Justice Glenn Murdock Statement on Gambling Issue

Statement by Justice Glenn Murdock

September 7, 2010

I have received no motion to recuse myself from any of

the cases addressed by this Court over the past year relating

to gambling generally and bingo in particular. Nonetheless,

press reports in recent days have raised questions relating to

my representation of Greene County as an attorney before being

elected to the bench. As more fully explained below, I know

of no basis for me to have recused in any of the cases that

have come before this Court. Because I have yet to receive

any request for recusal, but as an elected official have been

subjected to inaccurate assertions in published reports, I

choose to issue the following disclosure statement regarding

the performance of my duties and procedures applicable


In 1998 and 1999, 11 to 12 years ago and some 7 to 8

years before being elected to this Court, I served as county

attorney for Greene County. In this role, I provided counsel

to the County on a wide variety of matters that presented

themselves in the normal course of county business. None of

the matters as to which I provided counsel are or have been at

issue in any case in which I have participated as a member of

this Court.

Canon 3 C.(1) of the Canons of Judicial Ethics states in

pertinent part that a judge should recuse himself when his

"impartiality might reasonably be questioned,[2] including but

1Canon 3.E. of the Canons of Judicial Ethics provides for

the voluntary disclosure by a judge of information under

certain circumstances. Consistent with the lack of any basis

for my recusal as discussed below, it never occurred to me

prior to recent inquiries by the press that someone might

question whether my prior representation of Greene County (a

fact that itself was a matter of public record and public

knowledge in Greene County) needed to be disclosed.

2This rule is applied not to erroneous assumptions or

mistaken information that finds its way into the public

discourse, but to all of the actual facts as known by the

judge. In Ex parte City of of Dothan Personnel Bd., 831 So.

2d 1, 11 (Ala. 2002), this Court stated:

not limited to instances where:

"(a) He has a personal bias or prejudice concerning

a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding; [or]

"(b) He served as a lawyer in the matter in

controversy, or a lawyer with whom he previously

practiced law served during such association as a

lawyer in he matter, or the judge or such lawyer has

been a material witness concerning it."

This canon is not applicable here. Over the past year, this

Court has addressed several matters relating in general to the

question of the authorization of bingo in certain counties in

Alabama. The earliest of these matters arose in 2009. I

never served as a lawyer in any of these matters. My former

client, Greene County, has not been a party to any of these

matters. Nor do I have any personal bias or prejudice

concerning a party to any of these matters, or any personal

knowledge of any disputed evidentiary facts at issue in these


Further, each of the referenced cases has some relation

to at least one of three underlying issues: (1) the meaning of

constitutional amendments authorizing the playing of "bingo"

in some counties, (2) the jurisdiction of the courts to limit

law enforcement activities, and (3) disputes between the

Governor and the Attorney General and some district attorneys

as to the extent of the Governor's authority to ensure

enforcement of the law. Again, all of these are issues that

have arisen either last year or this year. I served as

counsel to Greene County approximately 11 years ago and have

no recollection of ever providing the County with any advice

concerning these issues. As I previously stated, I never

"The test that remains applicable at all times, the

answer to which always depends upon the 'totality of

circumstances' of each case, is whether a person of

ordinary prudence in the judge's position, knowing

all of the facts known to the judge, would find that

there is a reasonable basis for questioning the

judge's impartiality."

(Emphasis added.)

represented Greenetrack, Inc., itself or any other party from

Greene County that actually has appeared before this Court in

any of these matters.

It is well established that, if the above-quoted criteria

of Canon 3.C.(1)(b) are not applicable -– that is, if the

matter in controversy is not the same -- there is nothing that

per se prohibits a judge from sitting on a case involving a

client that he previously represented in private practice.

See Hargress v. City of Montgomery, 479 So. 2d 1137 (Ala.

1985) (a judge is not disqualified merely because he once

represented a party in an unrelated matter); Ex parte Atchley,

951 So. 2d, 764, 767 (Ala. Crim. App. 2006); Smith v. State,

795 So. 2d 788, 803-04 (Ala. Crim. App. 2000) (a judge is not

disqualified because, as a district attorney, he had

prosecuted a defendant in an unrelated matter); Payne v.

State, 48 Ala. App. 401, 408, 265 So. 2d 185, 192 (Ala. Crim.

App. 1972); and State ex re. Smith v. Deason, 264 Ala. 596, 88

So. 2d 674 (1956) (holding that a judge was not disqualified

from hearing a quo warranto action involving the right to an

appointment to a county board of revenue merely because the

judge had previously represented the board in unrelated


It is unclear from press reports whether an attempt is

being made to question whether I might be biased against

Greene County, causing me to vote against Greenetrack's

position in a previous case, or that I might be biased in

favor of Greene County in a manner that somehow affects my

vote in other cases. As to the latter concern, it may be

noted that I was the only justice of this Court that voted

against Greenetrack's position in Ex parte Greenetrack, Inc.,

25 So. 3d 449 (Ala. 2009)(Murdock, J., dissenting). I also

note that in two matters before this Court in June and July of

this year, I joined with the majority of the other members of

this Court in issuing orders to which Greenetrack objected.

As noted, Greene County is not and has not been a party

to any case concerning issues of the nature described above.

That said, I would add that prior to and during my

representation of Greene County, the County owned a one-half

interest in the land and buildings that comprise what is

commonly known as the Greenetrack facility. (Except for

information stated in recent press reports, I no longer have

any knowledge of whether Greene County retains an interest in

Greenetrack and, if so, the nature or extent of that interest

or on what basis or criteria the County might receive

remuneration in relation to any activities at that facility.)

Press reports state that I helped the County negotiate

agreements to "bring video poker machines to Greenetrack in

1998-99." That is not accurate. I presume this statement is

a reference to the fact that, during my representation of

Greene County, it came to the County's attention that the

other owner of the facility, Greenetrack, Inc., had initiated

negotiations with an out-of-state entity to allow that entity

to manage gaming activities at the Greenetrack facility,

including video gaming operations if and when the same were to

be become legal under Alabama law. As the co-owner of the

facility, Greene County took the position that it was entitled

to receive rent for the use of the facility for such

activities if and when they became legal under Alabama law..

I represented Greene County in negotiations concerning the

terms of a lease by which Greene County was attempting to

receive a fair rent for its one-half ownership interest in the

event Greenetrack's negotiations with the out-of-state firm

came to fruition and video gaming was thereafter legalized.

As I recall, however, my representation of Greene County ended

before such a lease was finalized.

It also has been reported that I "helped draft

legislation ... to authorize, regulate and tax the electronic

gambling machines." This too is incorrect. A bill had been

introduced in the 1999 session of the Alabama legislature by

the late Senator Pat Lindsey of southwest Alabama in an effort

to make legal something called "skill dependent games" to be

played on electronic or mechanical machines. To my knowledge,

the Greene County Commission had no involvement in proposing

this legislation. Because, the proposed legislation could

have affected the operations at the Greenetrack facility, I

was asked by one of the commissioners to review the contents

of the bill, check on its status in the legislature, and

provide a report as to both; I did so. At no time did I

participate in drafting this or any statute or any

constitutional amendment that would have changed Alabama law

as it relates to gambling generally or video poker or video


More specifically, at no time did I ever draft or assist

in the drafting of any proposed constitutional amendment that

would have legalized "bingo" in any form in Greene County or

any other county. The constitutional amendment that now

governs the playing of bingo in Greene County was proposed and

voted upon in 2003, some 4 years after my service to Greene

County ended and some 3 years after I was elected to the Court

of Civil Appeals. At no time during my service to Greene

County do I recall any discussions with anyone regarding such

an amendment.

Further, it may be noted that the matters addressed by

this Court in two recent cases appealed from Greene County did

not call upon this Court to address the meaning or import of

the local amendment legalizing bingo in Greene County, but

rather an issue concerning the separation-of-powers provision

of the Alabama constitution and related issues as to the

authority of a Greene County judge to issue certain orders

restricting law enforcement activities by officials of the

executive branch of state government.