5-1 Pltfs Motion for TRO Exh A

8/9/2019 5-1 Pltfs Motion for TRO Exh A

1/8

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

WILLIAM JOHNSON, ANNIE PEARL

LEFTWICH, BOBBI MORGAN, DONALD

MEANS, ERNEST EDMONDS, FAIRY

GORDON, IRIS SERMON, JOHNNY BUTLER,

MERJEAN LITTLE, MOSES JONES, VASSIE

BROWN, WILLIE MAE REEVES, BEVERLY

GORDON, JOHNNY B. MORROW, FANNIE

ISHMAN, LESLIE CHEATEM, MARGIE

JAMES, BOBBY SINGLETON, A. J.

MCCAMBELL, JOHNNY FORD, LOUISMAXWELL, MARY RUTH WOODS, LISA M.

WARE, CLARA P. GRIMMETT, CHARLES

CHAMBLISS, JOHNNIE B. HARRISON, G.

DYANN ROBINSON, SHIRLEY W. CURRY,

SARAH STRINGER, MILES D. ROBINSON, and

WILLIE LEE PATTERSON, individually and on

behalf of others similarly situated,

Plaintiffs,

v.

BOB RILEY, in his individual capacity and in his

official capacity as Governor of Alabama, and

JOHN M. TYSON, JR., individually and in his

official capacity as special prosecutor and task

force commander of the Governors Task Force on

Illegal Gaming,

Defendants.

*

*

*

*

*

*

*

*

*

**

*

*

*

*

*

*

*

** Civil Action No.

* 7:10-cv-02067-SLB

*

* Three-judge court

* requested

*

*

*

*

*

*

EXHIBIT A TO

PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER

FI2010 Aug-04 PU.S. DISTRICT

N.D. OF AL

Case 7:10-cv-02067-SLB Document 5-1 Filed 08/04/10 Page 1 of 8


2/8

AlaFile E-Notice

To: GRAY FRED DAVID

[email protected]

46-CV-2010-000015.00

Judge: STEVEN R. PERRYMAN

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF MACON COUNTY, ALABAMA

The following matter was FILED on 8/2/2010 9:53:32 AM

E. PAUL JONES ET AL VS JOHN M TYSON, JR

46-CV-2010-000015.00

MOTION TO VACATE OR MODIFY

Notice Date: 8/2/2010 9:53:32 AM

[Attorney: TYSON JOHN M JR]

DAVID LOVE, JR.

CIRCUIT COURT CLERK

MACON COUNTY, ALABAMA

101 EAST NORTHSIDE STREET

TUSKEGEE, AL 36083

[email protected]

D001 TYSON JOHN M JR DISTRICT ATTORNEY



3/8

/s JOHN MALCOLM TYSON JR

Signature of Attorney or Party:Date:Check here if you have filed or are filingcontemoraneously with this motion an Affidavit ofSubstantial Hardship or if you are filing on behalf of anagency or department of the State, county, or municipalgovernment. (Pursuant to 6-5-1 Code of Alabama(1975), governmental entities are exempt from

re a ment of f il in fees

Case No.STATE OF ALABAMAUnified Judicial System

46-MACON District Court Circuit Court

Revised 3/5/08

E. PAUL JONES ET AL VS JOHN M TYSON, JRCIVIL MOTION COVER SHEET

Name of Filing Party:

Name, Address, and Telephone No. of Attorney or Party. If Not Represented.

Attorney Bar No.:

JOHN MALCOLM TYSON JR

205 GOVERNMENT ST, STE C501MOBILE, AL 36644

TYS002

TYPE OF MOTION

Motions Requiring Fee Motions Not Re uirin Fee

Default Judgment ($50.00)

Joinder in Other Party's Dispositive Motion (i.e.Summary Judgment, Judgment on the Pleadings, orother Dispositive Motion not pursuant to Rule 12(b))($50.00)

Summary Judgment pursuant to Rule 56($50.00)

Renewed Dispositive Motion(Summary Judgment,Judgment on the Pleadings, or other DispositiveMotion not pursuant to Rule 12(b)) ($50.00)

Judgment on the Pleadings ($50.00)

Motion to Dismiss, or in the Alternative SummaryJudgment($50.00)

Other

Add Party

Amend

Change of Venue/Transfer

Compel

Consolidation

Continue

Deposition

Designate a Mediator

Judgment as a Matter of Law (during Trial)

Disburse Funds

Extension of Time

In Limine

Joinder

More Definite Statement

Motion to Dismiss pursuant to Rule 12(b)

New Trial

Objection of Exemptions Claimed

Plaintiff's Motion to Dismiss

Preliminary Injunction

Protective Order

Quash

Release from Stay of Execution

Sanctions

Sever

Special Practice in Alabama

Stay

Strike

Supplement to Pending MotionVacate or Modify

Withdraw

Otherpursuant to Rule (Subject to Filing Fee)

pursuant to Rule ($50.00)

*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.

*Motion fees are enumerated in 12-19-71(a). Feespursuant to Local Act are not included. Please contact theClerk of the Court regarding applicable local fees.

Local Court Costs $

D001 - TYSON JOHN M JR DISTRICT ATT

8/2/2010 9:51:22 AM

CV201000001500

Pendente Lite

Oral Arguments Requested

Motion to Intervene ($297.00)

ELECTRONICALLY FILED8/2/2010 9:53 AM

CV-2010-000015.00CIRCUIT COURT OF

MACON COUNTY, ALABAMADAVID LOVE, JR., CLERK



4/8

IN THE CIRCUIT COURT OF MACON COUNTY, ALABAMA

E. PAUL JONES, in his official capacity,

et al.,

Plaintiffs,

v.

JOHN M. TYSON, JR. individually and in

his official capacity

Defendant.

)

)

))

)

)

)

)

)

)

)

CASE NO: CV-2010-15

DEFENDANT JOHN M. TYSON, JR.S EMERGENCY MOTION TO DISSOLVE

PRELIMINARY INJUNCTION OR TO STAY PRELIMINARY INJUNCTIONPENDING APPEAL

Defendant John M. Tyson moves this Court to immediately dissolve or stay the

preliminary injunctionit issued on March 22, 2010. For weeks now, VictoryLand has been the

only casino in this State openly running illegal slot machines under the guise of electronic

bingo. The only thing that has kept the State from enforcing the law against VictoryLand has

been this Courts injunction. The Supreme Court has now made clear that the injunction was an

unlawful infringement upon the Governors power to enforce the law, and the Governors Task

Force stands ready to enforce the law as soon as this Court lifts the injunction. This Court has

jurisdiction to vacate or stay the injunction before the Supreme Court issues its judgment, see

ALA.R.CIV.P. 62(c), and this Court should do so immediately. Tysonasks this Court to rule

on this emergency motion, with or without a hearing, no later than Wednesday, August 4,

2010.

ELECTRONICALLY FILED8/2/2010 9:53 AM

CV-2010-000015.00CIRCUIT COURT OF

MACON COUNTY, ALABAMADAVID LOVE, JR., CLERK



5/8

2

REASONS THE INJUNCTION SHOULD BE DISSOLVED OR STAYED

A court should dissolve an injunction when it is no longer equitable that the judgment

have prospective application. ALA.R.CIV.P. 60(b)(5). Similarly, when determining whether

to stay an injunction while an appeal remains pending, a court may consider whether (1) the

movant can show a likelihood of success on the merits; (2) the movant will suffer irreparable

injury if the stay is not granted; (3) the stay will not harm the other parties; and (4) whether

the granting of the stay would serve the public interest.Ruiz v. Estelle, 666 F.2d 854, 856 (5th

Cir. 1982) (considering rule similar to ALA.R.APP.P. 8). Each of these considerations weighs

decidedly in Tysons favor here.

A. Tyson has succeeded on the merits.As an initial matter, Tyson has far more than simply a likelihood of success on the merits.

He has already succeeded. In a unanimous, 9-0 opinion, the Supreme Court held that the

injunction was unlawful because District Attorney Jones and Sheriff Warren had no chance of

succeeding on the merits. In particular, the Supreme Court held that this courts decision was

based on a misapprehension of applicable law. Slip op. at 26. The Court emphatically

rejected any suggestion that DA Jones and Sherriff Warren could block the Governors

enforcement of the law against VictoryLand, reasoning that the governor is the superior

officer. Id. at 39. The Court stated without qualification that Tyson is not usurping the offices

of District Attorney Jones, Sheriff Warren, or Attorney General King. Id. at 44.1

1Also this past Friday, the Supreme Court overruled the gambling interests application for rehearing in Ex parteState, No. 1090808, ___ So. 3d ___, 2010 WL 2034825 (Ala. May 21 2010), the decision that controlled theoutcome in the case at hand.



6/8

3

B. The State will suffer irreparable harm if the injunction is not vacated or stayed.Moreover, the State will suffer irreparable harm if this Court does not dissolve or stay the

injunction immediately. The Supreme Court has directed this Court to vacate the injunction once

the case has been remanded. See Slip Op. at 46. But the case will not be remanded for at least

18 days after the Supreme Courts decision, see ALA.R.APP.P. 41, which is the date on which

the Supreme Court is currently scheduled to issue its certificate of judgment. But a remand will

likely take longer than that, for Plaintiffs may file an application for rehearing in the Supreme

Court. In light of the unanimous and unequivocal nature of the Supreme Courts opinion, any

such rehearing application would be frivolous. But Plaintiffs are likely to file such a petition

solely in an attempt to achieve delay and to protect VictoryLands illegal operations as long as

they can.

If Plaintiffs achieve delay and this Courts injunction remains effective, the State will

suffer irreparable harm. VictoryLand is the only casino against which the Task Force is

currently enjoined from enforcing Alabama law, which limits legal bingo to the traditional

game of bingo and prohibits slot machines. See Ex parte State, No. 1090808, ___ So. 3d ___,

2010 WL 2034825, at *24 (Ala. May 21 2010) (stating that the Governors position that the

term bingo is a reference to the game traditionally known as bingo is consistent with at least

three [Alabama] appellate decisions). The State has an interest of the highest order in enforcing

its criminal laws against those persons who violate themparticularly when, as here, those who

violate these laws are profiting, to the tune of more than $100 million a year, off of Alabamas

poorest citizens. VictoryLands brazen defiance of the law cannot stand, and the State will put

an end to that defiance as soon as this Court vacates or stays its injunction.



7/8

4

C. Vacating or staying the injunction will not harm the Plaintiffs in any legallysignificant way.

Plaintiffs cannot try to preserve the injunction on the ground that they will be harmed in

if it does not remain in place. The Supreme Court has now held, in no uncertain terms, that DA

Jones and Sheriff Warren have no power to block the Governors enforcement of the law. They

have no legitimate interest in precluding the Governor from seeing to it that the law is faithfully

executed. They have no protectible interest in continuing to be even temporarily exempt from

equal enforcement of Alabama law.

D. The public interest strongly favors vacating or staying the injunction.The public interest demands that the injunction be vacated or stayed immediately.

VictoryLand is now the only casino under the States jurisdiction that openly operates gambling

machines that accept cash, credit or vouchers and then dispense cash value prizes on the basis of

elements of chance. It is able to do so because this Courts injunction protects it from Alabama

law. To this day and despite the Supreme Courts clear ruling that the injunction is improper,

VictoryLand is continuing to extract illicit profits from this States citizens 24 hours a day, 7

days a week, without fear of law enforcement action to stop it. This Courts injunction is the

only thing standing in the way of the States enforcement of the law against the last bastion of

openly illegal gambling activity in Alabama. It is now clear that the injunction was wrong, and it

is not equitable that the injunction have prospective application. Accordingly, Tyson asks the

Court to dissolve the Preliminary Injunction, or, in the alternative, to stay it pending the remand

of this cause from the Supreme Court.



8/8

5

TYSON ASKS THAT THIS COURT RULE ON THIS EMERGENCY MOTION, WITH

OR WITHOUT A HEARING, NOT LATER THAN WEDNESDAY, AUGUST 4, 2010. EQUITY

DEMANDS THAT THE COURT PROCEED IN THIS EXPEDITED MANNER. EACH TIME

THE PARTIES SEEKING TO PREVENT A RAID AT THE VICTORYLAND CASINO HAVE

BROUGHT EMERGENCY MOTIONS BEFORE THIS COURT, THIS COURT HAS RULED

UPON THEM ALMOST INSTANTANEOUSLY. FAIRNESS REQUIRES THAT THE COURT

ACT WITH SIMILAR DISPATCH IN RULING ON THIS MOTION.

Respectfully submitted,

s/ John M. Tyson, Jr.One of the Attorneys for Defendant John M.Tyson, Jr.

OF COUNSEL:

Timothy W. MorganOffice of the District Attorney, 101 Northside SquareHuntsville, Alabama 35801(256) [email protected]

John M. Tyson, Jr.OFFICE OF GOVERNOR BOB RILEY600 Dexter AvenueMontgomery, Alabama 36130(251) 574-8400(251) 574-8484 (fax)[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on August 2, 2010, I electronically filed the foregoing with the Clerkof the Court using the AlaFile system which will send notification of such filing to all parties ofrecord.

s/ John M. Tyson, Jr.OF COUNSEL


5-1 Pltfs Motion for TRO Exh A

Documents

Transcript of 5-1 Pltfs Motion for TRO Exh A