Was there hanky panky at the Supreme Court?

By By Bob Martin, The Alabama Scene
Attorneys representing VictoryLand were somewhat surprised at what they read in a recently-filed motion by the governor seeking to vacate or stay an injunction by a circuit judge to halt raids at the racetrack and gaming facility in Macon County.
The motion was filed at the State Supreme Court by lawyers representing Gov. Bob Riley, including John Tyson Jr., the commander of the Anti-Gambling Task Force. According to the automated stamped time on the motion it was filed at 1:55:15 p.m. on Jan. 29.
What the legal team for VictoryLand found strange was a citation to a case in that filing. On page 5 of the motion filed by the governor’s lawyers, a reference or citation was made to the Supreme Court’s decision in the case of Surles v. Ashville, No. 1081015.
The reason they found it a strange citation was that the case of Surles v. Ashville had not been released when the governor’s filing was made. According to the Supreme Court Clerk’s office Surles v. Ashville was released at 2:04 p.m. on Jan. 29.
No one, including attorneys in a case, is permitted to see or be told the details of a decision before it is released, other than the justices and the court staff. Although lawyers for both sides are notified on a confidential basis the result of a case two hours prior to its release, they are not told the details.
Lawyers with whom I talked said it would take clairvoyant skills for a lawyer to be confident enough to cite specific language in a case by only having knowledge about which side won or lost. It would also violate the rules and perhaps the State Bar’s Code of Professional Responsibility for an attorney to use confidential information in a court filing before the information was made public.
The clerk’s office assured The Independent that no one in that office had released the details of the decision early. So who at the court cheated for John Tyson Jr. and the governor? We’ll likely never know.
This wasn’t the first time
This is not the first time in the governor’s bingo war that someone at the court has been accused of making an improper exparte communication with Riley or his lawyers.
A previous matter involved a judge assignment in a case brought by the governor and his task force on gambling against an electronic bingo operation at White Hall in Lowndes County.
Chief Justice Cobb had appointed Jefferson County Circuit Judge Robert Vance to take the case primarily because he was already handling a similar matter in Walker County.
Last August, The Independent received information that on or about July 29, 2009, the governor, a party to the lawsuit, placed a telephone call to one or more of the justices, urging them to overrule Cobb and remove Vance from the case.
The information we received was that the phone call took place while the governor was in Washington and that one of the lawyers hired to advise his gambling task force, was with Riley at the time.
A communication with a judge in a case by a party or a lawyer for one side without the lawyers representing other parties being present violates all kinds of judicial ethics rules and laws.
We have not seen the governor’s telephone logs, but we do know he was in Washington last July 29 because of his Twitter messages. For example at 6:51 a.m. on July 29, he twitted the following message: “Headed to Washington to discuss water wars strategy with the congressional delegation.”
We began calling the justices’ offices and were told by the four with whom we talked that they had no conversation with the governor or his lawyers although one hinted he had heard about the calls. We urged an investigation into the matter, but that never materialized.
However, the calls must have meant something. The court unanimously upheld the appointment of Vance.
In the matter at hand it is pretty evident somebody at the court leaked some of the details of the Surles case to the governor’s lawyers. That is a serious breach of the ethical rules in Alabama’s Canons of Judicial Ethics.
Bob Martin is editor and publisher of The Montgomery Independent. Email him at: bob@montgomeryindependent.com