Electronically Filed 2/8/2010 3:14 Pm Cv-2010-000003.00 Circuit

  ELECTRONICALLY FILED 2/8/2010 3:14 PM CV-2010-000003.00 CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA CARLA H. WOODALL, CLERK IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA HOUSTON ECONOMIC DEVELOPMENT ASSOCIATION, et al., Plaintiffs, v. JOHN M. TYSON, JR., et al., Defendants. ) ) ) ) ) CASE NO.: CV- 2010-03 ) ) ) ) ) DEFENDANT JOHN M. TYSON, JR.’S MOTION TO DISMISS COMES NOW Defendant John Tyson, Jr. (“Tyson”) and hereby moves this Court to dismiss the Complaint of Houston Economic Development
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    IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMAHOUSTON ECONOMICDEVELOPMENT ASSOCIATION, et al.,Plaintiffs,v.JOHN M. TYSON, JR., et al.,Defendants.))))))))))CASE NO.: CV- 2010-03DEFENDANT JOHN M. TYSON, JR.’S MOTION TO DISMISS COMES NOW Defendant John Tyson, Jr. (“Tyson”) and hereby moves this Court todismiss the Complaint of Houston Economic Development Association (“HEDA”) for lack of subject-matter jurisdiction under A LA .   R.   C IV .   P. 12(b)(1). In support of this motion, Tysonstates as follows:1.   HEDA filed this action to enjoin the Governor’s Task Force on Illegal Gamblingfrom searching the Country Crossing casino and seizing all illegal gambling devices held therein.The Complaint requests a temporary restraining order, a preliminary injunction, and a permanentinjunction to prevent the enforcement of Alabama’s criminal laws. The Complaint also requeststhat the Court “declare that the operation of electronic bingo as conducted in Houston County islawful and that the equipment utilized at Plaintiffs’ facility is not subject to seizure.” Complaintat 12.2.   After this Court erroneously enjoined the Governor’s Task Force on IllegalGambling from executing a search warrant at the Country Crossing casino, the Supreme Court of Alabama unanimously vacated that injunction and specifically ordered this suit dismissed forlack of subject matter jurisdiction, emphasizing that courts cannot “interfere with a criminal   ELECTRONICALLY FILED2/8/2010 3:14 PMCV-2010-000003.00CIRCUIT COURT OFHOUSTON COUNTY, ALABAMACARLA H. WOODALL, CLERK    2proceeding by civil action.” Order of January 15, 2010, attached as Exhibit A . The Courtexpressly “dismiss[ed] the action.”  Id. 3.   Recently, the Supreme Court of Alabama took the same action in the Task Force’sappeal from a similar case in the Circuit Court of Macon County. See Tyson v. Macon CountyGreyhound Park, Inc., d/b/a Victoryland  , --- So. 2d ---, No. 1090548 (Ala. February 5, 2010),attached as Exhibit B . There, the owner of a “bingo” casino that operates illegal gamblingdevices successfully secured a restraining order against the seizure of those machines. As in thiscase, however, the Supreme Court rejected the “disorderly practice of permitting thosethreatened with criminal prosecution to seek relief in civil proceedings.” Ex. B at 9. The Courtunequivocally held that “[e]ntertainment of a civil action for injunctive and declaratory relief under such circumstance cannot be countenanced . . ..” Ex. B at 6.4.   This Court should dismiss this action for lack of jurisdiction. 1 First, the SupremeCourt of Alabama has expressly directed that this suit be dismissed. Second, under long-established Alabama law that has been recently re-affirmed by the Supreme Court, this Courtlacks jurisdiction to direct how executive law enforcement officers enforce Alabama criminallaws against illegal gambling.5.   First, this action should be dismissed because the Supreme Court of Alabamaexpressly “dismiss[ed] the action” in its January 15 Order. This Court must follow the mandateof the Supreme Court. See, e.g., Kinney v. White , 110 So. 394 (Ala. 1926). See also    Ex parte Bradley , 540 So. 2d 711, 712 (Ala. 1989) (“If a trial court fails to comply with an appellatecourt's mandate on remand of a cause, mandamus will lie to compel compliance.”). “Public 1 Because the Court clearly lacks jurisdiction to consider the merits of the claim, this motiondoes not address the merits of the Complaint. Nonetheless, in the highly unlikely event theComplaint is not dismissed for lack of jurisdiction, Tyson expressly reserves the argument thatthe Complaint should be dismissed for failure to state a claim upon which relief can be granted.    3interests require that an end shall be put to litigation, and when a given cause has received theconsideration of a reviewing court, has had its merits determined, and has been remanded withspecific directions, the court to which such mandate is directed has no power to do anything butobey, otherwise, litigation would never be ended.”  Ex parte Queen , 959 So. 2d 620, 621 (Ala.2006) (quoting  Ex parte Alabama Power Co. , 431 So. 2d 151 (Ala. 1983)). Accordingly, a trialcourt may enter “[n]o judgment other than that directed or permitted by the reviewing court . . ..”  Id. (internal quotation marks omitted). Because the Supreme Court ordered this action to bedismissed, it must be dismissed pursuant to the Supreme Court’s mandate. 2  6.   Second, even had the Supreme Court not ordered this action dismissed, this Courtmust dismiss the action because the Complaint requests that this Court interfere in theenforcement of criminal law. A trial court has no subject matter jurisdiction to interfere with theseizure of what law enforcement officers determine to be illegal gambling devices. See, e.g., Higdon v. McDuff  , 172 So. 636, 637 (Ala. 1937). Judicial interference in the “orderlyfunctioning of the executive branch within its zone of discretion [is a] violation of the separation-of-powers doctrine.” Tyson v. Victoryland  , Ex. B, at 4-5. Therefore, “equity will not interveneto restrain law officers from the enforcement of criminal statutes.”  E.g., Eastburn v. Holcombe ,10 So. 2d 457, 458 (Ala. 1942); Caudle v. Cotton , 173 So. 847, 848 (Ala. 1937). “[A] court maynot interfere with the enforcement of criminal laws through a civil action; instead, the partyaggrieved by such enforcement shall make his case in the prosecution of the criminal action.” Tyson v. Victoryland  , Ex. B, at 4. This Court does not have jurisdiction to supervise the Task Force’s enforcement of Alabama law. 2 As noted in HEDA’s “Motion to Set Hearing” (filed on January 5, 2010), HEDA has filed apetition requesting that the Supreme Court reconsider its decision to dismiss this action. Tysonanticipates filing a brief in opposition to HEDA’s petition.    47.   The Complaint’s requests for a declaratory judgment that the machines are notsubject to seizure and damages for the Task Force’s threatened seizure are thinly-veiled attemptsto restrain the Task Force from searching and seizing the illegal devices held at CountryCrossing. This Court has no jurisdiction to grant that relief. “A declaratory judgment willgenerall y not be granted where its only effect would be to decid e matters which properly shouldbe decided in a criminal action.”  Id. at 3 (quoting 22A Am. Jur. 2d Declaratory Judgments § 57(2003)). Instead, as the Supreme Court explained in Tyson v. Victoryland  , “[e]ntertainment of acivil action for injunctive and declaratory relief [where the plaintiff maintains it has not violateda criminal law] cannot be countenanced lest the trial court become involved in a role that shouldbe left to the fact-finder in a criminal proceeding following a plea of not guilty.” Ex. B at 6.This Court can no more grant HEDA a declaratory judgment “that the equipment utilized atPlaintiffs’ facility is not subject to seizure,” than it could enter a judgment enjoining Tyson fromseizing the equipment.8.   In short, this Court cannot superintend the Task Force’s criminal investigation byruling on whether the gambling devices at Country Crossing are illegal contraband subject toseizure. A prosecutor “is protected from judicial oversight by the doctrine of separation of powers.” Piggly Wiggly No. 208, Inc. v. Dutton , 601 So. 2d 907, 911 (Ala. 1992). “[C]ourtscannot and will not interfere with the discretion vested in other units or branches of government.” Finch v. State , 124 So. 2d 825, 829 (Ala. 1960). This kind of improperinterference is precisely the relief that HEDA’s Complaint requests. Accordingly, the Courtmust dismiss this action and allow the issues raised in HEDA’s Complaint to be addressed, if atall, in an appropriate criminal or quasi-criminal proceeding.
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