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Analysis: The Poarch Creeks had a very bad day in the Ala. Supreme Court

Josh Moon

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By Josh Moon
Alabama Political Reporter

The Alabama Supreme Court on Friday dealt two blows to the Poarch Band of Creek Indians – one directly, one indirectly – with opinions on three cases involving the Poarch Creeks’ casinos in Alabama.

On paper, the tribe lost two and won one.

But in reality – and in the court of public opinion – they can count all three as losses.

The biggest of the blows were the rulings specifically against the Poarch Creeks.

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They are a game-changer for the tribe.

In those rulings, the ALSC said that the idea of tribal sovereign immunity – the thing that protects the Poarch Creeks and their businesses from lawsuits – was invalid in Alabama when it comes to issues where the injured party has no other means to remedy his or her injury.

In other words, let’s say a PCI casino employee with a history of showing up to work drunk showed up to work drunk on Jan. 1, 2015, and was allowed to drive a company truck to pick up supplies. And let’s say she caused a head-on collision on Highway 14 in Wetumpka, seriously injuring two college kids.

In such a case, courts have routinely found that the tribe’s casino – regardless of how obviously negligent it might have been – could not be sued, because it, by extension of the tribe, enjoyed sovereign immunity.

If the example I used sounds very specific, it’s because that’s the case that prompted one of the appeals to the ALSC. Long before it ever landed in the ALSC, I wrote about it and the long road to recovery (along with the related medical bills) that the Wilkes family endured.

The end of that case in Elmore County Circuit Court was a judge tossing the lawsuit because he felt – rightly – that his court had no standing due to the tribe’s sovereign immunity.

And that was the basis of the appeal – that tribal sovereign immunity shouldn’t extend so far, particularly when it involves non-tribal members who interact with tribe members/employees off of tribal land.

The ALSC agreed.

But it took a legal leap to get there.

A Legal Leap

The ALSC acknowledged that there was no U.S. Supreme Court opinions or federal court rulings that backed their decision, and, in fact, the courts have been fairly clear and consistent when it comes to tribal immunity. Basically, only Congress can alter such laws affecting tribes.

The ALCS, as it’s known to do, simply ignored all of that and did what it wanted.

In this particular instance, it’s hard to argue with them. Particularly if you boil this down to an issue of fairness.

A private casino would, most likely, have paid a large sum to the two college kids because of the casino’s negligence in allowing a drunk employee (who, amazingly, nearly two hours after the crash, blew a .293 – over three times the legal limit), with a history of drinking problems, to drive away in a company truck.

How can it possibly be fair that a tribal casino that does the same business as a non-Indian casino isn’t held to the same legal standards?

The ALSC said it can’t.

It’s a decision that will likely cost the tribe millions over the next few years, although it’s unclear who will make them pay any verdicts against them. The state, as Congress has repeatedly insisted, has no authority over recognized tribes.

Still, it will be a public relations nightmare.

As will the ruling in the tribe’s favor.

Jackpot Denied

In that case, a Montgomery man sued the Poarch Creeks after he was denied his winning jackpot of $1.3 million at the Wind Creek Casino in Montgomery.

According to court documents, there’s no argument that Jerry Rape played an electronic bingo machine at the casino, or that the machine’s lights and bells went crazy announcing that he’d won a massive jackpot on Nov. 19, 2010.

After sitting in a casino office all night, Rape had his winning ticket confiscated and was told by casino and tribal officials that the machine had malfunctioned and there was no win. He left with nothing.

In this case, the ALSC justices wrote in the majority opinion that they were in a no-win situation that left Rape no relief.

There were two options. If electronic bingo is legal in Alabama – a long-running fight that has continued to cause issues in our courts – then federal law dictates that the tribes and tribal courts should be the ones to settle any disputes. If the games are illegal, then Rape could not get relief from the courts for that illegal activity.

The Down Side

With all due condolences to Rape, here’s the true down side of this ruling: Imagine if you represent the Poarch Creeks’ gaming interests and you’re attempting to negotiate a gaming compact with Alabama officials – many of who are skeptical of gaming and casino owners already. And now you have to acknowledge that if the state enters into that compact, or even just continues to allow the current gaming monopoly to continue, it will have no regulatory control whatsoever.

That means tribal casinos could refuse to pay out any winning ticket, claiming malfunctioning machines, and there is no recourse for the customer or the state.

That’s a terrible look from a PR standpoint.

And if you’re the Poarch Creeks, you have to wonder if Friday’s rulings indicate a shift in favor within the state. That happens around here from time to time – the favorite pocket-liners of state lawmakers get upended and relegated to also-rans. Just ask the AEA or look at what’s happening with the BCA.

You have to ask if the political winds have shifted on the PCI, because it would be a horrible time for them to do so. Alabama is facing massive budget deficits the next few years and there is no increase in revenue that might magically appear. The state will be desperate for funding sources and gambling is on the table.

The Poarch Creeks have resisted deals for years that would have left them sharing massive profits with a handful of non-Indian casinos.

They might have been a bit too greedy for their own good.

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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Opinion | The plan to kill public education in Alabama is succeeding

Josh Moon

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Put the flashlights away, Jason Taylor has been located.

Maybe.

The Alabama State Department of Education’s $700,000 accountant is still working for the state, just not doing much — or anything, depending on who you ask — for the Montgomery Public Schools.

Instead, according to ALSDE spokesman Dr. Michael Sibley, Taylor is spending the majority of his time working with other school systems in the state, in an attempt to be more proactive and avoid issues like the ones plaguing MPS.

At least, that’s one story.

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A state school board member recently said that Alabama state superintendent Eric Mackey told the board earlier this month that Taylor was spending most of his time working in MPS.

This was news to the MPS system’s new CFO, Arthur Watts, who told his own board members that he speaks with Taylor a couple of times per week but has no idea what Taylor is working on.

You know what? I don’t even care who’s right or what the truth is.

Because at the end of the day, here’s all that matters: The Montgomery intervention has been a complete and utter dumpster fire.

Take the $700,000 being paid to Taylor, add it to the multiple six-figure contracts awarded to wholly unqualified and now-departed administrators, add that to the raises to every principal, the legal fees out the wazoo and a ridiculous cleaning bill, and you know what you get?

You get a seven-figure tab paid out by one of the brokest state departments of education in the country and by the brokest school district in that state, and somehow, someway they have failed to help one single child.

There has been no purchase of additional supplies or books. There have been no additional teachers hired. There has been not one advancement of school safety equipment, whether a security officer, a metal detector or just a damn floor mat to keep kids from slipping down on a rainy day.

Nothing.

Zip. Zero. Zilch.

And you know why this travesty has occurred?

Because somewhere along the way, like with everything else in this state, public education was hijacked by greed and self-interest and, ultimately, corruption.

That’s how we ended up with Mike Sentance in the first place — a corrupt search undermined by a state board member (who lacks self awareness to such an astonishing degree that she’s writing blog posts bemoaning corruption) and steered to land a pro-business candidate. Instead of, you know, the candidate who was best qualified to fix education.

None of the people behind that ruse cared about teaching and learning.

They cared about training kids to work in the factories of the companies to which they have given ridiculous economic incentive packages. Because teaching students to read and write and do complicated equations is hard damn work and just takes too much money. Lots easier to just train ‘em for the job you want them to have instead of producing well-rounded citizens with career options.

This has been the dream of the business class in this state for years.

Montgomery was to be the first test in this plan — a combination of trade schools and charters and conversion charters.

But like all things done in Alabama, it turned into the powerful white men trying to force a system change on everyone else. Instead of doing things the right way and presenting well-meaning, well-intentioned ideas to the general public and building support for a comprehensive plan that benefitted all students, ALSDE and Montgomery leaders went with the we-know-what’s-best-for-you-so-shut-up approach.

And it has been an unmitigated disaster.

Which is how you end up with a $700,000 accountant who isn’t accounting. And a superintendent who lasts a year. And your third largest school system in, astonishingly, a bigger mess than it was before the state intervened and spent millions.

What’s happened, and continues to happen, in Montgomery is a microcosm of the failures in public education around Alabama.

Greedy people making selfish decisions, with the best interest of educating ALL children near the bottom of the priority list, and lining their pockets and the pockets of people like them at the very top of that list.

From the AAA to charter schools to pathetic funding to phony “failing schools” lists to ignorant rants over Common Core, these people have been hell bent on ruining public education in Alabama for decades.

And it’s the only thing in education at which they’re succeeding.

 

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Opinion | Men are pigs; yes, they are

Joey Kennedy

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So it’s happening again.

A woman accuses a man of sexually assaulting her many years ago, this time while she and the man were in high school, and the voices, mostly those of men (but a few women, too) declare openly that she should have come forward earlier.

Why wait years, even decades, before making such damaging accusations? If it’s true, she should have come forward right after the assault took place. Right?

Federal judge Brett Kavanaugh, nominated to fill a U.S. Supreme Court vacancy left by Justice Anthony Kennedy, is being accused by Dr. Christine Blasey Ford of sexually assaulting her while they were at a party in high school. As usual when a woman comes forward with such accounts, the men – in this case, Kavanaugh and those supporting him – lash out at the accuser and deny anything ever occurred.

We’ve seen this many times before: Movie mogul Harvey Weinstein, CBS boss Les Moonves, former Alabama chief justice Roy Moore, Fox News chief Roger Ailes, television journalist Charlie Rose, comedian Louis C.K., even our notorious president Donald Trump and many others, including Anniston Star publisher H. Brandt Ayers.

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The Ayers case is especially close to me, because Ayers assaulted my wife, Veronica, by striking her 18 times on her butt with a metal ruler in the Star newsroom more than four decades ago, even as she fought and yelled at him to stop. In Veronica’s case, another Star reporter witnessed the assault.

Veronica only went public earlier this year, but I knew about the assault before we were engaged to be married more than 40 years ago. Throughout our marriage, I’ve seen first-hand how that abuse altered her outlook and left scars on her confidence. After Veronica went public, other women who had been assaulted by Ayers came forward.

Veronica had many good reasons not to go public at the time, not the least of which was that Ayers controlled her newly burgeoning journalism career.

At first — like just about every other man accused of similar disgusting behavior — Ayers denied anything happened. “I have no memory of the alleged incidents,” Ayers said when first contacted by journalist Eddie Burkhalter, who resigned from the Star because the newspaper would not pursue the story.  Ayers then said he regretted some things that occurred when he was younger (he was in his 40s). Finally, Ayers admitted to spanking one woman and, about Veronica’s assault, said: “Let the accusation stand.” Ayers then resigned as chairman of the company that publishes the Star.

The #MeToo movement gave Veronica the final bit of courage she needed to go public, and let me tell you, Veronica already was a brave, strong, independent woman.

Amazing Pulitzer-Prize-winning reporting by The Washington Post exposed Roy Moore for the stalker and assaulter he is. Other stories in many different publications, from The New York Times to New Yorker magazine, exposed so many other cads.

So I understand why Christine Blasey Ford kept quiet for so long. She told her husband and her therapist a number of years ago, but only went public after the allegation was revealed as the Senate considers Kavanaugh’s Supreme Court nomination.

Dr. Ford has nothing to gain by making a false allegation, and from my reading of news sources, her allegation comes off as credible, like so many others we’ve heard.

The Senate, controlled by Republicans, has tried to ram Kavanaugh’s nomination through without proper vetting. The vast majority of documents the Senate needs to understand what kind of candidate Kavanaugh truly is was withheld from the Senate. Even this latest allegation was deemed confidential by the Senate Judiciary Committee.

But it’s out now, and it’s possible, if Republicans go forward with a vote on Kavanaugh, we could have two known sexual assaulters on the Supreme Court. Justice Clarence Thomas, remember, was credibly accused of sexually harassing Anita Hill after he was nominated to the court in 1991.

A lot of men, mostly old white men, just don’t see anything wrong with such misbehavior. These are the same men who want to tell women what they can do with their bodies. But because Dr. Ford went public, she and her family have been forced to leave their home, her email has been hacked, and she has received death threats.

When Burkhalter and I wrote about Veronica’s assault by Ayers, comments from some readers were typically misogynous. The women stalked and assaulted by Roy Moore have experienced threats of violence and worse. Men don’t like to be called out for their sexual misdeeds. And when they are, their accusers, no matter how credible, have to pay a high price.

Just the fact that Dr. Ford stepped forward publicly and stands by her account shows there’s more here than Kavanaugh cares to “remember.”

To go forward with Kavanaugh’s nomination would be a travesty. But, sadly, we live in a time of travesties.

Folks, this is not just “boys being boys,” but rather, men being pigs – and a whole lot worse.

Joey Kennedy, a Pulitzer Prize winner, writes a column every week for Alabama Political Reporter. Email: [email protected]

 

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Opinion | Maddox is right: The state shouldn’t pay for Bentley’s attorneys

Josh Moon

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Should the state be footing the bill for attorneys to defend former Gov. Robert Bentley in a wrongful termination lawsuit filed by former Alabama Law Enforcement Agency head Spencer Collier?

Gov. Kay Ivey says it should, that the state has an obligation to do so under the law.

Her challenger for the seat she currently holds, Walt Maddox, says no, and that Ivey is wrong about the state’s requirement to do so.

The war of words about the lawsuit started last week, when the Maddox camp questioned why the state was still footing the bill — a bill that’s surpassed $300,000 so far — to defend Bentley. Ivey responded to questions about the payments to Bentley’s attorneys over the weekend, saying it was appropriate to pay the bill, because the law requires it.

On Tuesday, the Maddox campaign issued a press release saying Ivey is mistaken about the law.

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And so, here we are.

First things first, let’s back up and explain just what’s going on.

Near the end of his tenure as governor, Bentley had a falling out with Collier over a request the Alabama Attorney General’s office was making of Collier. Basically, the AG’s office wanted Collier to file an affidavit about an investigation that was sort of related to the Mike Hubbard prosecution.

Bentley ordered Collier not to provide an affidavit and to instead tell the AG’s office that the investigation was ongoing.

Collier was concerned that lying to the AG’s investigator would violate the law. (It definitely does.) So, instead, he worked with Bentley’s legal advisor and issued a watered-down affidavit. When Bentley discovered what had been done, he fired Collier.

Collier, in his court filings, claims Bentley then set out to destroy him professionally through an investigation into misappropriated funds in ALEA and a smear campaign that, among other things, alleged that Collier was a drug addict.

So, Collier filed a wrongful termination lawsuit.

Ordinarily, such lawsuits would be kicked quickly by judges because state employees, such as the governor, enjoy immunity from lawsuits that arise from official acts. And in this case, Judge Greg Griffin agreed and dismissed most of the counts in Collier’s lawsuit.

But he also found that some of Bentley’s actions — specifically, the parts in which he retaliated against Collier — fell outside of his official duties. And so, he allowed the lawsuit to move forward. 

You should also know just why we, the taxpayers, are paying for Bentley’s defense in the first place.

The State of Alabama has an insurance program known as the General Liability Trust Fund that is used to pay for the legal defense of state employees who are sued as a result of incidents that occur while these employees are doing their state jobs. It also is used to cover any settlements stemming from lawsuits against state employees.

The official wording from the Code of Alabama says the GLTF will be used to cover “acts or omissions committed by the covered employee while in the performance of their official duties in the line and scope of their employment.”

And that brings us back to the argument between Ivey and Maddox.

Ivey claims that the law says Bentley should be covered. The Maddox camp says that was true up until the point the judge in the case found that Bentley’s actions fell outside the scope of his official duties.

After speaking to a few attorneys, it seems that the Maddox camp is right.

Griffin’s decision to allow the case to move forward, and specifically rejecting the defense’s motion to dismiss on the grounds that Bentley was immune from prosecution, recast Bentley’s position. His actions had to fall outside of the scope of his official duties in order for the lawsuit to proceed, which means the state has no responsibility to cover him.

Of course, there’s one other option here: Ivey could simply settle the lawsuit.

Collier was clearly wronged, and the state has all but admitted as much. The guy nearly went broke because our former governor lost his mind. To continue on with this lawsuit and the defense of Bentley is not just a monumental waste of money, it’s an embarrassment.

And it’s one more example of the political elite in this state operating a system that ensures they’re protected no matter the crimes they commit or the egregious nature of their behavior.

Collier didn’t deserve what happened to him and the rest of us don’t deserve to watch our hard-earned dollars be squandered on Bentley’s high-priced attorneys.

 

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Opinion | 1986 Governor’s race

Steve Flowers

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Since this is a gubernatorial election year, allow me to share an epic Governor’s Race with you.

The 1986 Governor’s race will be remembered as one of Alabama’s most amazing political stories. In 1978 Fob James sent the Three B’s, Brewer, Beasley and Baxley packing. Brewer and Beasley had been permanently exiled to Buck’s Pocket, the mythical destination for defeated Alabama gubernatorial candidates. However, Bill Baxley resurrected his political career by bouncing back to be elected lieutenant governor in 1982, while George Wallace was winning his fifth and final term as governor. Another player arrived on the state political scene. Charlie Graddick was elected as a fiery tough lock ‘em up and throw away the key attorney general. Graddick had previously been a tough prosecuting district attorney in Mobile.

When Wallace bowed out from seeking reelection in 1986, it appeared the race was between Bill Baxley, the lieutenant governor, and Charlie Graddick, the attorney general. It also appeared there was a clear ideological divide. The moderates and liberals in Alabama were for Baxley and the archconservatives were for Graddick. Baxley had the solid support of black voters, labor, and progressives. Graddick had the hard-core conservatives, including most of the Republican voters in Alabama.

The Republicans had gone to a primary by 1986 but very few Alabamians, even Republicans, participated. It was still assumed that the Democratic Primary was tantamount to election. The Democratic Primary would draw 800,000 Alabama voters while the GOP Primary might draw 40,000, so most Republican leaning voters felt that in order for their vote to count they had to vote in the Democratic Primary.

Baxley and Graddick went after each other with a vengeance in the primary. The race was close. Graddick came out on top by an eyelash. He encouraged Republicans to come vote for him in the Democratic Primary. They did and that is why he won. This was not something that had not been happening for decades. Brewer would have never led Wallace in 1970 without Republicans. Fob would have never won the Democratic Primary and thus become governor in 1978 without Republican voters. Basically, Alabama had been a no party state. We still have no party registration law. So how do you police people weaving in and out of primaries without a mechanism in place for saying you are a Democrat, Republican, or Independent?

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After Graddick defeated Baxley by less than 25,000 votes in the runoff primary, the Democratic Party did the unthinkable. They convened the hierarchy of the party, who clearly favored Baxley, and declared Baxley the Democratic nominee because they guessed Graddick had won the primary with Republican crossover voters. They paraded experts in front of their committee to testify that Baxley should have won if just Democrats had voted. They boldly and brazenly chose Baxley as the nominee in spite of the fact that Graddick had clearly gotten the most votes.

This move went against the grain of the vast majority of Alabama voters. They felt that Graddick, even if they had not voted for him, got the most votes and should be the nominee. The Democratic Party leadership sloughed it off. They assumed that the Democratic nominee would win regardless. After all, there had not been a Republican Governor of Alabama in 100 years. In addition, the Republicans had chosen an unknown former Cullman County Probate Judge named Guy Hunt. Hunt had no money and no name identification.

The Democratic leaders guessed wrong. The backlash was enormous. The bold handpicking of a nominee who had not received the most votes was a wrong that needed to be righted. Baxley did not help his case any by ignoring Hunt and dismissing him as a simpleton. He mocked Hunt saying he was unqualified because he only had a high school education. Baxley, as politically astute as he was, should have realized that he was insulting the majority of Alabama voters who themselves only possessed high school educations. This created a backlash of its own.

When the votes were counted in the November general election, Guy Hunt was elected Governor of Alabama. This 1986 result gave new meaning and proof to the old George Wallace theory that more Alabama voters vote against someone than for someone. Alabama had its first Republican governor in 100 years. The 1986 Governor’s race will go down in history as a red-letter year in Governor’s races. It was truly historic and memorable.

See you next week.

Steve Flowers is Alabama’s leading political columnist. His weekly column appears in over 60 Alabama newspapers. He served 16 years in the state legislature. Steve may be reached at www.steveflowers.us.

 

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Analysis: The Poarch Creeks had a very bad day in the Ala. Supreme Court

by Josh Moon Read Time: 5 min
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