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Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 1 of 8 FILED

2010 Aug-04 PM 03:00


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, *
* Civil Action No.
v. * 7:10-cv-02067-SLB
*
BOB RILEY, in his individual capacity and in his * Three-judge court
official capacity as Governor of Alabama, and * requested
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. *

EXHIBIT A TO
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 2 of 8

AlaFile E-Notice

46-CV-2010-000015.00
Judge: STEVEN R. PERRYMAN
To: GRAY FRED DAVID
fgray@glsmgn.com

NOTICE OF ELECTRONIC FILING


IN THE CIRCUIT COURT OF MACON COUNTY, ALABAMA

E. PAUL JONES ET AL VS JOHN M TYSON, JR


46-CV-2010-000015.00

The following matter was FILED on 8/2/2010 9:53:32 AM

D001 TYSON JOHN M JR DISTRICT ATTORNEY


MOTION TO VACATE OR MODIFY
[Attorney: TYSON JOHN M JR]

Notice Date: 8/2/2010 9:53:32 AM

DAVID LOVE, JR.


CIRCUIT COURT CLERK
MACON COUNTY, ALABAMA
101 EAST NORTHSIDE STREET
TUSKEGEE, AL 36083

334-724-2614
david.love@alacourt.gov
ELECTRONICALLY FILED
Case 7:10-cv-02067-SLB
STATE OF ALABAMA Document 5-1
Revised 3/5/08 Filed 08/04/10 Page 38/2/2010
of 8 9:53 AM
Case No.
Unified Judicial System CV-2010-000015.00
CIRCUIT COURT OF
46-MACON District Court Circuit Court CV201000001500
MACON COUNTY, ALABAMA
DAVID LOVE, JR., CLERK
CIVIL MOTION COVER SHEET
E. PAUL JONES ET AL VS JOHN M TYSON, JR
Name of Filing Party: D001 - TYSON JOHN M JR DISTRICT ATT

Name, Address, and Telephone No. of Attorney or Party. If Not Represented. Oral Arguments Requested
JOHN MALCOLM TYSON JR
205 GOVERNMENT ST, STE C501
MOBILE, AL 36644
Attorney Bar No.: TYS002

TYPE OF MOTION
Motions Requiring Fee Motions Not Requiring Fee
Default Judgment ($50.00) Add Party
Joinder in Other Party's Dispositive Motion (i.e. Amend
Summary Judgment, Judgment on the Pleadings, or Change of Venue/Transfer
other Dispositive Motion not pursuant to Rule 12(b))
($50.00) Compel
Consolidation
Judgment on the Pleadings ($50.00)
Continue
Motion to Dismiss, or in the Alternative Summary Deposition
Judgment($50.00)
Designate a Mediator
Renewed Dispositive Motion(Summary Judgment,
Judgment as a Matter of Law (during Trial)
Judgment on the Pleadings, or other Dispositive
Motion not pursuant to Rule 12(b)) ($50.00) Disburse Funds
Extension of Time
Summary Judgment pursuant to Rule 56($50.00)
In Limine
Motion to Intervene ($297.00) Joinder
More Definite Statement
Other Motion to Dismiss pursuant to Rule 12(b)
pursuant to Rule ($50.00) New Trial
Objection of Exemptions Claimed
Pendente Lite
Plaintiff's Motion to Dismiss
*Motion fees are enumerated in §12-19-71(a). Fees
pursuant to Local Act are not included. Please contact the Preliminary Injunction
Clerk of the Court regarding applicable local fees. Protective Order
Quash
Local Court Costs $ Release from Stay of Execution
Sanctions
Sever
Special Practice in Alabama
Stay
Strike
Supplement to Pending Motion
Vacate or Modify
Withdraw
Other
pursuant to Rule (Subject to Filing Fee)

Check here if you have filed or are filing Date: Signature of Attorney or Party:
contemoraneously with this motion an Affidavit of
Substantial Hardship or if you are filing on behalf of an /s JOHN MALCOLM TYSON JR
agency or department of the State, county, or municipal 8/2/2010 9:51:22 AM
government. (Pursuant to §6-5-1 Code of Alabama
(1975), governmental entities are exempt from
prepayment of filing fees)

*This Cover Sheet must be completed and submitted to the Clerk of Court upon the filing of any motion. Each motion should contain a separate Cover Sheet.
**Motions titled 'Motion to Dismiss' that are not pursuant to Rule 12(b) and are in fact Motions for Summary Judgments are subject to filing fee.
ELECTRONICALLY FILED
Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 48/2/2010
of 8 9:53 AM
CV-2010-000015.00
CIRCUIT COURT OF
MACON COUNTY, ALABAMA
DAVID LOVE, JR., CLERK
IN THE CIRCUIT COURT OF MACON COUNTY, ALABAMA

E. PAUL JONES, in his official capacity, )


et al., )
)
Plaintiffs, )
)
v. ) CASE NO: CV-2010-15
)
JOHN M. TYSON, JR. individually and in )
his official capacity )
)
Defendant. )

DEFENDANT JOHN M. TYSON, JR.’S EMERGENCY MOTION TO DISSOLVE


PRELIMINARY INJUNCTION OR TO STAY PRELIMINARY INJUNCTION
PENDING APPEAL

Defendant John M. Tyson moves this Court to immediately dissolve or stay the

preliminary injunction it issued on March 22, 2010. For weeks now, VictoryLand has been the

only casino in this State openly running illegal slot machines under the guise of electronic

“bingo.” The only thing that has kept the State from enforcing the law against VictoryLand has

been this Court’s injunction. The Supreme Court has now made clear that the injunction was an

unlawful infringement upon the Governor’s power to enforce the law, and the Governor’s Task

Force stands ready to enforce the law as soon as this Court lifts the injunction. This Court has

jurisdiction to vacate or stay the injunction before the Supreme Court issues its judgment, see

ALA. R. CIV. P. 62(c), and this Court should do so immediately. Tyson asks this Court to rule

on this emergency motion, with or without a hearing, no later than Wednesday, August 4,

2010.
Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 5 of 8

REASONS THE INJUNCTION SHOULD BE DISSOLVED OR STAYED

A court should dissolve an injunction when it is “no longer equitable that the judgment

have prospective application.” ALA. R. CIV. P. 60(b)(5). Similarly, when determining whether

to stay an injunction while an appeal remains pending, a court may consider whether (1) the

movant can show a “likelihood of success on the merits”; (2) the movant will “suffer irreparable

injury if the stay is not granted”; (3) the stay will not “harm the other parties”; and (4) whether

“the granting of the stay would serve the public interest.” Ruiz v. Estelle, 666 F.2d 854, 856 (5th

Cir. 1982) (considering rule similar to ALA. R. APP. P. 8). Each of these considerations weighs

decidedly in Tyson’s favor here.

A. Tyson has succeeded on the merits.

As an initial matter, Tyson has far more than simply a likelihood of success on the merits.

He has already succeeded. In a unanimous, 9-0 opinion, the Supreme Court held that the

injunction was unlawful because District Attorney Jones and Sheriff Warren had no chance of

succeeding on the merits. In particular, the Supreme Court held that this court’s decision was

based on a “misapprehension of applicable law.” Slip op. at 26. The Court emphatically

rejected any suggestion that DA Jones and Sherriff Warren could block the Governor’s

enforcement of the law against VictoryLand, reasoning that “the governor is the superior

officer.” Id. at 39. The Court stated without qualification that Tyson “is not usurping the offices

of District Attorney Jones, Sheriff Warren, or Attorney General King.” Id. at 44.1

                                                        
1 Also this past Friday, the Supreme Court overruled the gambling interests’ application for rehearing in Ex parte
State, No. 1090808, ___ So. 3d ___, 2010 WL 2034825 (Ala. May 21 2010), the decision that controlled the
outcome in the case at hand. 

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Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 6 of 8

B. The State will suffer irreparable harm if the injunction is not vacated or stayed.

Moreover, the State will suffer irreparable harm if this Court does not dissolve or stay the

injunction immediately. The Supreme Court has directed this Court to vacate the injunction once

the case has been remanded. See Slip Op. at 46. But the case will not be remanded for at least

18 days after the Supreme Court’s decision, see ALA. R. APP. P. 41, which is the date on which

the Supreme Court is currently scheduled to issue its certificate of judgment. But a remand will

likely take longer than that, for Plaintiffs may file an application for rehearing in the Supreme

Court. In light of the unanimous and unequivocal nature of the Supreme Court’s opinion, any

such rehearing application would be frivolous. But Plaintiffs are likely to file such a petition

solely in an attempt to achieve delay and to protect VictoryLand’s illegal operations as long as

they can.

If Plaintiffs achieve delay and this Court’s injunction remains effective, the State will

suffer irreparable harm. VictoryLand is the only casino against which the Task Force is

currently enjoined from enforcing Alabama law, which limits legal “bingo” to the traditional

game of bingo and prohibits slot machines. See Ex parte State, No. 1090808, ___ So. 3d ___,

2010 WL 2034825, at *24 (Ala. May 21 2010) (stating that the Governor’s position that “the

term bingo is a reference to the game traditionally known as bingo is consistent with at least

three [Alabama] appellate decisions”). The State has an interest of the highest order in enforcing

its criminal laws against those persons who violate them—particularly when, as here, those who

violate these laws are profiting, to the tune of more than $100 million a year, off of Alabama’s

poorest citizens. VictoryLand’s brazen defiance of the law cannot stand, and the State will put

an end to that defiance as soon as this Court vacates or stays its injunction.

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Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 7 of 8

C. Vacating or staying the injunction will not harm the Plaintiffs in any legally
significant way.

Plaintiffs cannot try to preserve the injunction on the ground that they will be harmed in

if it does not remain in place. The Supreme Court has now held, in no uncertain terms, that DA

Jones and Sheriff Warren have no power to block the Governor’s enforcement of the law. They

have no legitimate interest in precluding the Governor from seeing to it that the law is faithfully

executed. They have no protectible interest in continuing to be even temporarily exempt from

equal enforcement of Alabama law.

D. The public interest strongly favors vacating or staying the injunction.

The public interest demands that the injunction be vacated or stayed immediately.

VictoryLand is now the only casino under the State’s jurisdiction that openly operates gambling

machines that accept cash, credit or vouchers and then dispense cash value prizes on the basis of

elements of chance. It is able to do so because this Court’s injunction protects it from Alabama

law. To this day and despite the Supreme Court’s clear ruling that the injunction is improper,

VictoryLand is continuing to extract illicit profits from this State’s citizens 24 hours a day, 7

days a week, without fear of law enforcement action to stop it. This Court’s injunction is the

only thing standing in the way of the State’s enforcement of the law against the last bastion of

openly illegal gambling activity in Alabama. It is now clear that the injunction was wrong, and it

is not equitable that the injunction have prospective application. Accordingly, Tyson asks the

Court to dissolve the Preliminary Injunction, or, in the alternative, to stay it pending the remand

of this cause from the Supreme Court.

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Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 8 of 8

TYSON ASKS THAT THIS COURT RULE ON THIS EMERGENCY MOTION, WITH

OR WITHOUT A HEARING, NOT LATER THAN WEDNESDAY, AUGUST 4, 2010. EQUITY

DEMANDS THAT THE COURT PROCEED IN THIS EXPEDITED MANNER. EACH TIME

THE PARTIES SEEKING TO PREVENT A RAID AT THE VICTORYLAND CASINO HAVE

BROUGHT EMERGENCY MOTIONS BEFORE THIS COURT, THIS COURT HAS RULED

UPON THEM ALMOST INSTANTANEOUSLY. FAIRNESS REQUIRES THAT THE COURT

ACT WITH SIMILAR DISPATCH IN RULING ON THIS MOTION.

Respectfully submitted,

s/ John M. Tyson, Jr.


One of the Attorneys for Defendant John M.
Tyson, Jr.

OF COUNSEL:

Timothy W. Morgan
Office of the District Attorney, 101 Northside Square
Huntsville, Alabama 35801
(256) 532-3460
tmorgan@districtattorney.org

John M. Tyson, Jr.


OFFICE OF GOVERNOR BOB RILEY
600 Dexter Avenue
Montgomery, Alabama 36130
(251) 574-8400
(251) 574-8484 (fax)
john_tyson@mobile-da.org

CERTIFICATE OF SERVICE

I hereby certify that on August 2, 2010, I electronically filed the foregoing with the Clerk
of the Court using the AlaFile system which will send notification of such filing to all parties of
record.

s/ John M. Tyson, Jr.


OF COUNSEL
 

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