BARBER v. CORNERSTONE Cmty. OUTREACH INC.
| Decision Date | 29 January 2010 |
| Docket Number | 1080805 and 1080806. |
| Citation | 42 So.3d 65 |
| Parties | David BARBER, Emory Folmar, and Christopher Murphy v. CORNERSTONE COMMUNITY OUTREACH, INC., and Freedom Trail Ventures, Ltd. Governor Bob Riley v. Cornerstone Community Outreach, Inc., and Freedom Trail Ventures, Ltd. |
| Court | Alabama Supreme Court |
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David Barber, Montgomery, for appellants David Barber, Emory Folmar, and Col. Christopher Murphy.
Henry T. Reagan, Montgomery, for appellant Governor Bob Riley.
Robert D. Segall, Lee H. Copeland, J. David Martin, and Shannon L. Holliday of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, LLC, Selma, for appellee Cornerstone Community Outreach, Inc.
Joe Espy III and William M. Espy of Melton, Espy & Williams, P.C., Montgomery, for appellees Freedom Trail Ventures, Ltd.
Troy King, atty. gen., and Corey L. Maze, deputy atty. gen., and Cheairs M. Porter, asst. atty. gen., for amicus curiae Troy King, atty. gen., in support of neither party.
Susan S. Wagner, William G. Somerville, and Andrew P. Walsh of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for amicus curiae Bally Gaming, Inc., in support of the appellees.
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. 1901 (Local Amendments, Lowndes County, § 3, Ala. Const. 1901 (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,1 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. 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").2 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. 1901,3 and whether the electronic gaming machines seized by the Task Force constitute illegal "slot machines" under § 13A-12-27, Ala. Code 1975. 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.
Shortly after the seizure of property at the EC, the trial court held a conference call with the parties' attorneys to schedule a hearing on the motion for a preliminary injunction. Because the Task Force's action caused Cornerstone to shut down its operation at the EC, Cornerstone requested that the hearing be held immediately. On behalf of the Task Force and Governor Riley, Barber requested that the defendants be given a week to prepare for the hearing. Cornerstone stated that it would agree to Barber's timetable if, in the meantime, it would be permitted to continue its operations at the EC without the threat of another raid by the Task Force during the pendency of this action. The Task Force refused to agree that it would refrain from re-raiding the EC, and thus the trial court set the hearing for two days after the conference call.
During a two-day preliminary-injunction hearing, the trial court heard testimony from the members of the Task Force who had executed the search warrant, from the Task Force's slot-machine expert, Daryl Robert Sertell, and from Cornerstone and FTV's gambling expert, Joseph Valandra. Following the hearing, the trial court entered an order granting Cornerstone and FTV's request for a preliminary injunction, ordering the Riley defendants to return all property seized during the March 19, 2009, raid, and ordering them to refrain from interfering with Cornerstone's operation at the EC during the pendency of this action.
On March 30, 2009, Governor Riley (case no. 1080806) and the members of the Task Force (case no. 1080805) appealed the trial court's issuance of the preliminary injunction.
In addition, they requested, and on April 17, 2009, this Court granted, a stay of the preliminary injunction pending this Court's determination of these appeals.
On April 21, 2009, the Task Force instituted a civil-forfeiture proceeding in the Lowndes Circuit Court seeking forfeiture of all items seized during the March 19, 2009, raid on the EC.
On May 26, 2009, the Riley defendants filed their appellants' brief on the merits of their appeals of the trial court's preliminary injunction. On May 29, 2009, Cornerstone and FTV filed in both appeals a motion asking this Court to dissolve the preliminary injunction and to dismiss the appeals.4 In the motions to dismiss, Cornerstone and FTV alleged that the Task Force's filing of the civil-forfeiture action, along with the fact that the Task Force had not further interfered with Cornerstone's operation at the EC, rendered the preliminary injunction unnecessary and the appeals moot. The Riley defendants filed a response in opposition to the motions to dismiss the appeals, contending that the civil-forfeiture action does not moot the instant appeals and urging the Court to decide the issues presented by the trial court's issuance of the preliminary injunction. Since these filings, Cornerstone and FTV have filed their appellees' brief regarding the merits of the appeals from the preliminary injunction, and the Riley defendants have filed their reply brief.
Chapman v. Gooden, 974 So.2d 972, 983 (Ala.2007) (emphasis omitted; emphasis added).5
When one party sues another in an effort to obtain declaratory or injunctive relief contending that the other party's conduct is wrongful, a showing of "voluntary cessation" of the challenged conduct can moot the action. Demonstrating that the action should be deemed moot on this basis, however, is not an easy burden.
Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000). As the United States Supreme Court stated earlier in United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), a ...
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