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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 BCA mess isn’t difficult to unravel

Josh Moon

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It’s been a rough week for the Business Council of Alabama.

The top lobbyist group in the state has been decimated by big-name defections. It started with Alabama Power and PowerSouth. Then Regions Bank. Then Blue Cross Blue Shield of Alabama. And now Protective Life Insurance. And there are strong rumors that Drummond Coal and Thompson Caterpillar are soon to follow.

All of those companies mentioned have expressed concerns — either while announcing their departure or while threatening to leave — over BCA CEO Bill Canary.

They felt Canary wasn’t getting the job done. They wanted him out. They wanted him out now.

The BCA board, led by Perry Hand, tried to block that. For reasons that are both dumb and seemingly personally beneficial to Hand and his company, Volkert Construction.

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And now there is debate in political circles over who’s right, who’s wrong and what it all means.

On the first two, there should be no debate. And anyone who is honest and who has spent an hour around the State House over the last two years knows it.

Alabama Power and these other major companies didn’t randomly decide one day that they didn’t like Canary’s suits and wanted him fired. They took a look at the scoreboard. And it clearly showed that Canary was getting killed.

And by that, I mean he had lost his influence in the State House. Most of it he squandered away by using too much stick and not enough carrot when dealing with lawmakers. He tried to bully his way around and such tactics quickly wear thin among grown people.

The companies contributing dues to the BCA do so for one purpose: for that organization to promote their best interest and help push business-friendly ideas in the state Legislature.

That’s the primary benefit of the BCA’s existence.

If the guy the BCA is paying big dollars to push that agenda is so disliked that state lawmakers are voting against BCA-backed legislation just to spite him, that’s what we call a gots-to-go situation.

That was 100-percent taking place with Canary in the State House.

Two years ago, the BCA was shut out on its top-priority bills. This past session, they got one — an unpopular weakening of state ethics laws that likely cost several lawmakers their seats — and lost their biggest.

Privately, Republican lawmakers, who once happily strolled into the building and voted for anything BCA sponsored, were so disenchanted with Canary and BCA that they told me they would vote against anything the organization backed. They were tired of being threatened, they said. And they were tired of Canary telling them what to do instead of working with them.

If you’re Alabama Power or Regions Bank or BCBS, and you’re dumping six figures annually into this association in order to promote your interests at the State House, you can’t have that.

And it’s that simple.

What’s hilarious to me is that there’s now this narrative being pushed on paid political blogs and in paid-for newspaper columns that somehow APCO and these other defecting businesses were too liberal and didn’t share the conservative, pro-business goals of Hand and the BCA.

Lord have mercy. I think I know liberal when I see it. And trust me, APCO, Regions and BCBS ain’t it.

Even if they pushed former Democratic House Speaker Seth Hammett to be the new BCA CEO. That decision, too, boiled down to simple business.

Hammett is the anti-Canary. He’s nice, well respected, well liked and doesn’t even own a stick. Basically, exactly the sort of change the organization needed.

But that’s a moot point now, I suppose. What’s left to consider is where things go from here, and it seems that other BCA defections offer some indication of the future plans.

In addition to top companies, board member Mike Kemp and legal counsel Fournier “Boots” Gale also resigned from BCA this week. Kemp was the chairperson of BCA’s political action committee, PROGRESSPAC.

If the departing companies intended to start a new lobbying group, or join an existing one, those specific members would be fairly important.

Whether that’s the case or not, certainly no one believes that APCO, Regions and BCBS are going to stop pushing their legislative agendas and backing bills that aid their companies and the state’s business climate.

Because just like with the push to remove Canary, the bottom line for them is money.

 

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Opinion | The most important election ever

Joey Kennedy

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Is this the country we want to be? Is this the state we love.

I truly wonder.

We always say there is never an election more important than the one at hand. It’s become a cliché.

But, folks, there’s never been a more important election than the mid-term election this  November. It may be cliché, but it’s absolutely true.

If you are eligible to vote but not registered, get registered now. Don’t keep putting it off.

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In the recent Republican and Democratic primaries in Alabama, only 26 percent of registered voters cast ballots.

That means 74 percent of registered voters stayed at home. Even that isn’t a true reflection of voter apathy in Alabama. Many more people in Alabama are eligible to vote, but simply don’t bother to register. Considering eligible voters, Alabama’s turnout is likely well below 25 percent.

Imagine fewer than 25 percent of eligible voters deciding who is going to head their parties’ tickets come November. In the few primary runoffs in July, the turnout likely will be single digits.

There’s no more crucial time for eligible voters to cast their ballots than this year.

Just look at the ongoing horror on our nation’s borders with Mexico. President Trump signed an executive order this week to prevent immigrant families from being split apart, but there’s debate over whether that means a whole lot. Trump only signed the order after tear-inducing descriptions and photos showed the terrible conditions that immigrant children were being housed in. So-called “tender age shelters,” little more than internment camps or prisons for toddlers and babies, was the last straw. Even tough-man Donald Trump couldn’t stand the backlash, so after saying he didn’t have the authority to keep families from being separated, he then signed an executive order ending his own policy of separating families.

Trump folded completely, but he folded on a terrible crisis of his own making.

Trump’s disgusting immigration decisions aren’t his only horrible policies. The assault on health insurance coverage, trade wars with our closest allies, destruction of the Environmental Protection Agency – the list goes on and on.

And on.

The bigger picture, though, is that voters allowed this to happen. More precisely, eligible voters who didn’t bother to register or vote allowed this to happen.

That’s why the cliché is true: There’s never been a more important election than this November’s midterms.

We’re not voting on a president, true, but we are selecting U.S. House members. Sure, Alabama polls overwhelmingly in support of Trump, but that’s not unusual in a state where voters so often go against their own interests.

Let’s not do that this time.

There are many more Democrats than usual running for office in Alabama this year. Get to know them. Learn what they stand for.

There are good Republicans, too, especially in local races.

On the statewide level, not so much, though, especially when compared to their Democratic Party opponents.

At the top, Tuscaloosa Mayor and Democrat Walt Maddox is eminently more qualified than Republican Gov. Kay Ivey, who supported a child molester for the U.S. Senate simply because he was a Republican, and who has refused to debate her opponents.

Go down the list. Remember that the party in charge in Alabama (and in Congress) is a party that wants to keep voter turnout as low as possible. It’s the only way they stay in control.

But to vote, you must be registered. And if you’re registered, you must travel to a polling place to cast your ballot.

Never, ever vote straight ticket. Vote a smart ticket.

Especially this year.

Because there’s never been a more important election.

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

 

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Opinion | Inside the Statehouse: Judicial races highlighted – June 5 primary

Steve Flowers

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This is not just a gubernatorial year in the Heart of Dixie.

We have every constitutional office up for election which includes Lt. Governor, Attorney General, Secretary of State, State Treasurer, State Auditor and Agriculture Commissioner.

We also have a good many of the State Judicial races on the ballot. We have nine seats on our State Supreme Court. We have five judges on the Court of Criminal Appeals, as well as five seats on the Court of Civil Appeals. All of these judicial posts are held by Republicans. Therefore, it is more than likely safe to assume that the winner of the Republican primary will be elected to a six-year term and can be fitted for their robe, at least by July 17. In fact, Democrats usually do not even field candidates in state judicial races.

Over the past two decades, a prevailing theme has been that women have become favored in state judicial races. In fact, it was safe to say that if you put two candidates on the ballot for a state judicial position, one named John Doe and the other Jane Doe, and neither campaigned or spent any money, Jane Doe would defeat John Doe.

However, for some inexplicable reason, this prevalence reversed itself on June 5, in the Republican primary. In the much-anticipated race for the extremely important Chief Justice of the Supreme Court, position two of the sitting members of the Supreme Court were pitted against each other. 

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Justice Lyn Stuart, who is the longest serving member on the State Supreme Court, had moved into the Chief Justice role after the departure of Judge Roy Moore. She was running for Chief Justice for the full six-year term. Justice Tom Parker was Roy Moore’s closest ally and is now the most socially conservative activist on the court. Parker and Moore dip from the same well.

Parker chose to challenge Stuart for Chief Justice. The Lyn Stuart vs Tom Parker contest was billed as one of the Titanic battles of the Primary season. Stuart was the darling of the business community. Parker openly was carrying the banner of the social conservatives. Parker bested Stuart 52 percent to 48 percent. Most of Parker’s financial backing came from plaintiff trial lawyers. Parker does have Democratic opposition from Birmingham attorney, Robert Vance, Jr. However, he should win election in November.

Judge Brad Mendheim was facing two prominent female Circuit judges, Debra Jones of Anniston and Sarah Hicks Stewart of Mobile, for Place 1 on the State Supreme Court. Mendheim has been a longtime popular Circuit Judge in Dothan. He was appointed to this Supreme Court seat by Governor Kay Ivey earlier this year.  Mendheim decisively outdistanced his female opponents by garnering 43 percent of the vote. He is expected to win election to a full six-year term on the high tribunal on July 17.

Another example of the male uprising in the court contests occurred in the race for a seat on the Court of Civil Appeals. Judge Terri Willingham Thomas, who has been on this court since 2006 and has served with distinction, was shockingly defeated by her unknown male opponent, Chad Hanson.

Pickens County Prosecutor Chris McCool forged to the front in the race for a seat on the Court of Criminal Appeals. He led 43 to 35 over Rich Anderson from the Montgomery/River Region.

In the other court races, the candidate who raised the most money and was able to buy some TV time prevailed.

In the State Supreme Court race in Place 4, two Birmingham attorneys, John Bahakel and Jay Mitchell, were pitted against each other. Mitchell significantly outspent Bahaked and won 73 to 27.

Christy Edwards of Montgomery and Michelle Thomason of Baldwin County are headed for a runoff for a seat on the Court of Civil Appeals.

Richard Minor defeated Riggs Walker overwhelmingly 66 to 34 for a seat on the Court of Criminal Appeals. In the seat for Place 3 on the Court of Criminal Appeals there was yet another display of male dominance in the court races. Bill Cole bested Donna Beaulieu 60 to 40. 

On Saturday before the Primary, legendary Chief Justice of the Alabama Supreme Court, Clement Clay “Bo” Torbert, passed away at 88 in his beloved City of Opelika. His funeral was on Election Day. Judge Torbert served as Chief Justice of the Alabama Supreme Court for 12 years, 1976 to 1988. He had previously served two terms in the State Senate prior to his election as Chief Justice.

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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