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FILED
2010 Aug-02 AM 10:45 U.S. DISTRICT COURT N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION

WILLIAM JOHNSON, ANNIE PEARL LEFTWICH, BOBBI MORGAN, DONALD MEANS, ERNEST EDMONDS, FAIRY GORDON, IRIS SERMON, JOHNNY BUTLER, MERJEAN LITTLE, MOSES JONES, VASSIE BROWN, WILLIE MAE REEVES, BEVERLY GORDON, JOHNNY B. MORROW, FANNIE ISHMAN, LESLIE CHEATEM, MARGIE JAMES, BOBBY SINGLETON, A. J. MCCAMBELL, JOHNNY FORD, LOUIS MAXWELL, MARY RUTH WOODS, LISA M. WARE, CLARA P. GRIMMETT, CHARLES CHAMBLISS, JOHNNIE B. HARRISON, G. DYANN ROBINSON, SHIRLEY W. CURRY, SARAH STRINGER, MILES D. ROBINSON, and WILLIE LEE PATTERSON, individually and on behalf of others similarly situated, Plaintiffs, v. BOB RILEY, in his individual capacity and in his official capacity as Governor of Alabama, and JOHN M. TYSON, JR., individually and in his official capacity as special prosecutor and task force commander of the Governor’s Task Force on Illegal Gaming, Defendants.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Civil Action No. 7:10-cv-02067-SLB

Three-judge court requested

PLAINTIFFS’ BRIEF SUPPORTING MOTION FOR PRELIMINARY INJUNCTION

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Plaintiffs seek a preliminary injunction under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, restoring the status quo ante in Greene County and preserving the status quo in Macon County. This Court is not asked to decide the substantive state law governing bingo operations in Alabama. Rather, it is asked only to enforce plaintiffs’ voting rights by preventing the defendants, Governor Riley and Task Force Commander Tyson, from implementing changes in policies and practices affecting voting that have not received preclearance under § 5 of the Voting Rights Act.

I.

Issuance of a Preliminary Injunction Is Particularly Appropriate in an Action To Enforce § 5 of the Voting Rights Act. Proceedings on a motion for preliminary injunction are governed by Rule

65, Fed.R.Civ.P., and by familiar judicial standards. A district court may grant [preliminary] injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. American Civil Liberties Union of Florida v. Miami-Dade School Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th
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Cir.2000) (en banc). However, because of Congress’ intent to place the burdens of time and inertia on the state,1 the need for a preliminary injunction is particularly compelling in § 5 coverage cases and is necessary to prevent unprecleared changes affecting voting from being implemented. The Supreme Court, on at least three occasions, has set forth the requirements that must be met before an injunction issues in a § 5 preclearance case like this one. In Allen v. State Bd. of Elections, 393 U.S. 544, 89 S.Ct. 817, Clark v. Roemer, 500 U.S. 646, 111 S.Ct. 2096 [(1991)], and most recently in Lopez v. Monterey County, 519 U.S. 9, 117 S.Ct. 340 [(1996)], the Supreme Court has said that “[i]f a voting change subject to § 5 has not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting implementation of the change.” Lopez, 519 U.S. at [19]….

1

Riley v. Kennedy, 553 U.S. 406, 128 S.Ct. 1970, 1977 (2008):

Congress took the extraordinary step of requiring covered jurisdictions to preclear all changes in their voting practices because it “feared that the mere suspension of existing tests [in § 4(a) ] would not completely solve the problem, given the history some States had of simply enacting new and slightly different requirements with the same discriminatory effect.” Allen v. State Bd. of Elections, 393 U.S. 544, 548, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). By putting the burden on covered jurisdictions to demonstrate that future changes would not be discriminatory, § 5 served to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.” [South Carolina v. ]Katzenbach, 383 U.S.[ 301,] 328 [(1966)]. Alabama is a covered jurisdiction. “Procedures for the Administration of Section 5 of the Voting Rights Act,” 28 C.F.R Part 51 App’x (available at http://www.usdoj.gov/crt/voting/sec_5/guidelines.htm).
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United States v. Louisiana, 952 F.Supp. 1151, 1161-62 (W.D.La.) (3-judge court), aff'd 521 U.S. 1101 (1997) (emphasis in original).

II.

The Role of This Court in a § 5 Case. A civil action brought under § 5 of the Voting Rights Act must be heard by a

three-judge district court. 42 U.S.C. § 1973c(a). But only the District Court for the District of Columbia has jurisdiction to consider whether a covered jurisdiction’s change affecting voting has the purpose or effect of denying or abridging the right to vote on account of race. 42 U.S.C. § 1973l(b). The § 5 jurisdiction of a three-judge district court in Alabama is limited to determining (i) whether there are voting qualifications, prerequisites, standards, practices, or procedures that are different from “those in existence before they were adopted,” Presley v. Etowah County Comm'n, 502 U.S. 491, 495 (1992) – that is, whether a change was covered by § 5,FN1 (ii) if the change was covered, whether § 5's approval requirements are satisfied, and (iii) if the requirements are not satisfied, what remedy is appropriate. City of Lockhart v. United States, 460 U.S. 125, 129 n. 3 (1983). FN1. The court in Presley explained this inquiry to mean that it is only “[a]bsent relevant intervening changes, [that] the Act requires” comparison with practices in existence on November 1, 1964. Presley, 502 U.S. at 495; see also Lake v. State Bd. of Elections of N. C., 798 F.Supp. 1199, 1205 (M.D.N.C.1992)(three -judge court); Villegas v. Dallas Indep. Sch. Dist., No. 30cv858R, 2003 WL 22573921, at *5 & n. 9 (N.D.Tex. Oct. 17, 2003) (citing Presley and stating the inquiry is whether the practice is “different from the one in force on the date § 5 took effect or (if applicable) different from the one that earlier received preclearance?”). . . .
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Plump v. Riley, 2008 WL 192826 (M.D. Ala., Jan. 22, 2008) at *2, appeal dismissed for want of jurisdiction, 129 S.Ct. 98 (2008), on remand, 2009 WL 2074147, 73 Fed.R.Serv.3d 1501 (M.D. Ala. 2009). See generally Boxx v. Bennett, 50 F.Supp.2d 1219, 1224 (M.D. Ala. 1999) (3-judge court).

III.

Defendants’ Actions Constitute Changes in Standards, Practices, or Procedures With Respect To Voting. The actions of defendants Riley and Tyson set out in the complaint

constitute changes affecting voting in at least two respects: (1) Amendment 743 explicitly authorizes electronic bingo operations in Greene County, and the Sheriff’s regulations promulgated pursuant to his authority under Amendment 744 explicitly authorize electronic bingo operations in Macon County. These constitutional electronic bingo authorizations were adopted solely by the voters in those respective counties, pursuant to Amendment 555. A condition for preclearance of Amendment 555 was its removal of any purported authority of the Governor, as a member of the Local Constitutional Amendment Commission, to veto a proposed local amendment that the Legislature proposed to submit to a county’s voters. Defendant Governor Riley nevertheless has effectively vetoed Amendments 743 and 744 by implementing his asserted authority to declare unilaterally that electronic bingo of any kind is categorically
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unlawful in Alabama. See Ex parte State, --- So.3d ----, 2010 WL 2034825 (Ala., May 21, 2010) at *24. Defendants Riley and Tyson therefore have denied the right to vote of qualified electors in Greene and Macon Counties to decide for themselves whether electronic bingo will be constitutionally permissible in their counties. (2) Defendant Riley has ignored the express provisions of Amendments 743 and 744 that vest authority to regulate and to enforce these constitutional amendments in the Sheriffs of Greene and Macon Counties and has de facto replaced those elected officials in these majority-black counties with a person elected in another county, defendant Tyson, appointed by the Governor. Without any consideration of plaintiffs’ voting rights, the Alabama Supreme Court2 has issued orders upholding defendants’ asserted authority and enjoining judicial enforcement proceedings instituted by the Sheriff of Greene County. A few days ago, the Alabama Supreme Court made it explicitly clear that it considers the Governor to be the “superior” of every other constitutional law enforcement officer, whether at the state or local level, and that the Governor had authority to appoint the Mobile County District Attorney in this “rare case” to

The members of the Alabama Supreme Court, of course, are elected by statewide votes.
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2

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command a Task Force that replaced the Sheriff in the enforcement of state law governing electronic bingo in Macon County. Tyson v. Jones, __ So.2d __, No. 1090878 (Ala., July 30, 2010) slip op. at 39 (copy attached as Exhibit A to this brief). Defendant Riley, the court held, could “determine that the law is going unenforced in an area for which another executive officer has responsibility and that reliance on the other executive officer, or any action taken by that officer, is insufficient to ensure that the laws of this State are faithfully executed.” Id., slip op. at 39-41. The court did not address whether Amendment 744 and the Sheriff’s regulations promulgated thereunder authorize the bingo operations in Macon County. Id. at 23 (“This case, however, does not inquire into the merits of such law enforcement activities.”) (footnote omitted). In short, the Alabama Supreme ruled that defendants could raid Victoryland without any judicial determination that Amendment 744 and the Sheriff’s regulations are invalid or are not being complied with. Both defendants’ actions and the Alabama Supreme Court’s orders are changes affecting plaintiffs’ voting rights. It is undisputed that a “change” from election to appointment is a change “with respect to voting” and thus covered by § 5. See Allen, 393 U.S., at 569-570, 89 S.Ct. 817; Presley v. Etowah County Comm'n, 502 U.S. 491, 502-503, 112 S.Ct. 820, 117 L.Ed.2d 51 (1992). We have also stated that the preclearance requirement encompasses “voting changes mandated by order of a state court.”
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Branch v. Smith, 538 U.S. 254, 262, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003). See also Hathorn v. Lovorn, 457 U.S. 255, 265-266, and n. 16, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982). Riley v. Kennedy, 128 S.Ct. at 1982. The circumstances here are not like those in Presley, where a merely “routine” reallocation of certain powers from elected to appointed officials within the same local government was found not to affect voting. It is a routine part of governmental administration for appointive positions to be created or eliminated and for their powers to be altered. Each time this occurs the relative balance of authority is altered in some way. The making or unmaking of an appointive post often will result in the erosion or accretion of the powers of some official responsible to the electorate, but it does not follow that those changes are covered by § 5. By requiring preclearance of changes with respect to voting, Congress did not mean to subject such routine matters of governance to federal supervision. 502 U.S. at 507 (bold emphasis added). Rather, without doubt, in this case Governor Riley has effectively replaced the Sheriffs of Greene and Macon Counties as the constitutionally designated regulators and enforcers of bingo operations with his appointed Task Force Commander.3

In Presley it was not necessary for the Supreme Court to consider whether egregious circumstances like those presented here would violate § 5: We need not consider here whether an otherwise uncovered enactment of a jurisdiction subject to the Voting Rights Act might under some circumstances rise to the level of a de facto replacement of an elective office with an appointive one, within the rule of Bunton v. Patterson[,
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IV.

Amendments 743 and 744, the Electronic Bingo Operations They Authorize, and the Enforcement Authority They Provide Have Been in Force or Effect for Six years. The actions of defendants Riley and Tyson and the Alabama Supreme Court

orders affirming those actions are changes in standards, practices, or procedures affecting voting that have actually been in force or effect. “To determine whether there have been changes with respect to voting, we must compare the challenged practices with those in effect before they were adopted.” Presley v. Etowah County, 502 U.S. at 495. In order to determine whether an election practice constitutes a “change” as that term is defined in our § 5 precedents, we compare the practice with the covered jurisdiction’s “baseline.” We have defined the baseline as the most recent practice that was both precleared and “in force or effect” – or, absent any change since the jurisdiction’s coverage date, the practice that was “in force or effect” on that date. See Young[ v. Fordice], 520 U.S. [273,] 282-283, 117 S.Ct. 1228 [(1997)]. See also Presley, 502 U.S., at 495, 112 S.Ct. 820. The question is “whether a State has ‘enact[ed]’ or is ‘seek [ing] to administer’ a ‘practice or procedure’ that is ‘different’ enough” from the baseline to qualify as a change. Young, 520 U.S., at 281, 117 S.Ct. 1228 (quoting 42 U.S.C. § 1973c).

393 U.S. 544 (1969)]. For present purposes it suffices to note that the Russell County Commission retains substantial authority, including the power to appoint the county engineer and to set his or her budget. The change at issue in Russell County is not a covered change. Presley, 502 U.S. at 508.
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Riley v. Kennedy, 128 S.Ct. at 1982 (footnote omitted). Amendments 743 and 744 received § 5 preclearance from the Attorney General of the United States on October 3, 2003, and were ratified by the voters of Greene and Macon Counties on November 4, 2003. Pursuant to the authority of these constitutional amendments, electronic bingo has been operating in Greene and Macon Counties, and their elected Sheriffs have been regulating and enforcing these constitutional provisions, since late 2003. Thus, for six years the constitutionally authorized bingo operations and enforcement practices have been in “force or effect,” within the meaning of 42 U.S.C. § 1973c, regardless of defendants’ contentions that they violate state law. Perkins[v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971)], and [City of] Lockhart [v. United States, 460 U.S. 125, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983),] established that an election practice may be “in force or effect” for § 5 purposes despite its illegality under state law if, as a practical matter, it was “actually in effect.” Lockhart, 460 U.S., at 132, 103 S.Ct. 998. Our more recent decision in Young, however, qualified that general rule: A practice best characterized as nothing more than a “temporary misapplication of state law,” we held, is not in “force or effect,” even if actually implemented by state election officials. 520 U.S., at 282, 117 S.Ct. 1228. Riley v. Kennedy, 128 S.Ct. at 1984. The unique circumstances that led the Supreme Court to rule that the statutory change at issue in Riley v. Kennedy was only a “temporary misapplication of state law” clearly do not apply here.
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Although our reasoning and the particular facts of this case should make the narrow scope of our holding apparent, we conclude with some cautionary observations. First, the presence of a judgment by Alabama’s highest court declaring the 1985 Act invalid under the State Constitution is critical to our decision. We do not suggest the outcome would be the same if a potentially unlawful practice had simply been abandoned by state officials after initial use in an election. Cf. Perkins, 400 U.S., at 395, 91 S.Ct. 431. Second, the 1985 Act was challenged the first time it was invoked and struck down shortly thereafter. The same result would not necessarily follow if a practice were invalidated only after enforcement without challenge in several previous elections. Cf. Young, 520 U.S., at 283, 117 S.Ct. 1228 (“[T]he simple fact that a voting practice is unlawful under state law does not show, entirely by itself, that the practice was never ‘in force or effect.’ ... A State, after all, might maintain in effect for many years a plan that technically ... violated some provision of state law.”). Finally, the consequence of the Alabama Supreme Court’s decision in Stokes [v. Noonan, 534 So.2d 237 (Ala. 1988),] was to reinstate a practice – gubernatorial appointment – identical to the State’s § 5 baseline. Preclearance might well have been required had the court instead ordered the State to adopt a novel practice. Riley v. Kennedy, 128 S.Ct. at 1986-87 (footnotes omitted) (bold emphasis added). Here, no state court judgment has ever declared invalid Amendments 743 and 744, the regulations promulgated by the Sheriffs of Greene and Macon Counties, their enforcement authority, or the bingo operations they have been regulating since late 2003. To the contrary, the Alabama Supreme Court has held: “In force at all times relevant to this action were the “Second Amended and Restated Bingo Regulations for the Licensing and Operation of Bingo Games in Macon County” (“the sheriff's regulations”), promulgated by the Macon County sheriff pursuant to Amendment No. 744.
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Macon County Greyhound Park, Inc. v. Knowles, --- So.3d ----, 2009 WL 4016073 (Ala., Nov. 20, 2009) at *1 (bold emphasis added).4 In Greene County, the Alabama Supreme Court has stayed further proceedings in the forfeiture action initiated at the request of the Sheriff of Greene County and has enjoined the district attorney prosecuting the forfeiture action from interfering with the non-judicial law enforcement actions of defendants Riley and Tyson. In doing so, the Alabama

In another civil action against the Macon County Sheriff a U.S. District Court concluded: Sheriff Warren has the authority to implement rules for the regulation of bingo games in Macon County. Amendment No. 744 grants him that authority. See Ala. Const.1901 amend. No. 744 (“The sheriff shall promulgate rules and regulations for the licensing and operation of bingo games within the county.”). Sheriff Warren also has regulatory authority pursuant to his “police powers.” Opinion of the Justices, 795 So.2d [630, 630 [Ala. 2001)]. There is no challenge in this case to Sheriff Warren's authority to regulate bingo in Macon County. Hope for Families & Community Service, Inc. v. Warren, --- F.Supp.2d ----, 2010 WL 2629408 (M.D.Ala., June 30, 2010) at *46. The court acknowledged that Sheriff Warren exercised his authority to approve electronic bingo. Id. at *2 (“The word ‘electronic’ surfaced in the sheriff’s regulations governing bingo in Macon County.”). See also Macon County Investments, Inc. v. Warren, 2007 WL 3441995 (M.D.Ala., Jan. 5, 2009) at *1, aff’d 306 Fed.Appx. 478, 2009 WL 19346 (11th Cir. 2009) (“In reciting the facts, the court construes the evidence in a light most favorable to the nonmovants. Amendment 744 to the Alabama Constitution made the operation of bingo gaming by nonprofit organizations legal in Macon County, Alabama. Ala. Const. Amend. No. 744. Amendment 744 also authorized the sheriff of Macon County to ‘promulgate rules and regulations for the licensing and operation of bingo games within the county.’” Id.).
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Supreme Court has approved the truly novel5 “task force” policy and practice being implemented by defendants. Defendant Riley acknowledged in 2006 that a statewide amendment to the Alabama Constitution would be necessary to overturn the decisions county electorates like those in Greene and Macon Counties had made to authorize electronic bingo. The Governor’s office issued a press release on February 7, 2006, urging support for his proposed constitutional amendment, saying “[i]t bans the use of electronic devices in playing bingo under existing local amendments, limiting the games that are authorized to traditional paper bingo. Any future amendments to authorize any gambling in Alabama would require a statewide vote and not just a local vote by the county involved.” See Exhibit B to this brief. Governor Riley’s proposed constitutional amendment did not pass the Legislature. So defendant Riley decided to act unilaterally “for the purpose of promoting and supporting uniform statewide enforcement of Alabama’s anti-gambling laws” and putting and end to “an obvious lack of uniformity in the enforcement of these laws from county to county,” ignoring the local constitutional amendments approved by

“[W]e are presented with the unusual circumstance of the governor of this State making a judgment that the laws concerning illegal gambling were not being enforced in certain counties in this State, including Macon County.” Tyson v. Jones, supra, slip op. at 30 (bold emphasis added).
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the voters in Greene and Macon Counties. Tyson v. Jones, supra, slip op. at 5 (quoting Executive Order 44). Governor Riley has publicly acknowledged that his appointment of a “task force” and its “commander” are changes in actual practices that have been in effect for years: [Reporter:] Several of these bingo halls and casinos have been in operation for years. Why have you started trying to shut them down now? [Governor Riley:] I operated under the false belief that these machines were legal, based on what the attorney general of Alabama said. But I started looking in to this when Sen. Charles Bishop of Walker County brought in a group of citizens who came to me and said, “These bingo halls are destroying our county.” I told them, “The AG tells me these machines are legal.” But they said, “You've got to do something.” So I took it to my attorney and I asked him if there was anything that we could do to help these people. He came back to me and said that the AG was absolutely wrong. He laid out chapter and verse everything that the courts had ruled and that what the gamblers were doing was illegal. To be on the safe side I took what my young attorney had shown me to two large law firms in the state and asked whether this young attorney or the attorney general was right. They told me that my young lawyer was right and the gamblers had never won a case. The Supreme Court has never said that gambling is legal in this state, and if it is against the law, we are going to enforce the law. Montgomery Advertiser, July 11, 2010. Whether Governor Riley and his lawyers are right or wrong about the legality of the bingo operations in Greene and Macon Counties, defendants’ assumption of unilateral, non-judicial authority to enforce
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their untested legal opinions constitute changes affecting the voting rights of the citizens of Greene and Macon Counties and may not be implemented without receiving § 5 preclearance. There is no dispute these gubernatorial practices have never been submitted for preclearance, and plaintiffs and the class they seek to represent are entitled to immediate relief enforcing their rights under § 5 of the Voting Rights Act.

V.

The Irreparable Injuries Currently Being Suffered By Plaintiffs and Other Citizens of Greene and Macon Counties Are Exceptional. As we noted above, every plaintiff whose rights under § 5 are being violated

is entitled to a preliminary injunction. But the injuries citizens of Greene and Macon Counties are suffering or may soon suffer have a huge adverse impact on their schools, public services, and local economies, and the remedy this Court orders should take the urgency of relief into account. Revenues generated as a result of the enactment of Amendment 743 provide necessary funding for many critical public services and nonprofit organizations in Greene County, some of which have been reported on in the press. First and foremost, 40% of Greenetrack revenues go the Greene County public school system. “A Department of Examiners of Public Accounts audit of the Greene County Board of Education that year shows that their ‘bingo proceeds’ were
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$796,160, or nearly $800,000.” Tuscaloosa News, July 25, 2010. The State’s Education Trust Fund is in proration for the third straight year, and school systems all over the state must rely on their local revenues to meet immediate operating expenses. But the school system is not the only entity that is suffering because Greenetrack has been shut down: Like the once overflowing buffet table in the Greenetrack restaurant, gambling fed the impoverished region by providing jobs. Its disappearance has begun to starve the county. Marilyn Gibson, director of the public library in Eutaw, said the library expanded its hours and computer banks with nearly 10 percent of its roughly $50,000 budget coming from Greenetrack contributions. Now it's looking at cutting back hours and part-time help. Greene County's Emergency 911 service got a quarter of its income from Greenetrack donations, said Iris Sermon, director of E-911. Now she's looking at ways to trim the budget and keep 911 service going. Greenetrack donated money to more than 80 charities, including every volunteer fire department in the county. It is credited with rescuing destitute public schools. It offered $500 a semester college scholarships to children of Greenetrack employees and to Greene County High School graduates with a 2.0 grade-point average who maintained A’s and B’s in college. All 95 students on scholarship at schools including the University of Alabama at Birmingham, Stillman College and the University of Alabama have been sent letters saying the scholarships have been discontinued, said Hampton. ... For-profit businesses noticed an immediate impact when the Greenetrack layoffs took effect. “People that worked at Greenetrack would come in here on Wednesdays with their paychecks and pay on their accounts,” said Jamie Banks, fourth-generation owner of the Banks & Company family hardware store, which opened in 1889,
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when Eutaw was a major mercantile center for a thriving agricultural industry. “Now there's no check,” he said Wednesday afternoon from his office doorway overlooking the empty store. “Look out there. Do you see any customers?” Julia Denise Fuller, owner of Truman’s Original Barbecue, moved to Eutaw to buy one of its many historic houses dating to the antebellum era. Her restaurant had been frequented by Greenetrack employees, but she’s seen few of them since the layoffs. She let go one part-time server. “When people aren’t working, they can’t go out to eat,” Fuller said as a few customers dined on her peppery barbecue and chocolate mud pie. “A small town can only support so many businesses.” Birmingham News, July 18, 2010. In addition, the Greene County Hospital and Nursing Home, which operates the only health care facility in Greene County open 24 hours a day 7 days a week and employs the only two physicians who reside in the entire county, will have to significantly reduce hours, staff, and services. An injunction restoring the status quo ante defendants’ unlawful implementation of their unprecleared “task force” raids is urgently needed. Revenues generated as a result of the enactment of Amendment 744 provide necessary funding for many critical services and nonprofit organizations in Macon County. If defendants shut down the Macon County bingo operations the following organizations, which serve predominantly African-American citizens in Macon County, will be forced to reduce or eliminate staff and services: Macon County Board of Education, Aid to Inmate Mothers, Macon-Russell Community Action Agency, Tuskegee Macon County HeadStart, Interim Care for Seniors,
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Tuskegee-Macon County YMCA, Southeast Alabama Sickle Cell Association, Dialysis Patient Aid Fund, Macon County Indigent Burial Fund, Macon County Healthcare Authority, Ambulatory Behavior Health, Macon County RSVP, City of Tuskegee Senior Citizens Program, B&D Cancer Care Center, Tuskegee Area Chamber of Commerce, numerous volunteer fire departments, and the Macon County Public Library. In Hornbeck Offshore Services, L.L.C. v. Salazar, 696 F.Supp.2d 627 (E.D.La. 2010), the plaintiffs requested a preliminary injunction against a six-month moratorium on deepwater drilling for oil in the Gulf of Mexico. The court held the plaintiffs had shown an irreparable injury: Where the injury is merely financial and monetary compensation will make the plaintiff whole if the plaintiff prevails on the merits, there is no irreparable injury. But when the nature of economic rights makes establishment of the dollar value of the loss ... especially difficult or speculative, a finding of irreparable harm is appropriate. Hornbeck at 635-36 (citations and internal punctuation omitted). As the former Fifth Circuit held: Although economic loss is not normally considered irreparable if an adequate remedy at law exists, any action for reparation which the port interests might seemingly have … is probably illusory. The monetary damages, although obvious and doubtless very large, are not susceptible of specific proof, and impossibility of proof has long been recognized as bearing upon adequacy of the legal remedy. Texas. v. Seatrain Intern., S. A., 518 F.2d 175, 179 (5th Cir. 1975). In this action,
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as in Hornbeck and Seatrain, the economic loss spreads over such a large class of people, governments, businesses, and non-profits that quantifying the financial harm to the plaintiff class will not be “susceptible of specific proof.” In addition, even if the class could quantify its losses, there would be no way to collect damages from the defendants in their official capacities or from the State of Alabama. As to any damage claims, the State and the official-capacity defendants would certainly claim Eleventh Amendment immunity. Hans v. Louisiana, 134 U.S. 1, 15 (1890); Edelman v. Jordan, 415 U.S. 651 (1974); Florida Ass’n of Rehab. Facilities, Inc. v. Florida Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1220 (11th Cir. 2000) (“[T]he Eleventh Amendment does not generally prohibit suits against state officials in federal court seeking only prospective injunctive or declaratory relief, but bars suits seeking retrospective relief such as restitution or damages.”) (citations omitted). “Where the Eleventh Amendment bars recovery of monetary damages from state entities, legal remedies are inadequate and the plaintiff has shown the irreparable harm necessary for injunctive relief.” Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 309 (D.N.J. 1995) (citation omitted); see also California Pharmacists Ass’n. v. Maxwell-Jolly, 563 F.3d 847, 852 (9th Cir. 2009) (“[B]ecause the economic injury doctrine rests only on
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ordinary equity principles, precluding injunctive relief where a remedy at law is adequate, it does not apply, where, as here, the Hospital Plaintiffs can obtain no remedy in damages against the state because of the Eleventh Amendment.”); Kansas Health Care Ass’n v. Kansas Dep't. of Soc. & Rehab. Servs., 31 F.3d 1536, 1543 (10th Cir. 1994) (“Because the Eleventh Amendment bars a legal remedy in damages . . . the court held that plaintiff's injury was irreparable. We agree.”). The individual-capacity defendants would not have enough resources to pay the enormous losses of the plaintiff class and would probably claim qualified immunity.

Conclusion. For all the foregoing reasons, a three-judge court should be empaneled promptly, and plaintiffs’ motion for a preliminary injunction should be granted.

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Respectfully submitted this 2nd day of August, 2010, Edward Still Bar No. ASB-4786-I 47W 2112 11th Avenue South Suite 541 Birmingham, AL 35205 205-320-2882 fax 205-449-9752 E-mail: still@votelaw.com s/James U. Blacksher Bar No. ASB-2381-S82J P.O. Box 636 Birmingham AL 35201 205-591-7238 Fax: 866-845-4395 E-mail: jblacksher@ns.sympatico.ca Fred D. Gray Bar No. ASB-1727-R63F Gray, Langford, Sapp, McGowan, Gray & Nathanson P. O. Box 830239 Tuskegee , AL 36083-0239 334-727-4830 Fax: 334-727-5877 E-mail: fgray@glsmgn.com CERTIFICATE OF SERVICE I hereby certify that on August 2, 2010, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, and I sent by first class mail notification of such filing to the following: John M. Tyson, Jr. Task Force Commander Office of Governor Bob Riley 600 Dexter Avenue Montgomery, Alabama 36130 John M. Tyson, Jr. District Attorney 205 Government Street Suite C-501 Mobile, Alabama 36644 Hon. Bob Riley Governor's Office State Capitol 600 Dexter Avenue Montgomery, Alabama 36130 Hon. Troy King Attorney General 500 Dexter Ave. Montgomery AL 36130

Attorneys for plaintiffs

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Case 7:10-cv-02067-SLB Document 4

Filed 08/02/10 Page 22 of 22

Respectfully submitted, s/ James U. Blacksher JAMES U. BLACKSHER Ala. Bar Code: ASB-2381-S82J P.O. Box 636 Birmingham AL 35201 Telephone: 205-591-7238 Fax: 866-845-4395 E-mail: jblacksher@ns.sympatico.ca

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