Date post: | 27-Jan-2016 |
Category: |
Documents |
Upload: | mike-cason |
View: | 4,014 times |
Download: | 1 times |
IN THE SUPREME COURT OF ALABAMA
CASE NOS. 1141044 and 1150027
STATE OF ALABAMA, Appellant
v.
$223,405.86, et al., Appellees. KC ECONOMIC DEVELOPMENT, LLC, Cross-Appellant
v.
STATE OF ALABAMA, Cross-Appellee. IN THE CIRCUIT COURT OF MACON COUNTY, ALABAMA
CASE NO. CV-2013-900031 BRIEF OF APPELLEE/CROSS-APPELLANT,
KC ECONOMIC DEVELOPMENT, LLC
Joe Espy, III (ESP002) J. Flynn Mozingo (MOZ003) Ben Espy (ESP005) William M. Espy (ESPOO?) Melton, Espy & Williams, PC Post Office Drawer 5130 Montgomery, AL 36103-5130 Telephone: (334) 263-6621 Facsimile: (334) 263-7252 [email protected] [email protected] [email protected] [email protected]
Sam Heldman (HEL009) The Gardner Firm, PC 2805 31st Street, NW Washington, DC 20008 Telephone: (202) 965-8884 Facsimile: (202) 318-2445 [email protected]
John M. Bolton, III (BOL012) Charlanna Skaggs (SPE044) Hill, Hill, Carter, Franco,
Cole & Black, PC Post Office Box 116 Montgomery, AL 36101-0116 Telephone: (334) 834-7600 Facsimile: (334) 263-5969 [email protected] [email protected]
ATTORNEYS FOR APPELLEE/CROSS-APPELLANT, KC ECONOMIC DEVELOPMENT, LLC
ORAL ARGUMENT REQUESTED
E-Filed 12/17/2015 @ 04:02:26 PM Honorable Julia Jordan Weller Clerk Of The Court
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is requested and is important in this case
for multiple reasons. First, this case - more so than any in
this century so far - presents the Court with an important
test of the Court's approach to constitutional interpretation.
It tests whether the Court will adhere to the "original
intent" philosophy of constitutional law it has traditionally
followed for over one hundred years . This case is an
important test of that because there is an overwhelming record
showing how the People understood Amendment 744 to the ALABAMA
CONSTITUTION OF 1901 when they ratified it. Second, this case
involves a substantial factual record. The record shows
precisely what the games at issue in this case are. The record
shows why and how they constitute "bingo" under Amendment 7 4 4.
The record shows how the word "bingo" has been used, over time
and most importantly during the 2003 ratification debates over
Arnendrnen t 7 4 4. The Attorney General would h ave the Court
ignore all of this. Oral argument, however, would allow the
Court to explore it and to fully understand it.
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT . i
STATEMENT OF JURISDICTION . . vi
TABLE OF AUTHORITIES vii
STATEMENT OF THE CASE 1
STATEMENT OF THE ISSUES . 4
STATEMENT OF THE FACTS 5
I. Facts that shed light on the meaning of Amendment 744, and that support the recognition that the bingo gameplay on the equipment at issue is permitted b y the Amendment. 5
A. The development of bingo, from its origin to the ratification of Amendment 744 in 2003 including the contemporaneous use of the word "bingo" to refer to games that are, in all material respects, like those at issue in this case. 7
B. The type of bingo at issue in this case was being played in Alabama in 2003. 9
C. The very purpose of the proposed Amendment was to allow Macon County to compete with those other facilities that were already playing the type of bingo at issue here, in order to improve the economy of the County. . 11
D. The 2003 debates, in the Legislature and in Macon County, provide objective evidence that the word "bingo" was being used to refer to all forms of bingo, including the electronic games that were being played in competing facilities.
. 15
ii
E. The Sheriff of Macon County, who is entrusted by law with enforcement of Amendment 74 4, issued regulations contemporaneously with the Amendment's ratification, allowing all forms of bingo games - - games played with paper cards and games played with electronic machines.
. 22
II. Facts regarding the Attorney General's picking" enforcement strategy.
"cherry. 24
STATEMENT OF THE STANDARD OF REVIEW . . 27
SUMMARY OF THE ARGUMENT . . 28
ARGUMENT . 32
I. As with any other portion of the Constitution, this Court is to interpret Amendment 744 to effectuate the original intent of the People; and in a way that honors the purpose that the Amendment was designed to accomplish. Correctly int erpreted, Amendment 744 plainly permits electronic bingo of the sort that was being played at VictoryLand. . 32
A. Neither Cornerstone , nor any case following it , contains a holding about the meaning of Amendment 744 . . 34
B. The object of all constitutional interpretatio n i s to ascertain and effectuate the intention of the People. The Court accomplishes this task not by l ooking to words alone , but by looki ng t o how the words were used and understood at the specific time, to the debates over rati fi cation, to the purpose for which the provision was designed, and to the c ontemporaneous c onstructio n of r e sponsible o f f icia l s . . 37
iii
c. Under this traditional standard of constitutional interpretation, it is overwhelmingly clear that Amendment 744 permits bingo in all its forms, including electronic bingo of the sort that was being played at rival facilities at the time of the Amendment's ratification. . 45
D. The Attorney General's counter-arguments are unavailing and are contrary to the basic principles of Alabama's constitutional democracy. . 48
1. The Attorney General's "pl ain meaning" argument is merely an attempt to impose a meaning other than the one that was prevalent during the ratification debates. This is not valid constitutional interpretation, and does not respect the will of the People. . 49
2. The Attorney General incorrectly describes the nature and extent of the evidence that sheds light on the meaning of Amendment 744, and incorrectly argues that such evidence is irrelevant. . 53
3. The absence of the word "electronic" in Amendment 744 does not justify the Attorne y General's position. . 56
4. The Attorney Gen eral errs in attempting to us e canons of interpretation in order to steer the Court from following the original intent and public understanding o f Arnendmen t 7 4 4 • • 5 9
E . Once Amendment 7 4 4 is correctly interpreted , then it is plain t hat t he bingo operations at VictoryLand were lawful and could not be the subject of a forfeiture action. The Attorney Genera l does not even attempt to show otherwise . . 64
iv
II. The Court should also affirm the trial court's order on the basis of that Court's conclusion that the Attorney General was engaged in an improper "cherrypickingn enforcement strategy. . 66
CONCLUSION . 69
CERTIFICATE OF SERVICE . 71
v
STATEMENT OF JURISDICTION
KC Economic Development, LLC ("KCED"), agrees that this
Court has jurisdiction over the Attorney General's appeal.
This Court also has jurisdiction over KCED's appeal. After the
trial court entered its original judgment on June 25, 2015
(C. 1041), KCED filed a timely post-judgment motion on July 7,
2015. (C. Supp. 2-6). The trial court ruled on that motion
(and on a post-judgment motion by the Attorney General)
(C. Supp. 36-44) on October 2, 2015 (2C. Supp. 2-5), which was
within the time permitted by ALA. R. Crv. P. 59.1. KCED then
timely filed a notice of appeal on October 8, 2015. (2C. Supp.
6-12).
vi
TABLE OF AUTHORITIES
Cases Paqe(s)
Alexander v. State, 274 Ala. 441, 150 So. 2d 204 (1963) . . . . . . . . 38
Arizona v. Inter Tribal Council of Arizona, U.S. ~~' 133 S.Ct. 2247,
186 L.Ed.2d 239 (2013) ............. 40 n.7
Aspinwall v. Gowens, 405 So. 2d 134 (Ala. 1981) ............. 67
Baker v. Wright, 257 Ala. 697, 60 So. 2d 825 (1952)
Barber v. Cornerstone Cmty. Outreach, 4 2 So . 3 d 6 5 (Al a . 2 0 0 9 ) . . . .
Barrett v. State, 705 So. 2d 529 (Ala. Crim. App. 1996)
City of Piedmont v. Evans, 642 So. 2d 435 (Ala. 1994)
Cole v. Riley,
• • • • . . • • 5 9
passim
62-64
61, 62-64
989 So. 2d 1001 (Ala. 2007) • • • • • • • • • • • . 4 0
Dairyland Greyhound Park v. Doyle, 719 N.W.2d 408 (Wis. Sup. Ct. 2 006)
District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783,
...... 42, 54
171 L.Ed.2d 637 (2008) ........ . . . . . . 39, 41, 50-51, 52, 54-55, 56, 57' 58
Elmore County v . Tallapoosa County , 2 21 Al a . 18 2 , 12 8 So . 15 8 ( 19 3 0 ) . . . . . . . . . . 4 4
Ex parte Brown, 2 6 So . 3 d 12 2 2 (Al a . 2 0 0 9 ) . . . . . . . . . . . . . 2 7
vii
Ex parte Caldwell, 104 So. 3d 901 (Ala. 2012) ............. 27
Ex parte Melof, 735 So. 2d 1172 (Ala. 1999) ............ 33
Ex parte State, 12 1 So . 3 d 3 3 7 ( Al a . 2 0 13 ) . . . . . . . . . . . 3 0 , 3 7
Fox v. McDonald, 101 Ala. 51, 13 So. 416 (1893) . . . . . . . . 43
Houston County Econ. Dev. Auth. v. State, 16 8 So . 3 d 4 (Al a . 2014 ) . . . . . . . . . . . . . . 3 6
Houston County v. Martin, 2 3 2 Al a . 511 , 16 9 So . 13 ( 19 3 6) . . . . . . . . . . 4 3
Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911) .......... 67
NLRB v. Noel Canning, U.S. , 134 S.Ct. 2550,
189 L.Ed.2d 538 (2014) . . . . ........ 40 n.7
Opinion of the Justices No. 140, 2 6 3 Al a . 14 1 , 8 1 So . 2 d 6 7 8 ( 1 9 5 5 ) . . . . . . . . . 4 1
Opinion of the Justices No. 376, 825 So. 2d 109 (Ala. 2002)
Osaka Shosen Kaisha Line v . United States, 300 U. S . 98, 57 S.Ct. 356 (1 937 ) ...
People v. 8,000 Punchboard Card Devices, 142 Cal. App. 3d 618 (Cal. Dist. Ct. App. 1983)
Sou t h Centra l Bell Telephone Co. v . State , 7 8 9 So . 2 d 13 3 (Al a . 1 9 9 9 ) . . . .
State v. Greenetrack,
. . . . . . . 38
35 - 36
. . . . . . . 5 1
. . . . . . . 5 0
154 So. 3d 94 0 (Al a . 2 014) ............. 57
viii
State v. Murphy, 237 Ala. 332, 186 So. 487 (1939)
State v. Sayre, 118 Ala. 1, 24 So. 89 (1897)
State v. Stone, 2 3 7 Ala. 7 8, 18 5 So. 4 0 4 ( 193 8)
State v. Strickland, 289 Ala. 488, 268 So. 2d 766 (1972)
Stephan v. Parrish, 887 P.2d 127 (Kan. Sup. Ct. 1994)
Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158 (1918)
U.S. v. 103 Electronic Gambling Devices, 2 2 3 F . 3 d 1 0 91 ( 9th Cir . 2 0 0 0 )
U.S. v. 162 MegaMania Gambling Devices, 2 31 F . 3 d 7 13 ( 1 0th Cir . 2 0 0 0 )
Wehle v. Bradley, No. 1101290, 2015 WL 6618633 (Ala. Sup. Ct. Oct. 30, 2015)
Constitution and Statutes
OFFICIAL RECOMPILATION OF THE CONSTITUTION OF ALABAMA OF 1901, LOCAL AMENDMENTS, CALHOUN COUNTY, SECTION 1 (i.e., ALA. CONST. OF 1901, amend. 508)
OFFICIAL RECOMPILATION OF THE CONSTITUTION OF ALABAMA OF 1901, LOCAL AMENDMENTS, LOWNDES COUNTY, SECTION 3 (i.e., ALA. CONST. OF 1901, amend. 674).
OFFICIAL RECOMPILATION OF THE CONSTITUTION OF ALABAMA OF 1901, LOCAL AMENDMENTS, MACON COUNTY, SECTION 1 (i.e. ' ALA. CONST. OF 1901, amend. 7 4 4)
ix
. 35, 43
. 37' 38
. 4 4
. 59
. 41 n.8, 54
. 50
9
8-9
. 27
Page(s)
62 n.11
. 35 n.5
passim
SECTION 2 OF THE OFFICIAL RECOMPILATION OF THE CONSTITUTION OF ALABAMA OF 1901
ALABAMA ACT 8 3-5 7 5
INDIAN GAMING REGULATORY ACT, 25 u.s.c. § 2701
Other Authorities
ALA. R. CIV. P. 59.1
2, 32, 63
. 12
8
Page (s)
. vi
Executive Order No. 13 (2015) http : //governor . alabama . gov/newsroom/2015 / 11.executiveorder-nurnber-13-2/ (last accessed Dec. 9, 2015)
Jefferson, Thomas Letter to Judge William Johnson, June 12, 1823, 15 The Writings of Thomas Jefferson 449-50
. . 26, 69
. 4 0
MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 616 (11th ed. 20 12) 39 n.6
x
STATEMENT OF THE CASE
The Attorney General's representation that "[t]his case
is about KC Economic Development's ('KCED') attempt to defy
Alabama's anti-gambling laws by labeling its machines 'bingo'"
(State's Brief, p. 1) misrepresents the arguments and
overwhelming evidence presented below, as well as the findings
and judgment entered by the trial court after a lengthy bench
trial. Thus, KCED strongly disagrees with the Attorney
General's Statement of the Case. 1
In reality, this case is about the Attorney General
wrongly seeking to have forfeited the equipment, records, and
funds involved in the legal operation of bingo at VictoryLand
in Macon County, as approved by the voters of Macon County in
adopting Amendment 744 to the Alabama Constitution.
VictoryLand's operations complied fully with all regulations
promulgated under the authority of Amendment 744. 2 A Circuit
Judge specially appointe d by the Chief Justice (plainly having
1 However, KCED accepts the Statement of the Case to the extent it accurately recounts the actual proceedings below, and does not stray into argument or hyperbole .
2 The proper citation to Amendment 744 is "OFFICIAL RECOMPILATION OF THE CONSTITUTION OF ALABAMA OF 1901, LOCAL AMENDMENTS, MACON COUNTY, SECTION 1." However, to remain consistent with the test imony and arguments below, the Amendment is re fer red to herein as "Ame ndme nt 744."
1
been chosen because of his fairness and long experience) heard
testimony and other evidence in an ore tenus proceeding. The
trial court ruled against the Attorney General.
The outcome of this case is important to Macon County,
both for the sake of economic recovery in the County and for
the respect due to the voters of the County who debated and
ratified Amendment 744.
But the case is also important, in a historical and
jurisprudential sense, to this Court. It allows the Court its
best opportunity in decades to reiterate and explain that the
long-prevailing "originalist" or "original intent" model of
constitutional interpretation still prevails in Alabama. And
it allows this Court to demonstrate that, at least in
Alabama's courts, constitutional adjudication is not just a
way for judges to impose their policy preferences on the
People. The People of Alabama need to know that the promise of
their Constitution is still true: that all political power
resides with them (see SECTION 2 OF THE OFFICIAL RECOMPILATION OF THE
CONSTITUTION OF ALABAMA OF 1901, as amended) and that this Court
will not thwart their will.
The Attorney General's argument is that interpretation of
Amendment 7 4 4 is wholly governed by Barber v. Cornerstone
Cmty. Outreach, 42 So. 3d 65 (Ala . 2009), and that the phrase
2
"bingo games" in Amendment 744 means only that type of bingo
that this Court described, years after the ratification of
Amendment 744, in Cornerstone. But that argument ignores the
historical context and the enormous amount of unrefuted
evidence of the widespread original intent and original public
meaning of Amendment 744. As the trial court recognized, and
as shown herein, the historical record makes perfectly clear
what Macon County's People understood to be at stake in
Amendment 744. This Court should honor their decision.
3
STATEMENT OF THE ISSUES
1. Were the bingo operations at VictoryLand permit t ed
by Amendment 744 to the Alabama Constitution?
Yes, when that Amendment is fairl y and properly construed
according to the framework that has governed the
interpretation of Alabama's Constitution for more than one
hundred years.
2 . Was t h e tri al court also c o rrect in noting tha t the
operations at VictoryLand have been subjected to unfa i r
targeting b y the Attorney General while other facilities are
open a nd operating?
Yes; and more recent events, of whi c h this Court can take
judic ia l n otice , e ven c ompound this sever e un fa i rne ss.
3 . Sh oul d t h is Cou rt mo d ify t h e tri al court ' s order ,
and dec lare unconditiona l l y that the seized equipment ,
records , a n d f unds must be re t urn e d ?
Yes .
4
STATEMENT OF THE FACTS
I. Facts that shed light on the meaning of Amendment 744, and that support the recognition that the bingo gameplay on the equipment at issue is permitted by the Amendment.
This case comes to the Court with an extensive record of
historical evidence which sheds light on the original intent
and ratification-period meaning of Macon County's Amendment
744. This Court has never been presented with any remotely
comparable record in any prior case involving bingo under any
local constitutional amendment.
The evidence shows why Macon County's Amendment was
proposed to remedy a specific set of problems; shows both the
historical and the contemporaneous context within which it was
proposed; shows how the proposed Amendment was discussed and
debated in the halls of the Legislature; and shows how the
proposed Amendment was discussed and debated during the
ratification period in Macon County. The evidence shows that
the aspects of bingo gameplay to which the State objects in
this case (such as fast networked-computer play, with
entertaining di splays, and with no need for a player to
personally mark matched numbers or to personally recognize or
announce victory) were known to the People who ratified
5
Amendment 744, and that it was their precise intent to permit
such bingo gameplay.
The trial court credited the evidence at issue, and noted
that the State offered no evidence whatsoever in
contradiction. (2C. Supp 3). The trial court found, "the Court
concludes that the Macon County voter when voting on the
Amendment understood it to be all forms of bingo." (2C. Supp.
3). The trial court noted the evidence that the very purpose
of the Amendment was to allow all forms of bingo, including
electronic bingo, so that Macon County could compete with
other facilities where such forms of bingo were being played.
(Id.). The evidence to support these findings is overwhelming.
Long before this Court's Cornerstone decision in 20 09,
Amendment 744 was proposed in t h e Legislature in 2003 and was
ratified by the voters of Macon County in November 2003. But
to understand t he context and the debate in Macon County in
2003 , one must start with earlier history and then work
forward. This history will show, in the end, why it is proper
to understand Macon County's Amendment 744 as having a meaning
that is d.i££erent from the meaning that this Court has
attributed to other counties' bingo-related amendments.
Fortunately, t h e record in this case provides that history in
6
detail, from expert testimony, lay testimony, and documentary
evidence.
A. The development of bingo, from its origin to the ratification of Amendment 744 in 2003 - including the contemporaneous use of the word "bingo" to refer to games that are, in all material respects, like those at issue in this case.
Expert witness, I . Nelson Rose, a law professor,
explained that the game of bingo has not been a static thing;
it has evolved over time. I t is based on the Italian game of
"lotto" from the 1500s. It was introduced in the United States
in the 1920s as the game of "beano" because players used beans
to mark wooden cards. (R. 571-73).
As Professor Rose explained, over the years, the game has
evolved and improved with technology. In the 1970s and 1980s,
bingo hall s began using pre-printed cards, whi c h players
marked with pre-inked markers. Thereafter, handheld computer
devices were introduced which automatically marked a player's
cards , signaled a player when he matched a winning pattern,
and allowed a player to play dozens of cards at the same time.
(R. 573-75).
A 1997 news article , " Still Yo ur Grandmother ' s Bingo, But
Supercharged" (KCED Ex. 50), noted that one of the aspects of
even t h e early sort of electronic bingo play that some players
7
appreciated was that it made it impossible to "sleep a bingo,"
or fail to recognize victory. Still, it was bingo.
The last years of the 20th century, and the first years of
the 21st, witnessed the continued evolution in the game
referred to as "bingo" as the type of bingo play at issue in
this case came into widespread use. This change, as Professor
Rose explained, included both technological and legal
developments. (R. 573-89). Networked computer terminals were
developed which allowed patrons to play bingo electronically.
(R. 576). With improving technology, play on the networked
bingo machines became faster. (R. 576-78).
By 2000, federal courts had considered those sorts of
networked electronic bingo player stations. Those cases aro se
under t h e I NDIAN GAMI NG REGULATORY ACT, 25 u.s.c. § 2 701, et seq.,
enacted in 1988. That Act allowed tribes to operate "bingo"
as so-called "Class II" games; and so the question a ro s e
whe the r e l ectroni c bingo machines were "bi n go." The l e g a l
answer, determined before Amendment 7 4 4 was ever proposed or
v o t e d on, was that these g ame s we r e "bingo " in the r e l e vant
s e n se eve n t hough t h e gamepl a y exp eri e nce was marke d l y
different from earlier bingo games. Those courts considered
a nd r e j ect ed the a r g ume nt tha t e l ect r oni c bingo g ame s are
i lle gal slot ma c h i n es . See , e . g ., U. S . v. 162 Me gaMania
8
Gambling Devices, 231 F.3d 713 (10th Cir. 2000); U.S. v. 103
Electronic Gambling Devices, 223 F. 3d 1091 (9 th c' ir. 2000).
Professor Rose explained this history in his unchallenged
expert testimony. (R. 584-89).
By 2003, as Professor Rose explained, the majority of
"bingo" games in the country were no longer old-fashioned
paper games; there had been, by that point, an "enormous
spread" of networked electronic bingo games. Many such games
used terminals that (like the machines at issue here)
displayed a five-by-five bingo card in the corner of the
screen, along with spinning wheels or other
entertainment-oriented displays. (R. 590-91).
B. The type of bingo at issue in this case was being played in Alabama in 2003.
This new technology of bingo had indeed come to Alabama
by 2003. By the time of the proposal of, and vote on,
Amendment 744, the Poarch Creek Indians in Alabama had been
operating electronic bingo games at all three of their casinos
in Atmore, Montgomery, and Wetumpka since at least 2001 o r
2 00 2 . (Court Ex. 1, pp. 10, 12, 16- 18 ). Macon County voters
played electronic bingo games at Poarch Creek facilities in
those counties and had fir st-hand knowledge of electronic
bingo when Amendment 744 was put to the ratification vote.
9
(R. 633-34, 690, 697, 700-01, 704-05, 710). The Poarch Creek
electronic bingo games operated, and continue to operate
today, in the same manner as those that were seized in this
case. They involved networked machines with entertaining
displays such as spinning reels along with representations of
bingo cards. Players do not (and did not) need to hear or
watch specific numbers being called. Players do not (and did
not) take action to mark specific numbers. Players do not (and
did not) have to call "bingo" orally to claim victory. In
short, "bingo" as played at these facilities as of 2003 shared
the qualities that the State objects to in this case. (See
Court Ex. 1, pp. 9-18, 24-29; see also R. 634-35, 695-701).
This overwhelming and uncontradicted evidence shows that
as of 2003, across t h e country and in Macon County in
particular, the word "bingo" was being used to refer to more
than the type of game that had existed for much of the 20th
century. As a clear matter of historical fact , t h e word was
a1so being used - by legal authorities, by fa c ilities, and by
players - to refer to linked electronic machines on whi ch the
gameplay experience was like the machines in this case . The
word "bingo" included fast-paced networked-terminal games that
did not require the level of player attention and action t hat
was r e quired i n t h e older type of pape r-card "bingo ."
10
Some may argue that it was, in some sense, inappropriate
to use the word "bingo" to refer both to the older gameplay
and the newer. Yet, the fact indisputably remains that this is
how the word was used by 2003.
Nonetheless, the fast-paced electronic bingo that emerged
- and that is at issue in this case - did contain the same
core qualities with older versions of bingo. Those qualities
differentiate it from "slot machines." These qualities
include: 1) a game played for cash or prizes; 2) played on
layouts bearing numbers or symbols; 3) requiring multiple
players competing against one another; 4) numbers randomly
drawn; and 5) won by matching a pre-designated pattern of
numbers or symbols. (R. 57 9-81) . That is what the games at
i ssue h ere actually involve , e v e n when the screens include
entertaining displays of other sorts. (R. 487-99, 502-04,
510-11, 552-54, 561).
C. The very purpose of the proposed Amendment was to allow Macon County to compete with those other facilities that were already playing the type of bingo at issue here, in order to improve the economy of the County.
Ame ndme nt 744 was proposed, de bated in the Legislature ,
unanimously adopted by the Legislature, debate d in Macon
County, a nd ove rwhe lmingly ratifie d by t h e voters of Macon
11
County, in the particular historical context at the particular
moment described above: 2003, when "bingo" in the form at
issue in this case had already come to Alabama, with networked
machines playing fast-paced games that required much less
player attention and action than the older versions of bingo.
The record further shows why the constitutional amendment
was proposed, and it shows also that this reason for the
constitutional amendment was discussed widely and openly
during the ratification debates. This evidence comes from the
legislative leaders who supported the proposed Amendment,
Representative (now Mayor) Johnny Ford and Senator Myron Penn;
from contemporaneous newspaper articles and editorials; and
from advocacy materials that were widely distributed during
the ratification debate.
In 2003, gambling, in the form of parimutuel wagering,
had been legal in Macon County for twenty years. ALABAMA ACT
83-575. When wagering revenues began to decrease in the late
1990s and early 2000s, Macon County leaders began researching
other forms o f gambling that would replace lost funding for
schools and nonprofit o rganizations, a nd would subsidize
critical community services. (R. 633-34, 658-59, 711-14 ) .
Macon County citizens supported legislat i on that would
l e galize b ingo i n Macon County to compete with busine sse s in
12
nearby Montgomery and Elmore Counties that operated paper and
handheld bingo games and to compete with the Native Americans
who were operating electronic bingo games in those counties.
(R. 654-55, 691-92, 704 - 05, 713-14). The inability to compete
with electronic bingo operations elsewhere left the County
"suffering" and "being devastated," as Mayor Ford testified.
(R. 633). The purpose of the proposed Amendment was to end
that suffering and devastation. (R. 633-34, 658).
When Macon County voters went to the polls in November
2003, discussion of bingo had largely centered around the
understanding that this was the reason for the proposed
Amendment. (R. 637). Approval of Amendment 744 would include
all forms of bingo, precisely in order to increase revenues to
local governments and businesses, to create more jobs in the
community, and to provide fund to schools and nonprofits.
(R. 653-55, 658-59, 686, 710). It would accomplish this by
allowing operations in Macon County to compete on a level
playing field with other facilities, including tribal
facilities, that were running electronic bingo just like the
games at issue here. (R. 654-55, 691-92, 705, 711-12).
News articles and editorials expressly reflected this
history and contemporaneous understanding of the Amendment's
purpose. Those contemporaneous documents, with the widest
13
possible local public dissemination, confirmed the
understanding of what was at stake: the ability to compete on
a level playing field with other facilities such as tribal
facilities that were already offering this very sort of
electronic bingo, so that Macon County would have more jobs,
more public revenue for schools and other projects, and more
charitable revenue as well. (KCED Exs. 8-10, 14-15, 17-1 8) .
Pro-bingo flyers, including those explicitly noting that
"electronic" and "machine" bingo were at stake, were
disseminated by "Macon Countians for a Better Economy." (KCED
Exs. 4-7, 11, 13, attached hereto as Appendix 1 ). The very
name of the organization shows the focus of the debate: the
purpose of the proposed Amendment was to help Macon County's
economy, in the way that only fair competition against other
competing facilities could do. One of those flyers explicitly
noted the focus on "ELECTRONIC" bingo and argued that it woul d
be "good for e ducation, . good for charities , . good
for me and . . good for you." (KCED Ex. 5).
From these sources, it is c l ear that every reasonable
voter interested in the ratification debate would have known
that this was the purpose: to bring in the sort of jobs and
revenue that could only be gained by competing with rivals ,
14
such as tribal facilities, on a level basis. (R. 654-55, 691-
92, 705, 711-13).
Bingo games, including electronic bingo games,
accomplished all of those goals in Macon County once operation
of electronic bingo games began in December 2003. The
addition of bingo games created over 2,000 jobs, generated
revenue for local governments, schools, and nonprofit
organizations, and increased taxes to local governments.
(R. 658-59).
Authorizing only old-fashioned bingo would not have
achieved the goal of economic benefit to Macon County through
effective competition with tribal facilities; as Senator Penn
testified, it would be "absurd" to think that old-fashioned
bingo alone would have served the purpose sought to be
addressed by Amendment 744. (R. 680).
0. The 2003 debates, in the Legislature and in Macon County, provide objective evidence that the word "bingo" was being used to refer to all forms of bingo, including the electronic games that were being played in competing facilities.
The public discussion and debate throughout the process
made it crystal clear to anyone paying attention that the
"bingo" that was at stake in Amendment 744 was not just
old-fashioned bingo. The issue that the People of Macon County
were debating was whether to authorize a11 forms of bingo,
15
specifically including electronic bingo, and specifically
including the very sort of electronic bingo which was being
played at competing tribal facilities. (R. 653-55, 686, 690-
92, 703-06, 710-15).
This was clear from the outset, when Representative Ford
held a public meeting to discuss the proposed Amendment even
before he introduced it. Representative Ford told the public
that the Amendment would permit electronic bingo to compete
with tribal facilities. (R. 639-40, 654-58, 691-92).
This was also crystal clear when the proposed Amendment
was debated and unanimously approved in both Houses of the
Legislature. It was no secret that the Macon County "bingo"
proposal included electronic bingo such as was being played at
tribal facilities and elsewhere. (R. 637, 654-56, 686, 690-92,
703-05, 710, 712-15). This understanding was shared - and
discussed openly - both by the advocates and by the opponents
of the proposal. (R. 637-39; KCED Ex. 3, attached hereto as
Appendix 2). Opponents of the proposal, in the Legislature,
decried it precisely because it would allow electronic bingo.
(Id.). Among those opponents was the Christian Coalition of
Alabama, who lobbied against the Bill on the specific ground
that it would expand gambling and allow electronic games.
(KCED Ex. 3). Flyers by the Christian Coalition bearing the
16
legend "Vote NO on Electronic Bingo Gaming Machines" were
distributed in the Statehouse prior to the passage of HB660.
(R. 635-38; KCED Ex. 3)
Senator Penn, who sponsored the Bill in the Senate,
explained to other Senators in his discussion of the proposal,
that it would permit bingo in all forms, including electronic,
and that the goal was to allow Macon County to compete with
the tribal facilities with the same types of games .
(R. 668-69). He testified, "[T]he whole debate throughout the
entire process in the House, in the Senate, and, also, in the
streets of Macon County was about, mainly, electroni c bingo.
It was -- it included -- the legislation would include all
forms of bingo, but electronic bingo was the centerpoint of
what they argued for or against. " (R. 670-71).
HB660 did not receive any dissenting votes in either the
House or the Senate in spite of the admonition that a vote for
HB660 would lead to the expansion of gambling a nd the
operation of electronic bingo games. (R. 635, 670) .
The proposed Amendment t hen went t o t h e People of Macon
County for t h e ir ratification debate. Again , the terms of the
debate were such t hat every interested voter would have known
that t h e issue at hand was not old-fashioned, s l ow, paper
bingo. The issue , as was obvious f rom t h e a dvocacy of bot h
17
proponents and opponents, was bingo in all its forms
including, particularly, electronic bingo of the sort that was
already being played at rival facilities in the State.
This was discussed at public meetings. As
then-Representative Ford explained, once the proposal passed
in the Legislature, "We immediately started an effort to
educate our citizens on the fact that this legislation would
allow bingo to be played in any forms in Macon County."
(R. 637) (emphasis added). "We held public meetings. We held
town hall meetings. We met with community groups. We wanted to
make sure that our citizens knew that if they voted yes on
this measure, it would make our gaming industry competitive
with all of the other gaming facilities in the state run by
the Native Americans and others." Id.
On October 30, 2003, The Tuskegee News editorialized in
favor of Amendment 7 44 before the vote. (KCED Ex. 14) . The
editorial noted that VictoryLand' s loss of business, due
largely to competition from tribal facilities, had been
devastating to the County. The editorial noted that jobs had
been lost when another sort of gaming machine had been halted
at VictoryLand; the editorial pointed out that if the
Amendment was approved, "Ma.chines that wou1d be set up for
18
bingo will be utilized at VictoryLand's game room ... Those
jobs that disappeared earlier would return with a yes vote
Tuesday." (Id.) (emphasis added).
Similarly, on that same day, a front-page article in The
Tuskegee News (KCED Ex. 15) discussed the fact that what was
at stake in the upcoming vote was the ability to compete with
tribal facilities to help the local economy. The article noted
that the vast revenue that VictoryLand had brought to local
government and charities "could be lost if the track isn't
able to offer video gaming to compete with the Porch [sic]
Indians . .. "(Id.) (emphasis added).
The Tuskegee News is the same newspaper in which official
announcements of the constitutional ratification vote were
printed on October 9, 16, and 23, respectively (KCED Exs. 16A-
16C); this attests to the paper's widespread dissemination in
the County.
Flyers advocating for the Amendment, and specifically
referencing "electronic" bingo and "all forms" of bingo, were
disseminated "throughout" the cornrnuni ty, being placed on
windshields, handed out after church services, distributed to
"every household throughout the community," etc. (R. 649-53,
67 4-7 5) . See KCED Ex. 4 ("VOTE YES FOR ELECTRONIC BINGO
19
MACHINES ON TUESDAY NOV. 4 TH) ; KCED Ex. 5 ("LET'S JOIN TOGETHER
AND MAKE TUESDAY NOV. 4Ttt A DAY TO REMEMBER IN MACON COUNTY.
IT'S GOOD FOR EDUCATION, IT'S GOOD FOR CHARITIES, IT'S GOOD
FOR ME AND IT'S GOOD FOR YOU. VOTE YES ELECTRONIC BINGO");
KCED Ex. 6 ("VOTE YES ON TUESDAY - NOV. 4Ttt TO AUTHORIZE ALL
FORMS OF BINGO PAPER CARD, ELECTRONIC CARD AND MACHINE
BINGO"); KCED Ex. 7 ("VOTE YES ON TUESDAY-NOV. 4, 2003 TO
AUTHORIZE ALL FORMS OF BINGO: PAPER CARD-ELECTRONIC-MACHINE
BINGO FOR THE BETTERMENT OF MACON COUNTY) ; KCED Ex. 11 ("VOTE
YES FOR BINGO ON TUESDAY NOV. 4™); and KCED Ex. 13 ("VOTE YES
FOR BINGO ON TUESDAY NOV. 4 Ttt"), all attached as Appendix 1.
The opposing camp's flyer bore the same message - that
the Amendment would permit electronic bingo - and advocated
against it for precisely that reason. (KCED Ex. 3) (Appendix
2) ("Vote NO on Electronic Bingo Gaming Machines.") .
The same understanding was discussed openly on broadcast
radio. Senator Penn had a weekly show; and during the
ratification debate period, bingo was "the hot topic."
(R. 675 -7 6). Senator Penn would get feedbac k from listeners
and would discuss with them electronic bingo. (R. 676) .
Representative Ford also had a broadcast radio show; there,
too, " e lectronic" bingo was the topic of discussion.
(R . 69 1 - 92 ).
20
And as discussed above, at the time of the vote, Macon
County voters had already been playing games like these, as
bingo, in rival facilities elsewhere in the State. (R. 690-91,
701, 704-05, 710).
It is true, of course, that the word "electronic" does
not appear in Amendment 744. The evidence shows plainly why
that was: Representative Ford did not want to run any risk of
limiting the types of bingo that could be played in the future
in Macon County. (R. 654-55). The goal was to ensure that
Macon County could play all forms of bingo that were, or would
be, played at rival facilities. (Id.). Only in that way could
Macon County be assured that local bingo facilities were
playing on a level field against their rivals. (Id.).
Furthermore, in 2003, there was no case law from this
Court that put the framers of Amendment 744, or the People of
Macon County, on notice that they would have to use the word
"electronic" or any other particular word, in order to
effectuate their intent. This Court's decision in Cornerstone
would not come until years later; and no other decision from
this Court put the public on notice that this Court would find
any particular words relevant to discerning the intended and
original meaning of the Amendment.
21
E. The Sheriff of Macon County, who is entrusted by law with enforcement of Amendment 744, issued regulations contemporaneously with the Amendment's ratification, allowing all forms of bingo games - -games played with paper car ds and games played with electronic machines.
Amendment 744 gave the Sheriff of Macon Count y , a
constitutional officer of the State, the authority to issue
rules and regulations to govern the operation o f bingo games
in the County . (R. 72 0-23). The Sheriff e xerci sed that
authority, promulgating rul es shortly after the ratification
vote and updating those rules over t h e years . (R . 7 2 0; KCED
Exs . 2A- 2C ). Those r ul es and regu lation s , from December 20 03
to the present, have always recognized that the "bingo"
permitted in Macon County includes electronic bingo us ing
n e tworked t ermi nal s , s u c h as t h e game s at is sue h e r e . (KCE D
Exs. 2A- 2C) .
Ano ther a r t icle i n The Tuskegee News o n December 11 ,
2003 , j u st wee ks after t h e vote , n oted t hat the Sheriff ' s
regulations contained provisions f o r t wo c lasses of licen s e :
o n e for operations t h a t wo u ld involve b ingo "with paper cards
only with the numbers called out " and another (with more
e x tens ive regulations) f o r tho se op e rations that wo uld use
" e l ect roni c machines for the b ingo games ." (KCED Ex . 1 8) .
22
The State does not even contend that the games that were
being played at VictoryLand failed to comply with the
Sheriff's regulations in any way. In fact, the record contains
extensive evidence that the games at issue do comply with the
Sheriff's regulations. The Sheriff insisted that the games be
tested by a nationally and internationally prominent testing
lab, BMM, and that they be certified as being compliant. (KCED
Exs. 38-40, 52). The record includes ample testimony by a
representative of BMM, demonstrating (after extensive
examination of the equipment, including both hardware and
software) that the games at issue are actually "bingo" and are
compliant with the Sheriff's regulations. The games are based
on bingo play, with random ball draws matching preselected
patterns. (R. 480-502) . 3
3 According to Richard Williamson, BMM's representative, the machines at issue in this case require group play, i.e., at least two players; using a distinct electronic bingo card for each player; a random draw of numbers common to all players; and an announced display of the win. (R. 487-92; 493-94). Although the machines also have entertaining displays, the displays do not influence the outcome of the bingo being played. (R. 497-99).
23
II. Facts regarding the Attorney General' s "cherrypicking" enforcement strategy.
In its original judgment, the trial court noted the
following:
[I]t is undisputed that other facilities within the State have operated the same type of gaming devices for substantial periods of time, even while VictoryLand has been shut down. The State did not dispute that other facilities have the same machines or that they are open.. . The State also did not dispute that during that same time frame [August 9, 2010, and the beginning of trial], non-Tribal facilities in the State of Alabama also operated electronic bingo games at Center Stage (Houston County), Greenetrack (Greene County) and Greene Charity Bingo (Greene County) almost continuously for 1, 166 days, 1, 134 days, and 1, 058 days, respectively. During this same 4-year period, VictoryLand operated the same type of electronic bingo for only 63 days . . .. While electronic bingo operations at VictoryLand remain shut tered, today , both Tribal and non-Tribal facilities within the State of Alabama continue to operate the same type of electronic bingo games . The State could not and did not offer any substantive reason why it permitted this state of affairs to continue at other facilities, while taking its present stance against the same operations at VictoryLand.
It is apparent at the present time that the State of Alabama is cherrypicking which facilities should remain open or closed.
(C. 1042-44).
In a post-judgment motion, the Attorney General took
issue with that aspect of the Court's original judgment.
( C. Supp. 36- 38) . But the Attorney General presented no
24
evidence to refute the court's factual recitals about the
continued operation of other facilities while VictoryLand was
shut down by action of the Attorney General. (Id.). Indeed,
the Attorney General did not even suggest that those recitals
were wrong; instead, he pointed to some litigation that he had
instituted in Greene and Houston Counties and disputed the
inference that he was engaged in "cherry-picking." (C. Supp.
36-37) .
KCED responded with affidavits showing that, even at that
very time, electronic bingo facilities remained open and
operating in Greene, Lowndes, Montgomery, Elmore, and Escambia
Counties (some of which were non-tribal facilities). (C. Supp.
46-55).
In its revised judgment, the trial court noted this
unrefuted evidence, and noted that as of late July 2015, there
were 1,798 e lectronic bingo machines operating at six
facilities in Greene and Lowndes Counties. ( 2C . Supp. 3-4) .
The court noted that the State did not deny this. And the
court, "reiterate[d] its ruling that t he State of Alabama is
cherry picking which facilit i es should remain open or closed
.. The State obviously is not enforcing the law equally."
(2C . Supp. 4).
25
This Court can also take judicial notice of the
Governor's Executive Order No. 13, entered November 5, 2015. 4
That Executive Order noted "recent judicial rulings have
raised concern with the unequal enforcement of Alabama's
criminal laws, including gambling laws, against individuals
and businesses." The Governor revoked his earlier Executive
Order which had given the Attorney General primary enforcement
authority over such matters. The Governor directed that "the
primary responsibility for enforcement of Alabama's criminal
laws shall remain with the sheriffs and district attorneys of
each County as guided by their careful interpretation o f t he
laws of the State of Alabama in their capacity as
constitutional officers and officers of the courts."
4 http : //governor . alabama . gov/newsroom/ 2015/11 . exec utive order-number- 13-2 / (last accessed Dec. 9, 2015) .
26
STATEMENT OF THE STANDARD OF REVIEW
The case comes to this Court on a judgment rendered after
a bench trial. So the ore tenus standard of review applies.
While questions of law can be reviewed de novo, this Court
will defer to the trial court on questions of fact so long as
there is substantial evidence to support the trial court's
conclusions; it is up to the trial court to assess witnesses'
credibility and to assign weight to their testimony. Wehle v.
Bradley, No. 1101290, 2015 WL 6618633, at *2 (Ala. Sup. Ct.
Oct. 30, 2015). Further, this Court must view the evidence and
the facts in the light most favorable to the findings of the
trial court. Ex parte Caldwell, 104 So. 3d 901, 904 (Ala.
2012); Ex parte Brown, 26 So. 3d 1222, 1225 (Ala. 2009).
27
SUMMARY OF THE ARGUMENT
This Court has recognized for over one hundred years that
the goal of all constitutional interpretation is to ascertain
and effectuate the intent of the People - and that this intent
is gathered not from a sterile review of the text alone but
from review of the text in light of its history, in light of
the purposes for which the constitutional provision was
designed, and in light of the historical record that sheds
light on the original public understanding and original intent
of the provision.
This case, involving the interpretation of Amendment 744,
which authorizes "bingo games" in Macon County, is unlike
Cornerstone and subsequent decisions from this Court following
Cornerstone. The reason is that this case comes to this Court
with a clear, overwhelming, and unrefuted historical record of
the legislative proceedings and public debate preceding the
adoption of Amendment 744, including widely disseminated
articles, editorials, and flyers. Under the traditional
standard of constitutional interpretation, it is
overwhelmingly clear from the record that Amendment 744
permits bingo in all its forms, including electronic bingo of
the sort that was being played at rival facilities in 2003
when the Amendment was adopted. That record shows:
28
* that in 2003, when the Amendment was ratified, the word
"bingo" was being used throughout the nation to describe a new
generation of electronic gameplay, involving networked
terminals with a fast-paced bingo game that did not require
the same level of player attention and action as older
versions of the game required;
* that this sort of bingo was being played in Alabama,
and that Macon County voters were among the ones who played
it;
* that this sort of bingo gameplay, and the use of the
word "bingo" to refer to it, came into existence after most
other bingo-related constitutional amendments in Alabama had
been adopted;
* that the Peopl e of Macon County sought, and ratified,
Amendment 7 4 4 precisely in order to allow their County to
compete on a level playing field with rival facilities
(includi ng triba l facilities ) that were already offering thi s
very sort of bingo gameplay, in order to bring jobs and
revenue to Macon County ;
* that the de b a t e over Ame ndme n t 744, both in the
Legislature and in the County (over the airwaves , in
n ewspapers , and in flyers distributed very widely), made quite
clear that the "bi ngo games" a uthori zed by t h e Ame ndme nt would
29
not be just old-fashioned bingo, but would include "all forms"
of bingo including "electronic," with this understanding being
shared by proponents and opponents alike; and
* that the Sheriff of Macon County, who is given
authority by Amendment 744 to promulgate rules and
regulations, promptly issued regulations that illustrated this
same public understanding.
None of the fa c ts shown by the overwhelming evidence
presented in this case were true, or were shown to be true, in
Cornerstone or subsequent cases in this Court. And Amendment
7 4 4 was not considered in Cornerstone, nor has it been
definitively construed in any subsequent case. In fact, in
ordering the issuance of the warrant used to obtain the mone y ,
r ecords, a nd equipme nt t hat a r e the subject o f t h is
proceeding, this Court promised that the meaning of Amendment
744 would be " revisi t ed at a trial in whi ch the investigated
party i s presen t a nd has notice and an opportunity t o b e
heard." Ex parte State, 12 1 So. 3d 337, 357 n.12 (Ala. 201 3) .
Notwi thstanding, t he Attorney General wrong l y asks t his
Court to ignor e t h e will of t h e Peop l e of Ma c on County and t o
substitute his view of what gaming ought to include, or thi s
Cou rt 's v iew, over the irs. The Attorn e y Genera l a sks the Cou r t
t o apply a s o -cal l ed " plain meaning" test , or othe r t ools o f
3 0
construction, that: 1) impose a preferred meaning rather than
the one that was prevalent during the 2003 ratification
debate; and 2) are contrary to the basic principles of
constitutional democracy and the will of the People. This
Court should resoundingly reject that request. This Court
should demonstrate that in Alabama, constitutional
adjudication is not merely a way for the judiciary to impose
its policy preferences in an anti-democratic fashion.
Therefore, this Court should hold that the operations at
VictoryLand were authorized by Amendment 744, and should
require the Attorney General to return the equipment, records,
and funds of which he wrongly sought forfeiture.
In addition, the Court should affirm the trial court's
conclusion that the Attorney General was engaged in an
unlawful "cherry-picking" enforcement strategy, as he doggedly
pursued VictoryLand while allowing facilities in other
counties to remain open, playing the very same games, even up
to the time of the judgment in this case.
31
ARGUMENT
I. As with any other portion of the Constitution, this Court is to interpret Amendment 744 to effectuate the original intent of the People; and in a way that honors the purpose that the Amendment was designed to accomplish. Correctly interpreted, Amendment 744 plainly permits electronic bingo of the sort that was being played at VictoryLand.
The primary question here concerns the meaning of
Amendment 744, adopted overwhelmingly by the voters of Macon
County in 2003 after significant public debate. To put it most
plainly, the question is whether this Court will interpret the
Amendment in the manner required by the overwhelming
historical evidence of its intended meaning, as publicly
discussed by its framers and the ratifying People - or whether
this Court will interpret it in a way that is contrary to the
original public understanding and that would utterly fail to
accomplish the People's goal .
One thing must be remembered at the outset: There is no
reason in law why a local constitutional amendment, such as
Amendment 744, could not authorize the games at issue in this
case. Such an amendment could not be prohibited by any other
part of the Constitution. See SECTION 2 OF THE OFFICIAL RECOMPILATION
OF THE CONSTITUTION OF ALABAMA OF 1901, as amended ("That all
political power is inherent in the people, and all free
32
governments are founded on their authority, and instituted for
their benefit; and that, therefore, they have at all times an
inalienable and indefeasible right to change their form of
government in such manner as they may deem expedient.").
As Justice Houston noted in his influential special
concurrence in Ex parte Melof, 735 So. 2d 1172, 1188 (Ala.
1999), "[a]mong Supreme Court Justices, the notion of truth
should be paramount." As Justice Houston further explained in
regard to constitutional interpretation, "[w]e [Justices of
the Supreme Court] pour corruption on both sacred entities
[the Court and the Constitution] by failing to resist the urge
to drink from the chalice of illegitimate, but available,
power. With that understood, I want to underscore one
unavoidable truth: that the power to amend the Constitution
rests with the people of the State of Alabama, not with the
members of this Court." Id. at 1188-89. The 1901 Constitution
preserves "the ability of the people to amend the Constitution
to reflect their wishes." Id. at 1189. "Might does not make
right. We should not, simply because we can, shift the power
to amend the Constitution from the hands of the people into
the hands of nine Supreme Court Justices." Id. at 1190.
The truth, in this matter, is indisputable; and the trial
court correctly recognized it: the People of Macon County
33
ratified Amendment 744 on the widespread publicly-stated
understanding, of proponents and opponents alike, that it
would permit all forms of bingo that were, or would be, played
in rival facilities. The truth is that the People of Macon
County saw this as their path to economic revitalization. The
truth is that games materially indistinguishable from the ones
at issue here were, and are now, being played at rival
facilities as bingo, and the word "bingo" was used to describe
these games in 2003.
This Court should adhere to the truth, and should reject
the Attorney General's attempt to make Alabama's Constitution
follow his own political preferences rather than the People's
will.
A. Neither Cornerstone, nor any case following it, contains a holding about the meaning of Amendment 744.
The Attorney General's main argument is that this case is
wholly controlled by Barber v. Cornerstone Cmty. Outreach, 42
So. 3d 65 (Ala. 2009) , and cases following it. He argues that
this Court has already decided that "Cornerstone bingo" (which
requires each player to listen, to mark, to notice, and to
yell victory) is the full e x tent of each and every
bingo-related constitutional amendment in the State. (State's
Brief, pp. 27-30).
34
But Cornerstone contained no holding about the meaning of
Amendment 744. This conclusion is inherent in the definition
of a "holding." Cornerstone was about Lowndes County, and the
interpretation of Amendment 674 5 which governs bingo in that
County. No one engaged in bingo in Macon County was a party
to Cornerstone. Furthermore, Amendment 744 was not even
mentioned in Cornerstone. This omission is telling, because
various other amendments relating to bingo in other counties
were mentioned in the opinion.
If this Court had stated any opinion about Amendment 7 44
in Cornerstone, it would have been dicta.
[I]t is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are u sed . If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision.
Osaka Shosen Kaisha Line v. United States, 300 U.S. 98, 103,
57 S.Ct. 356, 358 (19 3 7) (quoted in State v. Murphy, 237 Ala.
332, 341, 186 So. 487, 496 (1939) and in other cases).
Therefore, Cornerstone cannot " control the judgment" of this
Court in this case regarding the meaning of Amendme nt 7 4 4
where that "very point is presented for decision" in this case
5 OFFICIAL RECOMP. OF THE CONST. OF ALABAMA OF 1901, LOCAL
AMENDMENTS, LOWNDES COUNTY , SECTION 3 .
35
and was not presented in Cornerstone. Osaka, 300 U.S. at 103,
57 S.Ct at 358.
The same holds true about later cases, such as Houston
County Econ. Dev. Auth. v. State, 168 So. 3d 4, 11 (Ala.
2014), in which this Court stated that the Cornerstone
definition of "bingo" applies to all bingo-related amendments.
Those cases did not involve Macon County or Amendment 744, and
no one in Macon County was heard in the cases. This Court,
when acting with judicial integrity, must recognize that any
such statement could only be dictum as to Macon County and
Amendment 744. This Court must interpret Amendment 744 now, in
this case, and cannot avoid that task by stating that the
Court's hands are tied by previous decisions.
In fact, this Court has already promised that Macon
County litigants would have an opportunity, in a forfeiture
proceeding like this one, to address the open question of what
types of bingo are permitted in Macon County. In ordering the
issuance of a warrant, in an ex parte proceeding to which the
State was the only party, this Court promised that "both the
issue of what it is that extant 1aw prohibits and the issue
whether the conduct or items at issue rise to the level of
that prohibition are addressed in the ex parte context of an
application for a search warrant only for purposes of deciding
36
whether the State is entitled to the warrant . " Ex parte State,
1 21 So . 3d 337, 357 n.1 2 (Ala. 2013) (emphasis added) . "[B]oth
issues are subject to being revisited at a tria1 in which the
investigated party is present and has notice and an
opportunity to be heard." ( I d . ) (emphasis added). Thi s is
that case, and as this Court has promised, it is here that the
Court will addr ess "what it is that e x tant law prohibits."
(I d.) .
B. The object of a ll constitutional i nterpretation is to ascertain and effectuate the intention of the People. The Court accomplishes this task not by looking to words alone, but by looking to how the words were used and understood at the specific time, to the debates over ratification, to the purpose for which the provision was designed, and to the contemporaneous construction of r esponsible officials.
What is the goal and the governing method o f
const i tutiona l interpretation in Alabama ? The ans wer has b e e n
clear for over one hundred years . "The ob ject of all
construc tion is t o ascerta i n and effec tuate the intention o f
t h e people in the a doption of t h e consti t ution ." St ate v .
Sayre , 118 Ala . 1 , 28 , 24 So . 89 , 92 (1 897) (quoted i n
Corne r stone, 42 So . 3d at 7 9) . "In construing t he
Constituti on , t h e l eading purpose woul d be to asce r tain and
effect uate the inte n t and obj ect original l y i n tend e d to be
37
accomplished." Alexander v. State, 274 Ala. 441, 446, 150 So.
2d 204, 208 (1963).
Just as this Court has said that in interpreting a phrase
in the 1901 Constitution the Court will "seek to understand
the meaning it would have had for the delegates to the 1901
Constitutional Convention," Opinion of the Justices No. 376,
825 So. 2d 109, 114 (Ala. 2002), the Court in this case will
seek to understand the meaning that Amendment 744 would have
had in Macon County in 2003 when the Amendment was debated and
adopted there.
Obviously, the words used in a constitutional amendment
are the starting point for interpretation. But one cannot look
to the words, in a detached sense, from a perspective that
ignores the relevant contemporaneous history. "The intention
is collected from the words of the instrument, read and
interpreted in the l.ight of its history." Sayre, 118 Ala. at
28, 24 So. at 92 (emphasis added) (cited and quoted in
Cornerstone, 42 So. 3d at 79). One asks not what the words
mean to a reader now, but what the words would have meant to
the People at the time, in the context that faced them. "There
can be no just construction or interpretation, effectuating
the intent of the people, which is not deduced, not only from
the words, but from the history, of any particular part or
38
provision of the instrument." Sayre, 118 Ala. at 28, 24 So. at
92.
And, importantly, one does not stop and rest satisfied
upon concluding that a given word "normally" had a certain
meaning. Words can mean different things to different
communities, and the search is for how the words were
understood by the relevant community at the relevant time. The
Supreme Court of the United States recognized this in a case
that this Court has relied upon heavily for its approach to
constitutional interpretation. "Normal meaning may of course
include an idiomatic meaning, but it excludes secret or
technical meanings that would not have been known to ordinary
citizens in the founding generation." Cornerstone, 42 So. 3d
at 79 (quoting District of Columbia v. Heller, 554 U.S. 570,
576-77, 128 S.Ct. 2783, 2788, 171 L.Ed.2d 637 (2008))
(emphasis added). "Idiomatic" means "peculiar to a particular
group, individual, or style" 6 ; among its opposites is
"universal." The point is that if the People in the relevant
community and time would have understood a word in a certain
way, then the Court follows that usage, even if it was an
"idiomatic" usage rather than a perfectly standard one.
6 MERRIAM-WEBSTER' S COLLEGIATE DICTIONARY 616 (11th ed. 2012 ) .
39
So the proper approach to a constitutional text is as
Thomas Jefferson said: not a contentious and combative
approach, but an approach instead that humbly and generously
attempts to honor the People's usage. "On every question of
construction, carry ourselves back to the time when the
Constitution was adopted, recollect the spirit manifested in
the debates, and instead of trying what meaning may be
squeezed out of the text, or invented against it, conform to
the probable one in which it was passed." Thomas Jefferson,
Letter to Judge William Johnson, June 12, 1823, 15 The
Writings of Thomas Jefferson 449-50 (quoted in Cole v. Riley,
989 So. 2d 1001, 1017 (Ala. 2007) (Bolin, J., dissenting)).
In undertaking this task of putting themselves into the
framers' and People's mindset, courts very often rely on
evidence from debates and public discussion from the framers,
and in the public debate regarding ratification. Common uses
of such evidence include the frequent reliance on The
Federalist Papers in addressing questions that arise under the
United States Constitution. 7 The evidence in this case is, in
a real sense, a modern version of that evidence. In many
7 See, e.g., NLRB v. Noel Canning, U.S. S.Ct. 2550, 2558-59, 2561, 2566, 2577, 189 L.Ed.2d 538
134 (2014);
' 133 Arizona v. Inter Tribal Council of Arizona, U.S. --
S.Ct. 2247, 2253, 2258, 186 L.Ed.2d 239 (2013).
40
respects the evidence here is even more probative, as it goes
directly to the People's publicly discussed and widespread
knowledge of what was at stake. 8
The "examination of a variety of legal and other sources
to determine the public understanding of a legal text in the
period after its enactment or ratification ... is a critical
tool of constitutional interpretation." Heller, 554 U.S. 570
at 605, 128 S.Ct. at 2805 (emphasis in original). "In studying
the history of the times," as an aid to constitutional
interpretation, "certainly statements in the current press of
the time can be considered." Opinion of the Justices No. 140,
263 Ala. 141, 145, 81 So. 2d 678, 682 (1955). Courts will
also, naturally, look to the advocacy materials that
8 In Cornerstone, the Supreme Court relied heavily on Stephan v. Parrish, 887 P.2d 127 (Kan. Sup. Ct. 1994). See Cornerstone, 42 So. 3d at 83. The Parrish decision, too, confirms the propriety of this Court's use of the evidence as a guide to constitutional interpretation. See 887 P.2d at 131 ("In ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision. In interpreting and construing the constitutional amendment, the court must examine the language used and consider it in connection with the general surrounding facts and circumstances that cause the amendment to be submitted."). The Kansas Supreme Court noted in that case, "Unfortunate1y, the record is void of any material evidence of what legislators or voters thought or intended when they voted to approve [the constitutional provision at issue]." 887 P.2d at 132 (emphasis added). The Court is fortunate in this case to have the evidence which the Supreme Court of Kansas lacked in Parrish.
41
proponents and opponents distributed during the ratification
debate; those documents will shed enormous light on how the
ratifying voters would have understood the words of the text.
For example, consider Dairyland Greyhound Park v. Doyle,
719 N.W.2d 408 (Wis. Sup. Ct. 2006) . 9 The Court there
recognized that "the constitutional debates and practices of
the time" are a primary source of guidance as to the original
intent of a constitutional text . 719 N.W. 2d at 422. "[T]he
information used to educate the voters during the ratification
campaign provides evidence of the voters' intent. '[W] here
such intention appears, the construction and interpretation of
the acts must follow accordingly.'" 719 N.W.2d at 426
(alteration in original) (citations omitted). The Court noted
many news articles , public statements , and the l i ke, all made
during the ratification debate, ascribing a certain meaning to
the proposed amendment; and so the Court concluded that this
was the voters' inte nt and therefore the ame ndment must be so
interpreted. 719 N.W.2d at 426-27.
9 Dairyland involved a challenge to the power of the Governor of Wisconsin , following the passage of a constitutional amendment prohibiting gambling except f or certain types , to r e n e w a compac t with in-state India n tribe s t hat authorized casino-type gaming on Indian r eservat ions .
42
Moreover, a court interpreting a constitutional provision
will seek to understand why the provision was proposed and
adopted - in other words, what perceived problem of public
policy or governance it was meant to remedy. "It is a
well-settled rule of interpretation, applicable to
constitutions as well as statutes, that it is permissible in
ascertaining their purpose and intent to look to the history
of the times, the existing order of things, the state of the
law when the instrument was adopted, and the conditions
necessitating such adoption." Houston County v. Martin, 232
Ala. 511, 514, 169 So. 13, 16 (1936). This Court quoted and
accepted those very words from Martin, in Cornerstone, 42 So.
3d at 79: when interpreting a constitutional provision, one
looks to "the conditions necessitating" the adoption of the
provision.
It is a well-settled principle that constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption; . and we consider and weigh the evils of the old system, which the people intended to cure by the new.
Fox v. McDonald, 101 Ala. 51, 66, 13 So. 416, 418 (1893);
State v. Murphy, 237 Ala. 332, 335, 186 So. 487, 490 (1939)
(rejecting a proposed construction of a constitutional
43
provision that is "out of harmony with the motivating cause of
the inclusion of this prohibition in our organic law").
In addition, a court will look to evidence of how the
constitutional provision was interpreted, upon ratification,
by those officials who had an opportunity to understand its
intention and who were legally responsible for enforcing it.
Elmore County v. Tallapoosa County, 221 Ala. 182, 186, 128 So.
158, 161 (1930) (holding that in interpreting a provision of
the Constitution, great weight is given to the contemporaneous
interpretation thereof by those who had an opportunity to
understand its intention); State v. Stone, 237 Ala. 78, 83-84,
185 So. 404, 408 (1938) ("[W]hen there is doubt about the
proper construction to be placed upon a statute or
constitutiona l provision existing , the contemporaneous
construction placed upon same by . . . the officers whose duty
it was to construe them, and ... the popular interpretation,
as exempli fied in practice for a number of years, should be
looked to in reaching a conclusion as to the proper
construction.").
44
C. Under this traditional standard of constitutional interpretation, it is overwhelmingly clear that Amendment 744 permits bingo in all its forms, including electronic bingo of the sort that was being played at rival facil i ties at the time of the Amendment's ratification.
Under the proper and traditional approach to
constitutional interpretation, Amendment 744 must be
understood as using the word "bingo" to include all forms of
bingo that were played, or that would be played, at competing
facilities such as the tribal facilities in Alabama. This
specifically includes fast-paced electronic bingo, using
networked terminals, which requires less player attention and
action than does older, slower, paper bingo.
In this case, all of the available indicia of
constitutional meaning point in this same direction.
First, there is no doubt that the word "bingo," in 2003,
cou1d have this broad meaning. The word was, in fact, being
used in that way by many people; and people were actually,
indisputably playing bingo electronically, including the same
type of machines at issue in this case, and referring to this
new gameplay as "bingo." This differentiates Macon County's
Amendment 744 from earlier-adopted provisions in other
counties - this Court has never been presented with evidence
45
that the word "bingo" was being used or played in this way
when earlier-adopted provisions were proposed and ratified.
Second, the purpose of Amendment 744 is clear from the
record. It was to improve the economy of Macon County, to
bring jobs, to bring public revenue, and to bring revenue to
private charities, specifically by allowing gaming facilities
in Macon County to compete on a level playing field against
rival facilities. (R. 655-56, 686, 691-92, 705, 710, 713-14).
Those rival facilities, by drawing patrons from VictoryLand
with electronic bingo, had devastated Macon County. (R. 633-
34, 691-92, 705, 711-14). As Senator Penn noted, it is
"absurd" to think that Macon County could rebound using only
old-fashioned, slow-paced bingo. (R. 680).
This, too, differentiates Macon County's Amendment 744
from earlier-adopted provisions. It might be possible to
ascribe to voters in other counties, in earlier days, the mere
desire to have old-fashioned bingo when that was the "only
game in town." In earlier days, even that slow game might
bring in enough revenue and enjoyment to make a constitutional
amendment worthwhile. But it would be absurd to ascribe that
intention and understanding to Macon County voters in 2003.
Third, the record in this case leaves no possible doubt
about the terms of the ratification debate, and how the
46
reasonably informed voter would have understood the word
"bingo" as used in the Amendment. Proponents and opponents
alike made it clear, through widely-disseminated news
articles, opinion pieces, radio broadcasts, public meetings,
and flyers distributed to every household, that the word
"bingo" in the Amendment included all forms of bingo,
including electronic bingo as was already being played at
rival facilities. (R. 686-87, 691-92, 703-06, 709-10, 715;
KCED Exs. 3-11, 13-15, 17). This is not (as the Attorney
General implies) a matter of a few people testifying about
what they thought the word meant; it is a matter of enormously
widespread, shared, publicly-discussed, uniform objective
evidence of community interpretation. It is the sort o f
massive, clear , and undisputed historical record which a true
"originalist" would love to find in any case. The Attorney
General did not present a single wi tness or any evidence to
contradict this understanding.
This, again, differentiates this case from every other
bingo-related case whi ch this Court has decided. The Court has
never had s uc h historical e vidence. In counties where
bingo-related amendments were adopted significantly earlier,
it is historically certain that there could be no such
e vidence. I n a ny e v e n t , no party to any prior case has e v e r
47
presented such a historical record on the intent and public
understanding of the ratifying People.
Fourth, the Sheriff of Macon County, a constitutional
officer of the State, promptly issued regulations as
authorized by Amendment 744, which illustrated this same
understanding of "bingo" as meant by the Amendment. (KCED Exs.
2A-2C).
Given all of these facts, there is only one conclusion
that could be drawn, with integrity, about the meaning of
Amendment 744. That conclusion is that Amendment 744, as
intended by the People, permitted all forms of bingo in Macon
County, including the games at issue here. The trial court
was, therefore, correct; and the Attorney General is,
therefore, wrong. The trial court honored the will of the
People, and the Attorney General seeks to ignore it.
D. The Attorney General's counter-arguments are unavailing and are contrary to the basic principles of Alabama's constitutional democracy .
The Attorney General makes only a relatively brief,
fourteen-page set of legal arguments in his attempt to thwart
the will of the People of Macon County. (State's Brief, pp.
26-39). Those arguments amount to a request that this Court
ignore the will of the People. Rather than the
economy-rescuing measure that the People intended, the
48
Attorney General wants this Court to impose its own preference
on the Amendment and to read it instead as a mere trifling
authorization of old-fashioned parlor entertainment.
This brief has already addressed, above, the Attorney
General's incorrect argument that Cornerstone requires a
ruling in his favor. His other arguments are equally
unavailing.
1. The Attorney General's "plain meaning" argument is merely an attempt to impose a meaning other than the one that was prevalent during the ratification debates. This is not valid constitutional interpretation, and does not respect the will of the People.
The Attorney General errs by invoking a supposed "plain
meaning" interpretation of Amendment 744. The problem is that
the Attorney General is not actually proposing a meaning that
was, or would have been, "plain" to those who debated and
ratified Amendment 744.
It is indisputable that a word or phrase may mean
something slightly, or even markedly, different depending on
the time and place that the discussion is taking place. In
legal texts, as in other fields, words can mean one thing in
one place and time, and another thing in another place and
time . This Court, recognizing this, has quoted Justice Oliver
Wendell Holmes' famous phrase, "[a] word is not a crystal,
49
transparent and unchanged, it is the skin of a living thought
and may vary greatly in color and content according to the
circumstances and the time in which it is used." Towne v.
Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159 (1918) (quoted in
South Central Bell Telephone Co. v. State, 789 So. 2d 133, 141
(Al a. 19 9 9) ) .
The "plain meaning" of a constitutional provision will
naturally be followed in many cases. But the quest for a
"plain meaning" must not be taken as a rationale for imposing
a judicially-preferred meaning, without reference to the range
of meanings that the provision actually had, at the time and
p1ace of ratification.
This Court even recognized this point in Cornerstone
itself: the search is for the meaning of the words to the
Peop1e who adopted the provision. Cornerstone, 42 So. 3d at
79. In Heller (which this Court followed in Cornerstone), the
Supreme Court of the United States demonstrated this with
enormous clarity: it searched for the public understanding of
the provision during the ratification debate and upon
ratification. Heller, 554 U.S. at 576-610, 128 S.Ct. at 2788-
2808. As the Supreme Court of the United States said in
Heller, "Constitutional rights are enshrined with the scope
50
they were understood to have when the people adopted them,
whether or not future legislatures or (yes) even future judges
think that scope too broad." 554 U.S. at 634-35, 128 S.Ct. at
2821.
There is no single "plain meaning" of the word "bingo."
The word has multiple meanings - and, more important, it had
multiple meanings in 2003. More particularly, it did not
unambiguously mean "bingo of the sort played in elementary
schools and church basements" or "bingo as later described in
Cornerstone" in Macon County in 2003 (which was, it bears
remembering, several years before Cornerstone was decided).
Certainly, "bingo" can have the meaning that this Court
gave to it in Cornerstone. But that is not the only
def ini ti on. Even before "electronic bingo" became widely
known, the word had various meanings. People v. 8,000
Punchboard Card Devices, 142 Cal. App. 3d 618, 622 (Cal. Dist.
Ct . App . 1 9 8 3 ) ("No common meaning of the term bingo
emerges."). That was more clearly true by 2003, when
electronic bingo of various sorts had become common, as
described at length above. By 2003, the understanding of
"bingo" at least in some places and contexts had broadened:
the basic feature of matching pre-determined patterns through
random numbers remained, but electronics made the game
51
speedier and no longer necessitated the same level of player
attention or involvement. People still referred to this,
widely, as "bingo. " 1 0
Any constitutional theory of textualism or originalism
that is worthy of any respect is one that actually takes
seriously the question, "How did the People in the ratifying
community actually use these words?" That question is
answered, as it was answered in Heller, by looking not to the
words alone but to a variety of sources to see the
contemporaneous meaning that was attributed to the text as a
whole.
As we have shown in this brief, the contemporaneous
meaning that was plain in all the ratification debates on
Amendment 7 4 4 was that "bingo" meant more than what woul d
1 0 As t hen-Attorney General, Press Release dated December investigation of Vi c toryLand:
Troy King, 1, 2004,
stated in regarding
It cannot be concluded, as some have, that just because the game is being played on video consoles , it is not "bingo." Just as no one would contend that e-mai l s are any less a form of correspondence than are lette rs written with a quill pen, but i ns tead rep re s e nt a t echno logical evolution in correspondence , similarly, bingo games that are depicted on a video console can still be bingo albeit a technologically advanced form of bingo but bingo nonethele ss.
(KCED Ex . 23 , L- 6 , p. 2 ).
52
his his
later be described as "Cornerstone bingo." It included bingo
as actually played in competing facilities, which was not
"Cornerstone bingo," but was the same type of gameplay that
the State challenges here. That is, actually, how the word
"bingo" was used at the time and place in question.
To claim that the meaning of a phrase is "plain," and to
posit a "plain" meaning that is not how the word was actually
used in the ratifying community, is not candid legal argument;
it would take the fundamental power away from the People and
put it in the hands of the government. A "plain meaning"
approach that "plays dumb," and that pretends not to be aware
of the way the words were actually used at the time of
ratification, would not actually be constitutional original ism
at all. It would be merely a type of judicial activism,
imposing the judicial will over the will of the People.
2. The Attorney General incorrectly describes the nature and extent of the evidence that sheds light on the meaning of Amendment 744, and incorrectly argues that such evidence is irrelevant.
The Attorney General wrongly argues that this Court
s h ould ignore a ll t h e evidence about how Amendment 744 was
understood and debated during the ratification period. But
that is simply contrary to wel l-establ ished law, as has been
e xplained above. And, contrary to t h e Attorney Gene ral ' s
53
dismissive argument, this evidence is not a matter of a few
voters or legislative leaders testifying about how they
interpreted the text at issue. On the contrary, it is the
precise sort of evidence that cases such as Heller, Parrish,
Dairyland, and even Cornerstone, recognize as important in
constitutional interpretation. It is evidence that goes to the
widespread contemporaneous public understanding of what was
being voted on.
Indeed, even if this Court looked only to the
widely-disseminated contemporaneous documentary evidence - the
articles, editorials, and flyers - still even that would be
enough to show the meaning of Amendment 744's text as
understood by its constitutional "founding genera ti on" in
Macon County. Beyond that, the testimony offers additional
evidence, a sworn and cross-examinable equivalent to the
Federalist Papers. The Attorney General did not even attempt
to refute it.
The Attorney General also errs in claiming that this is
the sort of "secret" meaning which, under Heller, cannot be
ascribed to a constitutional text. But, as explained above,
this was no "secret" meaning. It was the very opposite: it was
shouted from the rooftops. One can call it an "idiomatic"
usage of the word "bingo" if one cares to do so; but as Heller
54
teaches, an "idiomatic" usage by the founding generation
governs constitutional interpretation. To claim otherwise, as
the Attorney General does, is to depart from the proper goal
of constitutional interpretation.
To see the error of the Attor ney General's argument, it
is helpful to imagine how easy the decision in Heller would
have been if the historical record in that case had been as
clear as the historical record in this case. Heller involved
a constitutional challenge under the Second Amendment to laws
in the District of Columbia that barred handgun registration
and prohibited unlicensed firearms in the home. The critical
question was whether the Second Amendment confers an
individual right to bear arms outside of military service.
Imagine that , during the debate over ratification of the
Second Amendment, America had been blanketed with pamphlets
from both supporters and opponents , uniformly agreeing that
the measure would provide every individual with a fundamental
personal right to carry arms for protection of person and
property. Imagine that the l eading newspapers throughout the
land conveyed this same understanding of the text, in news
articles and even in opinion pieces by the very people who had
drafted the provision , wi t h no evidence in the hi s tori cal
record that a nyone h ad a contrary unde rstanding.
55
In that scenario, no court with professionalism and
integrity would ignore, or refuse to follow, that evidence. No
responsible jurist, no matter what his personal belief about
firearms might be, would hold that the "real" meaning of the
Amendment was something different.
But that is exactly what the Attorney General is wrongly
asking this Court to do.
3. The absence of the word "electronic" in Amendment 744 does not justify the Attorney General's position.
The Attorney General does no better by arguing that the
Amendment should have included the word "electronic," and that
the failure to include the word is dispositive. (State's
Brief, pp. 37-38). Here, the Attorney General is treating
constitutional interpretation not as an honest inquiry into
the People's intent and for the original public understanding
of the text, but as a mere search for arguments that the
People did not express their intent in the way that the
Attorney General would deem sufficient.
The same sort of argument, equally disrespectful towards
the People's original intent and public understanding, could
be made in any case; and it would be equally wrong. One could
have equally well said in Heller that if the drafters of the
Second Amendment wanted it to protect an individual's right to
56
bear arms outside of military service, they should have said
so in some way that would be more "clear." As Heller shows,
that is not the proper approach to constitutional
interpretation.
In fact, the Attorney General's argument is extremely
disingenuous. Had Amendment 744 included the word
"electronic," the Attorney General merely would have argued -
as he has in regard to bingo in Greene County - that this made
very little difference, and that bingo still had to be
Cornerstone-style in all respects except for the requirement
of paper cards . See State v. Greenetrack, 154 So. 3d 94 0,
959-60 (Ala. 2014) . The Attorney General merely seeks any
argument that he can make to limit bingo gaming in Alabama.
That is not an honest approach to constitutional
interpretation.
The Attorney General argues that Representative Ford
omitted the word " electronic" b ecause h e wanted to keep his
intent "secret" - that he wanted to keep other legislators
from knowing that this is what Amendment 744 would allow.
(State ' s Brief, p . 38 ). This is a pure fabrication on the
Attorney General's part. As has been explained above,
Representative Ford ' s desire was that bingo not b e Iimited by
inc ludi ng a wo r d s u c h as " e l ectron ic ." (R. 654-55 ). And h e
57
explained pub1ic1y that the proposal would allow electronic
bingo, even be£ore he introduced the proposal in the
Legislature. (R. 637-40). As Senator Penn testified, this
meaning was explicitly discussed among legislators.
(R. 667-69). It was the very ground upon which opponents, such
as the Christian Coalition, opposed the proposal before the
Legislature. (R. 636-37, 670-71). This is the very opposite of
a "secret"; and it is quite telling, that the Attorney General
is reduced to such pure fabrication in his effort to thwart
the People's intent.
The question, still, is what the People of Macon County
meant by the word "bingo" in 2003. All the evidence points in
only one direction: that the word, in that time and place,
encompassed not only Cornerstone bingo but fast-paced,
electronic bingo such as was being played, as bingo, in rival
tribal facilities. This is not a matter (as the Attorney
General claims) of relying on a "secret" definition of the
word "bingo"; it is a matter of respecting the fact that, even
if one calls this an "idiomatic" use of the word (see Heller),
it is still the way the word was used at that time and place.
This Court must honor the original public understanding, and
original intent, of the text of Amendment 744 .
58
4. The Attorney General errs in attempting to use canons of interpretation in order to steer the Court from following the original intent and public understanding of Amendment 744.
Finally, the Attorney General wrongly attempts to steer
the Court away from the clear original public meaning and
intent behind Amendment 744, by asking the Court to apply
certain "canons" of interpretation: a "narrow construction"
canon, and an appeal to the notion that similarly-worded
provisions should be given the same meaning.
Neither of those canons, even if they had any weight,
could justify ignoring the overwhelmingly clear original
intended meaning of Amendment 744. Even when interpreting
statutes and private legal documents, this Court has
recognized that all "canons" of interpretation are subordinate
to the overriding inquiry into the intent behind the statute
or document. See State v. Strickland, 289 Ala. 488, 493, 268
So. 2d 766, 770 (1972) ("All rules for construing statutes
must be regarded as subservient to the end of determining the
legislative intent."); Baker v. Wright, 257 Ala. 697, 702, 60
So. 2d 825, 830 (1952) (applying similar reasoning when
interpreting a will). The same principle must apply in the
interpretation of a constitutional provision. Judicially-
59
created "canons" should not be elevated over the intent of the
People.
Moreover, the Attorney General is greatly exaggerating
the force of his chosen canons. Take, first, the "narrow
construction" notion: that local constitutional amendments
relating to bingo should be "narrowly construed." This Court
used that approach in Cornerstone, 42 So. 3d at 78. There is
some justification for the use of that approach in Cornerstone
and cases following it, precisely because in those cases there
was no evidence that the ratifying voters in the relevant
counties in the relevant years had a broad intent. When faced
with an absence of historical evidence about a provision's
meaning, the Court can sensibly look to canons such as this to
fill in the blanks. But where (as here) the historical record
is so very clear, to apply a "narrow construction" canon would
again be to elevate judicial preferences over the People's
will. That is not the proper approach to constitutional
interpretation.
Implicitly recognizing this, the Attorney General seeks
to bolster his invocation of the "narrow construction" notion
by stating that "narrow construction" was already established
as a governing legal principle in 2003; the implied assertion
is that the drafters and ratifiers of Amendment 744 must have
60
known this, and that they should have written the Amendment
more precisely in order to avoid the supposedly-settled
principle of narrow construction.
But the Attorney General has not candidly described the
state of the law, regarding interpretation of local
bingo-related constitutional provisions, as of 2003. The
"narrow construction" standard was only stated by this Court
in Cornerstone, some six years after the ratification of
Amendment 744. The Attorney General says flatly that "this
Court had already held that the identical language in
Amendment 508 had to be narrowly construed" in City of
Piedmont v. Evans, 642 So. 2d 435 (Ala. 1994). (State's Brief,
p. 31; see also p. 16). But Evans contains no such holding at
all; it says nothing about any principle of narrow
construction. It held (quite correctly), that the local
amendment allowed only "bingo," and that a certain game which
allowed a person to purchase an "'instant bingo' ticket or
card" for which a prize was awarded "purely by chance," was
not bingo as authorized by the local bingo ordinance (and was
not a known version of the game "bingo"). But it contained no
generalized holding that would tell drafters or ratifying
voters, in 2003, that an Alabama court would "narrowly"
construe the word "bingo" to excl.ude games that were actual.l.y
61
being played as bingo in the State of Alabama and throughout
the nation at the time of ratification.
Similarly, Barrett v. State, 705 So. 2d 529 (Ala. Crim.
App. 1996), will not bear the weight that the Attorney General
puts on it. The Court of Criminal Appeals described Calhoun
County's Amendment 508 11 as being a "narrow" exception to the
prohibition against lotteries. Id. at 531, 532. And that is
true, in this sense: it permitted only bingo, not games other
than bingo. But this in itself does not answer the question of
what constitutes bingo. The Court of Criminal Appeals went on
to hold quite understandably that the particular
challenged game, which was called "U-Pick Em" and involved a
player selecting numbers that were fed into a computer, was
not "bingo"; that game would not constitute "bingo" under any
widely-used definition of the word. And there was, from all
that appears in the opinion, no evidence that anyone had ever
even heard of such a game being called "bingo" when Amendment
508 was being debated and ratified.
This case is enormously different from Barrett and Evans,
for reasons discussed throughout this brief. Here,
indisputably, the games that the Attorney General challenges
11 OFFICIAL RECOMP. OF THE CONST. OF ALABAMA OF 1901, LOCAL AMENDMENTS, CALHOUN COUNTY, SECTION 1.
62
are the very types of games that were being played, throughout
the nation and in Alabama, under the name "bingo" in 2003.
There is no escaping that fact. And the drafters and ratifiers
of Amendment 744 had no notice of any rule from this Court
that would construe the word "bingo" more narrowly than it was
actually used, in common usage and in the relevant community,
during the ratification period.
Thus, again, this Court should recognize that any canon
of "narrow construction," like all canons, must give way to
the fundamental question of intent. In Evans, in Barrett, in
Cornerstone, and in all the other cases upon which the State
relies, there was no overwhelming historical record going to
original intent; in this case, this Court has such a record.
The power of the People to change their constitution, ALA.
CONST. of 1901, § 2, overrides any judicially-created "narrow
construction" canon.
The same is true of the State's argument that, because
Amendment 744 uses much of the same language as some other
counties' bingo-related amendments, it must receive the same
interpretation. This argument, too, would elevate a
judicially-created canon of interpretation over the clear will
of the People. And it must be remembered that, as of 2003, it
was not established by case law that "bingo" would mean only
63
"Cornerstone bingo." Cornerstone was not decided until several
years later. And as discussed above, Evans and Barrett did not
hold that the word "bingo" would always be read to exclude
games that were (at the time of ratification) actually widely
referred to as "bingo."
The State professes to be unable to imagine that "bingo"
could mean something different in Amendment 744 than it does
in other counties' amendments. But it is quite obvious how
that could be: because Amendment 744 was debated and adopted
after a period of substantial legal and technological
development, in which new ways of playing "bingo" came to be
widely known and still referred to as "bingo." To say that
"bingo" must mean the same thing in all counties'
constitutional amendments, even though they were adopted at
different times, would be contrary to the fundamental
principles of constitutional interpretation that have been
described in this brief.
E. Once Amendment 744 is correctly interpreted, then it is plain that the bingo operations at VictoryLand were lawful and could not be the subject of a forfeiture action. The Attorney General does not even attempt to show otherwise.
Under a correct interpretation of Amendment 7 4 4, the
Attorney General's forfeiture action is entirely without
merit.
64
The Attorney General does not even offer any contention
about what Amendment 744 means, other than the contention that
it permits only "Cornerstone bingo." As shown above, that is
plainly an incorrect interpretation. The Attorney General
offers no fall-back or alternative interpretation.
The Attorney General did not off er any evidence or even
allegation that the bingo operations at VictoryLand were
unlawful under any standard other than "Cornerstone bingo."
Thus, once his incorrect interpretation of the Amendment is
rejected, it is apparent that the Attorney General offered no
evidence that the operations were unlawful.
And, indeed, the unrefuted evidence as described in the
Statement of the Facts shows that the games at VictoryLand
were certified by an expert laboratory as being actual bingo,
under a proper understanding of that term. (KCED Exs. 38-40,
52).
Therefore, the trial court was correct in ruling against
the Attorney General. But in one respect, the trial court did
not go quite far enough. (Hence the cross-appeal.)
The trial court ordered the return of the equipment,
records, and funds unless the Attorney General initiated legal
action and/or forfeiture proceedings against facilities in
other counties. ( 2C. Supp. 4) . Because there is no evidence
65
that the operations at VictoryLand were outside the scope of
what is lawful under Amendment 744 - and because the unrefuted
evidence shows that the operations were indeed lawful - the
proper order is one that unconditiona11y orders the return of
all equipment, records, and funds. (It surely requires no
citation of authority, to note that forfeiture is only for
unlawful activities and not for activities that are permitted
by the Constitution.)
II. The Court should also affirm the trial court's order on the basis of that Court's conclusion that the Attorney General was engaged in an improper "cherrypicking" enforcement strategy.
If the Court interprets Amendment 7 4 4 correctly, as
described in Section I of this Argument, then there is no need
to reach t h e trial court's ruling t hat it would not be part of
the Attorney General's "cherry-picking" enforcement strategy,
under which other facilities (even non- tribal facilities)
happily remained open and operating the very same games while
VictoryLand was shuttered by the Attorney General.
But if the Court finds it necessary to reach thi s issue,
the Court should affirm. The trial court was right that
Alabama's judic iary should not be made party to such
ma ni fest l y unfair proceedings, in which one business is
66
shuttered while others are permitted to continue operating in
the very same way. (C. 1042-46; 2C. Supp. 3-4).
First, it was procedurally proper for the trial court to
rule on this issue; and the Attorney General was not deprived
of an opportunity to be heard on it. A trial court, when asked
to exercise the awesome power of declaring certain activities
unlawful and forfeiting private property, surely has the right
to raise concerns even if they might be different from the
exact arguments that the parties have raised. And the Attorney
General had ample authority to be heard on that issue, and to
present any evidence or argument he wished to present, through
his post-judgment motion.
Second, this is not (as the Attorney General would have
it) simply a matter of whether the Fourteenth Amendment to the
United States Constitution was violated. Instead, as the trial
court recognized, an Alabama court has the inherent power to
ensure that it is not being used to perpetuate an injustice.
The judiciary "cannot allow our justice system to do injustice
in the name of doing justice." Aspinwall v. Gowens, 405 So. 2d
134, 137 (Ala. 1981); "Courts exist to redress or prevent
wrongs, not to perpetrate them." Kennedy v. Davis, 171 Ala.
609, 614, 55 So. 104, 105 (1911).
67
Third, the Attorney General has completely failed to
refute the trial court ' s finding that he was engaged in unfair
cherry-picking as to which facilities would be permitted to
remain open. (C. Supp. 36-38). The Attorney General tells this
Court that he has engaged in some bingo-related enforcement
litigation in Greene and Lowndes Counties, but that in itself
is not enough to refute the material fact. (C. Supp. 36-37).
He may have engaged in some litigation against some operators;
but the fact remains, as found by the trial court, that he has
countenanced the continued daily operations of facilities in
Greene County and Lowndes County. If he truly believed that
the law of bingo is as simple as he claims in this Court, and
if he truly believed that electronic bingo everywhere is
analogous to "cocaine" or "meth" (State's Brief, p. 23), and
if he truly believed in the fair use of his authority, then he
would take swift action against any operator in any county. 12
As the trial court noted, the Attorney General offered no good
reason why he failed to take action against the ongoing
1 2 This is especially true where there was unrefuted testimony that electronic bingo machines previously in use at VictoryLand, and bearing VictoryLand's ownership stickers on the s ide o f the machines, are current ly i n use at tribal facilities. (R. 734-35).
68
operations of other facilities while he focused,
extraordinary intensity, on VictoryLand.
with
Fourth, the Governor's Exe cu ti ve Order No. 13, issued
after the trial court's judgment, even compounds the
unfairness further and makes it all the more clear that this
litigation is a tool of unfair prosecutorial authority. Under
Exe cu ti ve Order 13, the lawfulness of operations in other
count ies will be overseen by elected local officials, sheriffs
and district attorneys. But in Macon County, as to
VictoryLand, the Attorney General still seeks to remain
supreme , even where his opinion differs from that of the
responsible local officials. There is no justification for
leaving Macon County, and VictoryLand, subject to the
continued, dogged pursuit by the very same Attorney General
who allowed facilities elsewhere to continue to operate.
CONCLUSION
On the Attorney General ' s appeal, the Court s hould
affirm; and on the cross-appeal, the Court should remand the
case for entry of a judgment that unconditionall y requires the
return o f all the seized e quipment , r ecords , and f unds .
69
Respectfully submitted on December 17, 2015.
OF COUNSEL:
Melton, Espy & Williams, P.C. Post Office Drawer 5130 Montgomery, AL 36103 Telephone: (334) 263-6621 Facsimile: ( 334) 263-7252 [email protected] [email protected] [email protected] [email protected]
Sam Heldman (HEL009) The Gardner Firm, PC 2805 31st Street, NW Washington, DC 20008 Telephone: (202) 965-8884 Facsimile: (202) 318-2445 [email protected]
John M. Bolton, III (BOL012) Charlanna Skaggs (SPE044)
Isl J. Flvnn Mozingo Joe Espy, III (ESP002) J. Flynn Mozingo (MOZ003) Ben Espy (ESP005) William M. Espy (ESP007) Attorneys for KC Economic Development, LLC
Hill, Hill, Carter, Franco, Cole & Black, PC Post Office Box 116 Montgomery, AL 36101-0116 Telephone: (334) 834-7600 Facsimile: (334) 263-5969 [email protected] [email protected]
70
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been
filed electronically using the ACIS electronic filing system
and that same will be served on the below listed counsel of
record via electronic communication and United States Postal
Service, properly addressed and postage prepaid, on December
17, 2015:
Luther Strange John Kachelman, III Andrew Brasher Alabama Attorney General's
Off ice Post Office Box 300152 Montgomery, AL 36130-0152 [email protected] . al.us [email protected] . al . us
71
Craig Izard Attorney at Law P.O. Box 130277 Birmingham, Al 35213
Isl J. Flvnn Mozingo OF COUNSEL
KCED
APPENDIX 1
KCED Appendix 1
DEFENDAN'rs EJlHIBIT KCED4 ---
DEFENDANrS EXHIBIT KCED6
VOTE YES ON TUESDAY-NOV. 4, 2003
TO AUTHORIZE ALL
FORMS OF BINGO: PAPER CARDELECTRONIC
MACHINE BINGO FOR THE BETTERMENT
OF MACON COUNTY
MACON CQU,NTIANS FOR A BETTER ECONOMY
DEFENDANT'S i EXHIBIT j KCED7 ---
KCED
APPENDIX 2
State Chairman Or. Frank Ba er
l a
KCED Appendix 2
th
DEFENDANT'S ll EXHIBIT 7 KCED3
• Fall(~) 832-4 9 • Y.'WW.cc6ama org