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Come now the Defendants, State of Alabama, Circuit Judge Richard Dorrough, Rich Hobson (1), and Bob Maddox,
by and through the Office of the Attorney General and hereby object to the Court's scheduling order dated March
13, 2002. As grounds for said objections, the Defendants state the following:
1. On June 23, 1999, the Defendants raised several immunity defenses in its Motion to Dismiss. However, after an
extensive review of the numerous orders in this case, the Defendants maintain that the Court has not yet ruled
on these defenses. Undersigned counsel notes that the Court's order dated March 13, 2000 (Doc #120) states in pertinent
part that: "Upon the court's review of the entire record in this case, the Magistrate Judge finds that the
parties should construe the court's order entered on 3 July 2000 (Doc. #64) as a complete ruling on all of the
issues raised by the defendants in their motion to dismiss plaintiffs' Amendment #2."
2. Undersigned counsel respectfully disagrees with the Court's order. Upon review of the Memorandum Opinion and
Order dated July 3, 2000, the District Court granted the Defendants' Motion to Dismiss the Second Amendment to
the Complaint, which concerned the Plaintiffs' RICO claim. Further, the District Court adopted the Magistrate Court's
Recommendation with the modification that the Plaintiffs were given leave to amend their complaint. Although the
Defendants had reasserted the immunity defenses previously filed on June 23, 1999, in its second Motion to Dismiss,
these issues were not addressed in the Magistrate's Recommendation filed on June 2, 2000 (Doe. #62) nor the District
Court's Memorandum Opinion and Order filed on July 3, 2000 (Doc. #64).
3. On August 2, 2000, the Defendants filed a Motion to Dismiss Plaintiffs Amendment #2A and Memorandum Brief, concerning
the amended RICO claim. The Defendants reasserted the immunity defenses filed in its first Motion to Dismiss. On
November 21, 2000, the Recommendation of the Magistrate Judge, (Doc. #78) granted the Defendants' third Motion
to Dismiss. On January 10, 2001, the District Court adopted the Magistrate's Recommendation (Doc. #86). In said
order, the Defendants were required to file an Answer by January 22, 2001. However, these orders do not address
the Defendants' immunity defenses.
4. On January 22, 2001, the Defendants filed an Answer to the Plaintiffs complaint and raised immunity in its Affirmative
defenses.
5. The Defendants maintain that the only reference to the immunity issues by the Court is found in the Memorandum
Opinion and Order dated February 16, 2000 (Doc. #35). On page 4 of this order, the Court states "... The court
is aware that in their Motion to Dismiss, the Defendants raised various immunity issues as to the Plaintiffs' claims."
Nonetheless, the Court did not rule on the Defendants' assertion of those immunities.
6. The Defendants object to the Court's scheduling order until there has been a definitive ruling on the immunity
defenses raised in response to the Plaintiffs' remaining (First Amendment and state law breach of contract) claims
in this case.
7. It is well settled that a court should resolve immunity issues prior to discovery in order to protect government
officials from the unnecessary burden of discovery and expense of litigation. Harlow v. Fitzgerald, 457 U.S. 800,
818 (1991); Caraballo-Sandoval, 35 F.3d 521 (11th Cir. 1994). See also, Siegert v. Gilley, 500 U.S. 226, 232 (1991)
("One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability,
but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit."); Id. at 1795
(Kennedy, J., concurring) ("[A]voidance of disruptive discovery is one of the very purposes for the official
immunity doctrine. . ."); Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc)
("Qualified immunity protects government officials performing discretionary functions from civil trials (and
the other burdens of litigation, including discovery). . ."); Hill v. DeKalb Reg'l Youth Detention Center,
40 F.3d 1176, 1183 (11th Cir. 1994) ("Since qualified immunity protects government officials performing discretionary
functions from litigation, including discovery and trial, the validity of this protection must be determined as
early as possible in the lawsuit").
WHEREFORE, ALL PREMISES CONSIDERED, Defendants State of Alabama, Dorrough, Hobson, and Maddox object to the Court's
scheduling order until there has been a ruling on the Defendants' immunity defenses filed in this case.
Respectfully submitted,
BILL PRYOR
LAVETTE LYAS-BROWN (LYAOO1)
ASSISTANT ATTORNEY GENERAL
COUNSEL FOR THE DEFENDANTS
Office of the Attorney General
11 South Union Street
Montgomery, Alabama 36130
334-242-7300
1. Undersigned counsel notes that pursuant to the Court's order dated April 25, 2001, Frank Gregory has been dismissed
as a defendant in this cause. Rich Hobson, the current Director of the Administrative Office of Court, is substituted
as a party defendant.
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