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IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMAHOUSTON ECONOMICDEVELOPMENT ASSOCIATION, et al.,Plaintiffs,v.JOHN M. TYSON, JR., et al.,Defendants.))))))))))CASE NO.: CV- 2010-03DEFENDANT JOHN M. TYSON, JR.’S MOTION TO DISMISS
COMES NOW Defendant John Tyson, Jr. (“Tyson”) and hereby moves this Court todismiss the Complaint of Houston Economic Development Association (“HEDA”) for lack of subject-matter jurisdiction under A
LA
.
R.
C
IV
.
P. 12(b)(1). In support of this motion, Tysonstates as follows:1.
HEDA filed this action to enjoin the Governor’s Task Force on Illegal Gamblingfrom searching the Country Crossing casino and seizing all illegal gambling devices held therein.The Complaint requests a temporary restraining order, a preliminary injunction, and a permanentinjunction to prevent the enforcement of Alabama’s criminal laws. The Complaint also requeststhat the Court “declare that the operation of electronic bingo as conducted in Houston County islawful and that the equipment utilized at Plaintiffs’ facility is not subject to seizure.” Complaintat 12.2.
After this Court erroneously enjoined the Governor’s Task Force on IllegalGambling from executing a search warrant at the Country Crossing casino, the Supreme Court of Alabama unanimously vacated that injunction and specifically ordered this suit dismissed forlack of subject matter jurisdiction, emphasizing that courts cannot “interfere with a criminal
ELECTRONICALLY FILED2/8/2010 3:14 PMCV-2010-000003.00CIRCUIT COURT OFHOUSTON COUNTY, ALABAMACARLA H. WOODALL, CLERK
2proceeding by civil action.” Order of January 15, 2010, attached as
Exhibit A
. The Courtexpressly “dismiss[ed] the action.”
Id.
3.
Recently, the Supreme Court of Alabama took the same action in the Task Force’sappeal from a similar case in the Circuit Court of Macon County.
See Tyson v. Macon CountyGreyhound Park, Inc., d/b/a Victoryland
, --- So. 2d ---, No. 1090548 (Ala. February 5, 2010),attached as
Exhibit B
. There, the owner of a “bingo” casino that operates illegal gamblingdevices successfully secured a restraining order against the seizure of those machines. As in thiscase, however, the Supreme Court rejected the “disorderly practice of permitting thosethreatened with criminal prosecution to seek relief in civil proceedings.” Ex. B at 9. The Courtunequivocally held that “[e]ntertainment of a civil action for injunctive and declaratory relief under such circumstance cannot be countenanced . . ..” Ex. B at 6.4.
This Court should dismiss this action for lack of jurisdiction.
1
First, the SupremeCourt of Alabama has expressly directed that this suit be dismissed. Second, under long-established Alabama law that has been recently re-affirmed by the Supreme Court, this Courtlacks jurisdiction to direct how executive law enforcement officers enforce Alabama criminallaws against illegal gambling.5.
First, this action should be dismissed because the Supreme Court of Alabamaexpressly “dismiss[ed] the action” in its January 15 Order. This Court must follow the mandateof the Supreme Court.
See, e.g., Kinney v. White
, 110 So. 394 (Ala. 1926).
See also
Ex parte Bradley
, 540 So. 2d 711, 712 (Ala. 1989) (“If a trial court fails to comply with an appellatecourt's mandate on remand of a cause, mandamus will lie to compel compliance.”). “Public
1
Because the Court clearly lacks jurisdiction to consider the merits of the claim, this motiondoes not address the merits of the Complaint. Nonetheless, in the highly unlikely event theComplaint is not dismissed for lack of jurisdiction, Tyson expressly reserves the argument thatthe Complaint should be dismissed for failure to state a claim upon which relief can be granted.
3interests require that an end shall be put to litigation, and when a given cause has received theconsideration of a reviewing court, has had its merits determined, and has been remanded withspecific directions, the court to which such mandate is directed has no power to do anything butobey, otherwise, litigation would never be ended.”
Ex parte Queen
, 959 So. 2d 620, 621 (Ala.2006) (quoting
Ex parte Alabama Power Co.
, 431 So. 2d 151 (Ala. 1983)). Accordingly, a trialcourt may enter “[n]o judgment other than that directed or permitted by the reviewing court . . ..”
Id.
(internal quotation marks omitted). Because the Supreme Court ordered this action to bedismissed, it must be dismissed pursuant to the Supreme Court’s mandate.
2
6.
Second, even had the Supreme Court not ordered this action dismissed, this Courtmust dismiss the action because the Complaint requests that this Court interfere in theenforcement of criminal law. A trial court has no subject matter jurisdiction to interfere with theseizure of what law enforcement officers determine to be illegal gambling devices.
See, e.g., Higdon v. McDuff
, 172 So. 636, 637 (Ala. 1937). Judicial interference in the “orderlyfunctioning of the executive branch within its zone of discretion [is a] violation of the separation-of-powers doctrine.”
Tyson v. Victoryland
, Ex. B, at 4-5. Therefore, “equity will not interveneto restrain law officers from the enforcement of criminal statutes.”
E.g., Eastburn v. Holcombe
,10 So. 2d 457, 458 (Ala. 1942);
Caudle v. Cotton
, 173 So. 847, 848 (Ala. 1937). “[A] court maynot interfere with the enforcement of criminal laws through a civil action; instead, the partyaggrieved by such enforcement shall make his case in the prosecution of the criminal action.”
Tyson v. Victoryland
, Ex. B, at 4. This Court does not have jurisdiction to supervise the Task Force’s enforcement of Alabama law.
2
As noted in HEDA’s “Motion to Set Hearing” (filed on January 5, 2010), HEDA has filed apetition requesting that the Supreme Court reconsider its decision to dismiss this action. Tysonanticipates filing a brief in opposition to HEDA’s petition.
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