IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA STATE OF ALABAMA by and through Attorney General Luther Strange, ) Plaintiff,

v. ) A116 Z 4 2012
(i4 Zjahe i Carla Woodall, Clerk riouston County, AL

Case Number: CV-2012-900266

$283,657.68 U.S. Currency, et al.

Defendants.

MOTION TO RECUSE
Comes now Houston Economic Development Authority (hereinafter "HEDA"), in a limited appearance for the limited purpose set forth herein and without waving any defenses or claims, and respectfully moves this Honorable Court to disqualify itself from hearing or otherwise participating in this matter pursuant to the Alabama Canons of Judicial Ethics, including, but not limited to, Canons 3C(1) and 3C(1)(a). In support of this Motion HEDA states as follows: 1. The above-styled cause of action is a petition filed by the State of Alabama

seeking forfeiture of $283,657.68 in United States currency (the "Currency"), computers, monitors and other electronic equipment ("Electronics") (jointly, "the Property") alleging that the currency "was used as bets or stakes in gambling activity in violation of the law of the State of Alabama concerning gambling, in violation of and contrary to Section 13A-12-20, et seq., including Section 13A-12-30, Code of Alabama, (1975)" and that the Electronics "constitute[] gambling devices and slot machines in violation of the

law of the State of Alabama, and contrary to Section 13A-12-20, et seq., including Section 13A-12-30, Code of Alabama, (1975)." (Complaint, p. 11, 23). The Property was seized on July 25, 2012 during the execution of a search warrant at 300 Country Crossing Parkway, Cottonwood, Alabama (the "Premises"). The Premises is currently doing business under the name Center Stage, but formerly did business as Country Crossing. The operation of charity electronic bingo at Center Stage and at Country Crossing had been conducted by HEDA prior to July 25, 2012. 2. Section 13A-12-30(a), Code of Alabama, states that "any gambling device

or gambling record possessed or used in violation of this article is forfeited to the state, and shall by court order be destroyed or otherwise disposed of as the court directs." (emphasis added). Section 13A-12-20 (12) defines "unlawful" as "not specifically authorized by law." "Used in violation" means exactly what it says, that the items sought to be forfeited must have been used in violation of Section 13A-12-20, et seq. Thus, the forfeiture section requires that the State prove either possession of an illegal gambling device as defined in 13A-12-20, et seq., or other violation of 13A-12-20, et seq. in order to establish that the Property is due to be forfeited. Therefore, in order for a court to rule on the State's forfeiture petition, such court will have to make a determination regarding the legality of the charitable electronic bingo operation at Center Stage. 3. On November 23, 2009, then Presiding Houston County Circuit Judge

Brady E. Mendheim, Jr. correctly and properly authored a letter to the Judicial Inquiry Commission ("JIC") seeking guidance from JIC as follows:

The [Houston County, Alabama] judges believe that litigation may occur concerning the legality of Country Crossing's `charitable electronic bingo.' Presently, no lawsuit is pending in the Houston County Circuit Court. Our inquiry is whether the recusal order entered in the bond validation lawsuit would also result in recusal pursuant to the Canons of Judicial Ethics in a new lawsuit challenging 'charitable electronic bingo'? (Exhibit A, attached hereto) 4. On December 11, 2009, Norman E. Waldrop, Jr., Chairman of the JIC,

responded to Judge Mendheim's letter stating: In the ... recusal order [in the bond validation lawsuit] you and your fellow circuit judges noted two grounds for your recusal: (1) you are a member of the collective defendant, the taxpayers and citizens of Houston County, and (2) 'due to extensive media coverage and public interest in this project, the judges have been exposed to extra-judicial public conversations regarding the development made the basis of this lawsuit.' Upon those findings, you recused [t]o avoid any appearance of impropriety.' Disqualification continues until the ground of disqualification ceases. Advisory Opinions 96-617, 92-454, 94-516. Considering the present situation, it appears from the second ground of disqualification cited in the former case that the signatories are personally biased pursuant to the public discourse regarding the 'Country Crossing' venture. In all likelihood, that personal bias has not dissipated, but even if it has, the circumstances present a reasonable question of the signatories' impartiality. Thus, the circumstances compel continued disqualification pursuant to Canon3C(1) and 3C(1)(a). (Exhibit B, attached hereto)(emphasis added). This disqualification was based on the exposure to extensive media coverage and public opinion and discourse regarding the issue of charitable electronic bingo in Houston County and the perception of the public on the question of impartiality of the court in light of the extensive attention and interest.

5.

Since 2009, media attention and

public interest in the Country

Crossing/Center Stage project have not waned. A highly publicized eleven week Federal criminal trial alleging illegal activity surrounding electronic bingo at Country Crossing took place in the summer of 2011. The State Senator representing Houston County, Alabama was a Defendant and numerous media members from all forms of media in Dothan, Houston County, Alabama reported on the trial daily, including the interruption of regularly scheduled programming when the verdict was announced. This case resulted in a mistrial, with the over four week retrial beginning in February 2012. During the
retrial, media members from Dothan, Houston County, Alabama again reported

extensively on a daily basis.

In July 2012 there was extensive coverage of the

sentencing of three individuals who pleaded guilty to bribery in relation to the Country Crossing development. 6. In addition to public interest and media coverage in the federal criminal

trial, there has been extensive media coverage in the Dothan, Houston County, Alabama
area over the past 12 months related to: (1) the bankruptcy of the owner of the Premises;

(2) the closing of the Country Crossing facility and the re-opening of Center Stage at the same site for the operation of charitable electronic bingo; (3) the issuance of a cease and desist letter by the Alabama Attorney General to Center Stage concerning electronic bingo; (4) a search and arrest related to rape allegations and the unlawful possession of a controlled substance at the Premises; (5) a lawsuit filed by prominent boxer Floyd Mayweather regarding his investment in Country Crossing; (6) a lawsuit filed by Terrell Owens, Clinton Portis and Duane Starks, all players in the National Football League,
4

regarding their investment in Country Crossing and (7) the execution of a search warrant and seizure of currency and electronic bingo equipment by the Attorney General at the Premises on July 25, 2012. Many of these events were the lead stories in the local media. The coverage has been so pervasive and the public interest so great that when the Dothan Eagle published a series at the end of 2011 titled "Top 10 Local Stories of 2011," four of the top ten involved charitable electronic bingo: #1 Bingo Corruption Trial; #2 Ronnie Gilley pleads guilty; #3 Terry Spicer pleads guilty, loses his job; #6 Center Stage Alabama opens. (Exhibit C, attached hereto). The pervasive media coverage and

resultant public discourse serve to continue the previous disqualification of the judges who signed the orders in the previous lawsuits (Exhibits D and E, attached hereto), as well as all other judges currently sitting in Houston County, Alabama from any decisions (other than disqualification) related to Center Stage and charitable electronic bingo. 7. As the JIC opinion further noted "...disqualification under the general

disqualification provision of Canon 3C(1) or under the personal-bias-disqualification provision of Canon 3C(1)(a) is not remittable by the parties of a lawsuit." (Ex. B). Thus, neither HEDA nor the State has the option of agreeing that disqualification can be waived.
For the above and foregoing reasons, HEDA respectfully requests that this

Honorable Court enter an order stating that this Court is disqualified from hearing this case .

FARMER, PRICE, HORNSBY & WEATHERFORD, L.L.P. By: ERNEST H. HORNSBY (HORI 10)
Attorney for ,

By:

7__0*
ifrrTON OTT (HOL080)
Attorney for HEDA

OF COUNSEL: FARMER, PRICE, HORNSBY & WEATHERFORD, L.L.P. P. 0. Drawer 2228 Dothan, AL 36302 (334) 793-2424 ehornsby@fphw-law.com OF COUNSEL: William C. White, II PARKMAN & WHITE, LLC 1929 Third Avenue North Suite 700 Birmingham, AL 35203 (205) 244-1920 wwhite@parkmanlawfirm.com

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the Z4/ 4 day of August, 2012, a true and correct copy of the foregoing was served either electronically or by first class mail with the United States Postal Service and addressed as follows: Luther Strange Henry T. Reagan Jess R. Nix Office of the Attorney General 501 Washington Avenue P. 0. Box 300152 Montgomery, AL 36130-0152 Center Stage Alabama Inc. 111 East Main Street Dothan, AL 36301

EXHIBIT A

Houston County Courthouse P.O. Box 6406 Dothan, Alabama 36302 Phone: (334) 677-4881

BRADY E. MENDHEIM, JR.

PRESIDING CIRCUIT JUDGE Twentieth Judicial Circuit of Alabama

Henry County Courthouse P.O. Box 338 Abbeville, Alabama 36310 Phone: (334) 585-2753

November 23, 2009

Ms. Jenny Garrett Executive Director . Judicial Inquiry Commission P.O. Box 303400 Montgomery, Al. 36130 3400
-

Dear Ms. Garrett: Per our recent telephone conversations, pldase accept this letter as a request for an advisory opinion from the Judicial Inquiry Commission.

In Houston County a project is under development known as "Country Crossing." Part of the development will operate what the developers describe as "charitable electronic bingo." Earlier this year, the developers filed in the Houston County Circuit Court a statutorily authorized bond validation lawsuit. The lawsuit named as defendants "the Taxpayers and Citizens of Houston County." On August 6, 2009, all five resident circuit judges of the 2e Judicial Circuit reused from this case (attached). The two reasons cited were that the judges were nominal defendants and that they were subject to a large amount of extra judicial information due to controversy over the "charitable electronic bingo." The Chief Justice appointed Dale County Circuit Judge Ben McLa-uchlin to hear the case and it is now concluded and disposed. The judges believe that litigation may occur concerning the legality of Country Crossing's "charitable electronic bingo." Presently, no lawsuit is pending in the Houston County Circuit Court. Our inquiry is whether the recusal order entered in the bond validation lawsuit would also result in recusal pursuant to the Canons of JudicialEthics in a new lawsuit challenging "charitable .electronic bingo"? Although a case is not pending, and may never be filed, we are concerned that if litigation should commence that either or both parties may request immediate and/or emergency relief without the judges having a sufficient opportunity to seek guidance

from the Judicial Inquiry Commission. According y, please accept this letter as a request from all circuit judges of the 20 th Judicial Circuit for an opinion from the Commission. Thank you for your assistance. Sincerely yours,

Zia
Brady E. Mendheini, Jr. Presiding Circuit Judge

C: Judge Ed Jackson Judge Lawson Little Judge Larry Anderson Judge Butch Binford

EXHIBIT B

)11tril.1
MAILING ADDRESS. POST orricla DOX 303400 LONTGONtETZY, AL 38130-3404

altituntiszian
-

TrilLoPEIO.N781 (354) 242-4089 PAX (33kt) 555 4043

STR.ENT ADDRESs401 ADAMS AVIONUS, gurru 720 NCONTOOMERY, ellhAlIAMA

DeceMber 11, 2009 . Personal & confidential The Honorable Brad Mendheim Presiding Circuit Judge Houston County Courthouse P.O. Box 6406 Dothan, AL 36302 Dear Judge Mendheirn: This letter is in response to your question, submitted by your November 23, 2009 letter, whether the recusal order entered on behalf of the circuit judges of the 20' Judicial Circuit in Cooperative District of Houston County Country Crossing v. Taxpayers and Citizens of Houston County, Alabama, CV2009-379, a bond validation lawsuit, would also require recusal in any impending lawsuit challenging the underlying activity of the business enterprise "Country Crossing," i.e., "charitable electronic bingo." In t he above-referenced recusal order, you and your fellow circuit judges noted two grounds for your recusal: (I) you are a member of the collective defendant, the taxpayers and citizens of Houston County, and (2) "due to extensive media coverage and public interest in this project, the judges have been exposed to extra-judicial public conversations regarding the development made the basis of this lawsuit." Upon those findings, you recused "No avoid any appearance of impropriety." Disqualification continues until the ground of disqualification ceases: Advisory Opinions 96-617, 92-454, 94-516. Considering the present situation, it appears from the second _ground of disqualification cited in the former case that the signatories are personally biased pursuant to the public discourse regarding the "Country Crossing" venture. In all likelihood, that personal bias has not dissipated, but even if it has, the circumstances present a reasonable question of the signatories' impartiality. Thus,.the circumstances compel continued disqualification pursuant to Canon 3C(1) and 3C())(a). Moreover, as you well know, disqualification under the general disqualification provision of Canon 3C(I) or under the personal-bias-disqualification provision of Canon 3C(1 )(a) is not remittable by the parties of a lawsuit. Canon 3D.

Judge IvIendheim December 11, 2009 Page 2 As a final note, the Commission encourages you, in your vigilance against permitting ex parte communications in your presence about an impending matter, to appoint a staff member to screen all improper ex parte written and electronic communications directed toward you. If the Commission or its staff can be of father assistance, please contact the Commission's executive director, Ms. Jenny Garrett. Sincerely, JUDICIAL INQUIRY COMMISSION

z.
Norman E. Waldrop, Jr. Chairman

EXHIBIT C

Gambling corruption trial captivated state in 2011 I Dothan Eagle

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Gambling corruption trial captivated state in 2011

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; By: LANCE GRIFFIN I Dothan Eagle

Published: December 30, 2011

HEN COULD GOOD BEHAVIC*SAVE YOU MONEY?

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The gambling corruption trial held in Montgomery in the summer of 2 01 1 had all of the ingredients of a John Grisham legal thriller. a Legislators accused of agreeing to accept bribes

fzit
a Casino owners charged with concocting a scheme
to buy the state Legislature 1 a Former defendants
Credit JAY HARE / DOTHAN EAGLE

1.
I

Former Ashford teacher turns himself in to

jail(0)

on the

witness stand jousting

Attorney Jim Perlman (right) and Senator Harri Anna Smith smile as they leave the Federal Courthouse in Montgomery
with her husband Charlie on Thursday afternoon. Smith was acquitted on six charges against her and the jury could not make a decision on the other charges.

2. Headland teen injured in hit-and-run, driver

f with high-priced defense attorneys

identified(6)

ri a Occasional jaw-droppers delivered on the witness

stand

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Man dies down road from home(0)

"::1 4. Man falls in Enterprise manhole, dies(0)

a An ending that made national headlines

What had originally been 11 defendants were whittled to nine when the trial began in U.S. District Court in June. Two defendants had pleaded guilty and agreed to testify against many of the nine remaining. Charges ranged from bribery to aiding and abetting to lying to investigators to money laundering. Prosecutors claimed all were involved in

Related .
Top 10 local stories of 2011 . #1 - Sing Comiption trial #2 - Ronnie Gilley pleads {NOW 3 - Terry Spicer pleads guilty. loses'his job -.: tt4 - Judge Steensland guilty of ethics violation. #5 - Tim Wilder hired as new supenntendent

S. Ozark man gets 99 years for murder, kidnapping (1)

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#6 - center.state Alabama opens

#7 - Calvin Bell;Tharpe charged with sex loses job

conspiracy designed to ensure the passage of progambling legislation. Prosecutors said a crackdown on gambling establishments had made the owners desperate to make sure their investments were secure, and sought to craft legislation to end the debate over whether electronic bingo machines were legal or simply slot machines in a thin disguise. Then, prosecutors said they set out to buy enough votes to make sure the legislation passed, and found

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#8 - Iraq war veteran killed after police chase:

#9 - Dogs seized after raid on Dirty Sally's Pets

10 -.3 charged in infant abilndlion in Dale County

hup://www2.dothaneagle.cominews/20 I Udec/30/gambling-corruption-trial-captivated-statc-2011-ar-295759648/23/2012 12:34:24 PM]

Gambling corruption trial captivated state in 2011 i Dothan Eagle

C :7

legislators willing to sell their votes. The defense, however, claimed the only guilty people in the alleged conspiracy had already admitted to their crimes. Former Country Crossing developer Ronnie Gilley and his chief lobbyist, Jarrod Massey, had already pleaded. Defense attorneys claimed the two were willing to make up stones against their clients in exchange for a reduced sentence. The motives of legislators who wore recording devices in an attempt to preserve any evidence were questioned by defense attorneys who claimed the legislators were politically motivated. The racial motivation of some witnesses was also challenged. The trial lasted three months, almost alt of it involving the prosecution's case. The government used 17 witnesses, played more than 125 recorded conversations involving defendants and legislators who cooperated with the investigation. It introduced contracts, financial documents and other evidence in an attempt to establish a conspiracy. The defense called only one witness before resting the case and none of the defendants took the stand. The jury deliberated for more than a week. On Aug. 11, it reached a not-guilty consensus on many of the charges, but failed to come to a consensus on others.
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Two defendants, lobbyist Robert Geddie and Sen. Quinton Ross, D-Montgomery, were cleared of all charges. Seven defendants, however, are set for retrial on the remaining charges beginning Jan. 30. They are Sen. Harri Anne Smith, 1-Slocomb; VictoryLand owner Milton McGregor, former Country Crossing spokesperson Jay Walker, lobbyist Tom Coker, former Sens. Jim Preuitt and Larry Means and legislative analyst Ray Crosby. Much of the same evidence introduced in the first trial is expected to be introduced again in the second trial. However, one new wrinkle is the possible testimony of former Gov. Bob Riley. Defendants attempted to subpoena Riley to testify in the first trial, but a judge quashed the subpoena. Recently, however, a federal judge granted the subpoena request based on new evidence. Riley's attorneys are expected to continue to challenge the subpoena. Recommend this on Google Celebrate Recovery, Covenant United...
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EXHIBIT D

IN THE CIRCUIT COURT OH' HOUSTON COUNTY, ALABAMA

THE COOPERATIVE DISTRICT COUNTRY OP HOUSTON COUNTY CROSSING PROJECT, an Alabama

-

) )

public corporation,
PETITIONER,

) ) )CIVIL ACTION NO. CV2009-379

) )

va.
THE TAXPAYERS AND CITIZENS OP HOUSTON COUNTY, ALABAMA, DEPENDANTS.

) )
) ) ) ) )

FILED
AUG -6 2013$
Carla Woodall, Clerk Houston County, AL

ORDER OF REM:111AL ..

The above styled case has been sled in the Circuit Court of . Houston County naming the taxpayers and citizens of Houston County, Alabama as defendants. As Judges, we too, are taxpayers and citizens of Houston County, Alabama. Additionally, due to
extensive media coverage and public interest in this project, the

judges have been exposed to extra-judicial public conversations regarding the development made the basis of this lawsuit. To avoid any appearance of impropriety and to allow an outof-court judge to hear the matter expeditiously, we hereby.

recuse. Case to be sent to Administr tive Office of Courts for reassignment by the Chief Justice of the Alabama Supreme Court, /71'4 Ordered this 6 4-'"day of August 2009.

BRADY E, MENDHEIM, PRESIDING CIRCUIT JUDGE

64

K. bERSON CIRCUIT DGE

CIRCUIT JUDGE

EDWARD JACKS CIRCUIT JUDGE

SON LI CIRCUIT DGE

state of Algona Uni tied Judicial Sysian

1'0r1CAI Rot l/2007

NOTICE OF RECUSAL AND REQUEST FOR ASSIGNMENT OF JUDGE

Date Received

TO: The Honorable Sue Bell Cobb Chief Justice, Alabama Supreme Court 300 Dexter Avenue Montgomery, AL 36104

IN TEE

CIRCUIT

COURT OF Gary Sherrer

HOUSTON

COUNTY, ALABAMA

Houston County

Devi. Assn, et al.

PLA INTIFF

PLAINTIFF'S ATTORNEY CASE NO.

CV 2010-003

David Garber, et al.

DEFENDANTS

unknown

Assigned Judge:

Little

DEFENDANT'S ATTORNEY

Date Case Filed:

Jan. 5, 2010

Jury Demand:

[ YES

NO

Approximate Number or days needed to complete this case:

unknown

REASON FOR RECUSAL; The Judicial Inquiry Commission formally advised at Houston Dainty circuit judges that they are disqualified in this matter.

Facts concerning Complaint/ Motions pending/ If set for trial, date set/ Any further information which would be helpful in assigning the case to another judge. Pending request for an injunction. . _.
20th X Judicial Circuit has/have recused District Judge (a) in the Circuit The himself/liersellIthemselves in the above styled cause for the reason(s) listed above. This case is submitted for assignment to a judge of Jan. 6, 2010 Date Presiding I ircuit Judge 'de l ' circuit.

4/

FILED
JAN 6 21110
Carla Woodall, Clerk
Houston County, AL

CC: Administrative Office of Courts Attn: Tammy Taff

EXHIBIT E

IN THE CIRCUIT COURT OF HOUSTON COUNTY, ALABAMA HOUSTON COUNTY DEVELOPMENT ASSOCIATION, ET AL, Plaintiff, V. DAVID BARBER., ET AL., Defendants. ORDER Based on an advisory letter (attached) from the Judicial Inquiry Commission, the undersigned circuit judges are disqualified from hearing the above case. The Chief Justice will he notified and will designate a judge to hear the case. This the 6th day of January 2010. CASE NO.: CV 2010-003

FILED
JAN II 6 2010 (14 kirA9 Carta Woo ,.
ireousban

BRADY . MENDH I , JR. PRESIDING CIRCUIT JUDGE

EDWARD JACKSON CIRCUIT JUDGE

C. LAWSON CIRCUIT

LE

LARRY ANDERSON CIRCUI JUDGE

HEY D. BINFO CIRCUIT JUDGE