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030810 Vance Ruling AG to Take Control

030810 Vance Ruling AG to Take Control

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Published by John S Keppy

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Published by: John S Keppy on Mar 08, 2010
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Cornerstone Community )Outreach, Inc., et al, ))Plaintiff, ))v. ) CV-2009-9000019))Bob Riley, et al, ))Defendants. )_________________________________________________________________State of Alabama, ))Plaintiff, ))v. ) CV-2009-9000027))Chad Dickie, et al, ))Defendants. )
This order comes after consideration of the parties’filings madein response to theprior order of February 11, 2010, in these related cases.In the first of these cases,
Cornerstone Community Outreach, Inc., et al, v. Riley
(CV-09-900019)(hereafter referred to asthe “Declaratory JudgmentAction”), thisCourt, though retired Justice Mark Kennedy, previously entered a preliminaryinjunction that was thereafter appealed. The following facts come from theSupreme Court’s opinion in
Barber v. CornerstoneCommunityOutreach, Inc
So.3d ----, 2009 WL 3805712 (Ala., Nov. 13, 2009):
On December 30, 2008, Governor Bob Riley issued Executive Order No. 44creating the Governor's Task Forceon IllegalGambling(“the TaskForce”). Theorder stated that the purpose of the Task Force was “promoting and supportinguniform statewideenforcementof Alabama's anti-gambling lawsandto carry outtheAlabama Constitution'sstrongpublicpolicy againstlotteryschemesandillegalgambling.” The order created a special prosecutor to serve as the commander of the Task Force, who, in that capacity, is empowered to “have statewide jurisdiction” to “conduct investigations, attendany regular,adjourned or specialsession ofany circuit court . . . for the investigation of or the prosecution of anycriminal case or the prosecution or defense of any case related to gamblingactivity in the State of Alabama.” Governor Riley appointed former JeffersonCounty District Attorney David Barber as Task Force commander.CornerstoneCommunity Outreach,Inc. (“Cornerstone”),obtaineda licensefromthe Town of White Hall in Lowndes County to operate a bingo-gaming facility,which is known as the White Hall Entertainment Center (“the EC”). An LCDscreen outside the EC advertises that the EC offers “HOT SLOTS!” for itscustomers. TheECcontainsseveralhundredelectronicgamingmachinesthatareplayed byhundredsofcustomers every day.Cornerstone purportedlyobtaineditslicense so that it could operate charity bingo games in accordance withAmendment No.674, Ala.Const. 1901(Local Amendments,Lowndes County,§3, Ala. Const. 1901 (Off.Recomp.)).Pursuant to its mandate, the Task Force on March 19, 2009, executed a searchwarrant on the EC and confiscated approximately 105 electronic gamingmachines, the servers to whichthose machines were attached, over $500,000 inproceeds from the games played at the EC, and various records kept byCornerstone.
Id. at *1.Evidence presented in the preliminaryinjunction hearing also showed that neitherthe Alabama AttorneyGeneral nor anymember of his staff was on the Task Forcethatconducted the raid,and thatLowndes CountyDistrictAttorneyJohn Andrewswas notinvolved,either. DistrictAttorneyAndrews,infact,hasrecentlysubmittedan affidavit in which he testified to the following:1. He inspected the bingo machines in question before the White HallEntertainmentCenteropened,andspokewith variousindividualsabouthow
the machines worked;2. He exercised his prosecutorial judgment not to bring any criminal chargesrelating to the operation of the machines;3. He hasnever beencontactedbyanyoneconnected withthe Governor’sTasForce to discuss investigating or closing the White Hall facility; and4. He didnotevenknow ofthe Task Forceraiduntil it hadbeenaccomplished.Also brought out during the preliminaryinjunction hearing was evidence that theraid was conducted pursuant to a search warrant signed by the Lowndes Countydistrict judge. ThewarrantwasbasedonanaffidavitprovidedtothejudgebyMikeReese, who is a Lieutenant with the Alabama Alcoholic Beverage Control Board,Enforcement Division. Once the warrant was obtained, members of the ABC andthe Alabama Bureau of Investigation conducted the raid.Again quoting from the Supreme Court’s
In the early afternoon on March 19, 2009, Cornerstone filed an action in theLowndes Circuit Court against Governor Riley, in hisofficial capacity, Barber,in his officialcapacityas the Task Forcecommander, and certain other membersofthe TaskForcein theirofficialcapacities (collectively“the Rileydefendants”).Cornerstone sought,amongother things, adeclaratoryjudgment andpreliminaryand permanent injunctive relief regarding the seizure of the electronic gamingmachines by the Task Force. Specifically, Cornerstone requested a judgmentdeclaring that its bingo operationat the EC is permitted under Amendment No.674, Ala. Const.1901, andwhether the electronic gamingmachines seized bytheTask Forceconstituteillegal“slotmachines” under§13A-12-27, Ala.Code1975.Cornerstone requested a preliminary injunction restraining the Task Force fromany further interference with its operation at the EC during the pendency of thisactionand directingthe TaskForce to returnall theseized machines, servers,andrecords based on its belief that the machines are legal under Alabama law.Freedom Trail Ventures,Ltd. (“FTV”), subsequentlyfiled a motion to intervenein the action, alleging that it owned at least some of the machines seized by theTask Force andthat it had leased those machines to Cornerstone. The trial courtgranted FTV's motion for the limited purpose of allowing it to participate in thepreliminary-injunction phase of the proceeding.

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