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IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA

HOUSTON ECONOMICDEVELOPMENT 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 Association (“HEDA”) for lack of

subject-matter jurisdiction under A LA . R. CIV . P. 12(b)(1). In support of this motion, Tyson

states as follows:

1. HEDA filed this action to enjoin the Governor’s Task Force on Illegal Gambling

from 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 permanent

injunction to prevent the enforcement of Alabama’s criminal laws. The Complaint also requests

that the Court “declare that the operation of electronic bingo as conducted in Houston County is

lawful and that the equipment utilized at Plaintiffs’ facility is not subject to seizure.” Complaint

at 12.

2. After this Court erroneously enjoined the Governor’s Task Force on Illegal

Gambling 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 for

lack of subject matter jurisdiction, emphasizing that courts cannot “interfere with a criminal

ELECTRONICALLY FILED2/8/2010 3:14 PM

CV-2010-000003.00CIRCUIT COURT OF

HOUSTON COUNTY, ALABAMACARLA H. WOODALL, CLERK



2

proceeding by civil action.” Order of January 15, 2010, attached as Exhibit A . The Court

expressly “dismiss[ed] the action.” Id.

3. Recently, the Supreme Court of Alabama took the same action in the Task Force’s

appeal from a similar case in the Circuit Court of Macon County. See Tyson v. Macon County

Greyhound 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 gambling

devices successfully secured a restraining order against the seizure of those machines. As in this

case, however, the Supreme Court rejected the “disorderly practice of permitting those

threatened 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 Supreme

Court 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 Court

lacks jurisdiction to direct how executive law enforcement officers enforce Alabama criminal

laws against illegal gambling.

5. First, this action should be dismissed because the Supreme Court of Alabama

expressly “dismiss[ed] the action” in its January 15 Order. This Court must follow the mandate

of 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 appellate

court'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.



3

interests require that an end shall be put to litigation, and when a given cause has received the

consideration of a reviewing court, has had its merits determined, and has been remanded with

specific directions, the court to which such mandate is directed has no power to do anything but

obey, 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 trial

court 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 be

dismissed, 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 the

enforcement of criminal law. A trial court has no subject matter jurisdiction to interfere with the

seizure 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 “orderly

functioning 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 intervene

to 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 may

not interfere with the enforcement of criminal laws through a civil action; instead, the party

aggrieved 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.



4

7. The Complaint’s requests for a declaratory judgment that the machines are not

subject to seizure and damages for the Task Force’s threatened seizure are thinly-veiled attempts

to restrain the Task Force from searching and seizing the illegal devices held at Country

Crossing. This Court has no jurisdiction to grant that relief. “A declaratory judgment will

generall y not be granted where its only effect would be to decid e matters which properly should

be 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 a

civil action for injunctive and declaratory relief [where the plaintiff maintains it has not violated

a 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 at

Plaintiffs’ facility is not subject to seizure,” than it could enter a judgment enjoining Tyson from

seizing the equipment.

8. In short, this Court cannot superintend the Task Force’s criminal investigation by

ruling on whether the gambling devices at Country Crossing are illegal contraband subject to

seizure. 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]ourts

cannot 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 improper

interference is precisely the relief that HEDA’s Complaint requests. Accordingly, the Court

must dismiss this action and allow the issues raised in HEDA’s Complaint to be addressed, if at

all, in an appropriate criminal or quasi-criminal proceeding.



5

CONCLUSION

WHEREFORE, premises considered, this Court should dismiss the Complaint of

Houston Economic Development Association for lack of subject-matter jurisdiction under A LA .

R. CIV . P. 12(b)(1).

Respectfully submitted this 8th day of February, 2010.

Respectfully submitted,

__s/ John M. Tyson, Jr.___

Special Prosecutor and Task ForceCommander on behalf of Defendant John M.Tyson, Jr.

s/ Edgar Greene___Supernumerary District Attorney on behalf of Defendant John M. Tyson, Jr.

OF COUNSEL

John M. Tyson, Jr.Martha TierneyEdgar GreeneOFFICE OF GOVERNOR BOB RILEY 600 Dexter AvenueMontgomery, Alabama 36130(334) 242-7120(251) 574-8400 (fax)(334) 242-2335 (fax)



6

CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2010, I electronically filed the foregoing with theClerk of the Court using the AlaFile system which will send notification of such filing to allparties of record.

__s/ Edgar GreeneOF COUNSEL



EXHIBIT A









EXHIBIT B



REL: 02/04/2010

Notice: This opinion is subject to formal revision before publication in the advancesheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions ,Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)229-0649), of any typographical or other errors, in order that corrections may be madebefore the opinion is printed in Southern Reporter .

SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010

_________________________

1090548 _________________________

John M. Tyson, Jr.

v.

Macon County Greyhound Park, Inc., d/b/a VictoryLand

Appeal from Macon Circuit Court(CV-10-9)

PER CURIAM.

Macon County Greyhound Park, Inc., d/b/a VictoryLand

(hereinafter "VictoryLand"), commenced an action in the Macon

Circuit Court against John M. Tyson, Jr., indiv idually and in

his official capacity as special prosecutor and task force



1090548

2

commander of the Governor's Task Force on Illegal Gaming

pursuant to Executive Order No. 44 (hereinafter "Tyson"),

seeking injunctive and declaratory relief stemming from

Tyson's arrival at the premises of VictoryLand without a

search warrant in the early morning hours of January 29, 2010,

for the purpose of seizing machines that, Tyson says, are

illegal gambling devices.

The gravamen of the complaint is VictoryLand's assertionthat its activities are lawful and that it will suffer

irreparable injury if the machines are seized. Immediately

after the complaint was filed, the Macon Circuit Court, after

giving Tyson an opportunity to be heard, entered an oral

temporary restraining order, followed by a written order,

barring, among other things, further action by Tyson pending

a hearing to be held on February 5, 2010. Tyson complied with

the order and, immediately after the entry of the written

order, filed an emergency motion in this Court to stay or to

vacate the trial court's order. Tyson contends that the Macon

Circuit Court does not have subject-matter jurisdiction overan action seeking to enjoin the enforcement of criminal laws

of the State of Alabama. We agree.



1090548

3

The general rule is that a court may not interfere with

the enforcement of criminal laws through a civil action;

instead, the party aggrieved by such enforcement shall make

his case in the prosecution of the criminal action:

"It is a plain proposition of law that equity willnot exert its powers merely to enjoin criminal orquasi criminal prosecutions, 'though theconsequences to the complainant of allowing theprosecutions to proceed may be ever so grievous andirreparable .' Brown v. Birmingham, 140 Ala. [590,]

600, 37 South. [173,] 174 [(1904)]. 'His remedy atlaw is plain, adequate, and complete by way ofestablishing and having his innocence adjudged inthe criminal court.' Id."

Board of Comm'rs of Mobile v. Orr, 181 Ala. 308, 318, 61 So.

920, 923 (1913). See also 22A Am. Jur. 2d Declaratory

Judgments § 57 (2003) ("A declaratory judgment will generally

not be granted where its only effect would be to decidematters which properly should be decided in a criminal

action.").

"The general rule that courts of equitablejurisdiction will not enjoin criminal proceedings orprosecutions applies ... to prosecutions which aremerely threatened or anticipa ted as well as to thosewhich have already been commenced. The rule extends

to ... searches and seizures in the course ofinvestigation of crime ....

"It is not a ground for injunctive relief thatthe prosecuting officer has erroneously construedthe statute on which the prosecution is based so as



1090548

4

to include the act or acts which it is the purposeof the prosecution to punish. ...

"If the statute, or interpretation thereof, onwhich the prosecution is based is valid, the factthat the enforcement thereof would materially injurethe complainant's business or property constitutesno ground for equitable interference, and is notsufficient reason for asking a court of equity toascertain in advance whether the business asconducted is in violation of a penal statute ...."

43A C.J.S. Injunctions § 280 (2004) (footnote omitted).

This Court has recognized an exception to the generalrule whereby the equitable powers of the court can be invoked

to avoid irreparable injury when the plaintiff contends that

the statute at issue is void. See Orr, 181 Ala. at 319-20, 61

So. at 924 ("This situation of the complainant, we think, ...

brings [his case] fairly within that class of cases in which

equity will intervene for the prevention of oppressive and

vexatious litigation affecting property rights where it takes,

or is about to take, the form of an effort to enforce a void

municipal ordinance by means of repeated prosecutions

thereunder." (emphasis added)). Such intervention by a court

exercising equitable jurisdiction does not interfere with theorderly functioning of the execut ive branch within its zone of

discretion in violation of the separation-of-powers doctrine



1090548

5

set forth at § 43 of the Alabama Cons titution of 1901 ("In the

government of this state, except in the instances in this

Constitution hereinaft er expressly directed or permitted, the

legislative department shall never exercise the executive and

judicial powers, or either of them; the executive shall never

exercise the legislative and judicial powers, or either of

them; the judicial shall never exercise the legislative and

executive powers, or either of them; to the end that it may bea government of laws and not of men."). The exercise of

equitable jurisdiction in such cases is consistent with this

Court's recognition of the propriety of actions against State

officials in their official capacity to enjoin enforcement of

a void law because such conduct--enforcing a void law--exceeds

the discretion of the executive in administering the laws of

this State. See, e.g., Aland v. Graham, 287 Ala. 226, 250 So.

2d 677 (1971) (permitting actions to enjoin State officials

from enforcing an unconstitutional law).

The complaint in this action does not present a situation

in which the plaintiff acknowledges that his conduct isprohibited by a statute and then challenges the enforceability

of the statute. To the contrary, VictoryLand strenuously



1090548

6

maintains its innocence. Entertainment of a civil action for

injunctive and declaratory relief under such circumstance

cannot be countenanced lest the trial court become involved in

a role that should be left to the fact-finder in a criminal

proceeding following a plea of not guilty. The circumstance

presented in Walker v. City of Birmingham, 216 Ala. 206, 208-

09, 112 So. 823, 825 (1927), is distinguishable because the

issue presented in that case was the lack of authority of amunicipal offici al to deny arbitrarily a license to operate a

dairy farm, activity beyond the discretion of the official,

and did not deal with an injunction against enforcement of the

criminal laws.

This principle has ample footing in our precedent in

those cases where the issue of subject-matter jurisdiction has

been considered. See Eastburn v. Holcombe, 243 Ala. 433, 434,

10 So. 2d 457, 458 (1942) ("It is a sound principle of law,

well recognized in our decisions, that a court of equity will

not intervene to restrain officers from the enforcement of

criminal statutes, the constitutional integrity of which havebeen sustained, especially where, as here, the statute itself

affords a full hearing in the courts. Higdon v. McDuff, 233



1090548

7

Ala. 497, 172 So. 636, 637 [(1937)]; Fisher v. McDuff, 233

Ala. 499, 172 So. 637 [(1937)]; Ex Parte State, 200 Ala. 15,

75 So. 327 [(1917)]."). Under such a circumstance, there is

no basis on which to find irreparable injury. See also

Kennedy v. Shamblin, 234 Ala. 230, 231, 174 So. 773, 774

(1937):

"As the averments of the bill show, the onlyproperty rights involved are such as the complainant

has in said slot machines, in which he has investedhis money and the profits which said machines aretaking. And the only ground on which he invokes theinjunctive protection of the court is that saidmachines are not within the interdiction of thestatute.

"Courts of equity do not extend their aid to theprotection of such property rights, unlessauthorized by statute, but leave such matters to thecourt of criminal jurisdiction. Ex parte State ex

rel. Martin, 200 Ala. 15, 75 So. 327 [(1917)]."Moreover, the statute, the enforcement of which

the complainant seeks to enjoin, provides a remedyfor the protection of complainant's property rightsand an adjudication in respect thereto. Caudell v.Cotton, Sheriff (Ala. Sup.) 173 So. 847 [(1937)];Hidgen v. McDuff, Sheriff, 233 Ala. 497, 172 So. 636[(1937)]; Fisher v. McDuff, Sheriff, 233 Ala. 499,172 So. 637 [(1937)]."

(Emphasis added.)VictoryLand states, with no explanation and no citation

to any authority, that it will be provided no due process of



1090548

8

law in a civil-forfei ture proceeding. At this point, nothing

before us indicates that the procedures to be used in a

forfeiture proceeding will be inadequate to protect

VictoryLand' s due-process rights. Nor are we impressed by the

contention that the prospect for Tyson's resort to a civil

court to enforce a seizure of property pursuant to §

13A-12-30, Ala. Code 1975, a provision found in the Criminal

Code, confers jurisdiction on a civil court to enjoin Tyson'sattempt to enforce provisions of the criminal law.

We recognize that in Barber v. Cornerstone Community

Outreach, Inc., [Ms. 1080805, November 13, 2009] ___ So. 3d

___ (Ala. 2009), and Barber v. Jefferson County Racing

Association, Inc., 960 So. 2d 599 (Ala. 2006), where the

plaintiffs sought to block enforcement of a statute in the

Criminal Code without acknowledging that their conduct fell

within the statutory prohibition and without an accompanying

prayer for a judgment declaring the statute invalid, we did

not adhere to the boundary lines long established in our

precedent. In those cases the issue was not raised. Ourabsence of attention to the issue of subject-matter

jurisdiction in those cases cannot justify action by the



1090548

9

judiciary in this case in contravention of our duty to observe

the proper boundaries between judicial and executive functions

mandated by § 43 of the Alabama Constitution of 1901 and,

thereby permit, sub silentio, the overturning of the settled

principles of constitutional law applicable to this

proceeding.

Justice Woodall's dissenting opinion would perpetuate the

disorderly practice of permitting those threatened withcriminal prosecution to seek relief in civil proceedings,

without alluding to the long line of cases from which this

Court departed in the recent past when such action was

permitted. The time has come to return to the sounder course

dictated by our established precedent, rather than continue

down the wrong road because of timidity in admitting that we

had done so. To call this alternative a circus, as the

dissenting opinion suggests, ignores the reality that in the

many years of adherence to wise and settled principles

limiting our jurisdiction in such cases we were not embroiled

in repeated efforts to frustrate enforcement of the criminallaws by attempts to pursue preemptive civil proceedings.



1090548

10

As we stated recently in an order entered in the case of

Barber v. Houston County Economic Development Associat ion (No.

1090444, January 15, 2010), the trial court "lacks subject-

matter jurisdiction to interfere with a criminal proceeding by

civil action." As in that case, we vacate the order before

us, dismiss the action, and dismiss the appeal.

ORDER VACATED; ACTION DISMISSED; APPEAL DISMISSED.

Lyons, Stuart, Bolin, Parker, and Shaw, JJ., concur.Smith, J., concurs specially.

Murdock, J., concurs in the rationale in part and concurs

in the result.

Cobb, C.J, and Woodall, J., dissent.



1090548

11

SMITH, Justice (concurring specially).

I write separately to express my basis for joining the

main opinion. As I understand it, the main opinion rests on

the conclusion that the "'only effect [of the declaratory-

judgment action filed by Macon County Greyhound Park, Inc.,

d/b/a VictoryLand (hereinafter "VictoryLand"),] would be to

decide matters which properly should be decided in a criminal

action.'" ___ So. 3d at ___ (quoting 22A Am. Jur. 2dDeclaratory Judgments § 57 (2003) (emphasis added)). That

conclusion, in turn, rests on the conclusion that

VictoryLand' s declaratory-judgment action is solely an attempt

to use a civil proceeding to interfere with a criminal

investigation.

I do not read the main opinion as holding that the trial

court would be without subject-matter jurisdiction to

entertain an action, such as the action filed in State ex rel.

Tyson v. Ted's Games Enterprises, 893 So. 2d 355 (Ala. Civ.

App. 2002), aff'd, Ex parte Ted's Games Enterprises, 893 So.

2d 376 (Ala. 2004), in which it canno t be said that the action

is solely an attempt to use a civil proceeding to interfere

with a criminal investigation.



1090548

12

MURDOCK, Justice (concurring in the rationale in part andconcurring in the result).

I agree with almost all aspects of the main opinion. Ifind it unnecessary in deciding this case, however, to

conclude that a plaintiff must concede that his or her conduct

satisfies the elements of a criminal statu te in order to seek

equitable or declaratory relief on the different ground that

the statute is void on its face or that, for some other

reason, the actions or threatened actions sought to be

restrained fall outside that generous measure of discretion

afforded by the constitution to the executive in regard to

criminal law enforcement.

In this case, any error in judgment as to whether

VictoryLand' s conduct or the machines in question fall withinthe strictures of our criminal statutes pertaining to gambling

and gambling devices does not place the law-enforcement

activity at issue here outside the parameters of the

discretion delegated to the executive under our constitution.

It is the fundamental concern for the protection of that

discretion that informs the general rule against the use of a

civil action to interfere with efforts by the executive

relating to the enforcement of criminal and quasi-criminal



1090548

13

laws. See Piggly Wiggly No. 208, Inc. v. Dutton, 601 So. 2d

907, 910-11 (Ala. 1992); Fitts v. McGhee, 172 U.S. 516, 531-32

(1899).

In addition, I write separately in regard to certain

aspects of the dissenting opinion. I am not persuaded at this

juncture that the decision in State ex rel. Tyson v. Ted's

Game Enterprises, 893 So. 2d 355 (Ala. Civ. App. 2002), aff'd

Ex parte Ted's Game Enterprises, 893 So. 2d 376 (Ala. 2004),is not distinguishable for the reason that, in that case,

there was a seizure of contraband by law-enforcement

officials, the filing of a forfeiture action with respect to

that contraband, and the inclusion in that forfeiture action

of a request by the executive for a declaratory judgment

relating thereto. I note the dissent's comment that there is

no authority to support a rule of law that would prevent an

actual or prospective criminal defendant from using a civil

action to interfere with law-enforcement activity if such an

action is available to the executive in aid of law-enforcement

activity. If the law is indeed as posited, I would point tothe description above of the fundamental concern that informs

the general rule and § 43 of the Alabama Constitution.



1090548

14

WOODALL, Justice (dissenting).

In recent years, Alabama appellate courts have exercised

jurisdiction in cases distinguishable in no material respect

from this case. In those cases, not a single Judge or Justice

has questioned the subject-matter jurisdiction of the trial

court. The Court's departure today from that practice is, in

my opinion, unnecessary and, under the facts of this case,

unfair to Macon County Greyhound Park, Inc., d/b/a VictoryLand("VictoryLand"), whose duly licensed bingo operation is at

risk of irreparable harm because of a difference of opinion

between the Macon County law-enforcement officials and the

commander of Governor Riley's Task Force on Illegal Gambling,

John M. Tyson, Jr. Therefore, I respectfully dissent.

The majority does not discuss State ex rel. Tyson v.

Ted's Game Enterprises, 893 So. 2d 355 (Ala. Civ. App. 2002),

aff'd, Ex parte Ted's Game Enterprises, 893 So. 2d 376 (Ala.

2004). In that case, it was Tyson, then acting as district

attorney of Mobile County, who invoked the civil jurisdiction

of the Mobile Circuit Court by seeking "a judgment declaringthat ... machines owned and distributed by Ted's [were]

illegal 'slot machines' and 'gambling devices' under Alabama's



1090548

15

criminal gambling statutes." Tyson, 893 So. 2d at 358. In

its opinion, which rendered a judgment in favor of the State,

the Court of Civil Appeals held that "the State's right to

seek a declaratory judgment with respect to [such] matters"

was "particularly appropriate" given "the invasive power the

State wields when it seeks to enforce statutory provisions

against its citizens." Tyson, 893 So. 2d at 362. In so

holding, the court was well aware that "[t]he trial court'sentry of a judgment adverse to the State [would], if not

reversed ..., have an adverse impact on how the State enforces

the criminal gambling statutes as to other machines." Tyson,

893 So. 2d at 362 n.5. I am aware of no authority that would

allow one party to a dispute to seek a resolution of that

dispute through a declaratory-judgment action, while denying

that same right to the other party to the dispute. In other

words, if Tyson had that right, so does VictoryLand.

This Court's decision in Barber v. Jefferson County

Racing Ass'n, Inc., 960 So. 2d 599 (Ala. 2006), is consistent

with this Court's affirmance of the Court of Civil Appeals'judgment in Tyson. One of the parties in that case was David

Barber, who was then acting as district attorney for the Tenth



1090548

16

Judicial Circuit of Alabama and who preceded Tyson as the

commander of the Governor' s task force. In pertinent part,

the issue in Barber was whether devices being operated at the

Birmingham Race Course "involve [d] the use of slot machines."

960 So. 2d at 603. In the trial court, the race-track

operator "sought a judgment ... declaring that its [Quincy's]

MegaSweeps operation was lawful and ... enjoining [the

sheriff] from interfering with its MegaSweeps operation." 960So. 2d at 602. Barber intervened in that civil action and

filed a counterclaim for declaratory and injunctive relief,

taking the position that the MegaSweeps operation involved

illegal gambling devices and should be permanently enjoined.

The trial court entered a judgment declaring that the

MegaSweeps operation was legal and enjoining the sheriff from

interfering with it. Barber then appealed to this Court,

which, in a unanimous decision, reversed the judgment of the

trial court and rendered a judgment in favor of Barber. No

party and no member of this Court questioned the subject-

matter jurisdiction of the trial court or the jurisdiction ofthis Court to address the legality of the devices in question.



1090548

17

Barber, acting in his capacity as the commander of the

Governor's task force, later obtained relief from this Court

in Barber v. Cornerstone Community Outreach, Inc., [Ms.

1080805, November 13, 2009] ___ So. 3d ___ (Ala. 2009). This

Court denied rehearing in that case on the same day that Tyson

filed his emergency motion to stay in this case claiming that

the trial court had no subject-matter jurisdiction.

Cornerstone arose from a declaratory -judgment action filed bythe operator of a bingo-gaming facility, seeking, "among other

things, a declaratory judgment and preliminary and permanent

injunctive relief regarding the seizure of the electronic

gaming machines by the Task Force." ___ So. 3d at ___. The

trial court entered a preliminary injunction ordering the

return of the property that had been seized and enjoining any

further interference with the bingo operation during the

pendency of the action. Barber, Governor Riley, and other

members of the task force appealed, and this Court reversed

the order entering the preliminary injunction and remanded the

case for further proceedings. If this Court had determinedthat the trial court lacked subject-matter jurisdiction, it

would have vacated its order, dismissed the case, and



1090548

18

dismissed the appeal. No party and no member of this Court

questioned the subject-matter jurisdiction of the trial court

to address the legality of the machines in question. Indeed,

this Court relied on its decision in Cornerstone to reach its

unanimous decision in Surles v. City of Asheville, [Ms.

1080826, January 29, 2010] ___ So. 3d ___ (Ala. 2010). In

Surles, this Court ruled in favor of the sheriff of St. Clair

County, holding that an ordinance adopted by the City ofAsheville "provides for the operation of games that extend

beyond the permissible definition of bingo," __ So. 3d at ___,

as defined in Cornerstone.

In this case, VictoryLand seeks, in pertinent part,

preliminary injunctive relief preventing the task force from

interfering with the bingo gaming it operates pursuant to

licenses issued by the sheriff of Macon County pending a

judgment declaring whethe r its machines meet the definition of

bingo adopted in Cornerstone and applied in Surles. This is

the same type of relief sought by the plaintiffs in both

Barber and Cornerstone . In other words, VictoryLand, facedwith a disagreement between the Macon County law-enforcement

officials and the task force as to the legality of



1090548

19

VictoryLand's operation, merely seeks to preserve the status

quo until the Macon Circuit Court resolves the issue. In my

opinion, allowing it to do so is consistent with the

authorities I have cited and is the only means of resolving

this dispute in a manner that is fair to all concerned.

The purpose of the Declaratory Judgment Act "is to settle

and to afford relief from uncertainty and insecurity with

respect to rights, status , and other legal relations and [it]is to be liberally construed and administered." § 6-6-221,

Ala. Code 1975. The State has sought a declaratory judgment

where the entry of a judgment adverse to it could "have an

adverse impact on how the State enforces the criminal gambling

statutes." Tyson, 893 So. 2d at 362 n.5. The "Declaratory

Judgment Act was designed to supply the needs of a form of

action that will set controversie s at rest before they lead to

repudiation of obligations, the invasion of rights, and the

commissions of wrongs." Thompson v. Chilton County, 236 Ala.

142, 144, 181 So. 2d 701, 703 (1938)(emphasis added).

VictoryLand is certainly faced with "uncertainty andinsecurity" regarding the legal status of its bingo operation,



1090548

20

and the task force's seizure of its machines could possibly

amount to an "invasion of [its] rights."

It is true that "[i]njunctive relief ... will not be

granted 'merely to allay an apprehension of possible injury;

the injury must be imminent and irreparable in an action at

law.' Carson v. City of Prichard, 709 So. 2d 1199, 1207 (Ala.

1998)." Ex parte Alabama Dep't of Mental Health, 837 So. 2d

808, 811 (Ala. 2002). As revealed by the task force'sattempted raid and by Tyson's stated intent to return to the

premises for the purpose of seizing the machines, it is clear

that an injury is "imminent."

VictoryLand alleges in its verified complaint that an

unlawful seizure of its machines would cause it irreparable

injury. I agree. Although its property would have to be

returned, see Rule 3.13(a), Ala. R. Crim. P., any such seizure

would undoubtedly cause a loss of revenue, goodwill, and

business reputation, losses that VictoryLand could not recover

from the sovereignly immune State.

Today's decision casts a cloud upon this Court's priordecisions, as well as numerous trial court judgments

addressing the legality of various bingo operations. What has



1090548

21

been an orderly process, I suspect, will soon resemble a

three-ring circus.

Cobb, C.J., concurs.




HOUSTON ECONOMICDEVELOPMENT ASSOCIATION, et al.,

Plaintiffs,

v.

JOHN M. TYSON, JR., et al.,

Defendants.

)))

)))))))

CASE NO.: CV- 2010-03

DEFENDANT JOHN M. TYSON, JR.’SOPPOSITION TO PLAINTIFF’S MOTION TO SET HEARING

COMES NOW Defendant John Tyson, Jr. (“Tyson”) and respectfully requests that thisCourt to deny the Motion to Set Hearing filed by Houston Economic Development Association

(“HEDA”). In opposition to HEDA’s motion, Tyson states as follows:

1. After this Court erroneously enjoined the Governor’s Task Force on Illegal

Gambling from executing a search warrant at the Country Crossing casino, the Supreme Court of

Alabama unanimously vacated that injunction. The Court expressly “dismiss[ed] the action” for

lack of subject matter jurisdiction, emphasizing that courts cannot “interfere with a criminal

proceeding by civil action.” Order of January 15, 2010, attached as Exhibit A .

2. HEDA has petitioned the Supreme Court to reconsider its order directing that this

action be dismissed. HEDA has also requested that this Court set a hearing and schedule further

proceedings on the merits of HEDA’s Complaint.

3. HEDA’s Motion to Set Hearing should be denied. As explained in Tyson’s

contemporaneously-filed Motion to Dismiss, this Court lacks subject matter jurisdiction to grant

the relief requested in HEDA’s Complaint, and this entire action should be dismissed.

ELECTRONICALLY FILED2/8/2010 3:16 PM

CV-2010-000003.00CIRCUIT COURT OF

HOUSTON COUNTY, ALABAMACARLA H. WOODALL, CLERK



2

4. In the alternative, HEDA’s Motion to Set Hearing should be denied pending the

Supreme Court’s disposition of HEDA’s petition for rehearing. “Alabama law is clear that

‘[j]urisdiction of a case can be in only one court at a time.’” Johnson v. Willis, 893 So. 2d 1138,

1143 (Ala. 2004) (quoting Ex parte State ex rel. O.E.G. , 770 So. 2d 1087, 1089 (Ala. 2000)).

Accordingly, “while an appeal is pending, the trial court can do nothing in respect to any matter

or question which is involved in the appeal, and which may be adjudged by the appellate court.”

Id. (internal quotation marks omitted). Unless and until HEDA successfully persuades the

Supreme Court of Alabama to reverse its order that this action be dismissed for lack of subject

matter jurisdiction, this Court cannot entertain further proceedings on the merits of HEDA’sComplaint.

CONCLUSION

WHEREFORE, premises considered, this Court should deny HEDA’s Motion to Set

Hearing.

Respectfully submitted this 8th day of February, 2010.

Respectfully submitted,

__s/ John M. Tyson, Jr.___Special Prosecutor and Task ForceCommander on behalf of Defendant John M.Tyson, Jr.

s/Edgar Greene___Supernumerary District Attorney on behalf of Defendant John M. Tyson, Jr.



3

OF COUNSEL

John M. Tyson, Jr.Martha TierneyEdgar Greene

OFFICE OF GOVERNOR BOB RILEY 600 Dexter AvenueMontgomery, Alabama 36130(334) 242-7120(251) 574-8400 (fax)(334) 242-2335 (fax)

CERTIFICATE OF SERVICE

I hereby certify that on February 8, 2010, I electronically filed the foregoing with theClerk of the Court using the AlaFile system which will send notification of such filing to allparties of record.

__s/ Edgar GreeneOF COUNSEL



EXHIBIT A









AlaFile E-Notice

To: EDGAR WILSON GREENE [email protected]

38-CV-2010-000003.00

Judge: PBM

NOTICE OF ELECTRONIC FILING


The following matter was FILED on 2/8/2010 3:16:45 PM

HOUSTON ECO DEV ASSO & HOUSTON CTY COMM V. DAVID BARBER ET AL38-CV-2010-000003.00

MOTION TO SET HEARING

Notice Date: 2/8/2010 3:16:45 PM

[Attorney: GREENE EDGAR W JR]

CARLA H. WOODALLCIRCUIT COURT CLERK

HOUSTON COUNTY, ALABAMA114 NORTH OATES STREET

DOTHAN, AL 36302

334-677-4859

D001 BARBER DAVID, SPECIAL PROSEC



AlaFile E-Notice

To: SOMERVILLE WILLIAM G [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: PARKMAN JAMES W [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: WHITE WILLIAM C [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859






AlaFile E-Notice

To: MATTHEWS WILLIAM B [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: SHERRER GARY [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: PRICE CHARLES [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: HASKELL WYATT [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: BARBER M [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: GREENE EDGAR W [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: PORTER CHEAIRS [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:16:45 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: EDGAR WILSON GREENE [email protected]

38-CV-2010-000003.00

Judge: PBM





MOTION TO DISMISS PURSUANT TO RULE 12(B)

Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: SOMERVILLE WILLIAM G [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859






AlaFile E-Notice

To: WHITE WILLIAM C [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: STEENSLAND M JOHN III [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859






AlaFile E-Notice

To: SHERRER GARY [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: PRICE CHARLES [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: HASKELL WYATT [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: BARBER M [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859




AlaFile E-Notice

To: GREENE EDGAR W [email protected]

38-CV-2010-000003.00

Judge: PBM






Notice Date: 2/8/2010 3:14:24 PM




DOTHAN, AL 36302

334-677-4859




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