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REL: 07/30/2010

Notice: This opinion is subject to formal revision beforepublication in the advancesheets of Southern Reporter. Readers arerequested to notify the Reporter of Decisions,Alabama AppellateCourts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)229-0649), of any typographical or other errors, in order thatcorrections may be made beforethe opinion is printed in SouthernReporter.

SUPREME COURT OF ALABAMASPECIAL TERM, 2010

____________________

1090878____________________

John M. Tyson, Jr., individually and in his officialcapacity asspecial prosecutor for and counsel to the

Governor's Task Force on Illegal Gambling

v.

E. Paul Jones et al.

____________________

1090939____________________

Ex parte John M. Tyson, Jr.

PETITION FOR WRIT OF MANDAMUS

(In re: E. Paul Jones et al.

v.

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John M. Tyson, Jr., individually and in his officialcapacity asspecial prosecutor for and counsel to the

Governor's Task Force on Illegal Gambling)

Proceedings from Macon Circuit Court(CV-2010-15)

MURDOCK, Judge.

The issue presented by this appeal and petition for the

writ of mandamus is whether attorneys purportedly authorized

by the governor to act in connection with a task forcecreated

to investigate allegedly illegal gambling devices and

activities and to pursue prosecutions in relation to such

devices and activities must have the permission of the

attorney general, the local district attorney, and thecounty

sheriff before pursuing an investigation or prosecution in a

particular county. At least insofar as it concerns the

attorney general and a district attorney, the same issue was

addressed in Ex parte State (In re Riley v. Cornerstone

Community Outreach, Inc.), [Ms. 1090808, May 21, 2010] __So.

3d __ (Ala. 2010) ("Cornerstone").

Facts and Procedural History

In December 2008, Governor Bob Riley issued Executive

Order No. 44 creating the Governor's Task Force on Illegal

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Gambling ("the Task Force"). In part, Executive Order No. 44

states:

"WHEREAS, Article IV, Section 65 of theConstitution of Alabamaof 1901 provides: 'Thelegislature shall have no power toauthorizelotteries or gift enterprises for any purposes, andshallpass laws to prohibit the sale in this stateof lottery or giftenterprise tickets, or tickets inany scheme in the nature of alottery ...;' and

"....

"WHEREAS, the Supreme Court of Alabama has heldthat bingo is aform of lottery and is thereforeillegal in Alabama, except whereexpresslyauthorized by a constitutional amendment. See CityofPiedmont v. Evans, 642 So. 2d 435, 436-37 (Ala.1994); and theconduct of bingo, within specifiedparameters, is authorized in 16counties and twomunicipalities by local constitutionalamendments,none of which, however, defines 'bingo;' and

"WHEREAS, in 1997, in a unanimous opinion

authored by now-Chief Justice Sue Bell Cobb, theAlabama Court ofCriminal Appeals ruled that wherebingo is authorized but nototherwise defined bylocal constitutional amendment, 'bingo'meansnothing other than 'the ordinary game of bingo;' theCourtupheld the appellant's conviction and 12-monthprison sentence forpromoting gambling andpossession of a gambling device where theappellanthad contended that the gambling activity he operatedwas'bingo' within the meaning of the localconstitutional amendment andlocal ordinance; and

the Court, acknowledging 'this state's strong publicpolicyagainst lotteries as expressed in 65 of theAlabama Constitution,'declared that bingo is a'narrow exception to the prohibition oflotteries inthe Alabama Constitution' and, accordingly, heldthat'no expression in [an] ordinance [governing the

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operation of bingo] can be construed to includeanything otherthan the ordinary game of bingo' lestthe ordinance be 'inconsistentwith the Constitution

of Alabama.' See Foster v. State, 705 So. 2d 534,537-538 (Ala.Crim. App. 1997) ...; and

"....

"WHEREAS, it is common knowledge that,notwithstanding the clearholding of Foster, thereis occurring at sites across this State,under thename of 'bingo,' gambling activity which noreasonableobserver could assert in good faith to be'the ordinary game ofbingo,' particularly

slot-machine style gambling in which an electronicdevice orsystem automatically processes an instantgame of virtual 'bingo'upon activation and a wagerby the human player, the outcome ofwhich is basedpredominantly on chance rather than on anymeaningfulhuman interaction or skill; and

"WHEREAS, regardless of the 'game' in question,the possession ofslot machines and gambling devicesis illegal in all 67 counties inAlabama pursuant toSection 13A-12-27, Code of Alabama 1975,which

provides: 'A person commits the crime of possessionof a gamblingdevice if with knowledge of thecharacter thereof he manufactures,sells,transports, places or possesses, or conducts ornegotiates anytransaction affecting or designed toaffect ownership, custody oruse of: (1) A slotmachine; or (2) Any other gambling device, withtheintention that it be used in the advancement ofunlawful gamblingactivity;' and

"....

"WHEREAS, in 2006, the Supreme Court of Alabamaruled thatmachines which 'look like, sound like,and attract the same class ofcustomers asconventional slot machines, and, when integratedwiththe servers, serve essentially the same

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function as [] slot machines,' are illegal slotmachines andfurther reaffirmed that 'Alabama'sgambling law is not so easilyevaded. It is "the

policy of the constitution and laws of Alabama [toprohibit] thevicious system of lottery schemes andthe evil practice of gaming inall their proteanshapes."' Barber v. Jefferson CountyRacingAssociation, Inc., 960 So. 2d 599, 614 (Ala. 2006)...(citations omitted); and

"WHEREAS, notwithstanding the Alabama SupremeCourt's clear,emphatic, and repeated remonstrationsagainst every artful attemptto circumvent Alabama'santi-gambling laws, there is an obvious lackof

uniformity in the enforcement of these laws fromcounty to county-- a state of affairs which hasproduced serious confusion aboutwhich activitiesare lawful and which are not, and which isbeingexploited by gambling's promoters to expand andentrenchillegal gambling activity in Alabama;

"NOW THEREFORE, I, Bob Riley, Governor of theState of Alabama,by virtue of the authority vestedin me by the Constitution and lawsof Alabama, andfor other good and valid reasons, which relate

thereto, do hereby establish the Governor's TaskForce on IllegalGambling for the purpose ofpromoting and supporting uniformstatewideenforcement of Alabama's anti-gambling laws and tocarryout the Alabama Constitution's strong publicpolicy against lotteryschemes and illegal gambling.

"BE IT FURTHER ORDERED, that the Task Forceshall be composed ofthe Director of the Departmentof Public Safety and such agents andinvestigatorsas he or she shall designate, the Administrator of

the Alcoholic Beverage Control Board and such agentsandinvestigators as he or she shall designate, anda supernumerarydistrict attorney, who shall beappointed by the Governor as aSpecial Prosecutorand who shall serve as the Task ForceCommander.

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"BE IT FURTHER ORDERED, that the Task Forceshall serve as aresource for local prosecutors andlaw enforcement officials whor*quest assistance in

the investigation and prosecution ofgambling-related crimes. TheTask Force may providetechnical assistance, investigative support,lawenforcement personnel, and any other assistancerequested bylocal authorities reasonably necessaryto enforce Alabama'santi-gambling laws.

"BE IT FURTHER ORDERED, that the SpecialProsecutor, pursuant toSection 12-17-216, Code ofAlabama 1975, shall have statewidejurisdiction andis hereby authorized, with the support of theTask

Force, to conduct investigations, attend anyregular, adjournedor special session of any circuitcourt in any of the judicialcircuits of Alabama forthe investigation of or the prosecution ofanycriminal case or the prosecution or defense of anycase relatedto gambling activity in the State ofAlabama."

See Ala. Code 1975, 36-13-9 (governor's power to issue

executive orders).

By letter dated December 29, 2008, Governor Riley

appointed former Jefferson County District Attorney David

Barber as commander of the Task Force and, in relation

thereto, as a special prosecutor to investigate andprosecute

illegal gambling activities throughout the State. In January

2010, following Barber's resignation from his positions as

commander and special prosecutor, Governor Riley issued an

order amending Executive Order No. 44. The amending order

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states:

"BE IT FURTHER ORDERED that the Governor,

whenever he deems it proper or necessary, may alterthemembership of the Task Force by removing anymember thereof, fillingany vacancy, or appointingadditional members thereto, as he seesfit, and mayappoint any member to serve as Task ForceCommander.

"BE IT FURTHER ORDERED that in addition to or inlieu of anyother appointments authorized orcontemplated by Executive OrderNumber 44 or underapplicable law, and pursuant toSection12-17-184(10), Code of Alabama 1975, the Governor

may appoint and authorize any district attorneys andanyassistant district attorneys in the State ofAlabama to serve asSpecial Prosecutor or AssistantSpecial Prosecutors and, as such,'[t]o go to anyplace in the State of Alabama and prosecute anycaseor cases, or work with any grand jury, ... and toattendsessions of courts and transact all of theduties of the districtattorney in the courts' withrespect to any investigations or casesrelating togambling activity in the State of Alabama.

"....

"BE IT FURTHER ORDERED that no provision ofExecutive OrderNumber 44 shall be construed aslimiting the jurisdiction or theauthority of theSpecial Prosecutor, an Assistant SpecialProsecutor,or the Task Force or its members, to fulfilltheirresponsibilities under applicable law, includingthose assignedby the Governor pursuant to relevantstatutory or constitutionalauthority."

Thereafter, Governor Riley issued a letter appointing

Mobile County District Attorney John M. Tyson, Jr., asspecial

prosecutor for and counsel to the Task Force. Theappointment

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See Cornerstone, ___ So. 3d at ___ (discussing1

appointments of Edgar W. Greene and Tim Morgan,bothsupernumerary district attorneys, as special prosecutors forandcounsel to the Task Force).

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letter states:

"I formally request that you serve as Special

Prosecutor and counsel for the Task Force in allcases involvingthe Task Force or its enforcement oflaws regarding illegalgambling, and that you go toany place in the State of Alabama andattend to andprosecute each such case, work with any grand juryinany such case or when otherwise called upon to doso by the Governorof the State of Alabama, andattend sessions of court and transactall of theduties of the district attorney in the courts in allsuchcases, and in any others whenever called uponby the Governor to doso, pursuant to Section

12-17-184(10) of the Code of Alabama (1975).

"I also formally request that you appear as SpecialProsecutorand counsel for the Task Force in thetrial and appellate courts andbefore allmagistrates and judges in all cases orproceedingsinvolving the Governor's Task Force on IllegalGamblingor its law enforcement activitiesregardless of where in the Stateof Alabama thecases or proceedings may occur or be initiated,andregardless of what appellate courts may hear appeals

or petitions for writs in such cases."

Among other appointments relating to the Task Force,1

Governor Riley also appointed Martha Tierney, an assistant

district attorney for Mobile County, to serve as special

prosecutor for and counsel to the Task Force pursuant to

12-17-184(10), Ala. Code 1975.

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The context for these proceedings is summarized in Tyson

v. Macon County Greyhound Park, Inc., [Ms. 1090548, Feb. 4,

2010] __ So. 3d __ (Ala. 2010), as follows:.

"[On January 29, 2010,] Macon County GreyhoundPark, Inc., d/b/aVictoryLand (hereinafter'VictoryLand'), commenced an action in theMaconCircuit Court against John M. Tyson, Jr.,individually and inhis official capacity as specialprosecutor and task force commanderof theGovernor's Task Force on Illegal Gambling pursuanttoExecutive Order No. 44 (hereinafter 'Tyson'),

seeking injunctive and declaratory relief stemmingfrom Tyson'sarrival at the premises of VictoryLandwithout a search warrant inthe early morning hoursof January 29, 2010, for the purpose ofseizingmachines that, Tyson says, are illegal gamblingdevices."

__ So. 3d at __. After the Macon Circuit Court entered an

order barring further action by Tyson pending a hearing,Tyson

sought relief from this Court. In Macon County Greyhound

Park, we concluded that the circuit court lacked

subject-matter jurisdiction to interfere with the law-

enforcement actions by Tyson and the Task Force; we vacated

the circuit court's order, and we dismissed the action andthe

appeal. ___ So. 3d at ___. Victoryland, the gaming facility

operated by Macon County Greyhound Park, Inc., promptlyceased

its operations and closed its doors to the public.

On March 5, 2010, following our decision in Macon County

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Greyhound Park, Macon County District Attorney E. PaulJones,

Macon County Sheriff David Warren, the Macon County

Commission, and three Macon County citizens (Johnny Ford,

Robert Freeman, and Stanley Maxwell)(hereinafter referred to

collectively as "the Macon County plaintiffs") filed a

"Verified Complaint Seeking Petition For Writ of QuoWarranto,

Temporary Restraining Order, Declaratory Judgment, and

Preliminary and Permanent Injunction" in the Macon Circuit

Court. Tyson, who was named in the complaint as a defendant

individually and in his official capacity as special

prosecutor for and commander of the Task Force, was the only

named defendant. The complaint alleged that Tyson had"raided

VictoryLand in Macon County and continues to threaten totake

action in Macon County." It sought, among other things, an

order enjoining Tyson from

"serving as Special Prosecutor and Task ForceCommander for theGovernor's Task Force ... andpreventing Tyson or any other TaskForce agent fromtaking action to: (i) usurp the authorityandprosecutorial discretion vested in the duly electedand qualifiedDistrict Attorney for Macon County;

(ii) usurp the authority of the Sheriff of MaconCounty; or (iii)usurp the authority of the dulyelected and qualified AttorneyGeneral of the Stateof Alabama."

In addition, the complaint sought, on behalf of the State, a

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In an affidavit in support of the complaint in the2

present case, District Attorney Jones stated:

"The declaratory judgment action was initiated incompliance withthe recommendations of the AttorneyGeneral for addressing thelegality of electronicbingo in counties which have adoptedconstitutionalamendments permitting the play of bingo. ... Ihave

11

writ of quo warranto to prevent Tyson from serving asspecial

prosecutor and Task Force commander and to prevent him from

"attempting to usurp the authority and prosecutorial

discretion vested in the duly elected and qualified District

Attorney for Macon County."

Based on the materials submitted in the current appellate

proceedings, we also note that, despite this Court'sdecision

in Macon County Greyhound Park, District Attorney Jonesfiled

a separate declaratory-judgment action seeking adetermination

by the circuit court as to the legality of electronic-bingo

operations in Macon County in light of Amendment No. 744,Ala.

Const. 1901 (now Local Amendments, Macon County, 1, Ala.

Const. 1901 (Off. Recomp.)). The circuit court case number

assigned to District Attorney Jones's declaratory-judgement

action is CV-2010-016; thus, it apparently was filed soon

after, if not in conjunction with, the present case, whichwas

assigned circuit court case number CV-2010-015.2

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exercised my prosecutorial discretion and haveelected not tofile any criminal charges against anyoperator of electronic bingoin Macon County at thistime because, among other reasons, there hasbeen nojudicial construction of the meaning of the word'bingo' asused in Amendment 744."

12

On the same day the complaint was filed in the present

case, the circuit court entered a temporary restrainingorder

stating that Tyson "his agents, servants, employees,

attorneys, members of the Task Force and anyone acting in

concert with any of the foregoing shall not interfere with

public access to any business by presence or action, orsearch

or seize any property, in Macon County or any county other

than Mobile County." The effective time for the order as

stated therein was 12:45 p.m. Victoryland resumed operations

and reopened at 1:00 p.m. on that day, consistent with an

announcement by it to that effect the previous day.

After a proceeding concerning whether a preliminary

injunction should issue at which ore tenus evidence was

presented, the circuit court entered an order on March 22,

2010, granting preliminary injunctive relief to the Macon

County plaintiffs. The order states:

"At issue in this case is whether John M. Tyson,Jr., the sittingDistrict Attorney for MobileCounty, has exceeded his authority andusurped or

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intruded into the office and the role of E. PaulJones, theelected and sitting District Attorney forMacon County. Petitionersspecifically requested

relief to (i) prevent Mr. Tyson from serving as the'Commander'of the Governor's Task Force on IllegalGambling ('Task Force'); and(ii) prevent Mr. Tysonand Task Force agents under his directionandcontrol from usurping the authority andprosecutorial discretionvested in the Sheriff andDistrict Attorney for Macon County and theAttorneyGeneral for the State of Alabama. This VerifiedComplaintdoes not contain any request that thisCourt make a determinationwhether electronic bingois legal in Macon County or whether anyparticular

machines are 'slot machines.' This action presentsthe Court witha dispute over the scope of authorityof law enforcement officialswhich may wellimplicate the constitutional rights of MaconCountyresidents, as well as the statutory division ofduties amongmembers of Alabama's executive branch."

(Emphasis added.) The circuit court then discussed whether

the Macon County plaintiffs "have established a substantial

likelihood of success on the merits of their Verified

Complaint, and their entitlement to a writ of quo warranto

under Alabama Code Section 6-6-591." After quoting that

portion of Executive Order No. 44 regarding the provision by

the Task Force of assistance to local law-enforcement

officers, the circuit court noted that "neither Jones nor

Warren have requested Mr. Tyson's assistance in conductingany

investigation or criminal prosecution." The circuit court

continued:

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"According to the testimony of Mr. Tyson,Executive Order No. 44and its Amendment gave Rileythe authority to appoint any districtattorney or

assistant district attorney to the Task Forcepursuant to theprovisions of Alabama Code Section12-17-184(10), which permits suchdistrict attorneyto:

"'go to any place in the State of Alabamaand prosecute any caseor cases, or workwith any grand jury, when called upon to doso bythe Attorney General or the Governorof the State of Alabama, and toattendsessions of courts and transact all of the

duties of the district attorney in thecourts whenever calledupon by the AttorneyGeneral or the Governor to do so.'

"Ala. Code 12-17-184(10)(emphasis added).

"However, section 12-17-184(10) does not give adistrict attorneyelected to serve Mobile County theauthority to initiate criminalinvestigations inMacon County. Section 12-17-184(10) must alsoberead in pari materia with Ala. Code 12-17-184(11)

as he is acting outside of Mobile County andexerting controlover officers and agencies outsideof his jurisdiction. Ala. Code12-17-184(11)states:

"'All district attorneys and all full-timeassistant districtattorneys shall devotetheir entire time to the discharge oftheduties of their respective offices, andeach and every one of theofficers areprohibited from practicing law, directly or

indirectly, in any court of this state orof the United States,or in any othermanner or form whatsoever, except in thedischarge ofthe official duties of theiroffices.'

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"Ala. Code 12-17-184(11).

"Evidence submitted during the hearing

establishes that District Attorney Jones hasexercised hisprosecutorial discretion to determinethe best course of action forthe citizens of MaconCounty in the investigation and prosecution ofanycase related to electronic bingo in Macon County.There has beenno evidence that District AttorneyJones has exercised hisdiscretion in bad faith orfor corrupt motives. Mr. Tyson testifiedthat thereason the Task Force has entered Macon County isbecauseMr. Tyson and Governor Riley believe thatDistrict Attorney Joneshas failed or refused to

prosecute electronic bingo cases.

"While Governor Riley and Mr. Tyson may notagree with theinvestigatory or prosecutorialdiscretion District Attorney Joneshas exercised,neither Mr. Tyson nor Governor Riley [has]theauthority to substitute their judgment for thejudgment ofDistrict Attorney Jones. The office ofDistrict Attorney, like theGovernor and theAttorney General, is a constitutional office.Alongwith the Attorney General, it is the obligation of

the District Attorney to expose and prosecutecrimes. 'Thedistrict attorney is a public officerrepresenting the sovereignpower of the people andhas been defined as the foremostrepresentative ofthe executive branch of government intheenforcement of the criminal law in his county.'State v.Anderson, 8 So. 3d 1033, 1036 (Ala. Crim.App. 2008). To allow Mr.Tyson and the Task Forceto enter Macon County for the purposeofinvestigating a matter which is the subject of anongoinginvestigation by the duly elected district

attorney for the Fifth Judicial Circuit wouldconstitute aninvasion and interference with saidongoing investigation and wouldresult inconstitutional chaos.

"The District Attorney is vested with broad

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prosecutorial discretion to perform his duties ofexposing andprosecuting crimes. Indeed, thedecision whether or not toprosecute, and what

charge to file or bring before a grand jury, restsentirely in[the district attorney's] discretion. Inother words, the duty toprosecute is not absolute,but qualified, requiring of theprosecuting attorneyonly the exercise of a sound discretion,whichpermits him to refrain from prosecuting whenever he,in goodfaith and without corrupt motives orinfluences, thinks that aprosecution would notserve the best interests of the state, orthat,under the circ*mstances, a conviction could not behad, or thatthe guilt of the accused is doubtful or

not capable of adequate proof.

"According to the evidence presented, DistrictAttorney Jones hasdetermined what he considers tobe the best way to proceed in thismatter and hisdiscretion is not subject to second-guessing byMr.Tyson or Governor Riley. The statutory authority todirect andcontrol litigation when representing theState has been exclusivelydelegated to AlabamaAttorney General -- not the Governor or aspecialprosecutor: '[a]ll litigation concerning the

interest of the state, or any department of thestate, shall beunder the direction and control ofthe Attorney General ....' Ala.Code 36-15-21.In fact, the authority to superintend litigationisleft in the sole discretion of the Attorney Generalbecause theAttorney General is the chief lawofficer of the State. Alabama Code36-15-14provides that the Attorney General - not theGovernor or aspecial prosecutor appointed by him -'may at any time he seesproper, either before orafter indictment, superintend and directthe

prosecution of any criminal case in any of thecourts of thisstate.'

"Mr. Tyson testified that he and the Governorhad no confidencethat District Attorney Jones wouldenforce the rule of law in MaconCounty and that

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District Attorney Jones was refusing to act. Whileno evidencewas presented to support the contentionthat District Attorney Joneshas refused to perform

the duties of his office, Alabama Code 12-17-186(a) provides themechanism for when adistrict attorney refuses to act:

"'The presiding judge of the circuit court,the district court orthe municipal court,when the district attorney or assistantdistrictattorney regularly required by lawto prosecute criminal cases insuch courtis absent, or connected with the partyagainst whom it ishis duty to appear ...

or when there is a vacancy in the officefrom any cause, or whenthe districtattorney refuses to act, may appoint acompetentattorney to act in such districtattorney's place ....'

"Ala. Code 12-17-186(a). In fact evidence [was]presented whichestablished that District AttorneyJones has an ongoinginvestigation into thesematters. Under the law, then, if DistrictAttorneyJones had failed to perform the duties of his

office, the proper course of action would have beento have ajudge appoint an attorney to act in hisplace. The Code does notpermit Mr. Tyson to assumeDistrict Attorney Jones' duties even ifhe failed toperform them, and it certainly does not authorizeTysonto usurp them because he and the Governor donot agree with themanner in which Jones has chosento conduct his investigation andlitigationstrategy. Therefore, Petitioners have met theirburden atthe preliminary injunction stage ofestablishing a reasonable chanceof success on the

ultimate merits of their case."

The circuit court further stated:

"Under Alabama law, if Jones is rendered unable toperform theofficial duties and obligations of his

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position as District Attorney for Macon Countybecause Mr. Tysonacts outside his powers orotherwise exceeds his authority,irreparable harm

will have been caused. ... Mr. Tyson is not harmedby an orderprecluding him from taking unlawfulactions, while the residents ofMacon County will bedeprived of constitutional rights and theservicesof their duly-elected law enforcement officials iftheinjunction does not issue. The executive branchhad notice of thenature of the machines whichunderlay the investigation at issue inthis casefive years ago. Therefore, the executive branchcannotclaim that it is somehow suffering immediateharm."

The circuit court then concluded that

"a preliminary injunction is necessary in theinstant case toprevent Mr. Tyson from takingactions for which he lacks authority;from hisefforts to usurp the authority and prosecutorialdiscretionvested in Jones, the duly-elected andqualified District Attorneyfor Macon County; andfrom efforts to usurp the authority of theSheriffof Macon County, or the Attorney General of the

State of Alabama.

"... The Court finds that Mr. Tyson has notinitiated anycriminal proceedings in Macon Countypursuant to Alabama Code 197515-3-7 and Rule 2.1of the Alabama Rules of Criminal Procedure, andthatthis Order does not enjoin any valid or authorizedcriminalproceedings.

"... [Tyson], his agents, servants, employees,attorneys, membersof the Governor's Task Force on

Illegal Gambling established pursuant to ExecutiveOrder No. 44('Task Force'), and anyone acting inconcert with any of theforegoing, shall not takeany actions in or directed to Macon Countyon behalfof the Task Force, pursuant to Executive Order No.44, asamended, or in furtherance of the objectives

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of Executive Order No. 44, as amended, absent aspecific requestfor such actions from theduly-elected District Attorney or Sherifffor Macon

County or a specific directive from the AttorneyGeneral of theState of Alabama.

" ... This Order does not prohibit [Tyson] fromdefending himselfin this action or any other actionfiled against him in the courtsin and for MaconCounty.

"... This Order does not prohibit agents of theAlabama BeverageControl Board or agents of theDepartment of Public Safety fromconducting

authorized law enforcement operations (i) that arenot performedin concert with, in connection with,or at the request or directionof Mr. Tyson or theTask Force in Macon County; or (ii) that donototherwise impinge upon or interfere with theinvestigations intoelectronic bingo in Macon Countybeing undertaken by Jones andWarren, or that arecontrary to the prosecutorial discretionexercisedby Jones.

"... [Tyson] is directed to provide a copy of

this Order to his agents, servants, employees,attorneys, andmembers of the Task Force and anyoneacting in concert with any ofthe foregoing."

We also note the Macon County plaintiffs objected to

Mobile County Assistant District Attorney Martha Tierney's

appearance as counsel for Tyson in the underlying action "in

her role as an attorney for the Task Force." The circuit

court also entered a separate order on March 22, 2010,

stating:

"Tierney is an assistant district attorney for

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Mobile County, Alabama. As such, her duties are setforth inAlabama Code Section 12-17-184. Section12-17-184(10) does notauthorize Tierney to defend

Tyson in this Macon County action. That Sectiononly allows forthe prosecution of cases byassistant district attorneys and doesnot permitdefending cases. Cf. 12-17-184(3).

"Additionally, Section 12-17-184(11) requiresTierney to devoteher 'entire time to the dischargeof the duties' of her office andprohibits her frompracticing law in any court of this state 'exceptinthe discharge of [her] official duties.' Tierney isnot permittedto represent Tyson personally, on her

own time, and is required to be working in thedistrict in whichshe was hired.

"Moreover, Alabama Code Section 36-15-1 providesthat 'Anystatute to the contrary notwithstanding,no attorney shall representthe State of Alabama, orany agency, department, or instrumentalityof thestate in any litigation in any court or tribunalunless theattorney has been appointed as a deputyattorney general orassistant attorney general.'Tierney has presented no evidence thatshe has been

appointed as a deputy attorney general or assistantattorneygeneral. Thus, Tierney cannot claim thatshe represents the State orany agency of the Statein this litigation. Indeed, Petitioners herehavenot sued the State or any such state agency. Theonly respondentnamed in this action is Tyson."

(Emphasis added.) The circuit court then concluded that

"Tierney may not properly represent Tyson in his individual

capacity in this action," "that Tierney is not authorized to

represent Tyson in his capacity of Special Prosecutor and

Commander of the Governor's Task Force on Illegal Gamblingin

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The Macon County plaintiffs have filed a motion to strike3

Tyson's appellate brief in case no. 1090878 on the groundsthatcertain media reports attached as exhibits to that briefare notpart of the record on appeal, that certain factualassertionscontained in the brief are unsupported by therecord, and that Tysonhas failed to make adequate referencesto the record. In reachingour decision in this case, we haveconsidered only the materialsthat are properly included inthe record on appeal. We reject thecontention that Tyson'sbrief so fails to substantially comply withthe Alabama Rulesof Appellate Procedure that it should be stricken,and wetherefore deny the motion to strike.

21

this action," and that "[a]ll pleadings and submissions made

by Tierney in this matter constitute a legal nullity."

Tyson filed an appeal from the March 22 order granting

preliminary injunctive relief (case no. 1090878), and hefiled

a petition for a writ of mandamus challenging the March 22

order holding that Assistant District Attorney Tierney isnot

authorized to defend Tyson in the underlying action (caseno.

1090939). We have consolidated the appeal and the petition

for the writ of mandamus for the purposes of this opinion. 3

The Appeal (case no. 1090878)

Subject-Matter Jurisdiction

Tyson argues in the appeal that the preliminary

injunction is due to be vacated on the ground that thecircuit

court lacked subject-matter jurisdiction to enjoin the

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1090878; 1090939

In part, Tyson argues:4

"[A]ll the [Macon County] Plaintiffs have done hereis splitVictoryland's previously invalid actioninto two separate butequally invalid actions.Jones and Warren have filed (1) adeclaratoryjudgment action in which they seek a determinationofwhether Victoryland's machines are legal and (2)this purported quowarranto action to enjoin theenforcement of the criminal law untilthat otheraction is complete. But, since this Court'sdecision in[Macon County Greyhound Park]establishes that a declaratoryjudgment actioncannot be used to enjoin a criminalinvestigationdirectly, surely the mere pendency of such anactioncannot preclude a criminal investigation indirectly.Eventhough Jones' declaratory-judgment complaintsays '[t]his actiondoes not request that this Courtenjoin any criminal proceeding orprosecution,' thatis exactly what the trial court has done inthiscase on account of the mere pendency of thataction."

22

enforcement of criminal laws. In the alternative, he argues4

that the order issuing the preliminary injunction should be

reversed because, he says, the circuit court erred as amatter

of law when it concluded that the Macon County plaintiffshave

a likelihood of success on the merits and that they would

suffer irreparable injury if the Task Force enforces thelaw.

Tyson also contends that the circuit court exceeded its

discretion when it concluded that the hardship imposed upon

the Task Force by the issuance of the injunction would not

unreasonably outweigh the benefit to the Macon County

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1090878; 1090939

Tyson also argued in the circuit court that a quo6

warranto action is not available to challenge how anofficialexercises the powers of his or her admitted office.Thisargument appears to have been properly rejected in thatthegravamen of the petition for the writ of quo warranto isTyson'salleged usurpation of rights, authorities, or dutiesof the officesof District Attorney Jones and Sheriff Warren.

No argument is made in this case that injunctive reliefdoes notlie in aid of the quo warranto claim presented here.

24

this Court stated:

"A public office is the right, authority, and

duty, created by law, by which for a given period,either fixedby law or enduring at the pleasure ofthe creating power, anindividual is invested withsome portion of the sovereign functionsof thegovernment, to be exercised by him for the benefitof thepublic. Lacy v. State, 13 Ala. App. 212, 68So. 706 (1915).Constitutionally, the term 'publicoffice' implies an authority toexercise someportion of the sovereign power, either byenacting,executing or administering the laws."

Thus, like Cornerstone, the present case inquires into

the division of duties and the respective spheres ofauthority

of the governor and attorneys acting at his designation, on

the one hand, and that of the attorney general and adistrict

attorney (and, in this case, a sheriff), on the other hand.

We therefore reject Tyson's subject-matter-jurisdiction

argument as to the quo warranto claim presented here and asto

the injunctive relief issued by the circuit court in aid of

its jurisdiction over that claim.6

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1090878; 1090939

Compare, e.g., Spykerman v. Levy, 491 Pa. 470, 488, 421 A.2d641,650 (1980) (holding that the public interest requires thegeneralperformance of the duties of a public office pendingthe litigation,a concern not present here with respect to theoffices of districtattorney and sheriff of Macon County, andthat the trial court"abused its discretion" by issuing aninjunction that "crippl[ed]the daily operations of thegovernment").

25

Standard of Review

The appeal before us calls into question the propriety of

the preliminary injunction issued by the circuit court. Asto

questions of fact, the ore tenus rule is applicable in

preliminary-injunction proceedings. See, e.g., King v. Head

Start Family Hair Salons, Inc., 886 So. 2d 769, 770 n.1(Ala.

2004). As this Court noted in Holiday Isle, LLC v. Adkins,12

So. 3d 1173, 1176 (Ala. 2008), however,

"[t]o the extent that the trial court's issuanceof a preliminaryinjunction is grounded only inquestions of law based on undisputedfacts, ourlongstanding rule that we review an injunctionsolely todetermine whether the trial court exceededits discretion should notapply. We find the ruleapplied by the United State Supreme Court insimilarsituations to be persuasive: 'We review theDistrict Court'slegal rulings de novo and its

ultimate decision to issue the preliminaryinjunction for abuseof discretion.' Gonzales v. OCentro Espirita Beneficente Uniao doVegetal, 546U.S. 418, 428, 126 S. Ct. 1211, 163 L. Ed. 2d1017(2006) ...."

The requirements for a preliminary injunction are well

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26

known:

"'Before entering a preliminary injunction,

the trial court must be satisfied: (1) thatwithout theinjunction the plaintiff willsuffer immediate and irreparableinjury;(2) that the plaintiff has no adequateremedy at law; (3)that the plaintiff islikely to succeed on the merits of thecase;and (4) that the hardship imposedupon the defendant by theinjunction wouldnot unreasonably outweigh the benefit totheplaintiff.'"

Blount Recycling, LLC v. City of Cullman, 884 So. 2d 850,853

(Ala. 2003) (quoting Blaylock v. Cary, 709 So. 2d 1128, 1130

(Ala. 1997)).

The circuit court concluded that the foregoing

requirements were met and, in particular, that there was "a

substantial likelihood of success on the merits" as to the

Macon County plaintiffs' contention that Tyson haswrongfully

usurped and intruded into the offices of Attorney General

King, District Attorney Jones, and Sheriff Warren. We must

reject the circuit court's conclusion as based on a

misapprehension of applicable law. We pretermit discussionof

the remaining issues.

Analysis

We first consider that aspect of the circuit court's

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Section 12-17-184(11) states, in its entirety:7

"(11) All district attorneys and all full-timeassistant districtattorneys shall devote theirentire time to the discharge of theduties of theirrespective offices, and each and every one oftheofficers are prohibited from practicing law,

directly or indirectly, in any court of this stateor of theUnited States, or in any other manner orform whatsoever, except inthe discharge of theofficial duties of their offices."

Section 12-17-186(a) states:8

27

rationale relying upon Ala. Code 1975, 12-17-184(11) and

-186(a). Neither 12-17-184(11) nor 12-17-186(a) serve to

limit Tyson, Assistant District Attorney Tierney, or other

officers of the Task Force who are acting at the directionof

Governor Riley. Section 12-17-184(11) merely requires that

district attorneys shall devote their "entire time to the

discharge of the duties of their respective offices." As7

discussed in Cornerstone, Tyson's prosecution of cases suchas

the one presented here, when duly called upon by thegovernor

pursuant to 12-17-184(10), is in fact one of "the duties of

[his] office." __ So. 3d at __. Section 12-17-186(a) merely

provides the mechanism and criteria by which local judgescan

appoint an attorney to act in the stead of a local district

attorney. It does not countermand the authority under which8

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1090878; 1090939

"(a) The presiding judge of the circuit court,the district courtor the municipal court, when thedistrict attorney or assistantdistrict attorneyregularly required by law to prosecutecriminalcases in such court is absent, or connected with thepartyagainst whom it is his duty to appear byconsanguinity or affinitywithin the fourth degree,or when there is a vacancy in the officefrom anycause, or when the district attorney refuses to act,mayappoint a competent attorney to act in suchdistrict attorney'splace, but such appointmentshall in no event extend beyond thesession of thecourt at which the appointment is made."

28

Governor Riley acted to employ Tyson in this case.

In their brief to this Court, the Macon County plaintiffs

argue that District Attorney Jones and Sheriff Warren didnot

request assistance in Macon County and that there is no

evidence indicating that District Attorney Jones failed or

refused to enforce the laws against illegal gambling. They

further argue that Tyson, Assistant District AttorneyTierney,

and Supernumerary District Attorney Morgan have not been

requested to act by Attorney General King: "[A]ny actiontaken

in Macon County by Tyson, and those acting in concert withhim

or pursuant to his direction or instructions, is in

contravention of the authority of the Attorney General andthe

discretion of the local district attorney." They argue:

"Like the Governor and the Attorney General, theoffice ofDistrict Attorney is a constitutional

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1090878; 1090939

29

office. See Cole v. State, 337 So. 2d 40, 46 (Ala.1974); Ala.Const. Art. VI, 160(a). Along withthe Attorney General, it is theobligation of the

District Attorney to expose and prosecute crimes.See Ex parteWhite, 300 So. 2d 420, 433 (Ala. Crim.App. 1974), cert. denied 300So. 2d 439 (Ala. 1974).In performing this constitutional functionofexposing and prosecuting crimes, the DistrictAttorney is vestedwith broad prosecutorialdiscretion. Piggly Wiggly No. 208, Inc. v.Button,601 So. 2d 907, 910 (Ala. 1992). As recognized bythisCourt,

"'the decision whether or not to prosecute,

and what charge to file or bring before agrand jury, restsentirely in [the DistrictAttorney's] discretion. In other words,theduty to prosecute is not absolute, butqualified, requiring of theprosecutingattorney only the exercise of a sounddiscretion, whichpermits him to refrainfrom prosecuting whenever he, in goodfaithand without corrupt motives or influences,thinks that aprosecution would not servethe best interests of the state, orthat,

under the circ*mstances, a conviction couldnot be had, or thatthe guilt of theaccused is doubtful or not capable ofadequateproof.'

"Id. (quoting 63A Am. Jur. 2d Prosecuting Attorneys 24(1984))."

The argument of the Macon County plaintiffs is akin to

the arguments we considered in Cornerstone, in particularthe

arguments made on behalf of the attorney general and the

district attorney of Lowndes County in that case. We again

reject such arguments.

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1090878; 1090939

Specifically, as noted, we have before us the9

circ*mstance where the governor considers that gamblingactivityis occurring in Macon County and elsewhere that "noreasonableobserver would assert in good faith" to be legal.

30

As we were in Cornerstone, we are presented with the

unusual circ*mstance of the governor of this State making a

judgment that the laws concerning illegal gambling were not

being enforced in certain counties in this State, including

Macon County. Governor Riley also determined that the lack9

of enforcement in such counties, and the resulting lack of

uniform enforcement of the laws, has "produced serious

confusion about which activities are lawful and which arenot"

and that the confusion is "being exploited by gambling

promoters to expand and entrench illegal gambling activities

in Alabama." Therefore, as explained in Cornerstone, "[i]nan

attempt to fulfill his charge to 'take care that the laws be

faithfully executed,' ... Governor Riley has directedcertain

law-enforcement officers who have been placed at hisdisposal

by law to investigate and prosecute alleged gambling

activity." ___ So. 3d at ___.

In Cornerstone, we began our examination of the relevant

constitutional and statutory provisions as follows:

"Article V of the Alabama Constitution of 1901

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1090878; 1090939

See also 138, Ala. Const. 1901 (providing that a10

sheriff is to be elected for each county).

Section 160(a), Ala. Const. 1901, provides for theelection,qualifications, and term of office of districtattorneys. Although160 is contained within theconstitutional provisions relating tothe judicial department,"the district attorney is not a ... part ofthe judicialbranch of government." Dickerson v. State, 414 So. 2d998,1008 (Ala. Crim. App. 1982), abrogated in part on othergroundsby Ex parte Bohannon, 564 So. 2d 854 (Ala. 1988). "Heis only anofficer of the court to the extent that allattorneys are officersof the court." 414 So. 2d at 1008; seealso, e.g., Beacom v. Boardof County Comm'rs of Adams County,657 P.2d 440, 445 (Colo.1983)("The district attorney,although elected from a judicialdistrict as provided in Colo.Const. Art. VI, Sec. 13, is not amember of the judiciary.Rather, the district attorney is anexecutive officer of thestate."). As this Court has stated:

"In exposing and prosecuting crimes, districtattorneys aremembers of the executive branch ofstate government. Dickerson v.State, 414 So. 2d998, 1008 (Ala. Crim. App. 1982). ... See,also,63A Am. Jur. 2d Prosecuting Attorneys 24 (1984):

"'....

"'A prosecutor is not subject tojudicial supervision indetermining whatcharges to bring and how to draftaccusatorypleadings; he is protected fromjudicial oversight by the doctrineof

31

creates and defines the 'executive department' ofgovernment.Section 112 of that article provides:'The executive departmentshall consist of a

governor, lieutenant governor, attorney-general,state auditor,secretary of state, state treasurer,superintendent of education,commissioner ofa*griculture and industries, and a sheriff foreachcounty.'[ ] The very next provision of that article10

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1090878; 1090939

separation of powers.'"

Piggly Wiggly No. 208, Inc. v. Dutton, 601 So. 2d 907, 910(Ala.1992).

32

states as follows: 'The supreme executive power ofthis stateshall be vested in a chief magistrate,who shall be styled "TheGovernor of the State of

Alabama."' Ala. Const. 1901, 113 .... Section 120of that articlethen provides that '[t]he governorshall take care that the laws befaithfullyexecuted.' Ala. Const. 1901, 120 .... Ashereinafterdiscussed, these express constitutionalprovisions, all of which areof course unique to theoffice of governor, plainly vest thegovernor withan authority to act on behalf of the State andtoensure 'that the laws [are] faithfully executed'that is 'supreme'to the 'duties' given the otherexecutive-branch officials createdby the same

constitution. See generally Black's Law Dictionary970 (8th ed.2004) (defining a 'magistrate' as'[t]he highest-ranking official ina government,such as the king in a monarchy, the president inarepublic, or the governor in a state. -- Also termedchiefmagistrate; first magistrate'). See alsoOpinion of the Justices No.179, 275 Ala. 547, 549,156 So. 2d 639, 641 (1963): 'The laws of thestatecontemplate domestic peace. To breach that peace isto breachthe law, and execution of the laws demandsthat peace be preserved.The governor is charged

with the duty of taking care that the laws beexecuted and, as anecessary consequence, of takingcare that the peace bepreserved.'"

___ So. 3d at ___ (emphasis omitted).

As we did in Cornerstone, we find noteworthy the opinion

of the Supreme Court of Maine in State v. Simon, 149 Me.256,

263-64, 99 A.2d 922, 925 (1953):

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33

"'The Governor of the State under ourConstitution has the powerto requireinformation from any officer in the

executive department. He has the duty to"take care that the lawsbe faithfullyexecuted." He is the head of the executivedepartment.To carry out these greatconstitutional powers, in ourview,everything pertaining to the executivedepartment is at alltimes pending beforethe Governor in his official capacity.'"

__ So. 3d at __ (emphasis omitted). See also State ex rel.

Stubbs v. Dawson, 86 Kan. 180, 187-88, 119 P. 360, 363(1911):

"It is manifest ... that the term 'supreme executive power'is

something more than a verbal adornment of the office, and

implies such power as will secure an efficient execution of

the laws ...."

We also note, as we did in Cornerstone, ___ So. 3d at __,

portions of the analysis of the Supreme Court of Mississippi

in State v. McPhail, 182 Miss. 360, 374, 180 So. 387, 389-91

(1938):

"'Section 123, Constitution 1890,provides that "The governorshall see thatthe laws are faithfully executed." ...

"'....

"'The constitutional and statutoryprovisions requiring theGovernor to seethat the laws are executed have no obscureortechnical meaning; neither were they

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34

intended as a mere verbal adornment of hisoffice. State v.Dawson, 86 Kan. 180, 187,119 P. 360, 39 L.R.A., N.S., 993[(1911)].

They mean what is in the ordinary import ofthe language used, towit, that the lawsshall be carried into effect, that theyshall beenforced. ...

"'A permeating feature in our StateConstitution, and in allStateConstitutions, is that primary localauthority shall bepreserved, so far aspractically possible. The execution ofcivil andcriminal process -- the execution

of the laws -- was and is no exception tothis structural rule.It was foreseen,however, by the framers of the Constitutionthat forone cause or another, localconditions would sometimes arisewhichwould render the local authoritiespowerless to enforce thelaws, or unwillingor afraid to do so. It was to meetsuchconditions, as one of its purposes, thatthe constitutional andstatutory authoritywhich we have above mentioned in respect to

the execution of the laws was vested in theGovernor. TheConstitution makers did notleave any such loophole as topermitstatutes enacted for general observancethroughout the stateto be set aside, or inpractical effect repealed, in anyparticularsection or area by the device ofa failure or refusal of thelocalauthorities to enforce such statutes.

"'Thus and for the stated reason, the

chief executive was given the authority andit was made his dutyto act to enforce thelaws, duly and constitutionally enacted,inevery portion of the state, so that everycitizen and all propertywould have theprotection of the laws and that every

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1090878; 1090939

35

criminal statute should be observed. Thusthe power to enforcethe laws is not leftas a matter of finality to the discretion

of the local authorities or the localinhabitants; but power wasplaced in thehead of the executive department to act, incase ofneed, for the whole state. TheGovernor is an executive officer ineverycounty of the state; and he may set theenforcement machineryin motion and therebydetermine to whom the civil process maybedirected for execution, when that hasbecome proper on account offailure,neglect, or inability of the local

executive officers to act. Every power athis command given bythe Constitution andstatutes may be brought into play so farasneeded to effect the enforcement of thelaw. ...

"'As was said by the court in Franksv. Smith, 142 Ky. 232, 134S.W. 484,L.R.A.1915A, 1141, Ann.Cas.1912D, 319[(1911)]: "Primarily,the enforcement ofthe law is with the local civil

authorities, but at times they are too weakto control thelawless elements that existin every society, and at other timestheymight be in sympathy with the forces whowant to take the lawinto their own hands.But, whatever the reason that may exist forthefailure or inability of the local civilauthorities to suppressviolence anddisorder, when it comes to pass that theycannot or willnot do it then it is notonly the right but the plain duty ofthe

Governor to act. Ours is a government oflaw. Under its authorityand through itsagencies alone wrongs must be redressed andrightsprotected. Unless this were so therewould be no assurances of peaceor quietfor the law-abiding and order-loving, who

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1090878; 1090939

36

constitute so large a part of our people.The life and propertyof the citizen wouldbe insecure, and the lawless, reckless, and

violent would be at liberty to exercise atwill their disregardof civil authority."It will be noted that the above languagewasaddressed to occasions of violence anddisorder, but it applies aswell tosituations where there is a breakdown ofthe enforcement ofthe laws, although notattended by nature actual violence,ordisorder of a violent nature.

"'....

"'A fair measure of deference must beaccorded to the localauthorities, butwhen, as here, the Governor has soughtbyrepresentations to, and requests of, thelocal authorities thatthe law be enforced,and they fail to do so; when theirfailurebecomes tantamount in substantial resultsto a refusal, or tono more than a futilepretense; when the condition existsandpersists for that length of time which

makes it clearly apparent that nodependence is to be placed uponthe localexecutive officers and that they eithercannot or will notenforce the laws, sothat as respects all offenses of a certainclassor classes, or as to any class orclasses of civil process, therehas been asubstantial breakdown of local enforcement,then the powerand duty of the Governorarises to send the executive agentswithwhich the law has armed him ....'"

(Emphasis omitted.)

After taking note of the aforesaid authorities in

Cornerstone, we reviewed numerous statutes authorizing the

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1090878; 1090939

We also took note of Ala. Code 1975, 36-13-2, which11

states:

"Whenever, in his judgment, it is expedient ornecessary, theGovernor may employ an attorney orattorneys to advise him in hisofficial capacity, orto institute, conduct or appear in any courtor inany civil or criminal case in which the state isinterested andto agree with such counsel on hiscompensation. ... The compensationof such counselshall be paid ... out of such funds asareappropriated to the Governor's office."

See also State ex rel. Troy v. Smith, 187 Ala. 411, 416, 65So.942, 943 (1914) ("It is thus seen that by [the language inwhat isnow 36-13-2] the Governor is empowered to employ ...an attorney orattorneys to advise him in his officialcapacity, as well as toinstitute, conduct, or appear in any

37

governor to initiate or control litigation on behalf of the

State. We then took particular note of Ala. Code 1975, 12-

17-184(10), which provides:

"It is the duty of every district attorney andassistant districtattorney, within the circuit,county, or other territory for whichhe or she iselected or appointed:

"....

"(10) To go to any place in the State of Alabama

and prosecute any case or cases, or work with anygrand jury,when called upon to do so by theAttorney General or the Governor ofthe State ofAlabama, and to attend sessions of courts andtransactall of the duties of the district attorneyin the courts whenevercalled upon by the AttorneyGeneral or the Governor to do so."

(Emphasis added.)11

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1090878; 1090939

civil or criminal case in which the state is interested, inanycourt ....").

Elsewhere in Cornerstone, we noted, as we may here, that12

"[w]e need not decide whether, in a dispute as herebetween thegovernor and another constitutionalofficer over their respectivefields of authority,the other officer ever may defend his or her'turf'on the ground that the governor's determination that

38

We then concluded in Cornerstone as follows:

"On their face, 12-17-184(10) and -216, if

not also 36-13-2, authorize the governor to act asGovernor Rileyhas in this case. Moreover, allstatutes concerning the rights andpowers of thegovernor must be read in the context provided by 113and 120 of the constitution. See City ofBirmingham v. Emond, 229Ala. 346, 349, 157 So. 64,66 (1934) (applicable statutes consideredin parimateria with pertinent constitutional provisions).Under theconstitution, it is the governor who isthe 'chief magistrate' with'the supreme executivepower' to 'take care that the laws befaithfully

executed.'"

___ So. 3d at ___. As we thereafter observed:

"In the present case, Governor Riley concludedthat the criminallaw of Alabama regarding gamblingdevices and gambling enterpriseshad gone unenforcedin certain counties and that, without action onhispart and on the part of those he authorized to act,that lawwould continue to go unenforced in thosecounties during AttorneyGeneral King's tenure. He

employed certain officers placed at his disposal toenforce thoselaws with respect to machines andoperations against which thosestatutes clearly werenot being enforced, either by Attorney GeneralKingor by local law enforcement (including [thedistrictattorney])."12

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the other officer is not 'faithfully executing' thelaw isaffected by bad faith or some comparable

deficiency. As discussed below, that clearly is notthe casehere. See discussion infra."

___ So. 3d at ___ n. 9.

As to district attorneys, see Ala. Code 1975, 12-17-13

184 and -185. As to sheriffs, see Ala. Code 1975, 36-22-3.

39

___ So. 3d at ___.

The statutes prescribing the authority and duties of the

governor and the attorney general, district attorneys, and

sheriffs must be read in pari materia with one anotherand,13

a fortiori, with the governing constitutional provisions. It

is clear from a comparison of the constitutional andstatutory

provisions concerning the governor with the constitutionaland

statutory provisions concerning these other officials thatthe

governor is the superior officer. Generally, where the

governor is authorized to act he or she is not subject toany

other executive officer. Further, those statutes thataddress

the duties of district attorneys and sheriffs obviously have

a large field of operation outside those rare cases wherethe

governor finds it necessary to assert his or her authority.

Thus, as we stated in Cornerstone with respect to thestatutes

governing the attorney general:

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40

"It is not necessary to construe them as being inconflict withthose constitutional and statutoryprovisions giving the governorthe supreme executive

authority and authorizing him to retain counsel andcall upondistrict attorneys and supernumerarydistrict attorneys, see, e.g.,Decatur Lab., Inc. v.Sizemore, 564 So.2d 976, 977 (Ala. Civ. App.1990)('It is well settled that, where possible, statutesshould beconstrued to be constitutional.'). Werewe required to do so, anysuch conflict would haveto be decided in favor of the governor andtheconstitution's direct and explicit grant to him ofthe supremeexecutive power."

__ So. 3d at __.

In Cornerstone, we explained that, even if we could

conclude that the "scale" otherwise tilted in favor of the

statutes governing the attorney general and the district

attorneys (and the same is true as to the statutes governing

the sheriffs), we could not act on that conclusion there. As

we stated in Cornerstone:

"The Governor has determined that action on his partis necessaryto take care that the laws arefaithfully executed. If thegovernor's 'supremeexecutive power' means anything, it means thatwhenthe governor makes a determination that the laws arenot beingfaithfully executed, he can act using thelegal means that are athis disposal."

__ So. 3d at __.

Like Governor Riley's argument in Cornerstone, Tyson's

argument in this case contains no suggestion of a bad-faithor

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1090878; 1090939

41

other limitation on Governor Riley's authority to determine

that the law is going unenforced in an area for whichanother

executive officer has responsibility and that reliance onthe

other executive officer, or any action taken by thatofficer,

is insufficient to ensure that the laws of this State are

faithfully executed. To decide this dispute betweenexecutive

officials over their respective spheres of authority,however,

it is not necessary for us to decide whether the governor's

discretion to make such a determination and to act upon itis

"absolute" in relation to the other officials. For the same

reasons we expressed in Cornerstone, "[w]e are clear to the

conclusion that, at least under circ*mstances such as those

presented here, Governor Riley acted consistently with his

constitutional authority, " __ So. 3d at __, in his employof

Tyson and other members of the Task Force. See Cornerstone,

___ So. 3d at ___ (discussing Governor Riley's position asto

the term "bingo" in local constitutional amendments and

discussing City of Piedmont v. Evans, 642 So. 2d 435, 436

(Ala. 1994); Foster v. State, 705 So. 2d 534, 537-38 (Ala.

Crim. App. 1997); and Barrett v. State 705 So. 2d 529,531-32

(Ala. Crim. App. 1996)).

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1090878; 1090939

We also take cognizance of the number of cases that14

recently have been appealed to this Court and thatconcerndisputes over the necessity for law-enforcement actionwithrespect to so-called electronic or computerized "bingo"machinesand related operations, see, e.g., Etowah BaptistAss'n v. Entrekin,[Ms. 1080168, March 15, 2010] ___ So. 3d___ (Ala. 2010); Barber v.Houston County Econ. Dev. Ass'n,[Ms. 1090444] (pending onapplication for rehearing); Surles

42

As was true in Cornerstone, it is undisputed that for a

substantial period before the Task Force was created in the

spring of 2009, neither Attorney General King, nor District

Attorney Jones, nor Sheriff Warren had engaged in any effort

to enforce against the machines and operations in questionthe

criminal statutes of this State prohibiting gambling devices

and slot machines. We note that the circuit court in this

case found that "the machines which underlie theinvestigation

at issue in this case" have been in place for five years.The

briefs and other materials before us likewise indicate that,

since the creation of the Task Force and Governor Riley's

subsequent request that Tyson undertake certain duties with

respect to the prosecution of cases involving suchelectronic-

bingo machines, neither Attorney General King, nor District

Attorney Jones, nor Sheriff Warren have attempted to enforce

those statutes against the machines and operations in

question. It is only recently that District Attorney Jones14

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1090878; 1090939

v. City of Ashville, [Ms. 1080826, Jan. 29, 2010] ___ So. 3d

___ (Ala. 2010); and Barber v. Cornerstone Cmty. Outreach,Inc.,[Ms. 1080805, Nov. 13, 2009] __ So. 3d __ (Ala. 2009).See alsoState v. McPhail, 182 Miss. 360, 374, 180 So. 387,388-89(1938).

In addition to the arguments noted above, we also reject15

the other arguments made by the Macon County plaintiffs butnotspecifically addressed in Cornerstone. For example, theyargue thatTyson's appointment by Governor Riley violates theConstitution ofAlabama and statutory law because Tyson hasnot resigned hisposition as district attorney for MobileCounty. The Macon Countyplaintiffs cite as support Ala.Const. 1901, art. XVII, 280, whichprovides that no personshall "hold two offices of profit at the oneand the sametime"; they also purport to rely upon Ala. Code 1975,36-2-l(b), the language of which tracks 280. The circuitcourt madeno finding concerning these allegations. Theseallegations, however,are without merit because the onlypublic office of profit thatTyson holds is that of MobileCounty District Attorney. The dutiesTyson performs inresponse to Executive Order No. 44 and anyamendments to thatorder are in fulfillment of his duties in thatoffice pursuantto Ala. Code 1975, 12-17-184(10). We also note thattheduties Tyson performs in response to Executive Order No. 44areperformed without any pay beyond the pay he alreadyreceives as theMobile County District Attorney. See Eagen v.State, 280 Ala. 438,441, 194 So. 2d 842, 844 (1967); see alsoOpinion of the JusticesNo. 194, 283 Ala. 341, 217 So. 2d 53(1968).

43

has taken any action whatsoever, i.e., the filing of the

declaratory-judgment action described earlier in thisopinion.

Under these circ*mstances, as was true in Cornerstone, "[w]e

are unwilling to conclude that Governor Riley cannot,without

exceeding any discretion on his part," employ Tyson andother

members of the Task Force as he has. __ So. 3d at __.15

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1090878; 1090939

We note that in Riley v. Hughes, 17 So. 3d 643, 64616

(Ala. 2009), this Court stated:

"[T]he exclusive remedy to determine whether a partyis usurpinga public office is a quo warranto actionpursuant to 6-6-591, Ala.Code 1975, and not anaction seeking a declaratory judgment. See ExparteJames, 684 So. 2d 1315, 1317 (Ala. 1996). ...Adeclaratory-judgment action cannot be employed wherequo warrantois the appropriate remedy because thedeclaratory judgment wouldviolate public policy."

(Footnote omitted.)

44

As discussed in Cornerstone, Tyson is acting pursuant to

the valid legal direction of Governor Riley. It is by that

"warrant" that he seeks to pursue the enforcement of Alabama

law prohibiting certain gambling activities and devices. He

is not wrongfully usurping the offices of District Attorney

Jones, Sheriff Warren, or Attorney General King. Under the

circ*mstances, we see no likelihood of success in the Macon

County plaintiffs' quo warranto claim and therefore no basis

for the issuance of injunctive relief.16

The Mandamus Petition (case no. 1090939)

A writ of mandamus will issue where there is "(1) a clear

legal right in the petitioner to the order sought; (2) an

imperative duty upon the respondent to perform, accompaniedby

a refusal to do so; (3) the lack of another adequate remedy;

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1090878; 1090939

In light of our discussion of 36-15-1 in Cornerstone,17

see ___ So. 3d at ___, we reject that statute as a properbasisfor the circuit court's order in this case as toTierney.

45

and (4) properly invoked jurisdiction of the court." Exparte

Integon Corp., 672 So. 2d 497, 499 (Ala. 1995).

Tyson argues that the duties of Assistant District

Attorney Tierney attendant to her appointment as counsel to

the Task Force fall within 12-17-184(10), which they do.

"It is the duty of every district attorney andassistant districtattorney, within the circuit,county, or other territory for whichhe or she iselected or appointed:

"....

"(10) To go to any place in the State ofAlabama and prosecuteany case or cases, or workwith any grand jury, when called upon todo so bythe Attorney General or the Governor of the StateofAlabama, and to attend sessions of courts andtransact all of theduties of the district attorneyin the courts whenever called uponby the AttorneyGeneral or the Governor to do so."

One of the duties prescribed in 12-17-184 is "[t]o prosecute

and defend any civil action in the circuit court in the

prosecution or defense of which the state is interested."

12-17-184(3), Ala. Code 1975.17

Based on the foregoing, as well as the reasoning set

forth in Cornerstone, it is clear that Assistant District

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1090878; 1090939

Attorney Tierney may defend Tyson; the defense of Tyson's

authority to perform the duties he has been called upon by

Governor Riley to perform is one in which the State has an

interest.

Conclusion

The circuit court's order issuing the preliminary

injunction as to Tyson is reversed, and the cause isremanded

to the circuit court for the entry of a judgment consistent

with this opinion. The petition for a writ of mandamus as to

the circuit court's order disqualifying Assistant District

Attorney Tierney from representing Tyson is granted, and the

circuit court is directed to vacate that order.

1090878 -- MOTION TO STRIKE TYSON'S BRIEF DENIED;REVERSED ANDREMANDED WITH DIRECTIONS.

1090939 -- PETITION GRANTED; WRIT ISSUED.

Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin,Parker, andShaw, JJ., concur.