices on the Alabama Supreme Court.


Anonymous said...

The Supreme Court knows most Alabamians never are going to read a 3-page opinion, much less an 83-page opinion. They know the public will let them get away with these con games.

Anonymous said...

This is the kind of post that makes your blog indispensable, LS. You can't find legal analysis like this anywhere else. Lawyers could do it, but the Supreme Court would have the State Bar go after their bar card. In fact, I think the ethics rules say lawyers can't speak critically of judges. The MSM is too dim-witted, bored, or lazy to dive into a document like this. That leaves you, and as usual, you nailed it.

Anonymous said...

Great job LS. I have been waiting for you to weigh in on this issue. Corruption appears to be spreading like wildfires. It has got to stop.

legalschnauzer said...

Thanks, @12:54. Corruption has been a big problem in Alabama for a long time. You could point to 2002, and Bob Riley's theft of the governor's race from Don Siegelman, as the starting point. You also could point to 1994, and Karl Rove's ability to get Perry Hooper elected chief justice of the Alabama Supreme Court in a hotly disputed case that seemed to presage the 2000 Bush v. Gore electoral theft. The Business Council of Alabama and US Chamber of Commerce have played huge roles in turning our state into a sleaze pit.

The problem goes way beyond Alabama, to many other states. Many elite Americans have lost their ethical moorings, and middle and lower class types are struggling to keep their heads above water and don't take notice. Many whites try to solve the problem by reflexively voting Republican, which only makes the problem worse.

Anonymous said...

Hah, these dunces didn't even realize their precious Cornerstone case contained a reference to Sayre, which shows that analysis of legislative and voter intent is proper.

They chopped off their own nuts with that one. Hope it feels good for them.

Anonymous said...

What Bentley and Hubbard did pale in comparison to what punishment the judicial branch can dish out to its systems. They are immune to getting into in trouble for the most part therefore I believe it attracts a certain type of individual to work within it so they can satisfy there sickness. The same principal apples when a proffesion such as Catholic priests, teachers, and daycare workers who lust after children for example. You have to be a sociopath to dish out this kind of stuff.

Anonymous said...

The Supreme Court of Alabama might just as well give Luther the "DENIED" rubber stamp since they seeme to always side with him.

Anonymous said...

Jim Main is Bob Riley's "boy" on the Supreme Court, and I think Main has been delivering all of these bogus gambling rulings for 7-8 years now.

Anonymous said...

Didn't the all-famous Cornerstone originate with several cases from Kansas? How is that controlling law in Alabama?

legalschnauzer said...

Yes, @1:55, there is at least one--and I think several Kansas cases--mentioned in Cornerstone. How does that become controlling law in Alabama, trumping a constitutional amendment that voters passed and made bingo legal in Macon County? I have no idea.

Actually, I do have an idea. This Alabama court is bought and paid for by the Indian gaming interests, at the direction of Bob Riley and Luther Strange. It's undoubtedly a criminal enterprise, and a halfway competent investigative team should be able to nail all of them.

Anonymous said...

If the feds are in town to check on Bentley and Becky, what's to keep them from checking up on Alabama Supreme Court? If someone would bother checking records--emails, texts, phone calls, etc.--it would be an easy case to break.

Anonymous said...

Law enforcement in Alabama is a joke, like the legal profession.
Advice to young folks: Leave Alabama.

Anonymous said...

It makes perfect sense for McGregor to go ahead and open. If you can't count on courts to follow the law, I guess you have to take the law into your own hands. Sounds like he finally is just saying, "screw em."

Anonymous said...

Great coverage again,LS! You have a way of taking complicated legal issues and breaking it down in ways we can understand. Keep up this kind of work. Excellent!

Anonymous said...

I worry about a possible shootout at VictoryLand. The Macon County sheriff sounds like he's fed up and not in the mood to mess around. What if his deputies--or a private firm--provide security for V'land, and Luther's bunch shows up? I could see a standoff or a shootout, or God knows what.

legalschnauzer said...

I worry about the same thing, @8:27. I would not be surprised if people don't wind up dying before this is all over.

Anonymous said...

I started reading this blog over the gambling issue. The Alabama Constitution forbids all gambling except bingo (that is why there are no gaming tables, etc.). Even if Indians are under federal jurisdiction they still have to abide by state laws. The bingo machines are the same. Can't understand if one is legal how can the other be illegal?

Anonymous said...

richard shelby. fish rot from head down. why do you fret, fault and stutter over chippies, doxies, philanderers, and children in state government? have you noticed all of your legal issues came from children and whores? Shelby controls all. Find out which alabama republican has an AU tattoo on her moneymaker and you will be on your way to understanding why some escape calumny and others dispatched to the leper colony... Gresham's Dynamic is the polite reason for our sad state of affairs. The truth is sex, drugs, money.....Ask Shelby and his wiregrass hook ups.... Jarrod Massey is working where on taxpayers dime since...? where is the outrage?

Anonymous said...

Anonymous said...

legalschnauzer said...

Thanks for sharing the stories out of South Carolina, @7:14. Sounds like a bad corruption case that could get even worse, with Harrell required via plea bargain to rat out other bad actors in the legislature. Would be interesting if Mike Hubbard came to such an agreement in Alabama.