TYSON v. MACON County GREYHOUND PARK INC.

• Decision Date: 04 February 2010
• Docket Number: 1090548.
• Citation: 43 So.3d 587
• Parties: John M. TYSON, Jr. v. MACON COUNTY GREYHOUND PARK, INC., d/b/a VictoryLand.
• Court: Alabama Supreme Court

43 So.3d 587

John M. TYSON, Jr. v. MACON COUNTY GREYHOUND PARK, INC., d/b/a VictoryLand.

1090548.

Supreme Court of Alabama.

February 4, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

John M. Tyson, Jr., Martha Tierney, and Edgar Greene, Office of Governor Bob Riley, for appellant.

John M. Bolton III, Charlanna W. Spencer, and Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; Fred D. Gray and Stanley Gray of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee; William M. Slaughter, Peter J. Tepley, and Patricia C. Diak of Haskell Slaughter Young, Birmingham; and J. Mark White, Augusta S. Dowd, and William M. Bowen, Jr., of White Arnold & Dowd P.C., Birmingham, for appellee.

PER CURIAM.

Macon County Greyhound Park, Inc., d/b/a VictoryLand (hereinafter "Victory-Land"), commenced an action in the Macon Circuit Court against John M. Tyson, Jr., individually and in his official capacity as special prosecutor and task force commander of the Governor's Task Force on Illegal Gambling pursuant to Executive Order No. 44 (hereinafter "Tyson"), seeking injunctive and declaratory relief stemming from Tyson's arrival at the premises of VictoryLand without a search warrant in the early morning hours of January 29, 2010, for the purpose of seizing machines that, Tyson says, are illegal gambling devices the executive branch within its zone of discretion in violation of the separation-of-powers doctrine set forth at § 43 of the Alabama Constitution of 1901 ("In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."). The exercise of equitable jurisdiction in such cases is consistent with this Court's recognition of the propriety of actions against State officials in their official capacity to enjoin enforcement of a void law because such conduct—enforcing a void law—exceeds the discretion of the executive in administering the laws of this State. See, e.g., Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971) (permitting actions to enjoin State officials from enforcing an unconstitutional law).

The complaint in this action does not present a situation in which the plaintiff acknowledges that his conduct is prohibited by a statute and then challenges the enforceability of the statute. To the contrary, VictoryLand strenuously maintains its innocence. Entertainment of a civil action for injunctive and declaratory relief under such circumstance cannot be countenanced lest the trial court become involved in a role that should be left to the fact-finder in a criminal proceeding following a plea of not guilty. The circumstance presented in Walker v. City of Birmingham, 216 Ala. 206, 208-09, 112 So. 823, 825 (1927), is distinguishable because the issue presented in that case was the lack of authority of a municipal official to deny arbitrarily a license to operate a dairy farm, activity beyond the discretion of the official, and did not deal with an injunction against enforcement of the criminal laws.

This principle has ample footing in our precedent in those cases where the issue of subject-matter jurisdiction has been considered. See Eastburn v. Holcombe, 243 Ala. 433, 434, 10 So.2d 457, 458 (1942) ("It is a sound principle of law, well recognized in our decisions, that a court of equity will not intervene to restrain officers from the enforcement of criminal statutes, the constitutional integrity of which have been sustained, especially where, as here, the statute itself affords a full hearing in the courts. Higdon v. McDuff, 233 Ala. 497, 172 So. 636, 637 [(1937)]; Fisher v. McDuff, 233 Ala. 499, 172 So. 637 [(1937)]; Ex Parte State, 200 Ala. 15, 75 So. 327 [(1917)]."). Under such a circumstance, there is no basis on which to find irreparable injury. See also Kennedy v. Shamblin, 234 Ala. 230, 231, 174 So. 773, 774 (1937):

"As the averments of the bill show, the only property rights involved are such as the complainant has in said slot machines, in which he has invested his money and the profits which said machines are taking. And the only ground on which he invokes the injunctive protection of the court is that said machines are not within the interdiction of the statute.

"Courts of equity do not extend their aid to the protection of such property rights, unless authorized by statute, but leave such matters to the court of criminal jurisdiction. Ex parte State ex rel. Martin, 200 Ala. 15, 75 So. 327 [(1917)].

"Moreover, the statute, the enforcement of which the complainant seeks to enjoin, provides a remedy for the protection of complainant's property rights and an adjudication in respect thereto. Caud[le] v. Cotton, Sheriff (Ala.Sup.) 173 So. 847 [(1937)]; [Higdon] v. McDuff, Sheriff, 233 Ala. 497, 172 So. 636 [(1937)]; Fisher v. McDuff, Sheriff, 233 Ala. 499, 172 So. 637 [(1937)]."

(Emphasis added.)

VictoryLand states, with no explanation and no citation to any authority, that it will be provided no due process of law in a civil-forfeiture proceeding. At this point, nothing before us indicates that the procedures to be used in a forfeiture proceeding will be inadequate to protect Victory-Land's due-process rights. Nor are we impressed by the contention that the prospect for Tyson's resort to a civil court to enforce a seizure of property pursuant to § 13A-12-30, Ala.Code 1975, a provision found in the Criminal Code, confers jurisdiction on a civil court to enjoin Tyson's attempt to enforce provisions of the criminal law.

We recognize that in Barber v. Cornerstone Community Outreach, Inc., 42 So.3d 65 (Ala.2009), and Barber v. Jefferson County Racing Association, Inc., 960 So.2d 599 (Ala.2006), where the plaintiffs sought to block enforcement of a statute in the Criminal Code without acknowledging that their conduct fell within the statutory prohibition and without an accompanying prayer for a judgment declaring the statute invalid, we did not adhere to the boundary lines long established in our precedent. In those cases the issue was not raised. Our absence of attention to the issue of subject-matter jurisdiction in those cases cannot justify action by the judiciary in this case in contravention of our duty to observe the proper boundaries between judicial and executive functions mandated by § 43 of the Alabama Constitution of 1901 and, thereby permit, sub silentio, the overturning of the settled principles of constitutional law applicable to this proceeding.

Justice Woodall's dissenting opinion would perpetuate the disorderly practice of permitting those threatened with criminal prosecution to seek relief in civil proceedings, without alluding to the long line of cases from which this Court departed in the recent past when such action was permitted. The time has come to return to the sounder course dictated by our established precedent, rather than continue down the wrong road because of timidity in admitting that we had done so. To call this alternative a circus, as the dissenting opinion suggests, ignores the reality that in the many years of adherence to wise and settled principles limiting our jurisdiction in such cases we were not embroiled in repeated efforts to frustrate enforcement of the criminal laws by attempts to pursue preemptive civil proceedings.

As we stated recently in an order entered in the case of Barber v. Houston County Economic Development Association (No. 1090444, January 15, 2010), the trial court "lacks subject-matter jurisdiction to interfere with a criminal proceeding by civil action." As in that case, we vacate the order before us, dismiss the action, and dismiss the appeal.

ORDER VACATED; ACTION DISMISSED; APPEAL DISMISSED.

LYONS, STUART, BOLIN, PARKER, and SHAW, JJ., concur.

SMITH, J., concurs specially.

MURDOCK, J., concurs in the rationale in part and concurs in the result.

COBB, C.J., and WOODALL, J., dissent.

SMITH, Justice (concurring specially).

I write separately to express my basis for joining the main opinion. As I understand it, the main opinion rests on the conclusion that the "`only effect [of the declaratory-judgment action filed by Macon County Greyhound Park, Inc., d/b/a VictoryLand (hereinafter "VictoryLand"),] would be to decide matters which properly should be decided in a criminal action.'" 43 So.3d at 589 (quoting 22A Am.Jur.2d Declaratory Judgments § 57 (2003) (emphasis added)). That conclusion, in turn, rests on the conclusion that VictoryLand's declaratory-judgment action is solely an attempt to use a civil proceeding to interfere with a criminal investigation.

I do not read the main opinion as holding that the trial court would be without subject-matter jurisdiction to entertain an action, such as the action filed in State ex rel. Tyson v. Ted's Game Enterprises, 893 So.2d 355 (Ala.Civ.App.2002), aff'd, Ex parte Ted's Game Enterprises, 893 So.2d 376 (Ala.2004), in which it cannot be said that the action is solely an attempt to use a civil proceeding to interfere with a criminal investigation.

MURDOCK, Justice (concurring in the rationale in part and concurring in the result).

I agree with almost all aspects of the main opinion. I find it unnecessary in deciding this case, however, to conclude that a plaintiff must concede that his or her conduct satisfies the elements of a criminal statute in order to seek equitable or declaratory relief on the different ground that the statute is void on its face or that, for some other reason, the actions or threatened actions sought to be restrained fall outside that generous measure of discretion afforded by the...