ELECTRONICALLY FILED 9/21/2012 3:49 PM CV-2012-900266.00 CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA CARLA H.

WOODALL, CLERK

IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA STATE OF ALABAMA by and through Attorney General Luther Strange Petitioner, vs. $283,657.68 U.S. Currency, et al Defendants ) ) ) ) ) ) ) ) ) ) )

Case Number CV-2012-900266

STATE OF ALABAMAS MOTION TO PRECLUDE THE INTRODUCTION OF EVIDENCE AND TO QUASH SUBPOENAS COMES NOW the State of Alabama and respectfully moves both (1) to preclude the introduction of any testimony or other evidence at the September 26 hearing and (2) to quash the subpoenas issued to John Watson, Josh Blades, Ken Wallis, Henry Sonny Reagan, and Judge Conaway. In support of these motions, the State says as follows:

BACKGROUND In July, the State executed a warrant at the Center Stage casino, seized gambling devices and gambling proceeds, and filed this in rem action to forfeit the seized items. The main questions in this lawsuit are (1) whether the gambling devices and proceeds seized by the State from the Center Stage casino are illegal contraband and (2) whether the Houston County Commission may exempt slot machines from the operation of generally-applicable state law. The Houston Economic Development Association (HEDA) has appeared in this case, claimed some interest in the seized devices and proceeds, and has filed a Rule 12(b)(6) motion to dismiss the States forfeiture complaint. This Court, Judge Conaway presiding, has set a hearing

on all pending motions for September 267DWJHW967

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relating to the application/interview/selection process for the Circuit Court vacancy in Houston/Henry Counties filled by J. Michael Conaway.

ARGUMENT HEDA cannot transform the hearing on its motion to dismiss into an evidentiary hearing on its defunct motions to recuse. This Court should preclude HEDA from introducing evidence by testimony or otherwise at the motion hearing set for September 26. And the recently-filed subpoenas should be quashed for several independent reasons. I. The Court Should Preclude Any and All Testimony or Other Evidence From Being Introduced at the September 26 Hearing Because This Court Has Already Ruled on the Motion to Recuse. This Court should preclude all parties from introducing any evidence, by testimony or any other means, at the previously scheduled hearing set for September 26. The hearing on September 26 is a motion hearing, not an evidentiary hearing. It was set as a hearing on all pending motions. And the only pending motions at the time of this writing (and when the September 26 hearing was initially set) were HEDAs motion to dismiss the States complaint under Rule 12(b)(6) and Center Stages motion to dismiss. Evidence and testimony is simply irrelevant to the courts consideration of such motions. It is axiomatic that Rule 12(b)(6) does not even allow the parties to raise matters outside the pleadings. See, e.g,. Brindley v. Cullman Reg'l Med. Ctr., 709 So. 2d 1261, 1263-64 (Ala. Civ. App. 1998), citing Hales v. First Nat'l Bank of Mobile, 380 So. 2d 797 (Ala. 1980). There is no reason for any party to present evidence at the September 26 hearing. HEDA cannot use the September 26 hearing to litigate its previous motions to recuse. First, HEDAs previous motions to recuse or disqualify have already been denied and are not

properly the subject of the September 26 hearing. The hearing is on pending motions, not motions that have already been decided. Second, whe1

circumstances of the case. Maund v. State, 48 So. 2d 553, 561 (1950); see also Waldrop v. State, 424 So. 2d 1345, 1346-1349 (Ala. Crim. App. 1982) (finding it reversible error for

prosecuting attorney to testify). The federal courts have similarly condemned the practice of a government prosecutor's testifying at a trial in which he is participating absent a compelling need for the prosecutor to testify about something that is uniquely within his knowledge and crucial to the defendants case. See United States v. Roberson, 897 F. 2d 1092, 1098 (11th Cir. 1990). Accord United States v. Dupuy, 760 F.2d 1492, 1498 (9th Cir.1985); United States v. Tamura, 694 F.2d 591, 601 (9th Cir.1982); United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir.1975), cert. denied, 424 U.S. 942 (1976). See United States v. Birdman, 602 F.2d 547, 553 (3d Cir.1979) (collecting cases), cert. denied, 445 U.S. 906, 100 S.Ct. 1084, 63 L.Ed.2d 322 (1980); United States v. Wallach, 788 F. Supp. 739, 743-44 (S.D.N.Y. 1992); United States v. Manners, 2006 WL 3026110 at *2-3. (N.D. Tex. 2006). The Eleventh Circuit has described the rule as follows: [C]ourts have properly refused to permit a prosecutor to be called as a defense witness unless there is a compelling need. Roberson, 897 F. 2d at 1098. The subpoena to Mr. Reagan cannot meet these standards. There is obviously no compelling need for Mr. Reagan to testify at the September 26 hearing. As explained above, his testimony would not be proper as to the only motion set for hearingHEDAs motion to dismiss. But, even if HEDAs defunct motions to recuse were at issueand they are notHEDA has not made any showing that Mr. Reagan has knowledge that would go to such motion. HEDA also cannot show that whatever evidence Mr. Reagan might provide about whether Judge Conaway should recuse could not be introduced through another source. The subpoena as to Mr. Reagan should be quashed for this additional reason. IV. The Subpoena to Judge Conaway Should Be Quashed for Additional Reasons.
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In addition to the reasons for quashing all the subpoenas given above, the subpoena to Judge Conaway should also be quashed because (1) a judge cannot be compelled to testify at his own hearing and (2) Judge Conaways reasons for not recusing are protected by the mental process privilege. A. Judge Conaway cannot be compelled to testify subject to examination at his own hearing. As if to underscore that its tactics are about the media and not the law, HEDA has subpoenaed Judge Conaway to testify at his own hearing. The tactic of subpoenaing a judge to testify before himself appears to be unprecedented. But the Texas courts addressed a similar situation in which a disgruntled litigant attempted to subpoena a judge to testify in another judges court about that initial judges failure to recuse. In Thomas v. Walker, 860 S.W.2d 579, 581 (Tex. App.Waco 1993), the Texas Court of Appeals held that the second judge properly quashed the subpoena issued to compel the first judges testimony. The appellate court explained that [c]ourts have refused to issue subpoenas for the testimony of judges in all but the most extreme and extraordinary circumstances. Id. (quoting Gary v. State of Louisiana, Dept. of Health and Human Resources, 861 F.2d 1366, 1368 (5th Cir. 1988)). Because the disgruntled litigants recusal allegations could have been substantiated (if at all) in ways other than the direct examination of Judge Black, the appellate court held that the subpoena was properly quashed. Id. This reasoning applies a fortiori to this case. B. Judge Conaways decisionmaking is protected by the mental process rule. Moreover, HEDA cannot compel Judge Conaway to testify about his decisions including his decision not to recusebecause such decisions are afforded strong protection by the mental processes rule. United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 85 L.Ed. 1429 (1940). [A]n inquiry into [a judges] mental processes in arriving at his decision would be
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improper and would threaten the foundation of an honorable and independent judiciary. See Tate v. State, 834 S.W.2d 566, 569 (Tex. App.Houston 1992). Judge Conaway has already explained his reasons for denying HEDAs motions to recusetwice. He cannot be compelled to further explain those reasons from the witness stand.

V.

The Subpoenas to Mr. Blades, Mr. Wallis, and Mr. Reagan Should Be Quashed for Additional Reasons. In addition to the reasons for quashing all the subpoenas given above, the subpoenas to

Mr. Blades, Mr. Wallis, and Mr. Reagan should be quashed because any testimony they might offer about the appointment of Judge Conaway would be privileged.2 These persons all worked as senior advisors to former Governor Bob Riley. Testimony about why or how they or Governor Riley conducted official actions in their capacity as Executive officials is protected by (1) executive privilege and (2) deliberative process privilege. Testimony about law enforcement action or investigations regarding the now-defunct Country Crossing casino is protected by (3) law enforcement privilege. A. Executive Privilege Mr. Blades, Mr. Wallis, and Mr. Reagans testimony about the performance of their official duties is protected from disclosure by executive privilege. [T]here is the undeniable interest of the executive branch of government in maintaining confidentiality over certain types of information necessary for the performance of its constitutional duties. Assured Investors Life Ins. Co. v. National Union Associates, Inc., 362 So. 2d 228, 233 (Ala. 1978). See also United The State notes that it does not represent all of these persons and that they may assert additional privileges and protections in support of quashal or in response to specific questions if called to testify. For example, Mr. Reagan and Mr. Wallis were legal advisors to Governor Riley, and their testimony might implicate the attorney-client privilege. Only they would know if it did.
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States v. Nixon, 418 U.S. 683, 708-713 (1974) (apart from policy considerations, history and legal precedent teach that documents from a former or an incumbent President are presumptively privileged.). Alabama law imposes on the Office of the Governor the duty to faithfully execute the laws of the State and fill vacate appointments in the judiciary, and it was in that role that Mr. Blades, Mr. Wallis, and Mr. Reagan participated, if at all, in the appointment of Judge Conaway or law enforcement actions against Country Crossing. They cannot be called to testify about their performance of those duties, even if such testimony were not irrelevant. B. Deliberative Process/Consultative Privilege Mr. Blades, Mr. Wallis, and Mr. Reagans testimony about information gathered and used in the Office of the Governors decision-making process is also protected from disclosure by deliberative process privilege. The deliberative process privilege is a sub-category of the executive privilege. Sierra Club v. Alabama Environmental Management Comn, 627 So.2d 923, 926 (Ala. Civ. App. 1992). The deliberative process privilege protects the internal decisionmaking processes of the executive branch in order to safeguard the quality of agency decisions. Nadler v. United States Dept. of Justice, 955 F.2d 1479 (11th Cir.1992). The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions ... by protecting open and frank discussion among those who make them within the Government.... Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (internal quotes omitted). Mr. Blades, Mr. Wallis, and Mr. Reagan cannot be called to testify about pre-decisional considerations that were a direct part of [their] deliberative process on gambling, appointments, or other legal or policy matters. Nadler v. U.S. Dep't of Justice, 955 F.2d 1479, 1490-91 (11th Cir. 1992) abrogated on
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unrelated grounds, U.S. Dep't of Justice v. Landano, 508 U.S. 165, 170 (1993). See also Alabama v. Abbott Laboratories, Inc., 2009 WL 692189, *2 (M.D. Ala. 2009) (discussing deliberative process privilege). Procuring this privileged testimony appears to be the object of the subpoenas, and they should be quashed. C. The Law Enforcement Investigation Privilege Finally, any information that Mr. Blades, Mr. Wallis, and Mr. Reagan may have about law enforcement operations or investigations or as a result of law enforcement operations or investigations is protected from disclosure by the law enforcement investigation privilege. [T]he government is entitled to protection when the probative value of [investigatory] evidence is outweighed by the risks of exposing incomplete investigations. Abston v. State, 548 So.2d 624, 628 (Ala. Crim. App. 1989) (quoting Young v. State, 469 So. 2d 683, 688 (Ala. Crim. App. 1985)). See also United States v. Winner, 641 F. 2d 825, 831 (10th Cir. 1981) (The law enforcement investigative privilege is based primarily on the harm to law enforcement efforts which might arise from public disclosure of [investigations].). An investigation, however, need not be ongoing for the law enforcement privilege to apply as the ability of a law enforcement agency to conduct future investigations may be seriously impaired if certain information is revealed to the public. In re The City of New York, 607 F. 3d 923, 944 (2d Cir. 2010) (internal quotation marks omitted). Information protected from disclosure includes law enforcement techniques and procedures, information that would undermine the confidentiality of sources, information that would endanger witness and law enforcement personnel [or] the privacy of individuals involved in an investigation, and information that would otherwise . . . interfere[ ] with an investigation. Id. Mr. Blades, Mr. Wallis, and Mr. Reagan cannot be compelled to testify about the actions, techniques and procedures they and others employed as
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part of their effort to enforce Alabamas prohibition on slot machine gambling, nor can they be compelled to testify about the information that those investigations uncovered. CONCLUSION WHEREFORE, PREMISES CONSIDERED, the State prays that this Honorable Court will both (1) to preclude the introduction of any testimony or other evidence at the September 26 hearing and (2) to quash the subpoenas issued to John Watson, Josh Blades, Ken Wallis, Henry Sonny Reagan, and Judge Conaway.

Respectfully submitted, LUTHER STRANGE (STR003) ATTORNEY GENERAL By: /s/ Jess R. Nix Jess R. Nix (NIX014) Deputy Attorney General Counsel for the State of Alabama

OF COUNSEL: Henry T. Sonny Reagan (REA021) Jess R. Nix (NIX014) Office of the Attorney General 501 Washington Avenue Post Office Box 300152 Montgomery, AL 36130-0152 (334) 242-7300 Office (334) 242-4890 FAX sreagan@ago.state.al.us jnix@ago.state.al.us
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CERTIFICATE OF SERVICE
I hereby certify that I have served all counsel of record by electronic notice via AlaFile system and placed a copy of the same via U.S. Mail to all other listed parties not registered with AlaFile on this 21st day of September 2012.

/s/ Jess R. Nix OF COUNSEL

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