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 jespy@mewlegal.com fmozingo@mewlegal.com bespy@mewlegal.com wespy@mewlegal.com

Sam Heldman (HEL009) The Gardner Firm, PC 2805 31st Street, NW Washington, DC 20008 Telephone: (202) 965-8884 Facsimile: (202) 318-2445 sam@heldman.net

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 jbolton@hillhillcarter.com cskaggs@hillhillcarter.com

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 jespy@mewlegal.com fmozingo@mewlegal.com bespy@mewlegal.com wespy@mewlegal.com

Sam Heldman (HEL009) The Gardner Firm, PC 2805 31st Street, NW Washington, DC 20008 Telephone: (202) 965-8884 Facsimile: (202) 318-2445 sam@heldman.net

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 jbolton@hillhillcarter.com cskaggs@hillhillcarter.com

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 jkachelman@ago.state . al.us abrasher@ago.state . 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