E-Filed

12/30/2015 @ 03:38:28 PM
Honorable Julia Jordan Weller
Clerk Of The Court

Case Nos. 1141044 and 1150027

IN THE SUPREME COURT OF ALABAMA

STATE OF ALABAMA, Appellant,

V.

$223,405.86 et al., Appellees.

KC ECONOMIC DEVELOPMENT, LLC, Cross-Appellant,

V.

STATE OF ALABAMA, Cross-Appellee.

On appeal from the Circuit Court of Macon County

(Hon. William Shashy, sitting by designation,
CV-13-900031)

REPLY BRIEF OF THE STATE OF ALABAMA

LUTHER STRANGE
Attorney General
Andrew L. Brasher
Solicitor General
John L. Kachelman III
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
501 Washington Avenue
Montgomery, Alabama 36130
(334) 353-2609
(334) 242-4891 (fax)
abrasher@ago.state.al.us
Attorneys for Appellant/CrossAppellee

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................... ii
INTRODUCTION .............................................. 1
SUMMARY OF ARGUMENT ....................................... 2
ARGUMENT .................................................. 4
I.

The meaning of Amendment 744 is not an open

question under this Courts case law .................. 4
A. County-specific litigation is not required to
define the meaning of cut-and-paste local
amendments ....................................... 5
B.

This Court has clearly held that Cornerstone

is the law everywhere ............................ 7

C.

The lower court should have applied

Cornerstone to determine the legality of the
machines in this case ........................... 10

II. Principles of originalism and constitutional

interpretation do not support KCEDs position ........ 13
A.

Objective meaning, not subjective intent,

controls in constitutional analysis ............. 13

B.

Heller supports the States position ............ 17

C.

KCED never explains what, under its view,

Amendment 744 allows and disallows .............. 21

D.

To the extent subjective intent matters,

KCEDs revisionist history is simply not
credible ........................................ 22

III. The State did not violate the Equal Protection

Clause ............................................... 25
IV. KCED concedes that the gambling proceeds and
devices are forfeit under this Courts Cornerstone
test ................................................. 25
CERTIFICATE OF SERVICE ................................... 27
i

TABLE OF AUTHORITIES
Cases
Barber v. Cornerstone Comty. Outreach, Inc.,
42 So. 3d 65 (Ala. 2009) ............................ passim
Barrett v. State,
705 So. 2d 529 (Ala. Crim. App. 1996) .................... 8
City of Piedmont v. Evans,
642 So. 2d 435 (Ala. 1994) ............................... 8
District of Columbia v. Heller,
554 U.S. 570 (2008) ............................. 18, 19, 20
Ex parte State,
121 So. 3d 337 (Ala. 2013) ....................... 9, 10, 11
Ex parte Williams,
838 So. 2d 1028 (Ala. 2002) ............................. 11
HEDA v. State,
168 So. 3d 4 (Ala. 2014) ............................. 9, 10
Hope For Families & Cmty. Serv., Inc. v. Warren,
721 F. Supp. 2d 1079 (M.D. Ala. 2010) ................... 24
McDonald v. Chicago,
561 U.S. 742 (2010) ..................................... 18
State v. Greenetrack, Inc.,
154 So. 3d 940 (Ala. 2014) ........................... 9, 10
Statutes
25 U.S.C. 2703 ..................................... 17, 23
Other Authorities
Antonin Scalia & Bryan A. Garner, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS (2012) .................... 14
Antonin Scalia, A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW (Amy Gutmann ed. 1998) ............... 15
ii

Antonin Scalia, A Theory of Constitution

Interpretation, Remarks at The Catholic University
(October 18, 1996) .................................. 15, 16
H.R. 298, Reg. Sess. (Ala. 2000) ......................... 23
Kim Chandler, Former Attorney General Troy King forms
company to promote bingo game, Al.com (April 20,
2013) ................................................... 21
Lewis Carroll, THROUGH THE LOOKING-GLASS AND WHAT ALICE
FOUND THERE (PDFreeBooks.org 1995)(1871) ................. 1
Oliver Wendell Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417 (1899) ............. 15
Vasan Kesavan & Michael Stokes Paulsen, Is West
Virginia Unconstitutional?, 90 Cal. L. Rev. 291
(2002) .................................................. 15
Vasan Kesavan & Michael Stokes Paulsen, The
Interpretive Force of the Constitution's Secret
Drafting History, 91 Geo. L.J. 1113 (2003) .............. 15

iii

INTRODUCTION
I dont know what you mean by glory, Alice
said.
Humpty Dumpty smiled contemptuously. Of course
you dont -- till I tell you. I meant there's a
nice knock-down argument for you!
But glory doesn't mean a nice knock-down
argument, Alice objected.
When I use a word, Humpty Dumpty said in rather
a scornful tone, it means just what I choose it
to mean -- neither more nor less.
-- Lewis Carroll, THROUGH THE LOOKING-GLASS AND WHAT
ALICE FOUND THERE 46 (PDFreeBooks.org 1995)(1871)

KC Economic Developments (KCED) brief goes all-in on

the Humpty-Dumpty theory of constitutional interpretation.
But the word bingo in Amendment 744 does not mean a game
played

on

slot

machines

just

because

that

is

what

Amendment 744s proponents choose it to mean. Amendment

744 is not modeled on any statute--whether federal or from
another

state--that

electronic

gambling.

has

ever

Instead,

been
it

is

interpreted
a

verbatim

to

allow

cut-and-

paste from Alabamas other local constitutional amendments,

which

have

always

been

interpreted

to

allow

only

the

traditional game of bingo. There is no textual hook for

reading Amendment 744 differently.
1

We will address a few of KCEDs specific points in this

reply brief, but our respective legal positions are ships
passing in the night. The States position is that the text
of the law matters. The States position is that the public
does not need a bench trial on voter intent to determine
what a law means--especially when the law uses the exact
same language as other laws on the exact same subject. The
States position is that, if the voters in Macon County
want

VictoryLand

to

operate

slot-machine-style

casino

games, they should pass a law that says something remotely

similar

to

that.

But

VictoryLand

cannot

operate

slot

machines under an amendment that provides for the game of

bingo.
SUMMARY OF ARGUMENT
The lower courts decision should be reversed and the
seized

proceeds

and

devices

declared

forfeit.

KCEDs

contrary position rests on an unsupportable interpretation

of this Courts precedents, a misguided view of established
principles

of

constitutional

interpretation,

and

an

implausible reading of the factual record in this case.

The lower court erred in declining to apply the sixpart

test

for

bingo

that
2

this

Court

established

in

Cornerstone. Amendment 744, which is at issue in this case,

is the same in all relevant respects to the local amendment
the

Court

addressed

in

Cornerstone.

This

Court

held

in

Cornerstone, and in follow-on cases, that the Cornerstone

test

applies

Amendment

to

744

all

local

amendments

specifically.

Under

generally

principles

of

and

to

stare

decisis, the lower court was not at liberty to make up some

new definition of bingo.

The lower court should have

applied the Cornerstone test.

But, to the extent the meaning of bingo in Amendment
744

is

an

open
test.

question,

Court

First, it

on

amendments

evidence
sponsors

of
and

the

the

definition of bingo fails for several reasons.

based

for

adopt

expansive

is

argument

should
more

Cornerstone

KCEDs

the

intent

of

the

evidence

of

the

subjective

supports,

not

objective meaning of the words the amendment uses.

the

U.S.

Supreme

Courts

decision

in

Heller

Second,

undermines

KCEDs position because that decision rests on the kind of

textual analysis that KCED eschews. Third, KCEDs competing
definition is not really a definition at all; it would
allow

any

form

of

gambling

to

be

re-characterized

as

bingo, including table games and lottery tickets. Fourth,

3

to

the

extent

the

subjective

intent

of

the

Legislature

matters, the record reflects only that some of Amendment

744s

backers

intended

to

use

non-profit

bingo

as

loophole for for-profit electronic gambling.

Our initial brief adequately explains why the lower
courts sua sponte equal protection ruling was erroneous,
and we do not replow that ground in this brief.
Our initial brief explained at great length that KCEDs
gambling devices and proceeds are subject to forfeiture.
KCED

does

not

argue

that

its

gambling

bingo under the Cornerstone test.

no

dispute

that,

if

Cornerstone

activities

are

Accordingly, there is
applies,

the

States

forfeiture petition should be granted.

ARGUMENT
I.

The meaning of Amendment 744 is not an open question

under this Courts case law.
KCEDs principal argument is that the word bingo in

Amendment 744 means something materially different than it

means in every other local bingo amendment in Alabama.

The

circuit court belatedly adopted this argument after KCED

filed its post-judgment motion.

But the meaning of the

word bingo in Amendment 744 is not an open question under

this Courts case law.
4

A.

County-specific litigation
define
the
meaning
of
amendments.

is not required to
cut-and-paste
local

As an initial matter, KCEDs argument is based on the

erroneous assumption that a judicial opinion construing a
particular local amendment does not control when the same
language is used in another local amendment on the same
subject matter. Although the Courts decision in Barber v.
Cornerstone
2009),
Courts

Comty.

arose

out

Outreach,
of

definition

of

Inc.,

dispute
the

in

word

42

So.

Lowndes

bingo

3d

65

County,

should

(Ala.
this

naturally

apply to the same term in the same amendment that applies

to Macon County. There is no relevant textual difference
between the two amendments.
brief,
that

commonsense

courts

define

As we explained in our initial

principles
the

same

of
word

interpretation
the

same

way

require
when

it

appears in two or more laws on the same subject. See State

Br. 33-34.
The lower courts contrary view is not only legally
erroneous;

it

is

also

deeply

impractical.

Alabamas

Constitution is chock full of local amendments that are

verbatim replicas of each other. Here are two examples by
subject matter:
5

Economic development: Amendment 84 (Marion); Amendment 94

(Fayette);
Amendment
95
(Blount);
Amendment
128
(Bullock); Amendment 183 (Autauga); Amendment 186
(Franklin); Amendment 188 (Greene); Amendment 189
(Lamar); Amendment 190 (Lawrence); Amendment 197 (St.
Clair); Amendment 217 (Clarke); Amendment 250 (Sumter);
Amendment 263 (Geneva); Amendment 302 (Pickens);
Amendment
646
(Marengo);
Amendment
312
(Bibb);
Amendment
313
(Hale);
Amendment
679
(Chilton);
Amendment 725 (Covington); Amendment 729 (Henry)
Prohibiting Occupational Tax: Amendment 813 (DeKalb);
Amendment 817 (Jackson); Amendment 841 (Madison);
Amendment 842 (Morgan); Amendment 843 (Limestone);
Amendment 844 (Lawrence); Amendment 848 (Cullman);
Amendment 858 (Baldwin); Amendment 859 (Tuscaloosa)
Under

the

lower

courts

view,

binding

Supreme

Court

opinion on the meaning of the word privilege or license

tax

in

Amendment

813,

which

applies

in

DeKalb

County,

would not control the meaning of the exact same phrase in

Amendment 859, which applies to Tuscaloosa County.

That

would be a recipe for uncertainty and confusion, requiring

county-specific

litigation

to

determine

the

meaning

of

words,

then

they

might need to be interpreted and applied differently.

But

verbatim, cut-and-paste local amendments.

If

local

amendments

use

different

this Court should not leave open the possibility that the
words in one local amendment mean something different than
the same words in another, verbatim, amendment. The only

way to make sense of Alabamas numerous cut-and-paste local

amendments is to treat them all the same.
B.

This Court has clearly held that Cornerstone is

the law everywhere.

KCEDs argument is also erroneous because this Court

has clearly and specifically held that the Cornerstone test
applies to Amendment 744.
By its very terms, Cornerstone controls the definition
of

bingo

in

Amendment

744.

First,

the

Court

in

Cornerstone comprehensively examined the ordinary meaning

of the term bingo as used in Alabamas local amendments
and made a pronouncement for the express purpose of binding
lower courts and local government actors. In doing so, it
evaluated the full panoply of objective, publicly-available
documents

with

bearing

on

these

amendments

meaning:

contemporaneous statutes, other States similar laws, and

the

structure

of

the

amendments

themselves.

See

Cornerstone, 42 So. 3d at 79.

Amendment 744, which is at issue here, is a verbatim
cut-and-paste from Alabamas similar local amendments. Of
the

eighteen

discussed

bingo

and

amendments

referenced

in

three

Alabama,
directly,

Cornerstone
including

Amendment 743 (Greene County), which was enacted at the

7

same

time

as

explained

Macon

that,

Countys

even

Amendment

though

744.

Amendment

743

The

Court

mentions

electronic marking machines, it contemplates a game in

all

material

described

respects

in

similar

to

458150(1),

the

and

game

something

of

bingo

that

is

materially different from the types of electronic gaming

machines at issue here. Id. at 80. The obvious implication
from this holding is that amendments such as Amendment 744,
which do not mention electronic machines at all, do not
allow

the

type

of

electronic

gaming

machines

at

issue

here.
Second,
concerning

Cornerstone
the

applied

construction

of

longstanding
Alabamas

precedent

anti-gambling

laws. Because of the strong public policy against lotteries

as expressed in Section 65 of the Alabama Constitution,
local bingo amendments must be construed narrowly.

See

Cornerstone, 42 So. 3d at 7879. (citing Barrett v. State,

705 So. 2d 529 (Ala. Crim. App. 1996) and City of Piedmont
v.

Evans,

principles

642
of

So.

2d

435,

interpretation

Amendment 744 was enacted.

436
were

(Ala.

1994)).

well-established

These
when

Third,
lower

Cornerstone

courts

and

created

local

specific

government

actors

framework
to

for

determine

whether a game is bingo. Before Cornerstone, no clear

definition for bingo games existed in state law.

The

Courts six-factor test for the legal definition of bingo

resolved legal questions over the meaning of bingo that
were likely to recur and indeed already have recurred in
other locales. Cornerstone, 42 So. 3d at 77. The Court
thus ascrib[ed] meaning to the term bingo not only for
the Lowndes County amendment at issue in that appeal, but
also for similar amendments applicable to other locales.
Id. at 77 n.9. The Court in Cornerstone made it crystal
clear that its ruling applied to all similar amendments
applicable in other locales. Id.
The words this Court used in Cornerstone should have
been enough to establish that its test controlled all local
bingo

amendments.

several

years,

But

this

it

Court

was
has

not.

So,

expressly

over

the

reinforced

past
its

holding in Cornerstone and directly applied it to other

local amendments. See Ex parte State, 121 So. 3d 337 (Ala.
2013); State v. Greenetrack, Inc., 154 So. 3d 940 (Ala.
2014); HEDA v. State, 168 So. 3d 4 (Ala. 2014).
9

Indeed,

the

Court

has

expressly

held

that

the

Cornerstone

test

applies in every county that has a constitutional amendment

allowing charitable bingo. See Greenetrack, 154 So. 3d at
959 (the game of bingo as that term is used in local
constitutional amendments throughout the State is that game
commonly or traditionally known as bingo,... this game is
characterized by at least the six elements we identified in
Cornerstone.)(emphasis added); HEDA v. State, 168 So. 3d
at

11

(we

Cornerstone

have
is

since

stated

applicable

to

that
the

our

other

analysis
local

in

bingo

constitutional amendments in this State)(emphasis added).

This Court even held that the Cornerstone test specifically
applies to Amendment 744 (Macon County).

Ex parte State,

121 So. 3d at 356 (that test, which refers to the game

commonly

and

traditionally

known

as

bingo

and

then

describes further elements of that game, is more than clear

enough to serve as guide in measuring the facts of this
case).
C.

The lower court should have applied Cornerstone to

determine the legality of the machines in this
case.

KCED makes essentially two arguments in support of its

position

that

the

Cornerstone
10

test

does

not

apply

to

Amendment 744 as a matter of stare decisis. Neither is

persuasive.
First,

KCED

erroneously

argues

that

Cornerstones

holding is dicta. A holding is dicta only if it is not

essential

to

the

judgment

of

the

court.

See

Ex

parte

Williams, 838 So. 2d 1028, 1031 (Ala. 2002). Here, however,

the definition of bingo under all of Alabamas similarlydrafted

local

amendments

was

necessary

merits of the Cornerstone case.

to

determine

the

The Court expressly said

as much: In order to address this element in the present

case, we must first ascribe meaning to the term bingo,
the term that is used in the constitutional amendment at
issue

here

locales.
added).

and

similar

Cornerstone,
Moreover,

the

amendments
42

So.

Court

3d

applicable
at

77

n.9

specifically

to

other

(emphasis

extended

the

application of Cornerstone to Amendment 744 when it ordered

that

facility.

search
Ex

warrant

parte

be

State,

issued
121

So.

for
3d

the
at

VictoryLand
356

(that

[Cornerstone] test, which refers to the game commonly and

traditionally known as bingo and then describes further
elements of that game, is more than clear enough to serve
as guide in measuring the facts of this case). Even if the
11

Cornerstone test was dicta when it was announced, it was

not dicta when it was expressly applied to Amendment 744 in
Ex parte State.
Second, KCED argues that this Court in Ex Parte State
held that the trial court could make up its own law when it
evaluated the States forfeiture petition.

Specifically,

KCED cites this Courts admonition in Ex Parte State that,

in granting the warrant, it was not deciding whether the
contraband

was

necessarily

illegal.

See

KCED

Br.

36-37.

KCED misunderstands this portion of the Courts opinion.

The Court meant that it could not, and would not, prejudge
the legality of the seized contraband based on the search
warrant

record.

permission

slip

This
to

line

create

of

the

opinion

idiosyncratic

legal

is

not

standards

that contravene this Courts prior precedents.

The lower court should have applied this Courts case
law to determine whether the seized machines and proceeds
are forfeit. There is no dispute that these machines and
proceeds do not meet the Cornerstone test. Accordingly, the
lower court should have granted the States petition for
forfeiture.

12

II. Principles
of
originalism
and
constitutional
interpretation do not support KCEDs position.
As explained above, the meaning of the word bingo in
Amendment 744 is not an open question.

But, to the extent

the question is open, the Court should use the definition

of

bingo

from

Cornerstone.

KCEDs

argument

to

the

contrary is based on a misguided caricature of originalism.

KCED argues that Amendment 744 allows electronic bingo
because that is what its sponsors told the public they
intended it to allow. In support of this argument, KCED
cites testimony from the amendments sponsors, evidence of
town-hall

meetings,

and

flyers

distributed

by

those

who

supported and opposed the amendment. See generally KCED Br.

12-21. KCEDs argument fails for several reasons.
A.

Objective meaning, not subjective intent, controls

in constitutional analysis.

The primary problem for KCED is that the meaning of a

legal text is not controlled by the subjective intentions
of its authors or ratifiers. Although KCEDs brief waxes
philosophic about democracy, its theory of interpretation
is incompatible with the rule of law in a free society. The
State, private businesses, and the general public must be
able to ascertain what a law prohibits or requires based on
13

the ordinary meaning of its text, not the meaning that a

judge might ascribe based on his view of evidence at a
bench

trial.

opinions

are

provision
rally,

On

KCEDs

theory,

pointless:

prohibits

read

an

or

code

the

only

allows

is

advertisement,

books

way
to

or

to

and
know

attend
talk

judicial

what

political

to

local

legislator. This is a deeply provincial and undemocratic

way to understand the law.
Fortunately,
constitutional

KCEDs

theory

interpretation

is

not

the

actually

way
works.

Constitutional interpretation is not about determining the

subjective

intent

amendment.

of

the

drafters

Constitutional

or

ratifiers

interpretation

of

is

an

about

determining the objective meaning of the words that they

used.

Subjective

intent

is

beside

the

point.

Objective meaning is what we are after. Antonin Scalia &

Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 30 (2012).
Properly

understood,

constitutional

analysis

must

be

directed at the original meaning of the text, not what the

original draftsmen intended. Antonin Scalia, A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann
14

ed. 1998).

[I]t is what the text means that counts, not

what any particular body or group intended, expected, or

understood.

Vasan Kesavan & Michael Stokes Paulsen, The

Interpretive Force of the Constitution's Secret Drafting

History, 91 Geo. L.J. 1113, 1132 (2003). As Justice Scalia
has explained,
The theory of originalism treats a constitution
like a statute, and gives it the meaning that its
words were understood to bear at the time they
were promulgated. You will sometimes hear it
described as the theory of original intent. You
will never hear me refer to original intent,
because as I say I am first of all a textualist,
and secondly an originalist. If you are a
textualist, you don't care about the intent . . .
Antonin Scalia, A Theory of Constitution Interpretation,
Remarks at The Catholic University (October 18, 1996).1

available
at
http://web.archive.org/web/19980119172058/www.courttv.com/l
ibrary/rights/scalia.html (last visited on Dec. 23, 2015).
See also Oliver Wendell Holmes, The Theory of Legal
Interpretation, 12 Harv. L. Rev. 417, 419 (1899) (We do
not inquire what the legislature meant; we ask only what
the statute means.); Vasan Kesavan & Michael Stokes
Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L.
Rev. 291, 398 (2002) (If the object is to ascertain the
meaning of the Constitution as a written document--to
discover the content of the rules and standards contained
therein, so as to apply them faithfully--we believe the
appropriate search is for the original public meaning of
the Constitution's language. That is, the meaning the
15

A free society is governed by rules that are fixed and

ascertainable, not by the loudest voice at a town hall
meeting. As an example, we submit that a constitutional
amendment

that

legalizes

medical

marijuana

would

not

legalize recreational marijuana, even if that is what its

supporters publicly wanted and its critics publicly feared.
Similarly, a law assessing a sales tax will not necessarily
increase spending on schools, even if the laws supporters
tell the public that the tax will fund education and the
public votes for the tax based on that understanding. In
the

same

bingo
matter

way,

does
what

an

not
the

amendment
allow

laws

that

legalizes

slot-machine-style

sponsors

subjectively

non-profit

gambling,

no

intended

or

told the public. We are bound not by the intent of our

legislators, but by the laws which they enacted.

Id.

A proper interpretation of Amendment 744 would mirror

this Courts analysis in Cornerstone. See 42 So. 3d at 79
([t]he intention [of the people] is collected from the
words of the instrument, read and interpreted in the light

language would have had (both its words and its grammar) to
an average, informed speaker and reader of that language at
the time of its enactment into law.).

16

of its history). Amendment 744 is a verbatim cut-and-paste

from Alabamas other local bingo amendments. It was enacted
after

the

Alabama

courts

had

already

construed

those

amendments to allow only the ordinary game of bingo. It is

an exception to Alabamas well-established public policy
against gambling, which must be narrowly construed. There
is no dictionary anywhere that defines bingo as a rapidfire game played on slot machines. Where other States have
expressly defined bingo, they have defined it in a way
that

precludes

the

kind

of

electronic

bingo

at

issue

here. See id. at 81-86. For its part, federal law expressly
allows

Indian

tribes

to

play

bingo

with

electronic,

computer, or other technologic aids, which indicates that

the word bingo by itself does not encompass so-called
electronic bingo. See 25 U.S.C. 2703. Regardless of
what

Amendment

744s

drafters

or

supporters

may

have

subjectively intended, the objective meaning of the word

bingo in Amendment 744 does not encompass the kind of
games at issue in this litigation.
B.

Heller supports the States position.

To support its theory of constitutional interpretation,

KCED relies extensively on District of Columbia v. Heller,
17

554

U.S.

Second

570

(2008),

Amendment

in

which

protects

an

the

Court

individuals

held

that

the

right

to

bear

arms, not merely a States right to organize a militia. But

the Supreme Courts analysis in Heller actually shows how
KCEDs voter intent argument is wrong.
The Court in Heller never asked what a particular group
of drafters or voters intended, as a factual matter, when
the

country

ratified

the

Second

Amendment.

Instead,

the

Courts opinion in Heller begins with an extensive textual

analysis of the Second Amendment, from which it concludes
that the Second Amendment protects an individuals right to
bear arms. Id. at 592.

Only after reaching that conclusion

as a textual matter does the Court note that the conclusion

is strongly confirmed by the historical background of the
Second Amendment. Id. at 592. Because the Second Amendment
expressly

codified

pre-existing

right,

the

Court

examined the common law, ratification debates, and other

sources

to

pre-existing

determine

the

common-law

ordinary

right.

Id.

understanding
See

also

of

that

McDonald

v.

Chicago, 561 U.S. 742, 767768 (2010) (the right to bear

arms

is

tradition

deeply
and

rooted
one

of

in

this
the

18

Nations

fundamental

history

and

rights

of

Englishmen). The Court also reviewed contemporaneous legal

documents, such as analogous arms-bearing rights in state
constitutions

that

preceded

and

immediately

followed

adoption of the Second Amendment. Heller, 554 U.S. at 60001.

Heller

does

not

support

KCEDs

position.

Here,

of

course, we are not dealing with the understanding of a preexisting common-law right. And, unlike the Court in Heller,
KCED does not refer to publicly available legal documents
to divine the ordinary meaning of Amendment 744s terms. In
fact, KCED does not attempt a textual analysis of Amendment
744 at all.

KCED (1) ignores Alabamas historical and

well-established

policy

against

gambling,

even

though

Heller relied extensively on the common laws background

recognition of the right to bear arms; (2) ignores the fact
that

Amendment

744

is

cut-and-paste

from

other

bingo

amendments, even though Heller relied on contemporaneous

state

constitutional

provisions

to

interpret

the

Second

Amendment; and (3) has nothing to say about how the Alabama
courts had already interpreted local bingo amendments to
allow only the ordinary game of bingo when Amendment 744
was enacted, even though the Court in Heller
19

relied on

existing legal precedents and doctrines to understand the

Second Amendment.
KCEDs analysis actually mirrors the legally erroneous
dissenting opinion in Heller. Instead of relying on sources
of objective meaning, KCED argues that bingo in Amendment
744 means electronic bingo because that was the specific
intent of its drafters and ratifiers.

This is the same

kind of erroneous reasoning the dissent in Heller used to

argue that the Second Amendment secured only the States
right to a militia, not an individual right to bear arms:
The history of the adoption of the Amendment thus
describes
an
overriding
concern
about
the
potential threat to state sovereignty that a
federal standing army would pose, and a desire to
protect the States' militias as the means by which
to guard against that danger. . . . The evidence
plainly refutes the claim that the Amendment was
motivated by the Framers' fears that Congress
might act to regulate any civilian uses of
weapons.
Heller,

554

U.S.

at

661-62

(Stevens,

J.,

dissenting).

Indeed, the dissent in Heller criticized the majority for

giv[ing]

short

shrift

to

the

drafting

history

of

the

Second Amendment in the same way KCED criticizes the State

in its brief. Id. Heller does not support KCEDs position.

20

C.

KCED
never
explains
what,
under
Amendment 744 allows and disallows.

its

view,

Another fatal problem with KCEDs approach is that it

lacks any limiting principle. Although KCED does not like
this Courts definition of bingo in Cornerstone, it does
not propose a competing definition of its own. KCED repeats
over-and-over that Amendment 744 was intended to allow all
forms of bingo, but KCED never explains what that term
means. What are all forms of bingo?

If bingo can be

played on connected slot machines, can it also be played on

a craps table as former Attorney General Troy King has
suggested?2 Can bingo be played on a roulette table with a
roulette wheel like the rou-bingo this Court addressed in
HEDA? Does Amendment 744 allow instant bingo, which is
played on a scratch-off lottery ticket?
Under KCEDs analysis, there is no difference between
bingo and any other type of gambling. There is nothing
that

Amendment

proposing

744

does

not

counter-definition

authorize.
of

bingo,

KCED

is

just

not
blank

check.

See, e.g. Kim Chandler, Former Attorney General Troy King

forms company to promote bingo game, Al.com (April 20,
2013), available at
http://blog.al.com/wire/2013/04/troy_king_promoting_bingo_g
ame.html (last visited on Dec. 28, 2015).
21

D.

To the extent subjective intent matters, KCEDs

revisionist history is simply not credible.

Finally,
several

to

the

significant

extent

it

problems

matters,

with

there

KCEDs

view

are
of

also
the

evidence on subjective intent.

First, it is facially absurd for KCED to claim that the
Alabama Legislature unanimously passed Amendment 744 with
the

specific

electronic

intent

gambling.

If

of
it

allowing
were

slot-machine-style

really

true

that

every

legislator in the House and Senate subjectively intended to

allow electronic bingo in Macon County, then this case
would not be in court. The Legislature would have clarified
its intent to allow electronic bingo in Macon County a
long time ago.
The structure of the amendment also makes it especially
unreasonable to believe that the Legislature subjectively
intended

to

legalize

casino-style

gambling.

If

the

Legislature had intended to legalize casino-style gambling,

it would not have left that gambling (1) untaxed and (2)
regulated by a local sheriffs office. A bill to legalize
electronic gambling in Macon County would look a lot like
HB298, which Representative Johnny Ford introduced in the
2000 legislative session. That bill provided for electronic
22

gambling at VictoryLand, taxation, state regulation, payout

ratios, and an electronic linkage between different items
of

equipment.

That

bill

See

failed.

unanimously

three

provisions--is
Legislature

The

298,

fact

years

very

did

H.R.

that

Sess.

evidence

understand

(Ala.

2000).

744

passed

Amendment

later--without

strong

not

Reg.

any

that
it

to

of

those

members
allow

of

key
the

highly

controversial casino-style gambling.

Second, KCED is drawing the wrong inference from the
fact that Indian tribes were playing so-called electronic
bingo in 2003. As we have already explained, the statute
that

governs

electronic,
U.S.C.

that

activity

computer,

2703.

It

or

would

expressly
other
have

allows

the

technological
been

very

use

of

aids.

25

easy

for

the

Legislature to cut-and-paste the federal law that applies

to Indian tribes, instead of the state law that applies to
other

Alabama

counties.

But

the

Legislature

did

not

incorporate federal law into Amendment 744. The Court must

respect the Legislatures decision to copy language that
governed locations where so-called electronic bingo was
not being played, instead of the federal law that governs
Indian gambling.
23

Third,

it

makes

no

sense

for

KCED

to

claim

that

Amendment 744 was drafted with economic development in

mind.

Amendment

744

provides

for

Legalizing

non-profit

activity

is

development

plan.

if

Only

one

bingo.

non-profit
not

ignores

an

economic-

everything

about

Amendment 744s text does it make sense to view it as a

tool

for

attracting

private

investment.

And

that

is

apparently what happened in Macon County from 2003 to 2008:

According

to

the

United

States

District

Court

for

the

Middle District of Alabama, VictoryLand paid less than 1%

of its electronic bingo gross profits to charity even
though

it

benefit.
Warren,

was

See
721

ostensibly

Hope
F.

For

Supp.

operating

Families
2d

1079,

&

for

Cmty.

1102

at

the

charities

Serv.,
n.31

Inc.

(M.D.

v.

Ala.

2010). Fairly construed, the record reflects only that some

of

Amendment

744s

backers

subjectively

intended

to

use

non-profit bingo as a loophole through which to bring forprofit casino-style gambling to Macon County.
*

The goal of constitutional interpretation is to arrive

at the objective, ordinary meaning of a word or phrase. An
individual legislators subjective intent does not control,
24

even

if

he

expressed

that

intent

in

advertisements,

handbills, and public meetings. Amendment 744 is a verbatim

cut-and-paste
Legislature
federal

law,

from
could
but

other
have
it

local

bingo

incorporated

declined

to

amendments.

do

so.

The

very

different

The

ordinary,

objective meaning of the word bingo in Amendment 744 is

the same as in Alabamas other local amendments.
III. The State did not violate the Equal Protection Clause.
KCEDs brief treats the trial courts sua sponte equalprotection-clause ruling as an afterthought. We will take
the same tact. That issue is sufficiently covered in the
States initial brief.
IV. KCED concedes that the gambling proceeds and devices
are forfeit under this Courts Cornerstone test.
The State proved that the seized gambling devices and
proceeds are illegal contraband under the Cornerstone test.
KCED does not suggest otherwise. Accordingly, unless this
Court

concludes

that

Amendment

744

authorizes

something

completely different than every other local bingo amendment

in Alabama, the Court should order the seized proceeds and
devices to be forfeit.

25

Respectfully submitted,
Luther Strange
Attorney General
BY:
s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General
John L. Kachelman, III
Assistant Attorney General

OF COUNSEL:
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130
(334) 353-2609
(334) 242-4891 (fax)
abrasher@ago.state.al.us

26

CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of December,
2015, a copy of the above and foregoing document has been
filed

with

the

Clerk

of

the

Court

using

the

Appellate

Courts e-Filing System and served by electronic mail to all

parties of record.
John Bolton
Charlanna Skaggs
Hill Hill Carter Franco Cole
& Black
P.O. Box 116
Montgomery, AL 36101
jbolton@hillhillcarter.com
cskaggs@hillhillcarter.com

Joe Espy III

William Martin Espy
James Flynn Mozingo
P.O. Box 5130
Montgomery, AL 36103
jespy@mewlegal.com
wespy@mewlegal.com
fmozingo@mewlegal.com

Craig Izard
P.O. Box 130277
Birmingham, AL 35213
cizard@bham.rr.com

s/ Andrew L. Brasher
Andrew L. Brasher
Solicitor General

27