E-Filed 04/01/2010 @ 02:07:59 PM Honorable Robert Esdale Clerk Of The Court No. 1090808 IN THE SUPREME COURT OF ALABAMA 444444444444444444444444444444444444444444 Ex parte Bob Riley, Governor, State of Alabama; John M. Tyson, Special Prosecutor for the Task Force on Illegal Gambling; Emory Folmar, Administrator of the Alabama Alcoholic Beverage Control Board; and Col. Christopher Murphy, Director, Department of Public Safety ))))))))))))))) ))))))))))))))) (In re: Bob Riley, et al. v. Cornerstone Community Outreach, Inc., et al. And State of Alabama v. Chad Dickie, et al. ))))))))))))))) ))))))))))))))) On Petition for a Writ of Mandamus to the Circuit Court of Lowndes County, Nos. CV-09-900019, CV-09-900027 Hon. Robert S. Vance, Jr., sitting by appointment 444444444444444444444444444444444444444444 ATTORNEY GENERAL TROY KING S NOTICE OF APPEARANCE AND MOTION TO DISMISS OR DENY PETITION 444444444444444444444444444444444444444444 Troy King Attorney General By: J. Douglas McElvy Deputy Attorney General Elizabeth C. Wible Deputy Attorney General Aliant Center 2740 Zelda Road, Fourth Floor Montgomery, AL 36106 Telephone: 334.293.0567 Facsimile: 334.293.0565 dmcelvy@mcelvylaw.com ewible@mcelvylaw.com H.E. Nix, Jr. Deputy Attorney General P.O. Box 241892 Montgomery, AL Montgomery, AL 36124 Telephone: 334.279.7770 Facscimile: 334.279.7772 cnix@nixattorney.com Cheairs M. Porter Special Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 500 Dexter Avenue Montgomery, AL 36130 Telephone: 334.353.8811 Facsimile: 334.242.2433 CPorter@ago.state.al.us April 1, 2010
ATTORNEY GENERAL TROY KING S NOTICE OF APPEARANCE AND MOTION TO DISMISS OR DENY PETITION With this filing, Attorney General Troy King takes two actions: He (1) appears on behalf of the State and each State officer sued in his official capacity in the underlying litigation and (2) dismisses the pending Petition for Writ of Mandamus pursuant to his authority outlined in Ex parte Weaver, 570 So. 2d 675, 679-80 (Ala. 1990). Should this Court deem dismissal unavailable, the Attorney General alternatively requests that this Court deny the Petition on the ground that the Petitioners have no clear legal right to the relief requested. In support of his requests, the Attorney General asserts the following: Notice of Appearance Attorney General Troy King, by and through his undersigned counsel, hereby enters an appearance in this proceeding, a Petition for Writ of Mandamus, on behalf of the State of Alabama and the State officers sued in their official capacities in the underlying litigation pursuant to his absolute statutory and constitutional authority to represent the State and its interests, as the Chief Legal Officer for 2
the State. 1 See, e.g., Ala. Code 36-15-1(2) (2001) ( [The Attorney General] 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 36-15-12 (2001) ( The attorney general is authorized to institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state. ); Ala. Code 36-15-21 (2001) ( All litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General. ); Ex parte Weaver, 570 So. 2d 675, 679-80 (Ala. 1990) ( [A]ll litigation concerning the interest of the state or any department thereof [lies] under the direction and control of the attorney general. Quoting State ex rel. Carmichael v. Jones, 252 Ala. 479, 484, 41 So. 2d 280, 284 (Ala. 1949).). The Attorney General has simultaneously appeared on behalf of the same parties in the underlying actions in Lowndes County Circuit Court where he has assumed 1 The Governor has been named a defendant in the underlying action Cornerstone Community Outreach, Inc. v. Riley, CV-09-900019, and the Attorney General does not contest his right to appear through his own counsel. 3
responsibility for representing the interests of the State of Alabama and the State officers sued in their official capacities. A copy of his Notices of Appearance are Attachment A to this Notice and Motion. Motion to Dismiss or, In the Alternative, Deny the Petition The Attorney General hereby moves to dismiss this Petition pursuant to his authority set out and explained by this Court in Ex parte Weaver, 570 So. 2d 675 (Ala. 1990). In Weaver, this Court held that the attorney general of the State of Alabama ha[d] the authority to move to dismiss an appeal and petition for writ of mandamus filed by the Commissioner of the Department of Insurance over the objection of the commissioner. See also State ex rel. Carmichael v. Jones, 252 Ala. 479, 484, 41 So. 2d 280, 284 (1949) (concluding 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 ). Now that the Attorney General has entered his appearance as counsel for Petitioners, the Attorney General has the authority to dismiss this action, just as he did in Weaver, 4
and he hereby invokes that right. Alternatively, the Attorney General moves that the Petition be denied on the ground that his appearance in the actions below has mooted every ruling in the Order that is the object of the Petition except one that Petitioners have no clear legal right to have vacated. That ruling is that supernumerary district attorneys and district attorneys designated to perform duties under Ala. Code 12-17-216 and 12-17-184(10) may perform such duties only subject to the direction and control of the Attorney General and are not able to act beyond the Attorney General s authority. Petition at Tab A pp.11-12. In support of his motion to deny the Petition, the Attorney General presents the following: 1. The Petition challenges an order entered by Circuit Judge Robert S. Vance, Jr., on March 8, 2010, in two actions in Lowndes County that have been consolidated for trial: (1) Cornerstone Community Outreach, Inc. v. Riley, CV-09-900019, hereafter the Declaratory Judgment Action, and (2) State of Alabama v. Dickie, CV-09-900027, hereafter the Forfeiture Action. See Petition at Tabs A, G, & K. 5
2. In the Declaratory Judgment Action, Bob Riley, Governor of Alabama; David Barber, a Supernumerary District Attorney serving as Special Prosecutor for the Governor s Task Force on Illegal Gambling ( the Task Force ); Emory Folmar, Administrator of the Alabama Alcoholic Beverage Control Board; and Colonel Christopher Murphy, Director of the Department of Public Safety, were all sued as officers of the State of Alabama. See Petition at Tab G. In the Forfeiture Action, the State of Alabama is the plaintiff. See Petition at Tab K. 3. The focus of the Petition is on counsel for the State and the State officers, collectively referred to herein as the Governmental Parties. On December 29, 2008, the Governor appointed David Barber to serve as a statewide Special Prosecutor for the Task Force pursuant to Ala. Code 12-17-216. See Petition at Tab C. Pursuant to that appointment, Barber appeared in the Declaratory Judgment Action on March 24, 2009, representing the Governor, himself, Folmar, and Murphy. Two days later, Henry T. Reagan, a deputy legal advisor in the Governor s Office, appeared on behalf of the Governor alone in the Declaratory Judgment Action. 6
On April 21, 2009, Barber filed the Forfeiture Action on behalf of the State of Alabama also in his capacity as Special Prosecutor for the Task Force. Petition at Tab K. On or before January 25, 2010, Barber resigned as Special Prosecutor and the Governor appointed John M. Tyson, Jr., a district attorney for Mobile County to replace him. See Petition at Tab E. Since then, Tyson and others who have been appointed Special Prosecutors for the Task Force, including Edgar W. Greene, a supernumerary district attorney, and Martha Tierney, assistant district attorney for Mobile County, have appeared in the underlying actions as Special Prosecutors representing the Governmental Parties. See Petition at Tabs E & N. Also, on February 26, 2010, Reagan appeared on behalf of Barber, Folmar, and Murphy in the Declaratory Judgment Action. District attorneys Tyson and Tierney were appointed Special Prosecutors pursuant to Ala. Code 12-17-184(10). Petition at Tab E, letters to Tyson and Tierney. Supernumerary district attorney Greene was, like Barber, appointed a Special Prosecutor pursuant to Ala. Code 12-17- 216. Petition at Tab E, letter to Greene. The Governor does not appear to be contending that Reagan is a Special 7
Prosecutor, and Reagan has not appeared on behalf of the State. 4. On March 8, 2010, Judge Vance, at least partly in response to motions to dismiss filed by Cornerstone Community Outreach, Inc. ( Cornerstone ), and Freedom Trail Ventures, Ltd. ( FTV ), who are defendants in the Forfeiture Action, ruled that supernumerary district attorneys and district attorneys designated to perform duties under Ala. Code 12-17-216 and 12-17-184(10) may perform such duties only subject to the direction and control of the Attorney General and are not able to act beyond the Attorney General s authority. Petition at Tab A pp.4, 11-12. Judge Vance then reached what he called an inescapable conclusion from his review of the Attorney General s amicus brief to this Court in an earlier appeal in the Declaratory Judgment Action. Petition at Tab A, pp.11-12, & Tab L. The Judge s conclusion was that the Special Prosecutors, in filing the Answer and Counterclaim in the Declaratory Judgment Action, the Petition in the Forfeiture Action, and all other filings in these actions,... did so without the express authorization of the Attorney General. Petition at Tab A, pp.11-12, & Tab L. 8
In the March 8 Order, Judge Vance did not dismiss any action or pleading as a result of his conclusions. Instead, he directed the Attorney General to assume the direction and control of the State s interest in these cases and to advise the Court and the parties of his position in view of this order. See Petition at Tab A p.13. In the meantime, Judge Vance advised the attorneys who have appeared for the Governmental Parties other than the Governor (whom he pointed out has a right pursuant to Ala. Code 36-15-21 to his own counsel in the Declaratory Judgment Action) that they may not continue to represent these parties or the State, unless the Attorney General expressly ratifies what they have done up to this point and authorizes them to continue in this representation. See Petition at Tab A p.12 (emphasis added). The Order directed the Attorney General to make known his position by March 22, 2010. See Petition at Tab A p.13. 5. On March 15, 2010, the Governmental Parties filed the Petition at issue here, arguing their right to a writ of mandamus ordering Judge Vance to vacate his March 8 Order on the ground that it violated each of their rights to be represented by the Special Prosecutors appointed by the Governor. Petition at 30. 9
6. After filing the Petition, the Governmental Parties moved Judge Vance to stay his March 8 Order. See Petitioners Emergency Motion to Stay Pending Review of Petition for a Writ of Mandamus and Memorandum in Support Thereof ( Petitioners Stay Motion ) at Exhibit ( Ex. ) B. On March 16, 2010, in response to the Governmental Parties motion to stay, Judge Vance stayed all of the March 8 Order except the directive that the Attorney General advise the Court of his decision with respect to this litigation. Petitioners Stay Motion at Ex.C p.2. Judge Vance also made this statement in the March 16 Order to clarify his rulings in the March 8 Order: To be crystal clear, this Court does not intend to dictate to the Attorney General what action he must take. He may chose to take over representation of the Governmental Parties, as he has the legal authority to do. He may expressly ratify the authority of the Governmental Parties counsel of record. He may abdicate his responsibility by electing not to take a stand one way or another. It is up to the Attorney General to decide what course to take; all this Court has directed him to do is to tell us what his choice is. How this litigation unfolds will be based on his decision. Petitioners Stay Motion at Ex.C p.2. Thereafter, Petitioners sought and received from this Court a stay of the March 8 Order in its entirety. 7. The Attorney General has given careful consideration to Judge Vance s Orders of March 8 and March 16. He agrees 10
with the conclusion of Judge Vance that supernumerary district attorneys and district attorneys designated to perform duties under Ala. Code 12-17-216 and 12-17-184(10) may perform such duties only subject to the direction and control of the Attorney General and are not able to act beyond the Attorney General s authority. 8. In their Petition, Petitioners are representing the March 8 Order as containing rulings that it did not contain. The Order did not, as Petitioners contend, order the Attorney General to superintend the case whether he wanted to or not. Petition at 2. There was no reference in the March 8 Order to superintending, and the March 16 Order even clarified that Judge Vance was not ordering the Attorney General to superintend this action or otherwise dictating to the Attorney General how to direct and control the litigation. See Petition at Tab A; Petitioners Stay Motion at Ex.C p. 2. Also, the March 8 Order did not, as Petitioners contend at several places in their Petition, order the Attorney General to appear in, directly intervene in, or actually litigate this action. Petition at 15 & 18-19. At page 19 of the Petition, Petitioners arguments imply, incorrectly, that the March 8 Order construed the words attend to in Ala. 11
36-15-1(2) to mean appear in. The March 8 Order made no attempt to place any particular construction on the term attend to or the terms direct and control in Ala. Code 36-15-21, and, as the March 16 Order clarified, the March 8 Order in no way expressed or implied that the Attorney General should or must appear in, intervene in, or actually litigate this action. Also, it is not accurate to portray, as Petitioners have, the March 8 Order as disqualif[ying] the Special Prosecutors... from representing the State and Riley defendants. Petition at 13-14. The March 8 Order actually left the disqualification decision to the Attorney General. It stated that the Attorney General could ratify what the Special Prosecutors have done up to this point and authorize[] them to continue representing the Governmental Parties in this action. See Petition at Tab A p.12. The Order was effectively a warning that, without the Attorney General s ratification and authorization, disqualification would result. Also, it is not accurate to portray the March 8 Order, as Petitioners have, as holding that every pleading the DA and supernumerary DAs had filed was a nullity because they had not obtained express authorization of the Attorney General 12
beforehand. Petition at 2 (quoting, selectively, the March 8 Order). The March 8 Order actually appears to have stopped short of ruling anything a nullity until the Attorney General has given his position. Had Judge Vance actually ruled the filings a nullity already, he would have had little choice but to grant the pending motions of Cornerstone and FTV to dismiss the Forfeiture Action. Also, the March 8 Order was not, as Petitioners contend, an attempt to micromanage this litigation or violate the separation of powers principles. Petition at 3. The March 8 Order quite simply recognized the conflict that exists between the Governor and the Attorney General regarding the direction and control of this litigation, ruled that the Attorney General is vested with authority to direct and control litigation involving the interest of the State of Alabama, and directed the Attorney General to direct and control this litigation in the manner of his choosing. 9. On March 22, 2010, the Attorney General relieved Tyson of any responsibilities he may have had or believed he had to represent the State and State officers in the underlying actions. See Response In Opposition to Petition for Writ of Mandamus at Ex.4 p.3( 1); Attachment B to this 13
Notice and Motion. The Attorney General also notified Greene, Tierney, and Timothy W. Morgan, a supernumerary district attorney who appeared on behalf of the State and the State officers in this Court on the Petition, that they too are relieved of any responsibilities they may have had or believed they had to represent the State and State officers in the underlying actions and in this proceeding. See Attachment B to this Notice and Motion. To the extent that Reagan has appeared on behalf of parties other than the Governor, the Attorney General is hereby notifying him that he is relieved of representing any party other than the Governor. Today, the Attorney General, through undersigned counsel, has appeared in the underlying actions to represent the State and the State officers. See Attachment A to this Notice and Motion. 10. The Attorney General s appearance in the underlying actions has rendered moot all rulings in the March 8 Order except one: That supernumerary district attorneys and district attorneys designated to perform duties under Ala. Code 12-17-216 and 12-17-184(10) may perform such duties only subject to the direction and control of the Attorney General and are 14
not able to act beyond the Attorney General s authority. Petition at Tab A pp.11-12. That ruling is consistent with and supported by existing Alabama authorities, including prior decisions of this Court. See Ala. Code 36-15-21 (2001) ( All litigation concerning the interest of the state, or any department of the state, shall be under the direction and control of the Attorney General. ); Ex parte Weaver, 570 So. 2d 675, 679-80 (Ala. 1990) ( [A]ll litigation concerning the interest of the state or any department thereof [lies] under the direction and control of the attorney general. Quoting State ex rel. Carmichael v. Jones, 252 Ala. 479, 484, 41 So. 2d 280, 284 (Ala. 1949).). More important, the ruling is not so clearly incorrect as to entitle Petitioners to a writ of mandamus vacating it. See Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995) ( Mandamus is a drastic and extraordinary writ, to be issued only where there is... a clear legal right in the petitioner to the order sought... ). Accordingly, if the Petition is not due to be dismissed under the Attorney General s authority outlined in Weaver, it 15
is due to be denied on the ground that Petitioners lack a clear right to the relief requested. CONCLUSION For the reasons set forth herein, the Attorney General respectfully requests that the pending Petition for Writ Mandamus be dismissed or, alternatively, denied. Respectfully submitted, TROY KING ATTORNEY GENERAL BY: /s/ J. Douglas McElvy J. Douglas McElvy (MCE006) Elizabeth C. Wible (WIB003) Deputy Attorneys General OF COUNSEL: J. Douglas McElvy Elizabeth C. Wible Aliant Center 2740 Zelda Road, Fourth Floor Montgomery, AL 36106 Telephone: 334.293.0567 Facsimile: 334.293.0565 dmcelvy@mcelvylaw.com ewible@mcelvylaw.com OF COUNSEL: H.E. Nix, Jr. P.O. Box 241892 Montgomery, AL 36124 Telephone: 334.279.7770 Facsimile: 334.279.7772 cnix@nixattorney.com BY: /s/h.e. Nix, Jr. H.E. Nix, Jr. (NIX007) Deputy Attorney General 16
BY: /s/cheairs M. Porter Cheairs M. Porter (POR015) Special Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 500 Dexter Avenue Montgomery, AL 36130 Telephone: 334.353.8811 Facsimile: 334.242.2433 CPorter@ago.state.al.us CERTIFICATE OF SERVICE I hereby certify that I have on the 1st day of April, 2010, electronically filed the foregoing document with the Clerk of the Court using the ACES system and delivered, by hand, (9) copies of the same document to the Clerk s Office and that I have also e-served a copy of the foregoing document on the following persons at the e-mail addresses indicated: Henry T. Reagan sonny.reagan@governor.alabama.gov John M. Tyson, Jr. john_tyson@mobile-da.org Timothy W. Morgan tmorgan@districtattorney.org Martha Tierney martha_tierney@mobile-da.org Edgar W. Green ed@hhplaw.com Robert D. Segall segall@copelandfranco.com J. David Martin martin@copelandfranco.com Shannon L. Holliday holliday@copelandfranco.com C. Nelson Gill ngill@copelandfranco.com Collins Pettaway, Jr. collins_pettawayjr@yahoo.com Joe Espy, III jespy@mewlegal.com William M. Espy wespy@mewlegal.com I further certify that I have served a copy of the foregoing document by U.S. Mail, postage prepaid, on: The Honorable Robert S. Vance, Jr. Jefferson County Courthouse, Room 330 716 Richard Arrington, Jr., Blvd. N. Birmingham, AL 35203 /s/ Douglas McElvy OF COUNSEL 17
AlaFile E-Notice 45-CV-2009-900019.00 To: James Douglas McElvy dmcelvy@mcelvylaw.com NOTICE OF ELECTRONIC FILING IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA CONERSTONE COMMUNITY OUTREACH, INC. v. BOB RILEY ET AL 45-CV-2009-900019.00 The following NOTICE OF APPEARANCE was FILED on 4/1/2010 1:37:59 PM Notice Date: 4/1/2010 1:37:59 PM RUBY JONES CIRCUIT COURT CLERK LOWNDES COUNTY, ALABAMA WASHINGTON STREET HAYNEVILLE, AL 36040 334-548-2252 ruby.jones@alacourt.gov Attachment A to Attorney General's Notice and Motion
ELECTRONICALLY FILED 4/1/2010 1:37 PM CV-2009-900019.00 CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA RUBY JONES, CLERK IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA CORNERSTONE COMMUNITY ) OUTREACH, INC., ET AL., ) ) Plaintiffs, ) ) v. ) CV-2009-900019 ) BOB RILEY, ET AL., ) ) Defendants. ) STATE OF ALABAMA, ) ) Plaintiff, ) ) v. ) CV-2009-900027 ) CHAD DICKIE, ET AL., ) ) Defendants. ) ATTORNEY GENERAL TROY KING S NOTICE OF APPEARANCE AND MOTION TO COMPEL JOHN M. TYSON TO PRODUCE STATE S EVIDENCE Attorney General Troy King, by and through his undersigned counsel, hereby enters an appearance on behalf of the State of Alabama and those State officers sued in their official capacities in this action pursuant to his absolute statutory and constitutional authority to represent the State and its interests, as the Chief Legal Officer for the State. 1 See, e.g., Ala. Code 36-15-1(2) (2001) ( [The Attorney General] 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 36-15-12 (2001) ( The attorney general is authorized to institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state. ); Ala. Code 36-15-21 (2001) ( All litigation concerning the 1 The Governor has been named as a defendant in Cornerstone Community Outreach v. Riley, CV- 2009-900019, the Declaratory Judgment Action, and the Attorney General does not contest his right to appear through his own counsel. Page 1 of 3 Attachment A to Attorney General's Notice and Motion
interest of the state, or any department of the state, shall be under the direction and control of the Attorney General. ); Ex parte Weaver, 570 So. 2d 675, 679-80 (Ala. 1990) ( [A]ll litigation concerning the interest of the state or any department thereof [lies] under the direction and control of the attorney general. Quoting State ex rel. Carmichael v. Jones, 252 Ala. 479, 484, 41 So. 2d 280, 284 (Ala. 1949).). On March 22, 2010, the Attorney General relieved John M. Tyson, Jr., of any litigation responsibilities he had in this litigation. On March 30, 2010, the Attorney General relieved Edgar W. Greene, Jr., Martha Tierney, and Timothy W. Morgan of any litigation responsibilities they had in this litigation. The Attorney General has also requested that Tyson provide him with all evidence in Tyson s possession and control needed for the Attorney General to represent the State s interest herein. Tyson has to date refused the Attorney General s request. The Attorney General is hereby requesting that this Court order Tyson to provide him with a copy of and access to all evidence in Tyson s possession and control and in the possession and control of any member of the Governor s Task Force on Illegal Gambling needed for the Attorney General s representation of the State and the State officers in this litigation. Respectfully submitted this 1st day of April 2010. TROY KING ATTORNEY GENERAL OF COUNSEL: J. Douglas McElvy Elizabeth C. Wible Aliant Center 2740 Zelda Road, Fourth Floor Montgomery, AL 36106 Phone: 334.293.0567 Fax: 334.293.0565 dmcelvy@mcelvylaw.com ewible@mcelvylaw.com BY: /s/ J. Douglas McElvy J. Douglas McElvy (MCE006) Elizabeth C. Wible (WIB003) Deputy Attorneys General Page 2 of 3 Attachment A to Attorney General's Notice and Motion
OF COUNSEL: H.E. Nix, Jr. P.O. Box 241892 Montgomery, AL 36124 Phone: 334.279.7770 FAX: 334.279.7772 cnix@nixattorney.com OFFICE OF THE ATTORNEY GENERAL 500 Dexter Avenue Montgomery, AL 36130 Phone: 334.353.8811 Fax: 334.242.2433 CPorter@ago.state.al.us BY: BY: /s/ H.E. Nix, Jr. H.E. Nix, Jr. (NIX007) Deputy Attorney General /s/cheairs M. Porter Cheairs M. Porter (POR015) Special Assistant Attorney General CERTIFICATE OF SERVICE I hereby certify that I have on this 1st day of April, 2010, electronically filed the foregoing with the Clerk of the Court using the AlaFile system which will send notification of such filing to the following counsel of record at their e-mail addresses registered with AlaFile: Collins Pettaway, Jr. Prince Darius Chestnut Robert D. Segall James David Martin Jock M. Smith Joseph C. Espy, III Henry Theodore Reagan Edgar W. Greene, Jr. Martha Adrienne Tierney David M. Barber I further certify that I have on this 1st day of April, 2010, served by U.S. Mail, postage prepaid, a copy of the foregoing document on the following counsel of record at the addresses indicated: John M. Tyson, Jr. OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, AL 36130 /s/ Douglas McElvy OF COUNSEL Page 3 of 3 Attachment A to Attorney General's Notice and Motion
AlaFile E-Notice 45-CV-2009-900027.00 To: James Douglas McElvy dmcelvy@mcelvylaw.com NOTICE OF ELECTRONIC FILING IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA STATE OF ALABAMA v. CHAD DICKIE ET AL 45-CV-2009-900027.00 The following NOTICE OF APPEARANCE was FILED on 4/1/2010 1:40:21 PM Notice Date: 4/1/2010 1:40:21 PM RUBY JONES CIRCUIT COURT CLERK LOWNDES COUNTY, ALABAMA WASHINGTON STREET HAYNEVILLE, AL 36040 334-548-2252 ruby.jones@alacourt.gov Attachment A to Attorney General's Notice and Motion
ELECTRONICALLY FILED 4/1/2010 1:40 PM CV-2009-900027.00 CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA RUBY JONES, CLERK IN THE CIRCUIT COURT OF LOWNDES COUNTY, ALABAMA CORNERSTONE COMMUNITY ) OUTREACH, INC., ET AL., ) ) Plaintiffs, ) ) v. ) CV-2009-900019 ) BOB RILEY, ET AL., ) ) Defendants. ) STATE OF ALABAMA, ) ) Plaintiff, ) ) v. ) CV-2009-900027 ) CHAD DICKIE, ET AL., ) ) Defendants. ) ATTORNEY GENERAL TROY KING S NOTICE OF APPEARANCE AND MOTION TO COMPEL JOHN M. TYSON TO PRODUCE STATE S EVIDENCE Attorney General Troy King, by and through his undersigned counsel, hereby enters an appearance on behalf of the State of Alabama and those State officers sued in their official capacities in this action pursuant to his absolute statutory and constitutional authority to represent the State and its interests, as the Chief Legal Officer for the State. 1 See, e.g., Ala. Code 36-15-1(2) (2001) ( [The Attorney General] 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 36-15-12 (2001) ( The attorney general is authorized to institute and prosecute, in the name of the state, all civil actions and other proceedings necessary to protect the rights and interests of the state. ); Ala. Code 36-15-21 (2001) ( All litigation concerning the 1 The Governor has been named as a defendant in Cornerstone Community Outreach v. Riley, CV- 2009-900019, the Declaratory Judgment Action, and the Attorney General does not contest his right to appear through his own counsel. Page 1 of 3 Attachment A to Attorney General's Notice and Motion
interest of the state, or any department of the state, shall be under the direction and control of the Attorney General. ); Ex parte Weaver, 570 So. 2d 675, 679-80 (Ala. 1990) ( [A]ll litigation concerning the interest of the state or any department thereof [lies] under the direction and control of the attorney general. Quoting State ex rel. Carmichael v. Jones, 252 Ala. 479, 484, 41 So. 2d 280, 284 (Ala. 1949).). On March 22, 2010, the Attorney General relieved John M. Tyson, Jr., of any litigation responsibilities he had in this litigation. On March 30, 2010, the Attorney General relieved Edgar W. Greene, Jr., Martha Tierney, and Timothy W. Morgan of any litigation responsibilities they had in this litigation. The Attorney General has also requested that Tyson provide him with all evidence in Tyson s possession and control needed for the Attorney General to represent the State s interest herein. Tyson has to date refused the Attorney General s request. The Attorney General is hereby requesting that this Court order Tyson to provide him with a copy of and access to all evidence in Tyson s possession and control and in the possession and control of any member of the Governor s Task Force on Illegal Gambling needed for the Attorney General s representation of the State and the State officers in this litigation. Respectfully submitted this 1st day of April 2010. TROY KING ATTORNEY GENERAL OF COUNSEL: J. Douglas McElvy Elizabeth C. Wible Aliant Center 2740 Zelda Road, Fourth Floor Montgomery, AL 36106 Phone: 334.293.0567 Fax: 334.293.0565 dmcelvy@mcelvylaw.com ewible@mcelvylaw.com BY: /s/ J. Douglas McElvy J. Douglas McElvy (MCE006) Elizabeth C. Wible (WIB003) Deputy Attorneys General Page 2 of 3 Attachment A to Attorney General's Notice and Motion
OF COUNSEL: H.E. Nix, Jr. P.O. Box 241892 Montgomery, AL 36124 Phone: 334.279.7770 FAX: 334.279.7772 cnix@nixattorney.com OFFICE OF THE ATTORNEY GENERAL 500 Dexter Avenue Montgomery, AL 36130 Phone: 334.353.8811 Fax: 334.242.2433 CPorter@ago.state.al.us BY: BY: /s/ H.E. Nix, Jr. H.E. Nix, Jr. (NIX007) Deputy Attorney General /s/cheairs M. Porter Cheairs M. Porter (POR015) Special Assistant Attorney General CERTIFICATE OF SERVICE I hereby certify that I have on this 1st day of April, 2010, electronically filed the foregoing with the Clerk of the Court using the AlaFile system which will send notification of such filing to the following counsel of record at their e-mail addresses registered with AlaFile: Collins Pettaway, Jr. Prince Darius Chestnut Robert D. Segall James David Martin Jock M. Smith Joseph C. Espy, III Henry Theodore Reagan Edgar W. Greene, Jr. Martha Adrienne Tierney David M. Barber I further certify that I have on this 1st day of April, 2010, served by U.S. Mail, postage prepaid, a copy of the foregoing document on the following counsel of record at the addresses indicated: John M. Tyson, Jr. OFFICE OF GOVERNOR BOB RILEY 600 Dexter Avenue Montgomery, AL 36130 /s/ Douglas McElvy OF COUNSEL Page 3 of 3 Attachment A to Attorney General's Notice and Motion
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