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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

WILLIAM JOHNSON, ANNIE PEARLLEFTWICH, BOBBI MORGAN, DONALDMEANS, ERNEST EDMONDS, FAIRYGORDON, IRIS SERMON, JOHNNY BUTLER,MERJEAN LITTLE, MOSES JONES, VASSIEBROWN, WILLIE MAE REEVES, BEVERLYGORDON, JOHNNY B. MORROW, FANNIEISHMAN, LESLIE CHEATEM, MARGIEJAMES, BOBBY SINGLETON, A. J.

MCCAMBELL, JOHNNY FORD, LOUISMAXWELL, MARY RUTH WOODS, LISA M.WARE, CLARA P. GRIMMETT, CHARLESCHAMBLISS, JOHNNIE B. HARRISON, G.DYANN ROBINSON, SHIRLEY W. CURRY,SARAH STRINGER, MILES D. ROBINSON, andWILLIE LEE PATTERSON, individually and onbehalf of others similarly situated,

Plaintiffs,

v.

BOB RILEY, in his individual capacity and in hisofficial capacity as Governor of Alabama, andJOHN M. TYSON, JR., individually and in hisofficial capacity as special prosecutor and taskforce commander of the Governors Task Force onIllegal Gaming,

Defendants.

*********

*********

** Civil Action No.* 7:10-cv-02067-SLB*** Three-judge court* requested*****

PLAINTIFFS BRIEF SUPPORTING MOTION

FOR PRELIMINARY INJUNCTION

FI2010 Aug-02 AU.S. DISTRICT

N.D. OF AL

Case 7:10-cv-02067-SLB Document 4 Filed 08/02/10 Page 1 of 22


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Plaintiffs seek a preliminary injunction under 5 of the Voting Rights Act,

42 U.S.C. 1973c, restoring the status quo ante in Greene County and preserving

the status quo in Macon County. This Court is not asked to decide the substantive

state law governing bingo operations in Alabama. Rather, it is asked only to

enforce plaintiffs voting rights by preventing the defendants, Governor Riley and

Task Force Commander Tyson, from implementing changes in policies and

practices affecting voting that have not received preclearance under 5 of the

Voting Rights Act.

I. Issuance of a Preliminary Injunction Is Particularly Appropriate in an

Action To Enforce 5 of the Voting Rights Act.

Proceedings on a motion for preliminary injunction are governed by Rule

65, Fed.R.Civ.P., and by familiar judicial standards.

A district court may grant [preliminary] injunctive relief only if themoving party shows that: (1) it has a substantial likelihood of successon the merits; (2) irreparable injury will be suffered unless theinjunction issues; (3) the threatened injury to the movant outweighswhatever damage the proposed injunction may cause the opposingparty; and (4) if issued, the injunction would not be adverse to thepublic interest.

American Civil Liberties Union of Florida v. Miami-Dade School Bd., 557 F.3d

1177, 1198 (11th Cir. 2009) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th

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Cir.2000) (en banc).

However, because of Congress intent to place the burdens of time and

inertia on the state,

1

the need for a preliminary injunction is particularly compelling

in 5 coverage cases and is necessary to prevent unprecleared changes affecting

voting from being implemented.

The Supreme Court, on at least three occasions, has set forth therequirements that must be met before an injunction issues in a 5preclearance case like this one. InAllen v. State Bd. of Elections, 393U.S. 544, 89 S.Ct. 817, Clark v. Roemer, 500 U.S. 646, 111 S.Ct.

2096 [(1991)], and most recently inLopez v. Monterey County, 519U.S. 9, 117 S.Ct. 340 [(1996)], the Supreme Court has said that [i]f avoting change subject to 5 has not been precleared, 5 plaintiffs areentitledto an injunction prohibiting implementation of the change.

Lopez, 519 U.S. at [19].

1Riley v. Kennedy, 553 U.S. 406, 128 S.Ct. 1970, 1977 (2008):

Congress took the extraordinary step of requiring coveredjurisdictions to preclear all changes in their voting practices because itfeared that the mere suspension of existing tests [in 4(a) ] wouldnot completely solve the problem, given the history some States hadof simply enacting new and slightly different requirements with thesame discriminatory effect.Allen v. State Bd. of Elections, 393 U.S.544, 548, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). By putting the burden oncovered jurisdictions to demonstrate that future changes would not bediscriminatory, 5 served to shift the advantage of time and inertia

from the perpetrators of the evil to its victims. [South Carolina v.]Katzenbach, 383 U.S.[ 301,] 328 [(1966)].

Alabama is a covered jurisdiction. Procedures for the Administration of Section 5of the Voting Rights Act, 28 C.F.R Part 51 Appx (available athttp://www.usdoj.gov/crt/voting/sec_5/guidelines.htm).

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United States v. Louisiana, 952 F.Supp. 1151, 1161-62 (W.D.La.) (3-judge court),

aff'd 521 U.S. 1101 (1997) (emphasis in original).

II. The Role of This Court in a 5 Case.

A civil action brought under 5 of the Voting Rights Act must be heard by a

three-judge district court. 42 U.S.C. 1973c(a). But only the District Court for

the District of Columbia has jurisdiction to consider whether a covered

jurisdictions change affecting voting has the purpose or effect of denying or

abridging the right to vote on account of race. 42 U.S.C. 1973l(b). The 5

jurisdiction of a three-judge district court in Alabama is limited to determining

(i) whether there are voting qualifications, prerequisites, standards,practices, or procedures that are different from those in existencebefore they were adopted, Presley v. Etowah County Comm'n, 502U.S. 491, 495 (1992) that is, whether a change was covered by

5,FN1

(ii) if the change was covered, whether 5's approvalrequirements are satisfied, and (iii) if the requirements are notsatisfied, what remedy is appropriate. City of Lockhart v. UnitedStates, 460 U.S. 125, 129 n. 3 (1983).

FN1. The court in Presley explained this inquiry to mean that it isonly [a]bsent relevant intervening changes, [that] the Act requirescomparison with practices in existence on November 1, 1964. Presley,502 U.S. at 495; see also Lake v. State Bd. of Elections of N. C., 798F.Supp. 1199, 1205 (M.D.N.C.1992)(three -judge court); Villegas v.

Dallas Indep. Sch. Dist., No. 30cv858R, 2003 WL 22573921, at *5 &n. 9 (N.D.Tex. Oct. 17, 2003) (citing Presley and stating the inquiry iswhether the practice is different from the one in force on the date 5took effect or (if applicable) different from the one that earlierreceived preclearance?). . . .

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Plump v. Riley, 2008 WL 192826 (M.D. Ala., Jan. 22, 2008) at *2, appeal

dismissed for want of jurisdiction, 129 S.Ct. 98 (2008), on remand, 2009 WL

2074147, 73 Fed.R.Serv.3d 1501 (M.D. Ala. 2009). See generallyBoxx v. Bennett,

50 F.Supp.2d 1219, 1224 (M.D. Ala. 1999) (3-judge court).

III. Defendants Actions Constitute Changes in Standards, Practices, or

Procedures With Respect To Voting.

The actions of defendants Riley and Tyson set out in the complaint

constitute changes affecting voting in at least two respects:

(1) Amendment 743 explicitly authorizes electronic bingo operations

in Greene County, and the Sheriffs regulations promulgated pursuant to his

authority under Amendment 744 explicitly authorize electronic bingo operations in

Macon County. These constitutional electronic bingo authorizations were adopted

solely by the voters in those respective counties, pursuant to Amendment 555. A

condition for preclearance of Amendment 555 was its removal of any purported

authority of the Governor, as a member of the Local Constitutional Amendment

Commission, to veto a proposed local amendment that the Legislature proposed to

submit to a countys voters. Defendant Governor Riley nevertheless has

effectively vetoed Amendments 743 and 744 by implementing his asserted

authority to declare unilaterally that electronic bingo of any kind is categorically

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unlawful in Alabama. SeeEx parte State, --- So.3d ----, 2010 WL 2034825 (Ala.,

May 21, 2010) at *24. Defendants Riley and Tyson therefore have denied the right

to vote of qualified electors in Greene and Macon Counties to decide for

themselves whether electronic bingo will be constitutionally permissible in their

counties.

(2) Defendant Riley has ignored the express provisions of

Amendments 743 and 744 that vest authority to regulate and to enforce these

constitutional amendments in the Sheriffs of Greene and Macon Counties and has

de factoreplaced those elected officials in these majority-black counties with a

person elected in another county, defendant Tyson, appointed by the Governor.

Without any consideration of plaintiffs voting rights, the Alabama Supreme

Court2 has issued orders upholding defendants asserted authority and enjoining

judicial enforcement proceedings instituted by the Sheriff of Greene County.

A few days ago, the Alabama Supreme Court made it explicitly clear that it

considers the Governor to be the superior of every other constitutional law

enforcement officer, whether at the state or local level, and that the Governor had

authority to appoint the Mobile County District Attorney in this rare case to

2 The members of the Alabama Supreme Court, of course, are elected bystatewide votes.

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command a Task Force that replaced the Sheriff in the enforcement of state law

governing electronic bingo in Macon County. Tyson v. Jones, __ So.2d __, No.

1090878 (Ala., July 30, 2010) slip op. at 39 (copy attached as Exhibit A to this

brief). Defendant Riley, the court held, could determine that the law is going

unenforced in an area for which another executive officer has responsibility and

that reliance on the other executive officer, or any action taken by that officer, is

insufficient to ensure that the laws of this State are faithfully executed. Id., slip

op. at 39-41. The court did not address whether Amendment 744 and the Sheriffs

regulations promulgated thereunder authorize the bingo operations in Macon

County. Id. at 23 (This case, however, does not inquire into the merits of such

law enforcement activities.) (footnote omitted). In short, the Alabama Supreme

ruled that defendants could raid Victoryland without any judicial determination

that Amendment 744 and the Sheriffs regulations are invalid or are not being

complied with.

Both defendants actions and the Alabama Supreme Courts orders are

changes affecting plaintiffs voting rights.

It is undisputed that a change from election to appointment is achange with respect to voting and thus covered by 5. SeeAllen,393 U.S., at 569-570, 89 S.Ct. 817; Presley v. Etowah CountyComm'n, 502 U.S. 491, 502-503, 112 S.Ct. 820, 117 L.Ed.2d 51(1992). We have also stated that the preclearance requirementencompasses voting changes mandated by order of a state court.

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Branch v. Smith, 538 U.S. 254, 262, 123 S.Ct. 1429, 155 L.Ed.2d 407(2003). See alsoHathorn v. Lovorn, 457 U.S. 255, 265-266, and n. 16,102 S.Ct. 2421, 72 L.Ed.2d 824 (1982).

Riley v. Kennedy, 128 S.Ct. at 1982.

The circumstances here are not like those in Presley, where a merely

routine reallocation of certain powers from elected to appointed officials within

the same local government was found not to affect voting.

It is a routine part of governmental administration for appointivepositions to be created or eliminated and for their powers to be altered.

Each time this occurs the relative balance of authority is altered insome way. The making or unmaking of an appointive post often willresult in the erosion or accretion of the powers of some officialresponsible to the electorate, but it does not follow that those changesare covered by 5. By requiring preclearance of changes with respectto voting, Congress did not mean to subject such routine matters ofgovernance to federal supervision.

502 U.S. at 507 (bold emphasis added). Rather, without doubt, in this case

Governor Riley has effectively replaced the Sheriffs of Greene and Macon

Counties as the constitutionally designated regulators and enforcers of bingo

operations with his appointed Task Force Commander.3

3 In Presley it was not necessary for the Supreme Court to consider whether

egregious circumstances like those presented here would violate 5:

We need not consider here whether an otherwise uncovered enactmentof a jurisdiction subject to the Voting Rights Act might under somecircumstances rise to the level of a de facto replacement of an electiveoffice with an appointive one, within the rule ofBunton v. Patterson[,

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IV. Amendments 743 and 744, the Electronic Bingo Operations They

Authorize, and the Enforcement Authority They Provide Have Been in

Force or Effect for Six years.

The actions of defendants Riley and Tyson and the Alabama Supreme Court

orders affirming those actions are changes in standards, practices, or procedures

affecting voting that have actually been in force or effect. To determine whether

there have been changes with respect to voting, we must compare the challenged

practices with those in effect before they were adopted. Presley v. Etowah

County, 502 U.S. at 495.

In order to determine whether an election practice constitutes achange as that term is defined in our 5 precedents, we compare thepractice with the covered jurisdictions baseline. We have definedthe baseline as the most recent practice that was both precleared andin force or effect or, absent any change since the jurisdictionscoverage date, the practice that was in force or effect on that date.

See Young[ v. Fordice], 520 U.S. [273,] 282-283, 117 S.Ct. 1228[(1997)]. See also Presley, 502 U.S., at 495, 112 S.Ct. 820. Thequestion is whether a State has enact[ed] or is seek [ing] toadminister a practice or procedure that is different enough fromthe baseline to qualify as a change. Young, 520 U.S., at 281, 117 S.Ct.1228 (quoting 42 U.S.C. 1973c).

393 U.S. 544 (1969)]. For present purposes it suffices to note that theRussell County Commission retains substantial authority, includingthe power to appoint the county engineer and to set his or her budget.The change at issue in Russell County is not a covered change.

Presley, 502 U.S. at 508.

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Riley v. Kennedy, 128 S.Ct. at 1982 (footnote omitted).

Amendments 743 and 744 received 5 preclearance from the Attorney

General of the United States on October 3, 2003, and were ratified by the voters of

Greene and Macon Counties on November 4, 2003. Pursuant to the authority of

these constitutional amendments, electronic bingo has been operating in Greene

and Macon Counties, and their elected Sheriffs have been regulating and enforcing

these constitutional provisions, since late 2003. Thus, for six years the

constitutionally authorized bingo operations and enforcement practices have been

in force or effect, within the meaning of 42 U.S.C. 1973c, regardless of

defendants contentions that they violate state law.

Perkins[v. Matthews, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d476 (1971)], and [City of] Lockhart [v. United States, 460 U.S. 125,103 S.Ct. 998, 74 L.Ed.2d 863 (1983),]established that an election

practice may be in force or effect for 5 purposes despite itsillegality under state law if, as a practical matter, it was actually ineffect.Lockhart, 460 U.S., at 132, 103 S.Ct. 998. Our more recentdecision in Young, however, qualified that general rule: A practicebest characterized as nothing more than a temporary misapplicationof state law, we held, is notin force or effect, even if actuallyimplemented by state election officials. 520 U.S., at 282, 117 S.Ct.1228.

Riley v. Kennedy, 128 S.Ct. at 1984. The unique circumstances that led the

Supreme Court to rule that the statutory change at issue inRiley v. Kennedy was

only a temporary misapplication of state law clearly do not apply here.

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Although our reasoning and the particular facts of this caseshould make the narrow scope of our holding apparent, we concludewith some cautionary observations. First, the presence of a judgmentby Alabamas highest court declaring the 1985 Act invalid under the

State Constitution is critical to our decision. We do not suggest theoutcome would be the same if a potentially unlawful practice hadsimply been abandoned by state officials after initial use in anelection. Cf. Perkins, 400 U.S., at 395, 91 S.Ct. 431. Second, the 1985Act was challenged the first time it was invoked and struck downshortly thereafter. The same result would not necessarily follow if apractice were invalidated only after enforcement without challenge inseveral previous elections. Cf. Young, 520 U.S., at 283, 117 S.Ct.1228 ([T]he simple fact that a voting practice is unlawful under statelaw does not show, entirely by itself, that the practice was never in

force or effect. ... A State, after all, might maintain in effect for manyyears a plan that technically ... violated some provision of state law.).Finally, the consequence of the Alabama Supreme Courts decision inStokes [v. Noonan, 534 So.2d 237 (Ala. 1988),] was to reinstate apractice gubernatorial appointment identical to the States 5baseline. Preclearance might well have been required had the courtinstead ordered the State to adopt a novel practice.

Riley v. Kennedy, 128 S.Ct. at 1986-87 (footnotes omitted) (bold emphasis added).

Here, no state court judgment has ever declared invalid Amendments 743 and 744,

the regulations promulgated by the Sheriffs of Greene and Macon Counties, their

enforcement authority, or the bingo operations they have been regulating since late

2003. To the contrary, the Alabama Supreme Court has held:

In force at all times relevant to this action were the SecondAmended and Restated Bingo Regulations for the Licensing andOperation of Bingo Games in Macon County (the sheriff'sregulations), promulgated by the Macon County sheriff pursuant toAmendment No. 744.

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Macon County Greyhound Park, Inc. v. Knowles, --- So.3d ----, 2009 WL 4016073

(Ala., Nov. 20, 2009) at *1 (bold emphasis added).4 In Greene County, the

Alabama Supreme Court has stayed further proceedings in the forfeiture action

initiated at the request of the Sheriff of Greene County and has enjoined the district

attorney prosecuting the forfeiture action from interfering with the non-judicial law

enforcement actions of defendants Riley and Tyson. In doing so, the Alabama

4 In another civil action against the Macon County Sheriff a U.S. DistrictCourt concluded:

Sheriff Warren has the authority to implement rules for theregulation of bingo games in Macon County. Amendment No. 744grants him that authority. See Ala. Const.1901 amend. No. 744 (Thesheriff shall promulgate rules and regulations for the licensing andoperation of bingo games within the county.). Sheriff Warren alsohas regulatory authority pursuant to his police powers. Opinion of

the Justices, 795 So.2d [630, 630 [Ala. 2001)]. There is no challengein this case to Sheriff Warren's authority to regulate bingo in MaconCounty.

Hope for Families & Community Service, Inc. v. Warren , --- F.Supp.2d ----, 2010WL 2629408 (M.D.Ala., June 30, 2010) at *46. The court acknowledged thatSheriff Warren exercised his authority to approve electronic bingo. Id. at *2 (Theword electronic surfaced in the sheriffs regulations governing bingo in MaconCounty.). See alsoMacon County Investments, Inc. v. Warren, 2007 WL3441995 (M.D.Ala., Jan. 5, 2009) at *1, affd 306 Fed.Appx. 478, 2009 WL 19346

(11

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Cir. 2009) (In reciting the facts, the court construes the evidence in a lightmost favorable to the nonmovants. Amendment 744 to the Alabama Constitutionmade the operation of bingo gaming by nonprofit organizations legal in MaconCounty, Alabama. Ala. Const. Amend. No. 744. Amendment 744 also authorizedthe sheriff of Macon County to promulgate rules and regulations for the licensingand operation of bingo games within the county.Id.).

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Supreme Court has approved the truly novel5 task force policy and practice being

implemented by defendants.

Defendant Riley acknowledged in 2006 that a statewide amendment to the

Alabama Constitution would be necessary to overturn the decisions county

electorates like those in Greene and Macon Counties had made to authorize

electronic bingo. The Governors office issued a press release on February 7,

2006, urging support for his proposed constitutional amendment, saying [i]t bans

the use of electronic devices in playing bingo under existing local amendments,

limiting the games that are authorized to traditional paper bingo. Any future

amendments to authorize any gambling in Alabama would require a statewide vote

and not just a local vote by the county involved. See Exhibit B to this brief.

Governor Rileys proposed constitutional amendment did not pass the Legislature.

So defendant Riley decided to act unilaterally for the purpose of promoting and

supporting uniform statewide enforcement of Alabamas anti-gambling laws and

putting and end to an obvious lack of uniformity in the enforcement of these laws

from county to county, ignoring the local constitutional amendments approved by

5 [W]e are presented with the unusual circumstance of the governor of thisState making a judgment that the laws concerning illegal gambling were notbeing enforced in certain counties in this State, including Macon County. Tysonv. Jones, supra, slip op. at 30 (bold emphasis added).

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the voters in Greene and Macon Counties. Tyson v. Jones, supra, slip op. at 5

(quoting Executive Order 44).

Governor Riley has publicly acknowledged that his appointment of a task

force and its commander are changes in actual practices that have been in effect

for years:

[Reporter:] Several of these bingo halls and casinos have been inoperation for years. Why have you started trying to shut them downnow?

[Governor Riley:] I operated under the false belief that these machineswere legal, based on what the attorney general of Alabama said. ButI started looking in to this when Sen. Charles Bishop of WalkerCounty brought in a group of citizens who came to me and said,These bingo halls are destroying our county. I told them, The AGtells me these machines are legal. But they said, You've got to dosomething. So I took it to my attorney and I asked him if there wasanything that we could do to help these people. He came back to meand said that the AG was absolutely wrong. He laid out chapter and

verse everything that the courts had ruled and that what the gamblerswere doing was illegal. To be on the safe side I took what my youngattorney had shown me to two large law firms in the state and askedwhether this young attorney or the attorney general was right. Theytold me that my young lawyer was right and the gamblers had neverwon a case. The Supreme Court has never said that gambling is legalin this state, and if it is against the law, we are going to enforce thelaw.

MontgomeryAdvertiser, July 11, 2010. Whether Governor Riley and his lawyers

are right or wrong about the legality of the bingo operations in Greene and Macon

Counties, defendants assumption of unilateral, non-judicial authority to enforce

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their untested legal opinions constitute changes affecting the voting rights of the

citizens of Greene and Macon Counties and may not be implemented without

receiving 5 preclearance. There is no dispute these gubernatorial practices have

never been submitted for preclearance, and plaintiffs and the class they seek to

represent are entitled to immediate relief enforcing their rights under 5 of the

Voting Rights Act.

V. The Irreparable Injuries Currently Being Suffered By Plaintiffs and

Other Citizens of Greene and Macon Counties Are Exceptional.

As we noted above, every plaintiff whose rights under 5 are being violated

is entitled to a preliminary injunction. But the injuries citizens of Greene and

Macon Counties are suffering or may soon suffer have a huge adverse impact on

their schools, public services, and local economies, and the remedy this Court

orders should take the urgency of relief into account.

Revenues generated as a result of the enactment of Amendment 743 provide

necessary funding for many critical public services and nonprofit organizations in

Greene County, some of which have been reported on in the press. First and

foremost, 40% of Greenetrack revenues go the Greene County public school

system. A Department of Examiners of Public Accounts audit of the Greene

County Board of Education that year shows that their bingo proceeds were

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$796,160, or nearly $800,000. Tuscaloosa News, July 25, 2010. The States

Education Trust Fund is in proration for the third straight year, and school systems

all over the state must rely on their local revenues to meet immediate operating

expenses.

But the school system is not the only entity that is suffering because

Greenetrack has been shut down:

Like the once overflowing buffet table in the Greenetrackrestaurant, gambling fed the impoverished region by providing jobs.

Its disappearance has begun to starve the county.Marilyn Gibson, director of the public library in Eutaw, said the

library expanded its hours and computer banks with nearly 10 percentof its roughly $50,000 budget coming from Greenetrack contributions.Now it's looking at cutting back hours and part-time help.

Greene County's Emergency 911 service got a quarter of itsincome from Greenetrack donations, said Iris Sermon, director ofE-911. Now she's looking at ways to trim the budget and keep 911service going.

Greenetrack donated money to more than 80 charities,including every volunteer fire department in the county. It is creditedwith rescuing destitute public schools. It offered $500 a semestercollege scholarships to children of Greenetrack employees and toGreene County High School graduates with a 2.0 grade-point averagewho maintained As and Bs in college. All 95 students on scholarshipat schools including the University of Alabama at Birmingham,Stillman College and the University of Alabama have been sent letterssaying the scholarships have been discontinued, said Hampton.

. . .For-profit businesses noticed an immediate impact when the

Greenetrack layoffs took effect. People that worked at Greenetrackwould come in here on Wednesdays with their paychecks and pay ontheir accounts, said Jamie Banks, fourth-generation owner of theBanks & Company family hardware store, which opened in 1889,

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when Eutaw was a major mercantile center for a thriving agriculturalindustry. Now there's no check, he said Wednesday afternoon fromhis office doorway overlooking the empty store. Look out there. Doyou see any customers?

Julia Denise Fuller, owner of Trumans Original Barbecue,moved to Eutaw to buy one of its many historic houses dating to theantebellum era. Her restaurant had been frequented by Greenetrackemployees, but shes seen few of them since the layoffs. She let goone part-time server. When people arent working, they cant go outto eat, Fuller said as a few customers dined on her peppery barbecueand chocolate mud pie. A small town can only support so manybusinesses.

Birmingham News, July 18, 2010. In addition, the Greene County Hospital and

Nursing Home, which operates the only health care facility in Greene County open

24 hours a day 7 days a week and employs the only two physicians who reside in

the entire county, will have to significantly reduce hours, staff, and services. An

injunction restoring the status quo ante defendants unlawful implementation of

their unprecleared task force raids is urgently needed.

Revenues generated as a result of the enactment of Amendment 744 provide

necessary funding for many critical services and nonprofit organizations in Macon

County. If defendants shut down the Macon County bingo operations the

following organizations, which serve predominantly African-American citizens in

Macon County, will be forced to reduce or eliminate staff and services: Macon

County Board of Education, Aid to Inmate Mothers, Macon-Russell Community

Action Agency, Tuskegee Macon County HeadStart, Interim Care for Seniors,

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Tuskegee-Macon County YMCA, Southeast Alabama Sickle Cell Association,

Dialysis Patient Aid Fund, Macon County Indigent Burial Fund, Macon County

Healthcare Authority, Ambulatory Behavior Health, Macon County RSVP, City of

Tuskegee Senior Citizens Program, B&D Cancer Care Center, Tuskegee Area

Chamber of Commerce, numerous volunteer fire departments, and the Macon

County Public Library.

InHornbeck Offshore Services, L.L.C. v. Salazar, 696 F.Supp.2d 627

(E.D.La. 2010), the plaintiffs requested a preliminary injunction against a

six-month moratorium on deepwater drilling for oil in the Gulf of Mexico. The

court held the plaintiffs had shown an irreparable injury:

Where the injury is merely financial and monetary compensation willmake the plaintiff whole if the plaintiff prevails on the merits, there isno irreparable injury. But when the nature of economic rights makes

establishment of the dollar value of the loss ... especially difficult orspeculative, a finding of irreparable harm is appropriate.

Hornbeckat 635-36 (citations and internal punctuation omitted). As the former

Fifth Circuit held:

Although economic loss is not normally considered irreparable if anadequate remedy at law exists, any action for reparation which theport interests might seemingly have is probably illusory. Themonetary damages, although obvious and doubtless very large, are notsusceptible of specific proof, and impossibility of proof has long beenrecognized as bearing upon adequacy of the legal remedy.

Texas. v. Seatrain Intern., S. A., 518 F.2d 175, 179 (5th Cir. 1975). In this action,

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as inHornbeckand Seatrain, the economic loss spreads over such a large class of

people, governments, businesses, and non-profits that quantifying the financial

harm to the plaintiff class will not be susceptible of specific proof.

In addition, even if the class could quantify its losses, there would be no way

to collect damages from the defendants in their official capacities or from the State

of Alabama. As to any damage claims, the State and the official-capacity

defendants would certainly claim Eleventh Amendment immunity. Hans v.

Louisiana, 134 U.S. 1, 15 (1890);Edelman v. Jordan, 415 U.S. 651 (1974);

Florida Assn of Rehab. Facilities, Inc. v. Florida Dept of Health & Rehab. Servs.,

225 F.3d 1208, 1220 (11th Cir. 2000) ([T]he Eleventh Amendment does not

generally prohibit suits against state officials in federal court seeking only

prospective injunctive or declaratory relief, but bars suits seeking retrospective

relief such as restitution or damages.) (citations omitted). Where the Eleventh

Amendment bars recovery of monetary damages from state entities, legal remedies

are inadequate and the plaintiff has shown the irreparable harm necessary for

injunctive relief. Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen

Freeholders of Atlantic County, 893 F. Supp. 301, 309 (D.N.J. 1995) (citation

omitted); see also California Pharmacists Assn. v. Maxwell-Jolly, 563 F.3d 847,

852 (9th Cir. 2009) ([B]ecause the economic injury doctrine rests only on

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ordinary equity principles, precluding injunctive relief where a remedy at law is

adequate, it does not apply, where, as here, the Hospital Plaintiffs can obtain no

remedy in damages against the state because of the Eleventh Amendment.);

Kansas Health Care Assn v. Kansas Dep't. of Soc. & Rehab. Servs., 31 F.3d 1536,

1543 (10th Cir. 1994) (Because the Eleventh Amendment bars a legal remedy in

damages . . . the court held that plaintiff's injury was irreparable. We agree.). The

individual-capacity defendants would not have enough resources to pay the

enormous losses of the plaintiff class and would probably claim qualified

immunity.

Conclusion.

For all the foregoing reasons, a three-judge court should be empaneled

promptly, and plaintiffs motion for a preliminary injunction should be granted.

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Respectfully submitted this 2nd day of August, 2010,

Edward StillBar No. ASB-4786-I 47W

2112 11

th

Avenue SouthSuite 541Birmingham, AL 35205

205-320-2882fax 205-449-9752

E-mail: [email protected]

Attorneys for plaintiffs

s/James U. BlacksherBar No. ASB-2381-S82J

P.O. Box 636Birmingham AL 35201205-591-7238Fax: 866-845-4395

E-mail:[email protected]

Fred D. GrayBar No. ASB-1727-R63FGray, Langford, Sapp, McGowan,Gray & Nathanson

P. O. Box 830239Tuskegee , AL 36083-0239

334-727-4830Fax: 334-727-5877

E-mail: [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on August 2, 2010, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, and I sent by first class mailnotification of such filing to the following:

John M. Tyson, Jr.Task Force CommanderOffice of Governor Bob Riley600 Dexter AvenueMontgomery, Alabama 36130

John M. Tyson, Jr.District Attorney205 Government Street Suite C-501Mobile, Alabama 36644

Hon. Bob RileyGovernor's OfficeState Capitol600 Dexter AvenueMontgomery, Alabama 36130

Hon. Troy KingAttorney General500 Dexter Ave.Montgomery AL 36130

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Respectfully submitted,

s/ James U. BlacksherJAMES U. BLACKSHERAla. Bar Code: ASB-2381-S82JP.O. Box 636Birmingham AL 35201Telephone: 205-591-7238Fax: 866-845-4395E-mail: [email protected]

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4 brief on prelim inj

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