ORDER. This order comes after consideration of the parties filings made in response to the prior order of February 11, 2010, in these related cases.

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1 ELECTRONICALLY FILED 3/8/2010 9:58 AM CV CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA RUBY JONES, CLERK IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA Cornerstone Community Outreach, Inc., et al, Plaintiff, v. CV Bob Riley, et al, Defendants. State of Alabama, Plaintiff, v. CV Chad Dickie, et al, Defendants. ORDER This order comes after consideration of the parties filings made in response to the prior order of February 11, 2010, in these related cases. In the first of these cases, Cornerstone Community Outreach, Inc., et al, v. Riley (CV (hereafter referred to as the Declaratory Judgment Action, this Court, though retired Justice Mark Kennedy, previously entered a preliminary injunction that was thereafter appealed. The following facts come from the Supreme Court s opinion in Barber v. Cornerstone Community Outreach, Inc., ---

2 So.3d ----, 2009 WL (Ala., Nov. 13, 2009: Id. at *1. On December 30, 2008, Governor Bob Riley issued Executive Order No. 44 creating the Governor's Task Force on Illegal Gambling ( the Task Force. The order stated that the purpose of the Task Force was promoting and supporting uniform statewide enforcement of Alabama's anti-gambling laws and to carry out the Alabama Constitution's strong public policy against lottery schemes and illegal gambling. The order created a special prosecutor to serve as the commander of the Task Force, who, in that capacity, is empowered to have statewide jurisdiction to conduct investigations, attend any regular, adjourned or special session of any circuit court... for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case related to gambling activity in the State of Alabama. Governor Riley appointed former Jefferson County District Attorney David Barber as Task Force commander. Cornerstone Community Outreach, Inc. ( Cornerstone, obtained a license from the Town of White Hall in Lowndes County to operate a bingo-gaming facility, which is known as the White Hall Entertainment Center ( the EC. An LCD screen outside the EC advertises that the EC offers HOT SLOTS! for its customers. The EC contains several hundred electronic gaming machines that are played by hundreds of customers every day. Cornerstone purportedly obtained its license so that it could operate charity bingo games in accordance with Amendment No. 674, Ala. Const (Local Amendments, Lowndes County, 3, Ala. Const (Off.Recomp.. Pursuant to its mandate, the Task Force on March 19, 2009, executed a search warrant on the EC and confiscated approximately 105 electronic gaming machines, the servers to which those machines were attached, over $500,000 in proceeds from the games played at the EC, and various records kept by Cornerstone. Evidence presented in the preliminary injunction hearing also showed that neither the Alabama Attorney General nor any member of his staff was on the Task Force that conducted the raid, and that Lowndes County District Attorney John Andrews was not involved, either. District Attorney Andrews, in fact, has recently submitted an affidavit in which he testified to the following: 1. He inspected the bingo machines in question before the White Hall Entertainment Center opened, and spoke with various individuals about how 2

3 the machines worked; 2. He exercised his prosecutorial judgment not to bring any criminal charges relating to the operation of the machines; 3. He has never been contacted by anyone connected with the Governor s Task Force to discuss investigating or closing the White Hall facility; and 4. He did not even know of the Task Force raid until it had been accomplished. Also brought out during the preliminary injunction hearing was evidence that the raid was conducted pursuant to a search warrant signed by the Lowndes County district judge. The warrant was based on an affidavit provided to the judge by Mike Reese, who is a Lieutenant with the Alabama Alcoholic Beverage Control Board, Enforcement Division. Once the warrant was obtained, members of the ABC and the Alabama Bureau of Investigation conducted the raid. Again quoting from the Supreme Court s Cornerstone opinion: In the early afternoon on March 19, 2009, Cornerstone filed an action in the Lowndes Circuit Court against Governor Riley, in his official capacity, Barber, in his official capacity as the Task Force commander, and certain other members of the Task Force in their official capacities (collectively the Riley defendants. Cornerstone sought, among other things, a declaratory judgment and preliminary and permanent injunctive relief regarding the seizure of the electronic gaming machines by the Task Force. Specifically, Cornerstone requested a judgment declaring that its bingo operation at the EC is permitted under Amendment No. 674, Ala. Const.1901, and whether the electronic gaming machines seized by the Task Force constitute illegal slot machines under 13A-12-27, Ala.Code Cornerstone requested a preliminary injunction restraining the Task Force from any further interference with its operation at the EC during the pendency of this action and directing the Task Force to return all the seized machines, servers, and records based on its belief that the machines are legal under Alabama law. Freedom Trail Ventures, Ltd. ( FTV, subsequently filed a motion to intervene in the action, alleging that it owned at least some of the machines seized by the Task Force and that it had leased those machines to Cornerstone. The trial court granted FTV's motion for the limited purpose of allowing it to participate in the preliminary-injunction phase of the proceeding. 3

4 Id. at * 1-2. In response, the defendantsin thedeclaratory Judgment Action filed an Answer and Counterclaim, on April 20, The defendants counterclaim seeks a declaratory judgment that the games being played at the White Hall facility constituted illegal gaming rather than bingo under Amendment 674, that the machines used were illegal gambling devices, and that the items seized during the raid are properly the subject of forfeiture proceedings. The defendants Answer and Counterclaim was signed by David Barber, Supernumerary District Attorney, Special Prosecutor and Commander of the Governor s Task Force on Illegal Gambling and Gubernatorially Appointed Attorney, on behalf of all Defendants. Recently, John M. Tyson, Jr., Martha Tierney, and Edgar Greene filed a notice of appearance as Special Prosecutors for the Governor s Task Force on Illegal Gambling. (The Court understands from media accounts that David Barber is no longer with the Governor s Task Force, although Mr. Barber has not yet filed a motion to withdraw. Also pending before the Court is the related case of State of Alabama v. Chad Dickie, et al (CV , which is a forfeiture action brought pursuant to Ala. Code 13A (referred to hereafter as the Forfeiture Action. The complaint, which seeks the forfeiture of both money and gambling devices, was signed by David Barber, as Commander and Special Prosecutor of Governor s Task Force on Illegal Gambling and as Supernumerary District Attorney with Authority Conferred by Gubernatorial Appointment, ex rel. State of Alabama. In this case as well, John M. Tyson, Jr., Martha Tierney, and Edgar Greene recently filed a notice of appearance as Special Prosecutors for the Governor s Task Force on Illegal Gambling. Cornerstone Community Outreach, Inc., and Freedom Trail Ventures, Ltd., as the defendants in the Forfeiture Action, have filed motions to dismiss the complaint. Each motion asserts, inter alia, that Petitioner and its counsel lack the legal authority to assert this forfeiture petition. The motions remain pending. This Court must eventually address the extent to which further proceedings in these actions are affected by the Supreme Court s Cornerstone decision and its subsequent decision of Tyson v. Macon County Greyhound Park, Inc., --- So.3d ----, 4

5 2010 WL (Ala., Feb. 4, Even before reaching those issues, however, this Court must address whether counsel of record for the Governmental Parties (i.e., the defendants in the Declaratory Judgment Action and the State of Alabama in the Forfeiture Action can in fact appear and represent those parties. This inquiry begins with Executive Order 44, which Governor Riley signed on December 29, The Executive Order generally provides the following: 1. The Governor s Task Force on Illegal Gambling is created for the purpose of promoting and supporting uniform statewide enforcement of Alabama s anti-gambling laws and to carry out the Alabama Constitution s strong public policy against lottery schemes and illegal gambling. The Director of the Department of Public Safety and the Administrator of the Alcoholic Beverage Control Board, and such agents as each may designate, are included in the Task Force. Among the responsibilities of the Task Force are to serve as a resource for local prosecutors and law enforcement officials who request assistance in the investigation and prosecution of gambling-related offenses and to provide technical assistance, investigative support, law enforcement personnel, and any other assistance requested by local authorities reasonably necessary to enforce Alabama s anti-gambling law. 2. A supernumerary district attorney is designated as a Special Prosecutor and Commander of the Task Force. Pursuant to Ala. Code , this Special Prosecutor shall have statewide jurisdiction and is hereby authorized, with the support of the Task Force, to conduct investigations, attend any regular, adjourned or special session of any circuit court, in anyof the judicial circuits of Alabama for the investigation of or the prosecution or defense of any case related to gambling activity in the State of Alabama. The statute cited therein, Ala. Code , provides the following: Supernumerary district attorneys shall take the oath of office prescribed by the constitution for judicial officers and shall have and exercise all the duties, power and authority of district attorneys ofthe judicial circuits or circuit courts and shall, upon request of the Governor, the Chief Justice of the Supreme Court or the Attorney General, conductinvestigations, attend anyregular, adjourned or special 5

6 session of any circuit court in any of the judicial circuits of Alabama for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case in which the state is interested. The Governor, any member of the Supreme Court or courts of appeals or the Attorney General may request a supernumerary district attorney to perform duties as those prescribed for assistant attorneys general, either in their respective offices or at such other places within or without the state as such officials may assign him. When on such special assignment at the request or designationof one of the aforementioned officials and performing duties as those prescribed for assistant attorneys general, the supernumerary district attorney shall have all the powers and authority of an assistant attorney general and shall be entitled to the same amount of sick leave and annual leave that accrues to an assistant attorney general; and, while performing such duties at the request of the Attorney General, he shall be designated as a special assistant attorney general. Governor Riley signed Amendment 1 to this Executive Order on January 25, Among other things, this amendment recognizes the Governor s authority to appoint district attorneys or assistant district attorneys to serve as Special Prosecutors pursuant to Ala. Code (10, which provides as follows: It is the duty of every district attorney and assistant district attorney, within the circuit, county, or other territory for which he or she is elected or appointed: * * * (10 To go to any place in the State of Alabama and prosecute any case or cases, or work with any grand jury, when called upon to do so by the Attorney General or the Governor of the State of Alabama, and to attend sessions of courts and transact all of the duties of the district attorney in the courts whenever called upon by the Attorney General or the Governor to do so. (The Court understands that the basis for this amendment is the fact that Mr. Tyson recently appointed by the Governor to serve as the Commander and Special Prosecutor of the Task Force remains the current District Attorney for Mobile County, thus rendering the supernumerary district attorney statute inapplicable. Certain goals of the Executive Order, as amended, appear uncontroversial, such as coordinating investigative efforts of various executive agencies and serving as a resource for local law enforcement authorities. That certain personnel connected with the Task Force participated in the raid of March 19, 2009, moreover, does not concern the Court at this juncture because there is independent statutory authority 6

7 enabling personnel to act as peace officers in obtaining and executing on the search warrant. As discussed above, for example, the search was conducted pursuant to a warrant issued to Mike Reese, with the ABC Board, an executive agencywith statewide law enforcement authority. See, e.g., Ala. Code (a(6(ABC Board may appoint agents, inspectors or investigators and commission them to make arrests and execute search warrants. The warrant was executed by ABC agents and Alabama State Troopers, who are under the direction of the Alabama Department of Public Safety, also an agency with defined law enforcement authority. See, e.g., Ala. Code (state troopers have statewide powers of peace officers; see also Roberts v. State ex rel. Cooper, 253 Ala. 565, 568, 46 So.2d 5, 7 (Ala. 1950(dealing with a predecessor provision of Ala. Code 13A-12-30, the Supreme Court held that the members of the highway patrol named, while acting under the written authority given by the governor, were clothed with authority as peace and law enforcement officers to seize said gambling devices and report their seizure to the solicitor of the county wherein they were seized and on such report he was authorized to file suit seeking their condemnation and destruction. On the other hand, this Court is concerned with the Governor s efforts to appoint a Special Prosecutor as defined in the Executive Order, as amended. In considering the impact of such efforts, it is necessary to focus on the office of the State s Attorney General. The duties of the Attorney General are generally spelled out by statute. For example, [h]e or she shall also attend to all cases other than criminal that may be pending in the courts of this state, in which the state may be in any manner concerned. Ala. Code (2. Moreover, [a]ll litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General. Ala. Code Beyond this statutory authority, the Court s attention turns to Ex parte Weaver, 570 So.2d 675 (Ala. 1990, which is particularly instructive sincethat case also involved a dispute between the Governor and the Attorney General, as the following describes: The plaintiffs in the original case are subscribers for health care benefits with Blue Cross and Blue Shield of Alabama ( Blue Cross. They brought a class action seeking a declaratory judgment and an order directing refunds of excess reserves alleged to be held by Blue Cross. The plaintiffs claimed that Blue Cross 7

8 had accumulated an illegal and/or excessive profit and/or reserve and surplus in excess of the amount allowed by statute in Alabama, or required for the solvency of the plan and that Blue Cross's board of directors was not a representative cross-section of the population, as is required by statute. Blue Cross moved to dismiss the complaint, alleging, among other things, that the subscribers had failed to exhaust administrative remedies in the Alabama Insurance Department and had failed to join the Alabama Insurance Department. In response to the motion, the subscribers amended their complaint and added the Insurance Department as a defendant. In March 1989, the circuit court entered orders certifying the plaintiffs' class; directing the Insurance Department to perform certain tasks under certain procedural rules and to report to the court; entering partial summary judgment in favor of the plaintiffs; and denying all other pending motions. The partial summary judgment in favor of the plaintiffs was entered by the trial judge on the issue of liability, i.e., he held as a matter of law that Blue Cross was illegally calculating reserves. Blue Cross filed a petition for writ of mandamus or prohibition or both, in the Court of Civil Appeals. Mike Weaver, as Commissioner of Insurance, in June 1989 filed an appeal or, in the alternative, a petition for a writ of mandamus from the Court of Civil Appeals to vacate the trial court's order. Attorney General Don Siegelman filed a motion on October 12, 1989, in the Court of Civil Appeals to dismiss the appeal and the alternative petition for writ of mandamus brought by the Department of Insurance. Briefs were filed and oral argument was held on November 14, 1989, in the Court of Civil Appeals on the issue of control of litigation of the Insurance Department. The Court of Civil Appeals granted the motion to dismiss, ruling that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama and all of its departments. The petition for writ of mandamus before us seeks to vacate the decision of the Court of Civil Appeals. We must determine whether the attorney general of the State of Alabama has the authority to move to dismiss the State Insurance Department's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance. Id. at After an extensive review of both Alabama law and decisions from other jurisdictions, the Supreme Court denied the mandamus petition filed by the 8

9 Commissioner of Insurance: Id. at 684. We have carefully reviewed the law and the precedents in this case. The overwhelming authority supports the decision of the Court of Civil Appeals that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama. We hold that the attorney general of the State of Alabama has the authority to move to dismiss the State Department of Insurance's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance. We recognize that there may be times when the Governor disagrees with the attorney general about matters in litigation. Although we determine that the attorney general is authorized to direct the course of all litigation involving the State and its agencies, the Governor, as chief magistrate of the State, may intervene in any such litigation. Rule 24, A.R.Civ.P. As an intervenor, the Governor may express his views and take positions contrary to those argued by the attorney general. Even though the Governor was not a named party in the Weaver litigation, the holding is persuasive here. Rejected there was the argument that the Governor as the State s chief magistrate has the right under the Constitution to hire counsel other than the Attorney General to represent the Commissioner of Insurance. See 570 So.2d at 678. Further, as Justice Houston recognized in dissent, the positions taken by the Commissioner are to be regarded as those of the Governor: Under this constitutional and statutory structure, the Governor, as the supreme executive responsible under the Constitution for the execution of the laws of this State, acts by and through agency and departmental heads, who serve as vehicles by which the Governor carries out his constitutional mandate. By executing his power to appoint and to remove, the Governor ensures that the executive departments and agencies implement his decisions and adhere to his policies and his interpretations of the laws so that his decisions may be faithfully executed. The act of any of these subordinate executives is the act of the Governor himself. Id. at 685 (Houston, J., dissenting. The Weaver decision was recently cited in Chapman v. Gooden, 974 So.2d 972 (Ala. 2007, in addressing the Attorney General s ability to moot a pending dispute involving the Secretary of State by assuming an interpretation of the Alabama 9

10 Constitution in line with the plaintiffs position. The following excerpt for the Gooden opinion reflects the Supreme Court s continued regard for the Attorney General as the State s lead lawyer: However, [t]he attorney general is... the chief law officer of the state, and on him are conferred various authorities and duties in connection with instituting and prosecuting, in the name of the state, suits and other proceedings... for the preservation and protection of the rights and interests of the state. Ex parte Weaver, 570 So.2d 675, 679 (Ala.1990 (quoting State ex rel.carmichael v. Jones, 252 Ala. 479, 484, 41 So.2d 280, 284 (1949 (emphasis added. See, e.g., Ala.Code 1975, Essentially all litigation concerning the interest of the state or any department thereof [lies] under the direction and control of the attorney general. 570 So.2d at (quoting State ex rel. Carmichael, 252 Ala. at 484, 41 So.2d at 284. That the attorney general has the power to formulate legal policy for the State, and, in connection therewith, the power to bind state officers and departments in litigation is well established. 570 So.2d at 681 (discussing with approval Feeney v. Commonwealth, 373 Mass. 359, 368, 366 N.E.2d 1262, 1267 (1977. In Ex parte Weaver, supra, this Court held that the attorney general had the authority to move to dismiss the State Department of Insurance's [appeal/mandamus petition] in the Court of Civil Appeals over the objection of the commissioner of insurance. 570 So.2d at 684. In so doing, it relied on State ex rel. Carmichael v. Jones: In [Jones], the attorney general brought a mandamus action to compel the trial court to enter a consent judgment in a case pending between the State Department of Revenue and several defendants. The question presented was whether the attorney general was authorized and empowered to settle a pending suit by the State filed by him in his official capacity for the collection of an unliquidated tax claim, by taking a consent judgment in the cause for less than the amount sued for and claimed to be due by the revenue department. This Court held that the attorney general, as the chief law officer of the state, was fully empowered to make any bona fide disposition of the cause as in his judgment might be deemed to be to the best interest of the state unless inhibited by organic law. Ex parte Weaver, 570 So.2d at Gooden, 974 So.2d at 988. The Court now returns to Ala. Code The Governmental Parties assert 10

11 that this statute is no longer in play given that attorneys Tyson and Tierney, respectively the District Attorney and the Assistant District Attorney for Mobile County, are acting pursuant to Ala. Code (10. The Court disagrees, because the Answer and Counterclaim in the Declaratory Judgment Action, and the Petition in the Forfeiture Action, were filed by attorney Barber whose appointment to act ostensibly on behalf of the State of Alabama, and officials thereof, was pursuant to Ala. Code In its order of February 11, 2010, this Court mused about possible constitutional infirmities of this statute. Certainly, if interpreted broadly enough, complications of a constitutional magnitude could arise. The Court agrees with the parties, however, that it should if possible avoid constitutional questions. After careful consideration, the Court concludes that it need not wade into a constitutional quagmire. Rather, proper interpretation of the statute allows it to skirt past anyconstitutional challenge while at the same time preserving the proper role of the State s constitutional officers, as described above. While several officials have the apparent right to request or designate a supernumerary attorneygeneral to perform duties under Ala. Code , this Court concludes that any such person so designated may perform such duties only subject to the direction and control of the Attorney General. This statute does not enable a supernumerary district attorney to act beyond the Attorney General s authority. It must be remembered that the Attorney General may direct and control the actions and positions of district attorneys throughout the State. See, e.g., Ala. Code , & ; see also Graddick v. Galanos, 379 So.2d 592,594 (Ala To somehow give a supernumerary district attorney unfettered independence from this control makes no sense. Indeed, to use Ala. Code in an effort to create a new kind of prosecutor, who acts purportedly on behalf of the State but who is answerable to anyone other than the Attorney General, would fly in the face of authorities such as Weaver, Gooden, and the above-referenced statutes conveying broad powers to the Attorney General over litigation involving the State. Given such powers as have historically been given to the Attorney General, which Ala. Code explicitly confirms, such an interpretation of Ala. Code is untenable. While the Attorney General has not appeared in these actions, this Court has 11

12 reviewed the Attorney General s amicus curiae brief submitted to the Supreme Court. From that, the inescapable conclusion is that in filing the Answer and Counterclaim in the Declaratory Judgment Action, the Petition in the Forfeiture Action, and all other filings in these actions, attorney Barber did so without express authorization of the Attorney General. Such filings must thus be regarded as a nullity, just as if they had been filed by a private citizen who claimed to represent the State. Further, while the appearance of attorneys Tyson and Tierney in these cases is under a different statute, Ala. Code (10, the same result applies. Lowndes County has a District Attorney who has not recused himself and who has in fact looked into this matter, deciding not to pursue litigation. The only officer who can second-guess the district attorney in this regard is the Attorney General. The Governor lacks the authority to create his own prosecutor whenever a district attorney takes a legal position that is not to his liking. While Ala. Code (10 authorizes the Governor to designate a district attorney (or an assistant district attorney to go anywhere in the statein theperformance of statutorily-defined duties, it again must be remembered that the Attorney General retains ultimate authority, as discussed above. Particularly when a district attorney is requested to go into another county, the orderly exercise of such authority is crucial to avoid the chaos arising from conflicting legal positions. Accordingly, the attorneys who have appeared for the Governmental Parties may not continue to represent these parties in the Declaratory Judgment Action, nor may they prosecute the Forfeiture Action, unless the Attorney General expressly ratifies what they have done up to this point and authorizes them to continue in this representation. 1 The Attorney General has for whatever reason assumed a curious stance. While complaining of the Governor s actions in the Supreme Court, and in the media, the 1 The Governor does have the authority under Ala. Code to employ personal counsel to represent his interests. As the Supreme Court recognized in Weaver, 570 So.2d at 684, even though the Attorney General has the power to direct the course of litigation involving the State and its agencies, the Governor may intervene to express his views and take positions that may be contrary to those of the Attorney General. 12

13 Attorney General has made no effort to defend the State s interests in these cases. He is under a duty to do so. Ala. Code (2 provides in part that the Attorney General shall attend to all cases other than criminal that may be pending in the courts of this state, in which the state may be in any manner concerned... (emphasis added. Further, under Ala. Code , [a]ll litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General (emphasis added. Especially since these cases involve claims raised against the Governor and the headsof two state agencies, these statutory obligations may not be ignored. The Attorney General is therefore directed to assume the direction and control of the State s interests in these cases. This Court, of course, may not dictate what the Attorney General s decisions must be; as the Weaver decision makes clear, such decisions are pursuant to the Attorney General s prerogative. This Court can, however, direct the AttorneyGeneral to come in offthe sidelines and decide how the State s interests are best represented in these cases. Accordingly, by March 22, 2010, the Attorney General is to advise the Court and the parties of his position, in view of this order and of his statutory duties described above. The Court will thereafter determine the course of further proceedings in these related cases. DONE and ORDERED on this 8 th day of March, /s/ Robert S. Vance, Jr. Circuit Judge copies: The Honorable Troy King Counsel for the Parties 13