ELECTRONICALLY FILED 9/19/2012 9:27 AM CV-2012-900266.00 CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA CARLA H.

WOODALL, CLERK

IN THE CIRCUIT COURT FOR HOUSTON COUNTY, ALABAMA

STATE OF ALABAMA, Plaintiff, v. $283,657.68 U.S. currency, et al., Defendants.

) ) ) ) CIVIL ACTION NUMBER: ) CV-2012-900266 ) ) ) )

THE STATE OF ALABAMAS RESPONSE IN OPPOSITION TO HEDA AND SED GAMING, INC.S MOTIONS TO RECUSE/DISQUALIFY The State opposes the Motion to Recuse (the Motion) filed by Intervenor Houston Economic Development Authority (HEDA) and joined by Intervenor SED Gaming, Inc. The Motion is without merit and this Court should deny the Motion and continue with the litigation of this civil forfeiture.

I.

CONTROLLING LEGAL STANDARD Recusal is the exception, not the rule. It has long been true in Alabama that the law will

not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice and whose authority greatly depends upon that presumption and idea. Ex parte Balogun, 516 So. 2d 606, 609 (Ala.1 987) (quoting Fulton v. Longshore, 46 So. 989, 990 (Ala. 1908)). HEDA, as the party seeking recusal, bears the burden of proof. Ex parte Bank of America, N.A., 39 So. 3d 113, 117 (Ala. 2009) (citing Ex parte City of Dothan Personnel Bd., 831 So. 2d 1, 9 (Ala. 2002)). To carry this burden, HEDA must produce more than mere allegations and suppositions because a mere accusation of bias that is unsupported by substantial fact does not require the disqualification of a judge. Ex parte Melof, 553 So. 2d 554,

557 (Ala. 1989)). Statements in motions are not evidence and are therefore not entitled to evidentiary weight. Fountain Finance, Inc. v. Hines, 788 So. 2d 155, 159 (Ala. 2000) (quoting Singh v. Immigration & Naturalization Serv., 213 F.3d 1050, 1054 n. 8 (9th Cir. 2000)).

II.

FACTS A. This Case This is a civil forfeiture case arising out the States seizure of illegal gambling devices

from a Houston County casino called Center Stage. On July 25, 2012, the State executed a search warrant, issued by this Court, for the seizure of the machines at Center Stage. (See Exhibit A). The State then initiated this civil forfeiture action against the seized property on July 26, 2012. On August 24, 2012, HEDA filed a motion to recuse Judge Anderson, who had initially been assigned to this case. He recused, as did Judges Binford and Mendheim. The case was then assigned to this Court. HEDA again sought recusal, filing a renewed motion on September 26, 2012. B. Previous Cases And Events Unrelated To This Case Before Center Stage opened, there was another casino in Houston County called Country Crossing. Country Crossing voluntarily closed in the face of a law enforcement operation which could have resulted in the seizure and civil forfeiture of the machines offered for play at Country Crossing. See Lord Abbett Mun. Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1205 (11th Cir. 2012). Country Crossing eventually declared bankruptcy, See In Re: Resorts Development

Group II, LLC, Case No.12-30054, Bankr. M.D. Ala., and a casino operation named Center Stage eventually opened in the same facility with its own machines. On or about April 28, 2010, Your Honor was appointed to the bench by then-sitting Governor Bob Riley. In November 2

2010, Governor Bentley was elected. In his first executive order, Governor Bentley disbanded the Gambling Task Force that Governor Riley had established. (See Exhibit B)

III.

ARGUMENT None of HEDAs five grounds for recusal have merit. None are supported by adequate

evidence. None are well-grounded in Alabamas law of judicial disqualification. A. The Policy Positions of the Courts Acquaintances Do Not Require Recusal. HEDAs assertion that the alleged connection between the Court and two Houston County residents creates an objective basis for recusal is wrong. The Alabama Supreme Court has held that [b]ias and prejudice must be shown by the conduct of the trial judge and may not be presumed or inferred by his subjective views. Hartman v. Bd. of Trustees of Univ. of Alabama, 436 So. 2d 837, 841 (Ala. 1983). Here, HEDA constructs a flawed argument that is based not on the Courts own statements, but rather on the stale public statements of one of the Courts alleged business partners expressing his own opposition to gambling. Because even the Courts own subjective statements to this effect would be too little to justify recusal, the subjective statements of a third-party are, as a matter of law, insufficient to disqualify the Court. HEDAs argument breaks down in multiple ways: First, even if properly before the Court, HEDAs assertions are merely: (1) that the Court and a Mr. John Watson are involved in a business venture together; and (2) that Watson and a Mr. John Downs are reported, based on various hearsay statements, to have opposed the Country Crossing casino.1 No evidence links the Court to Downs in any fashion, and no evidence

HEDA also alleges [u]pon information and belief that the Court was recommended to former Governor Bob Riley for appointment as a Circuit Judge by Watson and Brown. This unsupported assertion is not evidence and [is] therefore not entitled to evidentiary weight. Fountain Finance, Inc., 788 So. 2d at 159 (quoting Singh v. Immigration & Naturalization Serv., 213 F.3d 1050, 1054 n. 8 (9th Cir. 2000)). Nor would it be a basis for recusal

converts the public policy positions of Downs and Watson into any subjective bias or appearance of bias on the part of the Court. Surely every judge in the state has supporters who oppose gambling and supporters who favor it. Neither fact is a basis for recusal. Under analogous circumstances, the Alabama Supreme Court has consistently found that disqualification is not warranted. In Gary v. Crouch, 867 So. 2d 310 (Ala. 2003), the court affirmed a trial judges decision not to recuse from a case involving a police officers suit against a police chief when the judges brother was friends with the defendant police chief. Id. at 320. Even though there was testimony that the judges brother, a city councilman, had spoken with the police chief about the plaintiff, the Alabama Supreme Court stated that [t]he trial judge is not accountable for his brothers actions before the city council, and [the plaintiff] has not presented any reason to believe that the trial judge is under the sway of his brother. Id. The same conclusion holds here: there is no reason to believe the Court is under the sway of Mr. Watson or Mr. Downs, much less evidence sufficient to overcome the presume[ption] that a judge is qualified and unbiased. Id. HEDA would have to show much more than it has alleged in order to make disqualification even a close question. The Court of Civil Appeals, for example, held that a trial judge was not required to recuse when he presided over a divorce case involving a state legislator in which a member of the legislators campaign staff also worked on the trial judges campaign. Ford v. Ford, 412 So. 2d 789, 791 (Ala. Civ. App. 1982). Moreover, the legislator admitted to having seen the judge socially and even discussed the case with the judge on one occasion, requesting that the judge set a hearing. Id. Nevertheless, the Court of Civil Appeals found that the judge was not disqualified and found no substantial evidence of bias. Id. at 79192. In
even if the proposition were supported by evidence. Again, virtually every judge in this state would have supporters who favor and supporters who oppose gambling. Such facts have never been sufficient to mandate recusal.

comparison, HEDA does not allege any improper personal contact or relationship between the Court and any party to the case. Instead, all HEDA alleges is that the Court may have unrelated contacts with two individuals who have nothing to do with this case but are politically active and have themselves opposed gambling. Even if HEDA did have evidence to create a link between the Court and Watson and Downs, and even if there was evidence to show that Downs and Watson held certain views about public policy, those circumstances still would not justify recusal. Courts around the country recognize that even a judges own overt statements regarding his own views of a particular type of crime do not disqualify that judge from presiding in cases involving that crime. See RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES, at 10.8 (2nd Ed. 2007) ([T]he fact that a judge may have an opinion about a particular type of crime, or about crime in generalor that he may personally believe that a particular type of crime is more heinous than othersdoes not constitute an accepted ground for disqualifying that judge from a case involving a defendant who is accused of having committed that crime.). See also United States v. Alabama, 828 F.2d 1532, 154344 (11th Cir. 1987) (A judge is not required to recuse himself merely because he holds and has expressed certain views on a general subject and [t]he fact that prior to joining the bench a judge has stated strong beliefs does not indicate that he has prejudged the legal question before him); United States v. Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996) (affirming the trial courts refusal to recuse in a marijuana case where the trial court had made public statements indicating a view that marijuana distribution is a serious and pervasive social problem.); North Carolina v. Kennedy, 429 S.E.2d 449, 452 (N.C. App. 1993).

In a previous case involving illegal gambling, the gambling defendants sought the recusal of Alabama Supreme Court Justices Bolin, Brown, and Stewart. Justice Bolin, who had

previously made statements to the effect that the he was opposed to gambling, responded in part in this manner: My position on that issue is consistent with the law of Alabama; gambling is illegal in this State. I also oppose other acts that violate the laws of the State of Alabama, such as murder, rape, and robbery, but my personal opposition to the above acts does not prevent me from fairly and unbiasedly participating in cases involving such acts. Barber v. Jefferson County Racing Assn, 960 So. 2d 599, 620 (Ala. 2006) (Bolin, J., statement of nonrecusal). See also Ex parte Teds Game Enters., 893 So. 2d 376, 39192 (Ala. 2004) (See also, Brown, and Stuart, JJs, statements of nonrecusal). In all of these cases, particular judges were found to have no duty to recuse even though those very judges had made previous statements about the type of case they were deciding. This case is even more removed the Court here is not alleged to have said anything. Instead, HEDA asserts that the statements of third-party acquaintances of the Court should be imputed as the Courts own views. HEDA cites no authority supporting imputation under those circumstances, and the State has located none. In any event, statements of public policy, even had they come from the Courts own mouth, are insufficient to require recusal. B. The Courts Appointment in 2010 by Governor Riley Does Not Require Recusal. HEDA presents no substantial evidence that the Courts appointment by then-sitting Governor Riley amounts to a grounds for recusal. In Ex parte Melof, the Alabama Supreme Court held that a trial judge was not disqualified from presiding over a class action against the governor, even though the judge had served as the legal advisor to that very governor before his

appointment to the bench. Id. 553 So. 2d 554, 556 (Ala. 1989) (abrogated on other grounds by Ex parte Crawford, 686 So. 2d 196 (Ala. 1996)). The facts of this case are even less suggestive of bias than the facts of Ex parte Melof. The governor that appointed the Court is no longer the governor. The Gambling Task Force which features so prominently in HEDAs narrative no longer exists. This forfeiture action is being prosecuted by the Attorney General of Alabama. In light of these facts, the fact of this Courts appointment by former Governor Riley raises no substantial issue warranting recusal even if HEDA had presented actual evidence in support of its theory, which it has not. C. The Court Does Not Have A Disqualifying Interest in the Concluded Bond Validation Action. HEDAs next vain attempt to remove the Court from this case is to assert that the Courts status as a taxpayer in Houston County disqualifies it because of the long-final judgment in The Cooperative District of Houston County Country Crossing Project v. The Taxpayers and Citizens of Houston County, Alabama, Civil Action No. 2009-379 (the Validation Action). The Court has no disqualifying interest in the long-concluded Validation Action, and the Courts status as a nominal defendant does not require recusal here. Under Canon 3.C(1)(d), a judge should disqualify himself from presiding over a case in which he or a family member has an interest that could be substantially affected by the outcome of the case. According to the Judicial Inquiry Commission, the question of whether an interest is substantial enough to require recusal is one of degreeit is not enough just to show that a particular judge is a member of a particular class. See, e.g., Ex parte Bank of America, 39 So. 3d at 11819 (stating [i]n determining whether a judge has an interest that could be substantially affected by the outcome of the civil action, he should consider any benefit he will receive if the 7

plaintiffs are successful, whether that benefit is such that a reasonable person may question his impartiality, and the remoteness of the interest and its extent or degree and a judge was not required to recuse himself in a case that could result in the judges being refunded a small fee assessed by a governmental entity.) (quoting JIC Advisory Opinion Nos. 98-697 and 91-434). The Alabama Supreme Court, in connection with a putative class action regarding possible refunds of sewer rates, recently held that the fact that a judge may have an interest in a proceeding as a resident in common with other residents is not an interest contemplated by the disqualification provisions in Canon 3C. Id. at 119 (quoting JIC Advisory Opinion No. 95585). The Courts interest, if any, in the Validation Action is purely nominal and not the type of substantial interest that requires disqualification. The Courts interest is shared in common with every resident in Houston County. Being named as a nominal defendant in the Validation Action confers no pecuniary benefit or detriment to the Court or any other defendant. Indeed, the Judicial Inquiry Commission did not suggest that the Validation Proceeding presented a basis for disqualification. (Exhibit R to Motion at 1). Moreover, the Validation Action is over. The judgment is final. (Exhibit P to Motion at p. 10). Whatever happens in this case cannot, as a matter of law, have any effect on the Courts alleged interests at stake in the Validation Action. One last point as to the effect of the Validation Action: HEDA vaguely asserts that [i]t is anticipated that this judgment [i.e., the judgment in the Validation Action] will be a significant part of the issues to be litigated herein and that the State of Alabama may challenge the conclusiveness of this judgment. (Motion at 9). HEDA does not explain how a judgment validating bonds can have any effect on the legality of machines that were not identified or

placed in evidence in the Validation Action and which were not even brought into the state until years after the Validation Action was final. Because HEDA has failed to demonstrate that Your Honor had any meaningful personal stake in the validation proceeding, failed to demonstrate that the specific machines that are the subject of this forfeiture action were even at issue in the validation proceedings, and utterly failed to articulate the role that the Validation Action could supposedly have on this forfeiture action, they have failed to carry their burden. D. The Courts Issuance Of A Valid Search Warrant Does Not Require Recusal. HEDA demands that the Court recuse because the Court issued a search warrant. It is well-settled in Alabama that a court is not disqualified from hearing subsequent matters arising from the search. See, e.g., Ex parte Brooks, 855 So. 2d 593, 596 (Ala. Crim. App. 2003) (Alabama courts have never held that a judge should disqualify himself or herself because of a prior involvement in a case in a judicial capacity); Heard v. State, 574 So. 2d 873, 87475 (Ala. Crim. App. 1990) (holding that a judge who issued a search warrant has no duty to recuse from the subsequent criminal trial); Barron v. State, 682 So. 2d 505, 506 (Ala. Crim. App. 1996) (finding that the trial court had no duty to recuse where he was the same judge who had issued the search warrant in the appellants case.). See also 46 AM. JUR.2d Judges 181 (1969) (A trial judges participation in a previous proceeding in a case does not ipso facto render him disqualified to preside at trial.).2 Both the Alabama Supreme Court and the United States Supreme Court have routinely approved of courts serving in cases where the court has had previous dealings with either the

Both Barron and Heard cite this entry in American Jurisprudence 2d as authority on this subject. See Barron, 682 So. 2d at 506; Heard, 574 So. 2d at 875.

defendant or the occurrence that is the subject of the subsequent case (or both). See, e.g., Winthrow v. Larkin, 421 U.S. 35, 56 (1975) (Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe that a crime has been committed and that the person named in the warrant has committed it. Judges also preside at preliminary hearings where they must decide whether the evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements has been thought to raise any constitutional barrier against the judge's presiding over the criminal trial and, if the trial is without a jury, against making the necessary determination of guilt or innocence.); FTC v. Cement Inst., 333 U.S. 683, 703 (1948) (In fact, judges frequently try the same case more than once and decide identical issues each time, although these issues involve questions both of law and fact.); Walker v. State, 84 So. 2d 383, 384 (Ala. 1955) (holding that a trial court had no duty to recuse where the court had previously tried the same case and committed error by allowing evidence that was ruled on appeal to have been inadmissible). The rule is that [t]he mere fact of previous participation in a trial by a judge, without more, furnishes no ground for disqualification. Walker, 84 So. 2d at 384. Other states agree. See, e.g., Wallace v. State, 741 So. 2d 938, 94142 (Miss. Ct. App. 1999) (collecting cases). HEDA generally asserts that unusual circumstances attended the issuance of the search warrant that led to the seizure of the machines in this case, but this self-serving reference is without merit. HEDAs statements in the Motion are not evidence and are thus not a basis for recusal. See Fountain Finance, Inc., 788 So. 2d at 159. HEDA insinuates that the State had ex parte communications with the Court, but every search warrant application is necessarily ex parte. See e.g., Armstrong v. State, 312 So. 2d 620, 62425 (Ala. 1975); United States v. Matlock, 415 U.S. 164, 174 (1974) (Search warrants are repeatedly issued on ex parte affidavits

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containing out-of-court statements of identified and unidentified persons.).

The Courts

issuance of the search warrant was not in any way irregular and HEDA has shown no evidence suggesting any reason to depart from the normal rule that the Court may preside over proceedings that result from the issuance of the search warrant.3 E. As the Court Already Held, Alleged Conversations Do Not Require Recusal. Extra-Judicial Public

Finally, as the Court held in its order of September 7, 2012, the general discussion of bingo in Houston County does not disqualify the Court. As the Court stated there, HEDA alleged no factswhich would show that the Court has any bias, hostility, or prejudice towards HEDA. (Exhibit C at 2). In its renewed Motion, HEDA does not add any such facts.4 Instead, HEDA merely repeats the assertion that the Court would have been exposed to public discourse in Houston County regarding Country Crossing. (Motion at 11). As the Court has already determined, this public discussion does not create even an appearance of disqualifying bias. (Exhibit C at 2).

IV.

CONCLUSION The Court should not recuse. HEDA has produced no substantial evidence that the Court

is biased or otherwise disqualified, and HEDA cites no controlling authority to support its novel

In a footnote, HEDA cites to an order from the Greene County Circuit Court. (See Motion at 9 n.4). The order HEDA references is on appeal. Moreover, the Alabama Supreme Court signaled that the Greene County order should not be relied upon as precedent in the meantime by staying that order pending appeal. (See Exhibit D, Order Granting Stay) HEDA continues to rely on a letter from the Judicial Inquiry Commission as authority that the Court should recuse but that letter is not the law. The Alabama Supreme Court has held that Judicial Inquiry Commission advisory opinions are not the law: advisory opinions are not binding and do not affect a partys rights or remedies. City of Dothan, 831 So. 2d at 6. Moreover, the Judicial Inquiry Commission opinion which HEDA relies upon is squarely based upon an admission of subjective bias by the judges involved. Here, the Court has disclaimed any such subjective bias, and that should end the matter.
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and frankly radical view of judicial disqualification. The Court should deny HEDAs motion and expedite its consideration of this forfeiture proceeding in order to render a decision on the merits. WHEREFORE PREMISES CONSIDERED, Petitioner prays this Honorable Court will take consideration of the above and DENY the Intervenors Motions to Recuse and Disqualify.

Respectfully submitted, LUTHER STRANGE (STR003) ATTORNEY GENERAL By: /s/ Henry T. Reagan__________ HENRY T. REAGAN (REA021) 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

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CERTIFICATE OF SERVICE I hereby certify that I have served all counsel of record by electronic notice via AlaFile system on this 19th day of September 2012.

/s/ Henry T. Reagan__ HENRY T. REAGAN OF COUNSEL

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