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E-Filed

12/17/2015 @ 04:02:26 PM
Honorable Julia Jordan Weller
Clerk Of The Court

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

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,

involves

The

substantial

factual

record.

this case

record

shows

precisely what the games at issue in this case are. The record
shows why and how they c onstitute "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.

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .

. vi

STATEMENT OF JURISDICTION .

vii

TABLE OF AUTHORITIES
STATEMENT OF THE CASE

STATEMENT OF THE ISSUES .

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 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


being played in Alabama in 2003.

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

case was
9

E.

II.

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

Facts regarding the Attorney


picking" enforcement strategy.

General's

"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 interpretati o n


i s to ascertain and effectuate the intention of
the People. The Court accomplishes this task
not by l o oking to words alone , bu t 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 onstructi o n of r e sponsibl e
o f f ic ia l s .
. 37

iii

c.

of
standard
traditional
this
Under
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

E.

1.

The Attorney General's "p l 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
of
Arnendmen t 7 4 4
59

Once Amendment 7 4 4 is correctly interpreted ,


then it is plain t h at 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

STATEMENT OF JURISDICTION
KC Economic Development, LLC
Court has

("KCED"), agrees that this

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.
(and

(C.
on

Supp.
a

2-6).

The trial court ruled on that motion

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

Paqe(s)

Cases
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 ) . . . .

59

passim

Barrett v. State,
705 So. 2d 529 (Ala. Crim. App. 1996)

62-64

City of Piedmont v. Evans,


642 So. 2 d 435 (Ala. 1994)

61, 62-64

Cole v. Riley,
989 So. 2d 1001 (Ala. 2007)

. 40

Dairyland Greyhound Park v. Doyle,


719 N.W.2d 408 (Wis. Sup. Ct. 2 006)

. . . . . . 42, 54

District of Columbia v. Heller,


554 U.S. 570, 128 S.Ct. 2783,
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 )

. 44

Ex parte Brown,
2 6 So . 3 d 1 2 2 2 (Al a . 2 0 0 9 )

. 27

vii

Ex parte Caldwell,
104 So. 3d 901
Ex parte Melof,
735 So. 2d 1172
Ex parte State,
12 1 So . 3 d 3 3 7

(Ala. 2012)

. . . . . . . . . . . . . 27

(Ala. 1999)

( Al a . 2 0 13 )

. . . . . . . . . . . . 33

. 30,

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 ) . . . . . .

. 36

Houston County v. Martin,


2 3 2 Al a . 511 , 16 9 So . 13 ( 19 3 6)

. 43

Kennedy v. Davis,
171 Ala. 609, 55 So. 104

. . . . . . . . . . 67

(1911)

NLRB v. Noel Canning,


U.S.
, 134 S.Ct. 2550,
189 L.Ed.2d 538 (2014) . . .

37

. . . . . . . . . 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 )

Opinion of the Justices No. 376,


825 So. 2d 109 (Ala. 2002)

. 41

. 38

Osaka Shosen Kaisha Line v . Unit ed States,


300 U. S . 98, 57 S.Ct. 356 (1 937 ) . . .

35 - 36

People v. 8,000 Punchboard Card Devices,


142 Cal. App. 3d 618
(Cal. Dist. Ct. App. 1983)

. 51

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,
154 So. 3d 94 0 (Al a . 2 014)

viii

50

. . . . . . . . . . . . . 57

State v. Murphy,
237 Ala. 332, 186 So. 487

. 35, 43

(1939)

State v. Sayre,
118 Ala. 1, 24 So. 89 (1897)

. 37' 38

State v. Stone,
2 3 7 Ala. 7 8, 18 5 So. 4 0 4 ( 193 8)

. 44

State v. Strickland,
289 Ala. 488, 268 So. 2d 766 (1972)

. 59

Stephan v. Parrish,
887 P.2d 127 (Kan.

Sup. Ct. 1994)

. 41 n.8, 54

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)

. 50
9

8-9

. 27

Constitution and Statutes

Page(s)

OFFICIAL RECOMPILATION OF THE CONSTITUTION OF ALABAMA


OF 1901, LOCAL AMENDMENTS, CALHOUN COUNTY, SECTION 1
(i.e., ALA. CONST. OF 1901, amend. 508)

62 n.11

OFFICIAL RECOMPILATION OF THE CONSTITUTION OF ALABAMA


OF 1901, LOCAL AMENDMENTS, LOWNDES COUNTY, SECTION 3
(i.e., ALA. CONST. OF 1901, amend. 674).

. 35 n.5

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

passim

SECTION 2 OF THE OFFICIAL RECOMPILATION OF THE CONSTITUTION


OF ALABAMA OF 1901

2, 32, 63
. 12

ALABAMA ACT 8 3-5 7 5


INDIAN GAMING REGULATORY ACT,
25 u.s.c. 2701

Other Authorities

Page (s)

ALA. R. CIV. P. 59.1

. vi

Executive Order No. 13 (2015)


http : //governor . alabama . gov/newsroom/2015 / 11.executiveorder-nurnber-13-2/ (last accessed Dec. 9, 2015)
. . 26, 69
Jefferson, Thomas
Letter to Judge William Johnson,
June 12, 1823,
15 The Writings of Thomas Jefferson 449-50

. 40

MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 616 (11th ed. 20 12)


39 n.6

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,

1)

p.

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 Count y 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 appoint e d by the Chief Justice (plainl y having

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 .
1

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."
2

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

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

Alabama's courts,
way

for

judges

to

to

demonstrate

that,

at

least

in

constitutional adjudication is not just a


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

Amendment 744. This Court should honor their decision.

in

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 tr i al court als o c o rrec t in noting th a t the

operations

at

VictoryLand

have

been

subjected

to

unfa i r

targeting b y the Attorne y General while other facilities are


open a nd operating?
Yes; and more recent events, of whi c h this Court can take
judi c ia l n o ti ce , e ven c ompound this seve r e u n fa i rne ss.
3.
and

Sh oul d t h is Cou rt mo d ify t h e tr i al court ' s order ,

de c lare

unconditiona l l y

that

records , a n d f u nds must be re t urn e d ?


Yes .

the

seized

equipment ,

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;
proposed

Amendment

was

discussed

and

and shows how the

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

entertaining

(such

as

di splays,

fast
and

networked-computer
with

no

need

for

play,
a

with

player

to

personally mark matched numbers or to personally recognize or


announce

victory)

were

known

to

the

People

who

ratified

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,
electronic bingo,

including

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 Ma con County in
2003 ,

one

must

start

with

earlier

hist ory

and

then wor k

forward. This history will show, in the end, why it is proper


to understand Macon County's Amendmen t 744 as having a meaning
that

is

d.ierent

attributed

to

from

other

the

meaning

counties'

that

this

bingo-related

Cou rt

has

amendments.

Fortunately, t h e record in this case provides that histor y in

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,

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 h e ma tched 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

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,

developments.

included

both

technological

and

legal

(R. 573-89). Networked computer terminals were

developed which allowed patrons to play bingo electronically.


(R.

576).

With improving technology,

bingo machines became faster.


By 2000,

federal

play on the networked

(R. 576-78).

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
enacted in 1988.
as

2 701, et seq.,

That Act allowed tribes to operate "bingo"

so-called "Class

whe the r

u.s.c.

II"

games;

and so

the

question a ro s e

e l ec tron i c bingo machines were "bi n g o."

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 thes e g ame s we r e "bingo " in the r e l e vant
s e n se

eve n

t houg h

t he

gamepl a y

exp er i e nce

was

mar k e d l y

different from earlier bingo games. Those courts considered


a nd

r e j ect ed the a r g ume nt

i ll e g al

slot

ma c h i n es .

tha t

e l ec t r oni c

e . g .,

See ,
8

U. S .

bingo g ame s
v.

162

are

Me gaMan ia

Gambling Devices, 231 F.3d 713 (10th

explained this history in his

expert testimony.
By 2003,

(9 th

223 F. 3d 1091

Electronic Gambling Devices,


Professor Rose

Cir. 2000); U.S. v. 103

in the country were no

paper games;

unchallenged

(R. 584-89).

as Professor Rose explained,

"bingo" games

c'ir. 2000).

there had been,

the majority of

longer old-fashioned

by that point,

an "enormous

spread" of networked electronic bingo games. Many such games


used

terminals

displayed a
screen,

that

(like

five-by-five

along

the

spinning

with

at

bingo card in the

entertainment-oriented displays.
B.

machines

wheels

issue

here)

corner of
or

the

other

(R. 590-91).

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,
2 00 2 .

Montgomery,

and Wetumpka since at least 2001 o r

(Court Ex. 1, pp. 10, 12, 16- 18 ). Ma con 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.

(R. 633-34, 690, 697, 700-01, 704-05, 710).


electronic
today,
case.

bingo

games

operated,

and

The Poarch Creek

continue

to

operate

in the same manner as those that were seized in this


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 n ot (and
did not)

have to call "bingo" orally to claim victory.

In

short, "bingo" as played at these facilities as of 2003 shared


the qualiti es 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 he

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 qu ired 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
include: 1)

it

from

These

qualities

a game played for cash or prizes; 2)

played on

layouts bearing numbers

"slot

or

mac hines."

symbols;

3)

requiring multiple

players competing against one anot her;


drawn;

and 5)

4)

numbers randomly

won by matching a pre-designated pattern of

numbers or symbols.

(R.

57 9-81) . That is what the games at

i ss ue h ere actually involve ,

e v e n when the screens incl ude

entertaining displays of o ther 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 propo sed, d e b ated in the Legislature ,


unanimo usly
County,

adopte d

by

the

Legislature,

debat e d

in Macon

a nd ove rwhe lmingly ratifi e 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

constitutional

amendment

was

discussed

reason for the

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

critical
Macon

nonpro fit

o rgani zations,

community services.

County

citizens

(R.

supported

a nd

633-34,

would

subsidize

658-59,

711-14 ) .

legislat i on

that

would

l e galiz e b ingo i n Macon County to compete with busine ss e 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
Amendment.

that

this

was

the

reason

for

the

proposed

(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,
(R.

653-55,

and to provide fund to schools and nonprofits.


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
13

documents,

with

the

widest

possible

local

dissemination,

public

the

confirmed

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 Appendi x 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 wou l d
be "good for e ducation,
for me and .

. good for charit ie s ,

. good

. good for you." (KCED Ex. 5).

From these sources,

it is c l ear that every reasonable

voter interested in the ratification debate would h ave 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).


games,

bingo

electronic

including

games,

Bingo

accomplished all of those goals in Macon County once operation


of

electronic

bingo

games

began

in

December

2003.

addition of bingo games created over 2,000 jobs,


revenue

for

local

organizations,
(R.

governments,

and

increased

and

schools,

taxes

to

local

The

generated
nonprofit

governments.

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,
bingo

it would be "absurd" to think that old-fashioned

alone

would

have

served

addressed by Amendment 744.


0.

the

purpose

sought

to

be

(R. 680).

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 proposa l,


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 n ot 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

operation of electronic bingo games.

of

gambling

a nd

the

(R. 635, 670) .

The proposed Amendment t h en went t o t h e People of Ma con


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
bingo.

issue at hand was not old-fashioned ,

The issue ,

as was obviou s
17

s l ow,

paper

f rom t h e a dvocacy of bo t h

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

(R. 637)

to

be

played

in

forms

any

in Macon

County."

(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.


editorial
largely

to

noted

that

VictoryLand' s

competition

from

tribal

loss

(KCED Ex.
of

14) . The

business,

facilities,

had

due
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

Amendment was approved,

pointed

"Ma.chines

18

out

that

if

the

that wou1d be set up for

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
.. "(Id.)

Indians .

[sic]

(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. 16A16C); 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.
67 4-7 5) .

See

KCED

Ex.

("VOTE

19

YES

FOR

(R. 649-53,

ELECTRONIC

BINGO

MACHINES ON TUESDAY NOV. 4TH)

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,

FOR ME AND IT'S GOOD FOR YOU.

IT'S GOOD

VOTE YES ELECTRONIC BINGO");

KCED Ex. 6 ("VOTE YES ON TUESDAY - NOV. 4Ttt TO AUTHORIZE ALL


FORMS

OF

BINGO

PAPER

BINGO"); KCED Ex.

CARD,

ELECTRONIC

CARD

AND

MACHINE

4,

2003 TO

("VOTE YES ON TUESDAY-NOV.

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.
2)

(KCED Ex. 3)

(Appendix

("Vote NO on Electronic Bingo Gaming Machines.") .


The same understanding was discussed openly on broadcast

radio.

Senator

ratification

Penn

debate

had

weekly

period,

bingo

show;
was

and

"the

during
hot

the

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,
(R .

" e le ctronic"

bingo

was

69 1 - 92 ).

20

the

topic

of

discussion.

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

local

County be

assured

that

bingo

facilities

playing on a level field against their rivals.


Furthermore,

in 2003,

were

(Id.).

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 ,

constitutional officer of the State, the authority to issue


rules and regulations to g o vern the operation o f bingo games
in

the

Co unty .

(R.

7 2 0- 2 3).

The

Sheriff

e x erc i sed

that

authority, promulgating ru l es shortly after the ratification


vote and updating those rules over t h e years .

(R .

7 2 0; KCED

Exs . 2A- 2C ). Thos e r ul es and regu lation s , from December 20 0 3


to

the

present,

have

permitted in Macon
n e twor ked t ermi nal s ,

always

Co unt y

recognized

that

the

"bingo "

includes electronic bingo us ing

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
2003 ,

j u st wee k s

in

The

Tusk egee

after t h e vote ,

News

on

December

11 ,

n oted t h at the Sh eriff ' s

regulati ons contained pro visi o ns f o r t wo c lasses of licen s e :


o n e for o p era ti ons t h a t wo u ld invo lve b ingo "with paper cards
only with the

numbers

e x tens ive regulati o ns)

called out "


f or

and another

(with more

tho se o p e rations that wo uld use

" e l ect ron i 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).

representative

The record includes ample testimony by a


of

examination of the

BMM,

demonstrating

equipment,

(after

extensive

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,
patterns.

with random ball draws matching preselected

(R. 480-502) . 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).
3

23

Facts regarding the Attorney


picking" enforcement strategy.

II.

In

its

original

judgment,

the

General' s

trial

court

"cherry-

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,
issue with
( C.

Supp.

that

aspect

36 - 38) .

But

of
the

the

the Attorney General


Court's

Attorney
24

original

General

took

judgment.

presented

no

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 Es cambia


Counties (some of which were non-tribal facilities). (C. Supp.
46-55).
In

its

revised

judgment,

the

trial

cour t

no ted

this

unrefuted evidence, and noted that as of late July 2015, there


were

1,798

e lectronic

bingo

machines

operating

facilities in Greene and Lowndes Counties.

at

six

( 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 wh ich 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

raised

concern

criminal laws,

Order
with

noted
the

"recent

unequal

judicial

enforcement

including gambling laws,

rulings

have

of Alabama's

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."

http : //governor . alabama . g ov/newsroom/ 2 015/11 . exe c utive order-number- 1 3-2 / (l ast accessed Dec. 9, 2015) .
4

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

designed,

for

which

the

constitutional

provision

was

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
articles,
standard

of

Amendment

editorials,
of

overwhelmingly

744,
and

including
flyers.

constitutional
clear

from

the

widely

Under

disseminated

the

traditional

interpretation,
record

that

it

Amendment

is
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

involving

gameplay,

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 one s who played
it;

* that this sort of bingo gameplay, and the use of the


word "bingo" to refer to it, came into existence after mo st
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

level

playing

field

with

rival

facilities

(includi ng triba l facilities ) that were already offering th i s


very

sort

of bingo gameplay,

in order

to bring

jobs

and

in

the

airwaves ,

in

revenue to Macon County ;


that

the

de b a t e

Legislature

and

in

the

over

Ame ndme n t

Count y

(over

744,
the

both

n e wspapers , and in flyers distributed very widely), made quite


clear that the "bi ngo ga mes " a utho ri 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

authority

the
by

Sheriff

Amendment

of

Macon

744

to

County,

who

promulgate

is

given
and

rules

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 44

was

not

considered

in

Cornerstone,

nor

definitively construed in any subsequent case.

has

it

been

In fact,

in

ordering the issuance of the warrant used to obtain the mone y ,


r ecords,

a nd

equipme nt

t hat

are

the

sub ject

of

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 investigat ed
pa rty i s

presen t

a nd has

noti ce and an o pportunit y t o b e

heard." Ex parte State, 1 2 1 So. 3d 337, 357 n.12 (Ala. 201 3) .


Notwi thstanding, t he Attorney General wron g l y asks t his
Cou rt to igno r 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, ov er the irs. Th e At torn 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 o ols o f
30

construction, that: 1) impose a preferred meaning rather than


the

one

debate;

that
and

was
2)

prevalent

are

during

contrary

to

the

the

ratification

2003

basic

principles

constitutional democracy and the will

of the

Court

request.

should resoundingly reject

should

demonstrate

in

that

that

Alabama,

People.
This

of

This
Court

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,
conclusion

that

the Court should affirm the trial court's


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

historical

evidence

manner
of

its

required

by

the

overwhelming

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,
political

power

is

inherent

in

32

the

as

amended

people,

and

("That
all

all
free

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

concurrence in Ex parte Melof,

in

his

735 So.

1999), "[a]mong Supreme Court Justices,


should be paramount."

2d 1172,

special

1188

(Ala.

the notion of truth

As Justice Houston further explained in

regard to constitutional interpretation,


the Supreme Court]

influential

"[w]e

[Justices of

pour corruption on both sacred entities

[the Court and the Constitution] by failing to resist the urge


to drink from the chalice of illegitimate,
power.

With

that

understood,

want

to

but available,
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:
33

the

People of Macon County

ratified

Amendment

understanding,

744

on

the

of proponents

widespread

and opponents

publicly-stated
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,
yell

victory)

is

the

full

to mark,
e x tent

of

to notice,
each

and

bingo-related constitutional amendment in the State.


Brief, pp. 27-30).
34

and to
every

(State's

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.
to

No one engaged in bingo in Macon County was a party

Cornerstone.

Furthermore,

mentioned in Cornerstone.

Amendment

744

was

not

even

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)
332,

341,

186

So.

(quo ted in State v. Murphy, 237 Ala.

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

744

where that "very point is presented for decision" in this case

OFFICIAL

AMENDMENTS,

RECOMP.

LOWNDES COUNTY ,

OF

THE

CONS T.

SECTION

3.

35

OF

ALABAMA

OF

1901,

LOCAL

and was not presented in Cornerstone. Osaka, 300 U.S. at 103,


57 S.Ct at 358.
The same holds true about later cases,
County Econ.
2014),

in

Dev.

which

Auth.
this

v.

State,

Court

such as Houston

168 So.

stated

that

3d 4,
the

11

(Ala.

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

County litigants would have an opportunity,

that

Macon

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

(I d . )

opportunity to be heard."

and

has

notice

(emphasis added).

and

an

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 n terpretation 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

of

const i tuti o n a l interpre tati on in Al abama ? The an s wer has b e e n


clear

for

over

one

h u n dred

years .

"The

ob ject

of

all

construc tion is t o ascerta i n and effe c tuate the intenti o n o f


t h e people in the a doption of t h e cons ti t uti on ." St ate v .
Sayre ,

118

Corne r st one,

Ala .
42

1,
So .

28 ,
3d

24

So .

at

89 ,

7 9) .

92

(1 897)

"In

(q u oted i n

c o nstruing

t he

Con stituti on , t h e l eading purpose woul d be to asce r tain and


effect u ate the inte n t

and obj ect

37

original l y i n te n d e d to be

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

Cornerstone,

92

42 So.

(emphasis

added)

(cited

and

quoted

in

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,


38

of any particular part or

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

communities,

can

and

mean

the

different

search

is

things

for

how

to

the

different
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,

"universal."

or

style" 6 ;

among

its

opposites

is

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.

MERRIAM-WEBSTER' S COLLEGIATE DICTIONARY 616 (11th ed. 2012 ) .


39

So the proper approach to a constitutional text is as


Thomas

Jefferson

said:

not

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
a

real

sense,

The evidence in this case is, in

a modern version of that evidence.

In many

See, e.g., NLRB v. Noel Canning,


U.S.
134
S.Ct. 2550, 2558-59, 2561, 2566, 2577, 189 L.Ed.2d 538 (2014);
Arizona v. Inter Tribal Council of Arizona,
U.S. - - ' 133
S.Ct. 2247, 2253, 2258, 186 L.Ed.2d 239 (2013).
7

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.
also,

141,

145,

naturally,

81 So.
look

to

2d 678,
the

682

(1955).

advocacy

Courts will

materials

that

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.
8

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 intenti o n appears, the construction and interpretation of


the

acts

must

follow

(alte ra tion in original)

accordingly.'"

719

N.W.2d

at

426

(citat ions 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' int e nt and therefore the a me ndment must be so
interpreted. 719 N.W.2d at 426-27.

Dairyland involved a cha ll enge to the power of the


Governor
of
Wisconsin ,
following
the
passage
of
a
constitutional a mendment prohibiting gambling except f or
certai n types , to r e n e w a compa c t with in- state Indi a n trib e s
t hat authorized casino-type gaming on Indian r eservat ions .
9

42

Moreover, a court interpreting a constitutional provision


will seek to understand why the provision was proposed and
adopted policy

or

in other words,
governance

well-settled

rule

it

what perceived problem of public


was

meant

to

remedy.

interpretation,

of

"It

is

applicable

a
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,

State v. Murphy, 237 Ala. 332, 335, 186 So. 487,


(rejecting

proposed

construction

43

of

418
490

(1893);
(1939)

constitutional

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

proper

construction

constitutiona l

(1938)

("[W]hen there is doubt about the

to

be

provision

placed

existing ,

upon
the

statute

or

contemporaneous

construction placed upon same by . . . the officers whose duty


it was to construe them, and . . . the popular interpretation,
as exempli fie d in pra ct ice for a number of years,
looked

to

in

reaching

conclusion

construction.").

44

as

to

should be

the

proper

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.

the

Under

constitutional

proper

and

approach

traditional

interpretation,

744

Amendment

must

to
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

specifically

the

includes

tribal

facilities

fast-paced

in Alabama.

electronic

bingo,

This
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,

used in that way by many people;

in fact,

being

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,
record.

the purpose of Amendment 744 is clear from the

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.


34,

691-92,

705,

711-14).

As

Senator

(R. 633-

Penn noted,

it

is

"absurd" to think that Macon County could rebound using only


old-fashioned, slow-paced bingo.
This,
from

too,

(R. 680).

differentiates Macon County's Amendment 744

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
46

debate,

and

how

the

reasonably

informed

voter

would

"bingo" as used in the Amendment.


alike

made

it

clear,

through

have

understood

the

word

Proponents and opponents


widely-disseminated

news

articles, opinion pieces, radio broadcasts, public meetings,


and

flyers

"bingo"

distributed

in

the

to

Amendment

every household,
included

all

that

forms

the word
of

bingo,

including electronic bingo as was already being played at


rival facilities.
KCED Exs.

3-11,

General implies)

(R.

686-87,

13-15,

17).

691-92,

703-06,

This is not

a matter of a

709-10,

715;

(as the Attorney

few people testifying about

what they thought the word meant; it is a matter of enormously


widespread,
evidence

shared,

of

publicly-discussed,

community

interpretation.

uniform
It

is

the

objective
sort

of

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 uch

hi storical

e vidence.

In

counties

where

bingo-related amendments were adopted significantly earlier,


it

is

hi storically

certain

that

there

could

be

no

such

e vidence. I n a ny e v e n t , no party to any prior case h as e v e r


47

presented such a historical record on the intent and public


understanding of the ratifying People.
Fourth,
officer

of

the Sheriff of Macon County,


the

authorized

State,

by Amendment

promptly
744,

issued

which

constitutional
regulations

illustrated

this

as
same

understanding of "bingo" as meant by the Amendment. (KCED Exs.


2A-2C).
Given all of these facts,
that could be drawn,
Amendment

744.

That

there is only one conclusion

with integrity,
conclusion

is

about the meaning of

that

Amendment

744,

as

intended by the People, permitted all forms of bingo in Macon


County,
was,

including the games at issue here.

therefore,

therefore,

correct;

wrong.

and

The trial

the

The trial court

Attorney

General

is,

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

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

economy-rescuing

of

measure

the

People.

that
48

the

Rather

People

than

the

intended,

the

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,
General's
ruling

incorrect

in

his

argument

favor.

His

that
other

above,

the Attorney

Cornerstone
arguments

requires
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

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,
49

"[a]

word is not a crystal,

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

"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
itself:

Court

even

recognized

this

point

in Cornerstone

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 27882808.


Heller,

As the Supreme Court of the United States

said in

"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.

def ini ti on.

Even

before

known,

word

had

the

But

that

"electronic

various

is

not

bingo"

meanings.

the

became

People

v.

only
widely
8,000

Punchboard Card Devices, 142 Cal. App. 3d 618, 622 (Cal. Dist.
Ct .

App .

1 983 )

emerges.").
electronic
described

("No

That
bingo

at

was
of

length

common
more

meaning
clearly

various
above.

sorts
By 2003,

of

the

term

bingo

true

by

2003,

when

had

become

the

common,

as

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
51

electronics

made

the

game

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

ans wered, as it was answered in Heller, by looking not to the


words

alone

but

to

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 ra tifi cation debates on


Amendment 7 4 4 was that "bingo" meant more than what wou l d

As t h en-Attorney General,
Press
Release
dated
December
investigation of Vi c toryLand:
10

Troy King,
1,

2004,

stated in his
regarding his

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 o ne would contend
that e-mai l s are any less a form of correspondence
than are lett e rs written with a quill pen, but
i ns tead rep re s e nt a t echno logi ca l
e volution 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 nonethel e ss.
(KCED Ex . 23 , L- 6 , p. 2 ).
52

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 ra tifying 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 awar e


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 eviden ce about how Amendment 744 was


understood and debated during the ratification period.

But

that is simply contra ry to wel l-estab l ished law, as has been


e xplained

above.

And,

contrary
53

to

t he

Attorney

Gene ral ' s

dismissive argument,
voters

or

this evidence is not a matter of a few

legislative

leaders

interpreted the text at issue.

testifying

about

On the contrary,

how

they

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,

if

even

Court

this

looked

only

to

the

widely-disseminated contemporaneous documentary evidence - the


articles,
enough

editorials, and flyers - still even that would be

to

show

understood by
Macon County.
evidence,

the

its

meaning

Amendment

constitutional

Beyond that,
sworn

of

and

744's

text

as

"founding genera ti on"

in

the testimony offers additional

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,

ascribed to a constitutional text. But,

cannot be

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 Atto r 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 hist orical 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 un licensed firearms in the home. The critical
question

was

whether

the

Second

Amendment

confers

an

individual right to bear arms outside of milita ry 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 ca l

record that a nyone h ad a contra ry 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

Brief,

pp.

to

include

37-38).

Here,

the

word

is

dispositive.

the Attorney General

(State's

is treating

constitutional interpretation not as an honest inquiry into


the People's intent and for the original public understanding
of the text,
People

but as a mere search for

did not

express

their

intent

in

arguments that
the

way

that

the
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

the

not

proper

approach

to

constitutional

interpretation.
In fact,

the Attorney General's argument is extremely


Had

disingenuous.

744

Amendment

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 .
959-60

(Ala.

See State v.

2014) .

Greenetrack,

154 So.

3d 94 0,

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,
Attorney

p.

General's

38 ).

This is a pure fabrication on the

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 ."
57

(R.

654-55 ). And h e

explained pub1ic1y that the proposal would allow electronic


bingo,

even

Legislature.
meaning

he

beore

(R.

introduced

637-40).

explicitly

was

As

the

Senator

discussed

proposal

in

Penn testified,
among

the
this

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:
encompassed

not

that the word,

only

Cornerstone

in that time and place,


bingo

but

fast-paced,

electronic bingo such as was being played, as bingo, in rival


tribal

facilities.

General claims)

This

is

not

matter

(as

the Attorney

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,
could

justify

ignoring

the

even if they had any weight,


overwhelmingly

intended meaning of Amendment 744.


statutes

and

private

legal

clear

original

Even when interpreting

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

constitutional

59

provision.

Judicially-

created "canons" should not be elevated over the intent of the


People.
Moreover,
the

force

the Attorney General is greatly exaggerating

of his

chosen

construction" notion:

canons.

that

local

Take,

first,

constitutional

the

"narrow

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,
more

and that they should have written the Amendment

precisely

in

order

to

avoid

the

supposedly-settled

principle of narrow construction.


But the Attorney General has not candidly described the
state

of

bingo-related

regarding

law,

the

constitutional

interpretation

provisions,

as

local

of

of

2003.

The

"narrow construction" standard was only stated by this Court


in

Cornerstone,

Amendment 744.
Court

had

Amendment

some

years

after

the

ratification of

The Attorney General says flatly that "this

already
508

six

had

held
to

that

be

the

narrowly

identical

language

construed"

in

City

in
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;

says

it

construction.

nothing
It

held

about
(quite

any

principle

correctly),

of

that

the

narrow
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
voters,

in

2003,

that

an

Alabama

drafters
court

or

would

ratifying
"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.


AMENDMENTS, CALHOUN COUNTY, SECTION 1.
62

OF ALABAMA OF 1901,

LOCAL

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,
CONST. of 1901,

ALA.

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

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

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

constitutional amendments,
different

times,

would

same

thing

in

counties'

all

even though they were adopted at


be

contrary

principles of constitutional

to

the

fundamental

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
Attorney

correct

General's

interpretation

forfeiture

merit.
64

of Amendment

action

is

entirely

7 4 4,

the

without

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.
The

trial

(Hence the cross-appeal.)

court ordered the

return of the

equipment,

records, and funds unless the Attorney General initiated legal


action and/or forfeiture proceedings against facilities
other counties.

( 2C. Supp.

in

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,

citation of authority,

and funds.

( It surely requires no

to note that forfeiture is only for

unlawful activities and not for activities that are permitted


by the Constitution.)
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.

II.

If

the

Court

interprets

Amendment

744

correctly,

as

described in Section I of this Argument, then there is no need


to reach t h e tr ial 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 necess ary to reach thi s issue,
the

Court

Alabama's
ma ni fest l y

should affirm.
judi c iary
unfair

The

should

trial
not

proceedings,

66

court

be
in

made

which

was

right

party
one

to

that
such

business

is

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

wrongs,

(Ala.

1981);

"Courts exist to redress or prevent

not to perpetrate them." Kennedy v.

609, 614, 55 So. 104, 105 (1911).

67

Davis,

171 Ala.

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

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 th e machines, are current ly i n use at trib al
facilities. (R. 734-35).
12

68

operations

of

other

facilities

while

he

with

focused,

extraordinary intensity, on VictoryLand.


Fourth,
after

the

the Governor's Exe cu ti ve Order No.


trial

court's

judgment,

even

13,

issued

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

attorneys.

district

VictoryLand,
supreme ,

the

But

Attorney

even where his

in

Macon

General

still

opinion differs

County,
seeks

to

as

to

remain

from that of the

responsible local officials.

There is no justification for

leaving

VictoryLand,

Macon

County,

and

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

appea l,

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.

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

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)
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

Craig Izard
Attorney at Law
P.O. Box 130277
Birmingham, Al 35213

Isl J. Flvnn Mozingo


OF COUNSEL

71

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 CARDELECTRONICMACHINE BINGO
FOR THE BETTERMENT
OF
MACON COUNTY
MACON CQU,NTIANS FOR A BETTER
ECONOMY
DEFENDANT'S
i
j

EXHIBIT

--KCED7

KCED
APPENDIX 2

KCED
Appendix 2

State Chairman
Or. Frank Ba er

th

l a

DEFENDANT'S
ll
7

Fall(~)

832-4

EXHIBIT

KCED3

Y.'WW.cc6ama

org