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					                                       AlaFile E-Notice




                                                                          38-CV-2010-000003.00
                                                                                   Judge: PBM
To: SOMERVILLE WILLIAM G III
    wsomerville@bakerdonelson.com




                    NOTICE OF ELECTRONIC FILING
                      IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA

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

                        The following matter was FILED on 1/29/2010 6:07:38 PM

                                C002 HOUSTON COUNTY COMMISSION
                              C001 HOUSTON ECONOMIC DEVELOPMENT
                                C003 THE COOPERATIVE DISTRICT OF
         MOTION OF THE HEDA TO DISQUALIFY JOHN TYSON FROM APPEARING IN THIS CASE
                                    [Attorney: SHERRER GARY C]


     Notice Date:    1/29/2010 6:07:38 PM




                                                                         CARLA H. WOODALL
                                                                      CIRCUIT COURT CLERK
                                                                 HOUSTON COUNTY, ALABAMA
                                                                   114 NORTH OATES STREET
                                                                           DOTHAN, AL 36302

                                                                                  334-677-4859
                                                                                                                            ELECTRONICALLY FILED
STATE OF ALABAMA                                            Revised 3/5/08                                        Case No.      1/29/2010 6:07 PM
Unified Judicial System                                                                                                         CV-2010-000003.00
                                                                                                                               CIRCUIT COURT OF
38-HOUSTON                                                  District Court           Circuit Court                CV201000000300
                                                                                                                          HOUSTON COUNTY, ALABAMA
                                                                                                                           CARLA H. WOODALL, CLERK
                                                                                                CIVIL MOTION COVER SHEET
HOUSTON ECO DEV ASSO & HOUSTON CTY
                                                                                 Name of Filing Party: C003 - THE COOPERATIVE DISTRICT OF
COMM V. DAVID BARBER ET AL


Name, Address, and Telephone No. of Attorney or Party. If Not Represented.                       Oral Arguments Requested
 GARY C SHERRER
 335 WEST MAIN STREET
 DOTHAN, AL 36301
Attorney Bar No.: SHE016

                                                                      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        Motion of the HEDA to Disqualify John
                                                                                                        Tyson
                                                                                         pursuant to Rule 0.0 from Appearing in this Case
                                                                                                                            (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
                                                              1/29/2010 6:06:21 PM                                  /s GARY C SHERRER
agency or department of the State, county, or municipal
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
                                                                                 1/29/2010 6:07 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 and                                   )
THE HOUSTON COUNTY COMMISSION                     )
                                                  )
                            Plaintiffs,           )
                                                  )
v.                                                )           CV-2010-003
                                                  )
DAVID BARBER, SPECIAL                             )
PROSECUTOR FOR TASK FORCE                         )
ON ILLEGAL GAMBLING PER                           )
EXECUTIVE ORDER # 44 and                          )
TROY KING, ATTORNEY GENERAL                       )
FOR THE STATE OF ALABAMA                          )
                                                  )
                            Defendants.           )

                                 MOTION OF THE
                  HOUSTON ECONOMIC DEVELOPMENT ASSOCIATION
              TO DISQUALIFY JOHN TYSON FROM APPEARING IN THIS CASE

         The Houston Economic Development Association (HEDA), a real party in interest in this

matter, respectfully requests that the Court disqualify John Tyson from appearing in this action

on behalf of the Task Force on Illegal Gambling or any other party.             Tyson should be

disqualified for two independent reasons. First, constitutional and statutory provisions forbid

Tyson from serving simultaneously as District Attorney for Mobile County and Task Force

Commander. Second, because of Tyson’s financial ties to other competing gambling interests,

Tyson has serious conflicts of interest that prevent him from acting on behalf of the state in this

matter. In support of this motion, Plaintiffs state as follows:

         1.        Country Crossing is a resort in Houston County, Alabama.       It consists of a

number of different facilities, including charity bingo, an amphitheatre, multiple restaurants, an

RV park, and a hotel. HEDA is the lessee under a real property lease for the charity bingo


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facility. It is responsible for the bingo operations and is the employer of approximately 1,300

individuals who work there.         HEDA earns substantial revenues from the electronic bingo

machines pursuant to participation agreements with the machine owners. From these revenues,

HEDA contributes its net income to the Houston County Charitable Foundation, which was

created to benefit local charities from the operation of electronic bingo at Country Crossing.

         2.        Pursuant to Executive Order Number 44, Governor Bob Riley established the

Governors’ Task Force on Illegal Gambling. According to that Executive Order, the Task Force

is to be led by the Task Force Commander, a supernumerary district attorney to be appointed by

the Governor.         Under Executive Order No. 44, the Task Force Commander is a Special

Prosecutor. Pursuant to Ala Code §12-17-216 the Special Prosecutor has statewide jurisdiction,

and is authorized to investigate and prosecute gambling.

         3.        Following the resignation of the original Task Force Commander on January 13,

2010, Governor Riley appointed John Tyson to be the Task Force Commander.

         4.        John Tyson is the District Attorney of Mobile County. Tyson did not resign from

his position as District Attorney of Mobile County when he became Task Force Commander.

         5.        The Alabama Constitution forbids persons from holding two public offices at the

same time. Ala. Const. art. XVII, sec. 280; Cook v. State ex rel. Reeves, 287 Ala. 412, 252 So.2d

71 (1971).

         6.        Section 36-2-1(b) of the Alabama Code prohibits persons from holding two

“offices of profit” at one time. Ala. Code 36-2-1(b). An “office of profit” is a public office.

Alexander v. State ex rel. Carver, 274 Ala. 441, 150 So.2d 204 (1963). A person who performs a

public function and whose authority is derived from statute is a public officer.




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         7.        The office of District Attorney of Mobile County is a public office and is

therefore an office covered by Ala. Code §36-2-1(b).

         8.        The office of Task Force Commander is a public office and therefore an office

covered by Ala. Code §36-2-1(b).

         9.        Accordingly, Tyson is ineligible to serve as both District Attorney of Mobile

County and Task Force Commander. He cannot qualify as Task Force Commander until and

unless he resigns his office of District Attorney of Mobile County. See Shepherd v. Sartain, 185

Ala. 439, 64 So. 57 (1913) (person holding federal office could be elected to state office but must

resign the federal office before qualify for the state office).

         10.       Because Tyson has not resigned as District Attorney of Mobile County, he is not

Task Force Commander and should be disqualified from appearing in this action while he

purports to be Task Force Commander.

         11.       Tyson ran for Alabama Attorney General in 2006. According to public records,

Tyson raised approximately $1.1 million to fund that campaign. Approximately ten percent of

Tyson’s campaign funds came from political action committees that were funding by gambling

interests.

         12.       For example, Tyson received a contribution of $10,000 from Watch PAC on

October 13, 2006. During that period, all of Watch PAC’s money came from gambling interests.

Watch PAC’s five contributors during that period were the Poarch Creek Indians PAC, the

Macon County Greyhound PAC, the Jefferson County Racing Association PAC, the Greentrack

PAC, and the High Street PAC.




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         13.       Racetracks and Indian casinos in Mississippi and Alabama have an interest in

limiting competition and excluding from the entertainment market competitors such as electronic

bingo games.

         14.       Tyson’s connections to these gambling interests prejudice the plaintiffs by

creating the possibility, and the appearance, that Tyson is acting not to vindicate the state’s

interests but his own.

         15.       Tyson’s connections to these gambling interests impair Tyson’s ability to act on

behalf of the state, and violate the duties he owes to this Court, to the state and to other litigants

in this case.

         16.       Tyson should be disqualified from representing the state in cases concerning

gambling interests and cases, such as this one, that relate to the determination of whether certain

electronic bingo machines fall within the state’s definition of “bingo.”

         17.       Remarkably, Governor Riley who created the Task Force and appointed Tyson,

also has ties to competing gambling interests. Governor Riley’s son-in-law is a partner in

Bradley, Arant, Boult, and Cummings, LLP (“Bradley Arant”). As a partner in Bradley Arant, a

law firm, Governor Riley’s son-in-law shares in its profits and benefits from its many and

various representations. Bradley Arant represents the Poarch Creek Indians in connection with

that tribe’s operation of gambling casinos in Alabama. Bradley Arant also represents Governor

Riley and the governor’s office. Governor Riley’s close family members therefore profit directly

from representing the Poarch Creek Indians and their gambling interests.

         18.       The Governor’s connections to these gambling interests prejudice the plaintiffs by

creating the possibility, and the appearance, that Governor Riley’s Task Force is acting not to

vindicate the state’s interests but the Governors.


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         19.       The Governor’s connections to these gambling interests impair the Governor’s

Task Force’s ability to act on behalf of the state, and violate the duties the Governor owes to this

Court, to the state and to other litigants in this case.

         20.       Tyson as well as the Governor’s Task Force, should be disqualified from

representing the state in cases concerning gambling interests and cases, such as this one, that

relate to the determination of whether certain electronic bingo machines fall within the state’s

definition of “bingo.”

                                                 Respectfully submitted,


                                                 /s/ William G. Somerville
                                                 WILLIAM G. SOMERVILLE
                                                 Attorney for Plaintiff Houston Economic
                                                 Development Association

                                                 OF COUNSEL:
                                                 BAKER, DONELSON, BEARMAN,
                                                 CALDWELL & BERKOWITZ, PC
                                                 420 20th Street North
                                                 1600 Wachovia Tower
                                                 Birmingham, Alabama 35203
                                                 (205) 328-0480


                                                 /s/ William B. Matthews       _______
                                                 WILLIAM B. MATTHEWS
                                                 Attorney for Plaintiff Houston Economic
                                                 Development Association

                                                 OF COUNSEL:
                                                 THE MATTHEWS LAWFIRM
                                                 141 East Reynolds Street
                                                 Ozark, Alabama 36361
                                                 (334) 774-8804




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                                CERTIFICATE OF SERVICE

       I hereby certify that on the 29th day of January, 2010, the following persons have been
served with copies of the foregoing via the Alafile system:

                                    Gary C. Sherrer
                                    SHERRER, JONES & TERRY, P.C.
                                    335 West Main Street
                                    Dothan, Alabama 36301

                                    David Barber
                                    Office of the Governor Bob Riley
                                    600 Dexter Avenue
                                    Montgomery, Alabama 36130

                                    John M. Tyson, Jr.
                                    Mobile County District Attorney
                                    P.O. Box 2841
                                    Mobile, Alabama 36652

                                    Attorney General Troy King
                                    Special Assistant Attorney General Cheairs M. Porter
                                    Assistant Attorney General James W. Davis
                                    Office of the Attorney General
                                    500 Dexter Avenue
                                    Montgomery, Alabama 36130

                                    Wyatt R. Haskell
                                    Charles Price, II
                                    Haskell, Slaughter, Young & Rediker, LLC
                                    2001 Park Place North
                                    1400 Park Place Tower
                                    Birmingham, Alabama 35203



                                                  /s/ WILLIAM G. SOMERVILLE           ____

                                                  /s/ WILLIAM B. MATTHEWS__________




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