Case 7:10-cv-02067-SLB Document 1-1 Filed 07/29/10 Page 1 of 6 FILED

2010 Jul-29 AM 10:55

U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

WILLIAM JOHNSON et al., individually and on *

behalf of others similarly situated, *
*
Plaintiffs, *
* Civil Action No.
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. *

EXHIBIT A
TO COMPLAINT
 Case 7:10-cv-02067-SLB Document 1-1 Filed 07/29/10 Page 2 of 6

IN THE SUPREME COURT OF ALABAMA

June 28, 2010

1091316

State of Alabama v. 825 Electronic Gambling Devices et al.

(Appeal from Greene Circuit Court: CV-IO-20)

1091317

State of Alabama v. 825 Electronic Gambling Devices et al.

(Appeal from Greene Circuit Court: CV-10-20).

ORDER

On June 4, the Greene County District Attorney filed with

the Greene Circuit Court a "Petition for Forfeiture" of 825

electronic gaming machines that had been "observed" by the

Greene County Sheriff and his agents at Greenetrack. The D.A.

also filed a motion for seizure whic~ stated:

"Petitioner requests that this court enter an

order authorizing the State and the Sheriff of
Greene County to seize and take possession of three
electronic gamblinq devices .i de n t i f i.e d as follows
and which represent each of the manufacturer~; known
to Pet:itioner whc se machines are in use at the
facility: one (1) Bally Black & vJhite Double ,Jackpot
Gambling Device, S/N S070484738; one (1) IGT CATS
Gambling Device, SiN K103711; and one (1) Cadillac
Jack Forgotten Fortunes Gambling Device, SIN
CJ2005:J09209.

"Because of the large number of suspected

illegal gambling dev i ce s and gambling machines, to
prevent their removal or destruction, and to protect
the machines from the possibility of any p~ysical
damage during a seizure and removal, the State
further requests that this court enter an order
authorizing a seizure in place of the remaining 822
gambling devices and related equipment for a
reasonable period of time for the State to complete
the examination, ~nalysis, and testing of the
machines.
 Case 7:10-cv-02067-SLB Document 1-1 Filed 07/29/10 Page 3 of 6

"The State requests that this court enter an

order preventing Eespondents or anyone act.ing in
concert with Respondents from re~oving said gambling
machi~es and related equipment from the Greenetrack
premises without authorization from Petitioner.

"Petitioner agrees to make an inventory of all

seized property anriall property seized in place and
to make a return of the property to this: court
within 10 days from the entry of an order of
seizure.

"An immediate seizure is necessary for the State

to perform the examination, analysis, and testing of
the gambling devices and to p reve nt. the removal or
destruction of the gambling devices and related
equipment."

Greene County Cireui t Judge Ec.die Hardaway entered an

order of seizure on JLne 4, granting the D.A. 's motion to

seize the three designated machines and to "seize in place"

the remaining 822 machines at Greenetrack. Judge Hardaway

included the following provisions in his order:

"4. Unless otherwise ordered by this Court,

Petitioner, its agents, servants, or employees, and
anyone acting in concert with any of the foregoing,
shall not impair or harm Respondents' busi~ess or
prevent the use o~ the Respondents' premises, any
and all unseized property, and any and all Property
Seized in Place, so long as such use does not alter
or destroy the Property Seized in Place.

Anyexamir..ation, analysis or testing of the

115.

Prope~ty Seized in Place by Petitioner, its agents,

servants, employees, and anyone acting in concert
with any of the foregoing shall not interfere with
public access to the facility where the Froperty
Seized In Place is 10cated. 1I

The order set June 28 as the date for a "status

conference."

2
 Case 7:10-cv-02067-SLB Document 1-1 Filed 07/29/10 Page 4 of 6

On June 18, John Tyson, Tim Morgan, and Martha Tierney

(collectively "Tyson") filed a notice of appearance in the

action lion behalf of the State of Alabama, IIand "pursuant; to

the Governor's constitutional authority and pursuant to his

direction.H Tyson cited § 12-17-184 (10), Ala. Code 1975;

Executive Order No. 44; and Ex parte State, [Ms. 1090808, May

21, 2010] ._- So. 3d -- (Ala. 2010) (IITysonn). The Greene

County D.A. opposed the notice of appearance, con1:ending "the

Task Force is not a party to this action [and] has no

constituti~nal or statutory authority to superintend the

State's case."

With the notice of appearance, Tyson filed an emergency

motion to di8801 ve Judge Hardaway's June 4 injunction or,

alternatively, to stay enforcement of the injunction pending

an appeal. Tyson stated that on June 17 the Governor asked

Tyson and the Task Force "to litigate and assume control over

this matter. Governor Hiley also requested District Attorney

Griggers to cooperate" with Tyson and the Task Force. With

regard to the meri t.s of the ma t t er, Tyson alleged that,

pursuant to Tyson, supra, Judge Hardaway had no jurisdiction

to enter the injunction, that the injunction was inequitable

and contrary to law, that the injunction "effectively inhibits

or prohibits the State from seizingr preserving, and seeking

forfeiture of money used as bets or stakes in connection with

3
 Case 7:10-cv-02067-SLB Document 1-1 Filed 07/29/10 Page 5 of 6

these gambling devices, even though such money is itself

contraband (§ 13A-12-30(c))n; that the injunction does not

comply with Rule 65, Ala. R. Civ. P.; and that the State is

entitled to a stay pending appeal pursuant to Rule 62, Ala. R.

Civ. P. Tyson then filed a notice of appeal to this Court in

the Greene Circuit Clerk's office.

Also on June 18, according to Tyson's motion filed with

this Court, "agents of and counsel for the Department of

Public Safety, working in conjunctio~ with the Task Force and

the newly appointed ~:heriff of Greene County," came to

Greenetrack to investigate the machines that were "seized in

place," pursuant to JudSre Hardaway's June 4 order. Tyson says

Greenetrack representatives initially tried to deny the

existence of the June ( order, but were shown a copy of the

order. The Greenetrack representative, pursuant to a written

"Raid Plan,," called Judge Hardaway. Judge Hardaway also spoke

wi th Task Force members, and during the telephone call he

enjoined the Task Force from "doing anything" at Greenetrack

until after the hearing on June 2:3, and orde red that the

status quo be maintained. On June 21, Tyson filed a notice of

appeal challenging Judge Hardaway's .Jun e 18 "oral inj unction. "

The trial court's orders enj oin law enforcement from

taking action inconsistent with the "seizure in place." The

seizure in place under the circumstances here presented is a

4
 Case 7:10-cv-02067-SLB Document 1-1 Filed 07/29/10 Page 6 of 6

device that limits law enforcement from assertion of the full

panoply of remedies available to it. Except in limited

circumstances not here applicable, a =ourt has no ~urisdiction

to enjoin law enforcemert from discharge of its duties. Tyson

v. Macon County Greyhound Park, Inc., [Ms. 1090548, February

4, 2010] So. 3d (Ala. 2010); Higdon v. McDuff,

233 Ala. 497, 172 So. 636 (1937). It makes no dif~erence that

the District Attorney may have acquiesced in such relief as

that official cannot .oy his actions or inactions confer

jurisdiction that does not exist. Russell Petroleum, Inc. v.

City of Wetumpka, 976 So. 2d 428, 438 (Ala. 2007) ("It is

axiomatic that, where a court has no jurisdiction to consider

the subject matter of a cause, the litigants may not confer

authority on that court to consider that matter by their

agreement, stipulation, or other conduct.") The District

Attorney's contention as to lack of standing is not

persuasive. See Ex parte State, [ME., 1090808, May 21, 2010]

So. 3d (Ala. 2010). The trial court's orders

enjoining law enforcement are vacated.

Cobb, C.J., and Lyons, Stuart, Smith, Bolin, Parker,

Murdock, and Shaw, JJ., concur.

Woodall, J., dissents.

I Hobert G. Esdale, Sr., as Clerk of the Supreme Court

of Alabama. do hereby certify that the foregoing is
a full, true and correct copy of the instrument(s)
herewith set out as same: appear(s) of record in said
Court. ~ /
;5 Witness my hand this 2fJ _ day of ~ IJ.f\t,.. II 20lL
~l~l£4~
clerk, Supreme Court of Alabama