E-Filed

11/19/2015 @ 03:14:07 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)

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
ORAL ARGUMENT NOT REQUESTED

STATEMENT REGARDING ORAL ARGUMENT

This

case

is

important,

but

the

answers

to

the

questions presented are straightforward. The trial court

incorrectly
that

concluded,

so-called

based

electronic

on

bingo

the

evidence

before

is

permissible

in

it,

Macon

County and that the State disparately prosecuted this case

and violated the equal protection safeguards of the U.S.
and Alabama Constitution. The games played at VictoryLand
were not the traditional game of bingo under Barber v.
Cornerstone Community Outreach, Inc., 42 So. 3d 65 (Ala.
2009) (Cornerstone), and, therefore, were properly seized
as illegal gambling machines.
seized

related

currency

including records.
Cornerstone

Likewise, the State properly

and

gambling

paraphernalia,

This Court explicitly stated that the

factors

should

be

applied

to

the

seized

machines in this case. See Ex parte State, 121 So. 3d 337,

356

(Ala.

2013).

adequately

present

Because
the

the

facts

briefs

and

legal

and

the

arguments,

argument is unnecessary.

Ala. R. App. P. 34(a)(3).

the

that

Court

worthwhile,

determines
the

State

would

present its argument.

i

oral
welcome

argument
the

record
oral

But if

would

opportunity

be
to

TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ......................... i
STATEMENT OF JURISDICTION ................................. v
TABLE OF AUTHORITIES ..................................... vi
STATEMENT OF THE CASE ..................................... 1
STATEMENT OF THE ISSUES ................................... 5
STATEMENT OF THE FACTS .................................... 5
A.

State
agents
made
undercover
visits
to
VictoryLand, where they observed electronic
machines that were not the traditional game of
bingo ............................................ 6

B.

State agents obtained and executed a warrant

at VictoryLand and seized machines, currency,
and gambling paraphernalia ...................... 10

C.

KCED
presents
evidence
about
how
the
proponents of Amendment 744 want bingo to be
defined ......................................... 12

STANDARDS OF REVIEW ...................................... 14

SUMMARY OF THE ARGUMENT .................................. 15
ARGUMENT ................................................. 17
I.

The trial court improperly dismissed this action

under the Equal Protection Clause of the United
States Constitution .................................. 19
A.

There is no evidence of partiality in the

application or enforcement of the law ........... 19

B.

The trial courts equal protection analysis is

erroneous as a matter of law .................... 22

ii

C.

The trial courts sua sponte equal-protection

ruling is contrary to the sole argument made
by KCED ......................................... 25

II. The trial court improperly redefined the game of

bingo based on testimony regarding voter intent
despite this Courts definition in Cornerstone ....... 26
A.

This
Court
has
firmly
established
the
definition of the game of bingo in Macon
County and all other counties with bingo
amendments ...................................... 27

B.

Amendment 744 is a cut-and-paste from other

local bingo amendments without any special or
unique language ................................. 30

C.

Dubious legislative history cannot overturn

this Courts established definition of bingo
in derogation of the text of the amendment ...... 32
1.

The plain and common meaning, not a

secret or technical meaning, controls the
interpretation
of
a
constitutional
provision .................................. 33

2.

The ipse dixit of a single legislator or

a handful of voters is irrelevant .......... 35

3.

Amendment 744s drafters intentionally

omitted
language
that
would
address
electronic bingo. ........................ 37

III. The trial court failed to apply Cornerstone and

incorrectly found that KCEDs machines were legal
gambling devices ..................................... 39
A.

The evidence showed that the games available

for play on electronic machines at VictoryLand
were unlawful gambling devices, not the
traditional game of bingo. ..................... 42
1.

The VictoryLand games did not involve

cards ...................................... 42
iii

2.

The numbers in the VictoryLand games were

not drawn and announced like traditional
bingo ...................................... 43

3.

The VictoryLand games did not require

players to pay attention to the announced
values or physically act to mark each
announced value ............................ 44

4.

The VictoryLand games did not permit a

player to sleep a bingo, as in the
traditional game of bingo .................. 49

5.

The VictoryLand games did not require a

player to recognize winning patterns or
announce such a pattern in competition
with other players, as in traditional
bingo ...................................... 50

6.

The VictoryLand games were not like the

group
activity
of
traditional
bingo
because they involved individuals playing
at separate computer terminals, unable to
determine who else was participating in
the same game .............................. 54

B.

The servers and related electronic devices

seized from VictoryLand were part of the
networked system that facilitated illegal
gambling ........................................ 56

C.

The trial court should have granted the

States
petition
for
forfeiture
of
the
currency,
records,
and
other
gambling
paraphernalia seized from VictoryLand ........... 58

CONCLUSION ............................................... 61
CERTIFICATE OF SERVICE ................................... 62
APPENDIX - Applicable language from bingo amendments

iv

STATEMENT OF JURISDICTION
This appeal from a final judgment of Judge William
Shashy, specially appointed for the Circuit Court of Macon
County,

Alabama,

thousand

dollars

involves

an

($50,000),

amount
which

in

excess

places

of

this

fifty

lawsuit

outside of the exclusive jurisdictional limits of the Court

of Civil Appeals under Code of Alabama (1975) 12-3-10.
Appellant therefore brings this appeal before the Supreme
Court of Alabama pursuant to Code of Alabama (1975) 12-27.
The trial court entered judgment on June 25, 2015. C.
1041-1046.

On

June

26,

2015,

appellant

filed

timely

notice of appeal. C. 1047-1053. On July 7, 2015, appellee

filed

motion

and

supporting

brief

under

Rule

59,

Ala.R.Civ.P, seeking to alter or amend the judgment and for

findings of fact. Supp. 1 R. 2-35. The trial court granted
appellees motion in part on October 2, 2015. Supp. 2 R. 25. Appellee timely filed a notice of appeal of the October
2 order on October 8, 2015. Supp. 2 R. 6-12. The appeals
were consolidated by this Court.

TABLE OF AUTHORITIES
Cases
Alabama v. PCI Gaming Authority et al.,
801 F.3d 1278 (11th Cir. 2015) ...................... 22, 32
Barber v. Cornerstone Community Outreach, Inc.,
42 So. 3d 65 (Ala. 2009) ............................ passim
Barber v. Jefferson Cnty. Racing Assn, Inc.,
960 So. 2d 599 (Ala. 2006) ................. 14, 18, 56, 58
Barrett v. State,
705 So. 2d 529 (Ala. Crim. App. 1996) ............... 28, 40
Bright v. Calhoun,
988 So. 2d 492 (Ala. 2008) .............................. 33
Carolene Products Co. v. United States,
323 U.S. 18 (1944) ...................................... 34
City of Bessemer et al. v. E.B. McClain et al.,
957 So. 2d 1061 (Ala. 2006) ............................ 33
City of Piedmont v. Evans,
642 So. 2d 435 (Ala. 1994) .......................... 28, 40
City of Pinson v. Utilities Bd. of City of Oneonta,
986 So. 2d 367 (Ala. 2007) .............................. 38
Davis v. City of Leawood,
893 P.2d 233 (Kan. 1995) ................................ 35
District of Columbia v. Heller,
554 U.S. 570 (2008) ..................................... 28
Doe v. Bridgeport Police Dep't,
198 F.R.D. 325 (D.Conn. 2001) ........................... 35
Eagerton v. Terra Res., Inc.,
426 So. 2d 807 (Ala. 1982) .............................. 39
Ex parte Ankrom,
152 So. 3d 397 (Ala. 2013) .............................. 35

vi

Ex parte McConathy,
911 So. 2d 677 (Ala. 2005) .......................... 15, 59
Ex parte State,
121 So. 3d 337 (Ala. 2013) .......................... passim
Ex parte Waddail,
827 So. 2d 789 (Ala. 2001) .............................. 33
Ford v. Strange,
580 F. Appx. 701 (11th Cir. 2014) ....................... 25
Ford v. Strange,
No. 2:13-CV-214-WKW, 2013 WL 6804193 (M.D. Ala. Dec.
23, 2013) ............................................... 25
Foster v. State,
705 So. 2d 534 (Ala. Crim. App. 1997) ................... 40
Houston County Economic Development Authority v. State,
168 So. 3d 4 (Ala. 2014) ............................ passim
I.N.S. v. Lopez-Mendoza,
468 U.S. 1032 (1984) .................................... 22
Idaho Dep't of Law Enf't By & Through Richardson v.
$34,000 U.S. Currency,
824 P.2d 142 (Idaho Ct. App. 1991) ...................... 23
In re F.D. Processing, Inc.,
832 P.2d 1303 (Wash. 1992) .............................. 36
Jackson v. BellSouth Telecomms.,
372 F.3d 1250 (11th Cir. 2004) .......................... 24
James v. Todd,
103 So. 2d 19 (Ala. 1957) ............................... 35
Kean's v. Par. of E. Baton Rouge,
668 So. 2d 1343 (La. Ct. App. 1996) ..................... 34
Miller-El v. Dretke,
545 U.S. 231 (2005) ..................................... 22
Most Worshipful Grand Lodge of Ancient Free & Accepted
Masons of Kansas v. Bd. of Cnty. Commrs of Cnty. of
vii

Shawnee,
912 P.2d 708 (Kan. 1996) ................................ 36
Noonan v. EastWest Beltline, Inc.,
487 So. 2d 237 (Ala. 1986) .............................. 38
Oyler v. Boles,
368 U.S. 448 (1962) ................................. 23, 24
State By & Through Dep't of Highways v. Pub. Emp. Craft
Council of Montana,
529 P.2d 785 (Mont. 1974) ............................... 34
State v. $191,249.11 et al.
(Greene Co. Circuit Court, CV-2014-900041) .............. 21
State v. Greenetrack, Inc.,
154 So. 3d 940 (Ala. 2014) ...................... 21, 29, 40
State v. Sayre,
24 So. 89 (Ala. 1897) ................................... 27
Thomas v. Nevada Yellow Cab Corp.,
327 P.3d 518 (Nev. 2014) ................................ 37
United States v. MONKEY, A Fishing Vessel,
725 F.2d 1007 (5th Cir. 1984) ........................... 23
United States v. United States Currency $31,828,
760 F.2d 228 (8th Cir. 1985) ............................ 23
United States v. United States Currency Totaling
$87,279,
546 F. Supp. 1120 (S.D. Ga. 1982) ....................... 23
Utility Ctr., Inc. v. City of Ft. Wayne,
868 N.E.2d 453 (Ind. 2007) .............................. 35
Wade v. State,
986 So. 2d 1212 (Ala. Civ. App. 2007) ................... 60
Water Works & Sewer Bd. of City of Selma v. Randolph,
833 So. 2d 604 (Ala. 2002) .............................. 34
Statutes
25 U.S.C. 2703 ......................................... 32
viii

Ala. Code 12-2-7 ....................................... 15

Ala. Code 13A-12-20 ..................................... 1
Ala. Code 13A-12-30 .................................... 59
Rules
Ala. R. App. P. 34 ........................................ i
Ala. R. App. P. 4 ......................................... 3
Constitutional Provisions
Ala. Const. amend. No. 508 ............................... 31
Ala. Const. amend. No. 674 ............................... 31
Ala. Const. amend. No. 744 ............................... 31

ix

STATEMENT OF THE CASE

This case is about KC Economic Developments (KCED)
attempt to defy Alabamas anti-gambling laws by labeling
its machines bingo despite the characteristics that make
those machines unlawful slot machines and gambling devices.
See Ala. Code 13A-12-20(5) & (10).

Alabama seized the

machines, gambling records, and currency involved in the

gambling operation at VictoryLand, a casino located at 8680
County Road 40 in Macon County. C. 23-25.
In
petition

2013,

the

pursuant

forfeiture

of

State
to

those

of

Ala.

Alabama

Code

filed

13A-12-30,

gambling

devices,

forfeiture
seeking

records,

the
and

$263,105.81, used as bets or stakes in gambling activity.1

C.

23-150.

The

complaint

named

1,615

including servers and other devices.

The

complaint

also

listed

entities

ownership interest in the property.

gambling

devices,2

C. 24-25, 30-150.
that

may

have

an

C. 23-24.

The State filed its original complaint on February 25,

2013. Subsequently, the State amended its original
petition with a more exact amount for the seized currency
after an official count by a financial institution. C.
377-502.

The seized gambling devices were listed on the attached

Exhibit to the States Complaint. C. 30-150.
1

KCED intervened in the forfeiture action filed by the

Appellant. C. 242-246,281. After intervening and answering
the petition, KCED objected to the amended complaint and
moved to dismiss the forfeiture complaint pursuant to Ala.
R. Civ. P. 12(b)(2), (4), (5), and (6), arguing that the
State failed to properly plead the entire currency in the
original petition and that trial court lacked jurisdiction
over the seized currency.

C. 503-513.

The trial court

took no action on KCEDs motion.

The trial court then heard testimony over four days and
reviewed over seventy (70) exhibits, including undercover
video of game play at VictoryLand.

R. 79-80; see also

Exhibits 1, 2 and 3 (Videos of Undercover Visits). The

trial court accepted proposed Orders from all parties by
October

27,

2014,

and

the

Summation & Post-Trial Brief.

State

filed

post-trial

C. 898-1038.

The trial court issued an Order dismissing the petition

for forfeiture on federal constitutional grounds.
1046.

C. 1041-

The trial court did not make any findings on the

facts of the case, failed to apply the Cornerstone factors

to the games being played at VictoryLand, and determined
that

the

State

unfairly

enforced
2

the

laws

of

Alabama

against

the

allegedly

property

violating

Constitution.

Id.

order the next day.

and

the

intervenors

in

equal-protection

the

case

clause

of

the

The State timely appealed this final

C. 1047-1049.

After the State filed its notice of appeal, KCED filed

a

Motion

to

Amend

or

Alter

and

Make

Findings

of

Fact

requesting the trial court to make factual findings and

rulings with respect to the return of the seized property
that were not included in the previous order.
2-35.

The

State

filed

its

own

Supp. 1 R.

post-judgment

motion,

requesting that the trial court follow the directions of

this

Court

and

apply

the

Cornerstone

evidence submitted during trial.

factors

to

Supp. 1 R. 36-44.

the
The

States appeal was held in abeyance pending a ruling on the

post-judgment motions.

See Ala. R. App. P. 4(a)(3).

The trial court held a hearing on the post-judgment

motions and issued another Order on October 2, 2015.

Supp.

2 R. 2. The trial court held that electronic bingo may be

played in Macon County because of voter intent and ordered
the State to take legal action in other counties within
forty-five days or return the seized property.
2-5.
3

Supp. 2 R.

With

the

trial

courts

ruling

on

the

post-judgment

motions, the States appeal became effective. KCED timely

filed

cross

appeal.

Supp.

R.

6-8.

This

Court

consolidated KCEDs cross appeal with the States original

appeal.

STATEMENT OF THE ISSUES

This case presents essentially three issues:
(1) Did the trial court err by dismissing the case
based on an equal-protection argument that no party raised?
(2) Did the trial court err by dismissing the case on
the grounds that the word bingo in Macon Countys local
amendment
same

means

word

in

something

comparable

completely
local

different

amendments

that

than
apply

the
to

other counties?
(3) Do the electronic devices seized from VictoryLand
play bingo as that word has properly been defined by this
Court?
STATEMENT OF THE FACTS
This Court is well aware of the States ongoing attempt
to

enforce

counties.

its

gambling

laws

in

facilities

in

various

Despite many previous rulings from this Court,

casinos continue to set up machines that are slot machines

and call them bingo.

The State enforces Alabama law that

prohibits gambling, this Court reiterates that gambling is

prohibited

and

bingo

exceptions

should

be

narrowly

construed, and casinos reopen shortly thereafter with new

devices.

The cycle seems to continue despite every effort

to encourage all elected officials to enforce the laws.

In this latest case, KCED applies the name bingo to
activities at VictoryLand that do not remotely resemble the
traditional game of bingo.

At VictoryLand, players tap a

computer screen or press a console button, and a computer

populates

determination

digital
whether

grid
a

with

characters

winning

match

and

makes

exists.

If

the
no

match exists, the game is over; if a match exists, the

player receives the winnings from the wager without any
further

action

required.

KCED

applies

bingo

terms

to

various elements of each activity but the games are not the
traditional game of bingo and are illegal under the laws of
this state.
A.

State
agents
made
undercover
visits
to
VictoryLand,
where
they
observed
electronic
machines that were not the traditional game of
bingo.

Several

state

agents

investigated

VictoryLand

undercover capacity, recording what they saw.

Sisson visited VictoryLand two times.

an

Agent Gene

R. 73-74.

Crocker visited one time with Agent Smith.

in

R. 222.

Agent
Deputy

John Weatherly, of the Jefferson County Sheriffs Office,

also visited the facility.

R. 78.
6

The agents all observed

or

participated

in

electronic

gambling

on

machines

at

VictoryLand.
Several agents who played the machines at VictoryLand
attempted to record audio and video of their experiences.
R. 74-80; R. 222; see also States Exhibits 1, 2 and 3.
Agent

Sisson

games]

at

testified

VictoryLand

that
and

he
that

operated in the same manner.

observed

all

they

substantially

all

of

[the

R. 449.

After arriving at VictoryLand, the agents purchased a

player card3 and obtained a corresponding PIN number at the
account services area.
used

these

systems.

player

R. 87-91, 223.

cards

to

initiate

VictoryLand patrons
play

on

the

game

Agent Sisson and Crocker testified that they took

their player cards to a machine, inserted or swiped it on

the machine, and entered their PIN.

R. 87, 91, 232.

Once

logged in, the player was able to adjust his wager after
logging in to the player account associated with the player
card number and connected PIN.

R. 98.

On some terminals,

players could choose between six different game systems to

The player cards

strip so that it
credits onto the
cards which were

were like credit cards that had a magnetic

could be swiped on the machine to insert
machine to play. R. 536. These cards were not
used in the play of the games.

play on that one machine.

R. 96. All the games played in

substantially the same manner. R. 449.

After
observed

selecting
a

prominent

particular

display

of

game,

Agent

spinning

reels

Sisson
on

the

screen. R. 99-100. He also saw a small video representation

of a five-by-five bingo grid in the corner of the screen
that was about three inches by three inches.

R. 100.

He

would simply hit play and the reels would start spinning.
R. 99.

Agent Sisson would then become a spectator as he

watched the reels spin, heard bells and dings that you
typically hear with slot machines, and waited until the
reels stopped.

R. 100-101.

Players were only required to

press the play button once to go through an entire game

cycle.

R. 104, 233-234.

Agent Sisson did not have to know

or look for any particular pattern when he played; instead,

the machine identified winning games automatically without
any further interaction.

R. 106-107, 125.

Touching the

screen or the five-by-five grid at any other time had no

effect.

R. 124-125.

Agent Sisson testified that he did not use a paper or

printed card to play the game. R. 93, 129, 136.

He never

heard anyone else say bingo aloud.

He never

R. 107.

interacted with any other player.

R. 142-143.

He could

not determine whether any other player participated in any

of the games he played.
call

any

numbers

for

He never heard an announcer

Id.
his

game.

R.

136.

He

interacted with an announcer, even when he won.

never

R. 107.

And he never informed the announcer or anyone else when he

won a game.

Id.

KCEDs own expert, Richard Williamson,

corroborates Agent Sissons descriptive testimony because

he agreed that the human player did not have to do anything
but hit a single play button and allow the software to do
all other aspects of the gameplay. R. 533-534.
Additional testimony showed that the games were not the
ordinary

or

traditional

game

of

bingo

because

of

other

aspects. Agent Sisson testified about the play of bonus

rounds.

R.

machine

124-125,

would

sequential

launch

game

games

that

played

During

into

cycles

[Sisson] at all.
testifies

129.

series

without

any

bonus
of

round,

the

repetitive,

interaction

from

R. 124; see also R. 553-559 (Williamson

there
during

are

actually

bonus

play

four

separate

without

any

bingo
human

interaction). The machines automatically added any bonus

winnings to Agent Sissons account.
9

R. 124.

Testimony

also indicated that the games on the machines were house

banked games.

R. 545.

Consequently, this differed from

the traditional game of bingo.

Instead of paying a jackpot

from the pari-mutuel pool of money from purchased cards,

the machines at VictoryLand jackpot was independent from
the number of players and cards in an individual game. See
generally R. 543-546.
B.

State agents obtained and executed a warrant at

VictoryLand and seized machines, currency, and
gambling paraphernalia.

After

gathering

evidence

about

these

activities

at

VictoryLand, State agents applied for a warrant for the

gambling devices, currency, and materials at VictoryLand.
C. 24-25; see also R. 149 and Exhibit 11 (Search Warrant).
On the States petition for writ of mandamus, this Court
ordered a circuit judge to issue the warrant.

Ex parte

State, 121 So. 3d 337, 356 (Ala. 2013).

Several agents went to VictoryLand in an undercover
capacity
warrant
items.

to
and

play

games

remained

just

while

before

agents

R. 356-366, 386-390.

others

executed

catalogued

the

the

seized

When officers arrived to

execute the warrant, they cleared patrons from the casino

floor.

R. 391.
10

Teams

of

agents

then

inventoried

terminals on the casino floor.

the

R. 151-152.

machines

or

Agents seized

all of the machines from the casino floor, keeping track of

R. 152; see also Exhibit 12

each machine by serial number.

(Property Inventory Sheets).
into

the

servers

and

A VictoryLand employee logged

showed

agents

which

ones

controlling and running the devices on the floor.

were

R. 253.

In the server room, away from the casino floor, agents

found and seized servers that controlled game play on the
terminals and other connected devices.

R. 270-274.

As

agents unplugged the servers, the terminal screens on the

casino floor began displaying a message indicating network
connection lost.

R. 155.

From the cashier room, agents seized money from the

counter area and drawers in the cashier cage area.
316.

R. 315-

They also seized money from card kiosks ATM-like

machines

on

the

casino

floor

and

money

from

located behind the account services lobby area.

case

R. 324.

To store the seized currency, the agents securely sealed

the money into separate evidence bags for the different
locations.

R.

317,

327-328.

Initially,

agents

unofficially counted the seized currency and believed they

11

had seized a total of $223,405.86.

R. 334-336.

A later

official count by a financial institution indicated that it

was in fact $263,105.81.

C. 378.

Agents did not seize

currency from the vault area, ice cream parlor area, parimutual gambling area, bar area, or the restaurant area.
340-341.

R.

Agents were even circumspect from seizing money

that was clearly marked as identified as coming from the

restaurant. R. 337.
Agents also searched for records that related to the
ownership,

the

use,

devices...records

that

the

operation

showed...how

of

the

the

gaming

machines

were

operated, who owned the machines, where the machines came

from

and

other

VictoryLand.

business

records

in

the

offices

at

R. 368. They discovered and seized records in

the office area.

R. 368-369.

Agents also seized computers

they found in the office areas along with the business

records.
C.

R. 404.
KCED presents evidence about how the proponents of
Amendment 744 want bingo to be defined.

In the trial court, KCED argued that the word bingo

in

Amendment

744,

which

applies

to

Macon

County,

means

bingo in all forms, including electronic, because that

12

is

what

the

voters

and

the

sponsors

of

the

amendment

intended. R. 13.
Tuskegee Mayor Johnny Ford, who originally sponsored
Amendment

744

in

the

Legislature,

testified

that

he

intended the amendment to allow all forms of bingo so

that

Macon

County

would

be

competitive

with

all

other

gaming in the state including the Poarch Creek Band of

Indians.

R. 634.

Former Senator Myron Penn testified that

he also wanted the legislation to give the citizens of

Macon County the opportunity to vote on different forms of
bingo,

including

669.

They

electronic

testified

bingo

that,

in

Macon

during

County.

debate

in

R.
the

Legislature, groups opposed the amendment because of the

concern that it would lead to expanded gambling in the
state. R. 637.
because

the

opportunity

to

But Penn encouraged passage in the Senate

citizens

of

have

same

the

Macon
forms

County
of

wanted

bingo

that

the
the

Indians had and what the Native Americans had initiated.

R. 670.

Ultimately, the legislation passed both the House

and Senate without dissent, but it did not include any

language that would expressly allow electronic bingo.
663, 654-655, 682.
13

R.

The subsequent debate in the community by opponents and

supporters focused on a belief, or fear, that the amendment
would lead to electronic bingo.
and editorials appeared in

R. 638-640.

Articles

local publications discussing

R. 646-647; see also KCED Exhibits 9-

electronic bingo.
10.

Legislators held meetings where they handed out flyers

and

told

attendees

that

passage

of

the

amendment

would

allow electronic bingo or all forms of bingo in Macon

R. 661, 691, 705; see also e.g., KCED Exhibits 4-7

County.

(flyers regarding Amendment 744).

Three other witnesses

from Macon County testified that they believed that passing

Amendment 744 would allow all forms of bingo including
electronic bingo in Macon County. R. 686, 691, 706, 714715.

In

2003,

Amendment

and

the

citizens

of

VictoryLand

Macon

began

County

passed

offering

the

so-called

electronic bingo shortly afterward.

STANDARDS OF REVIEW
Most of the issues in this appeal are legal questions
that this Court reviews de novo.
Racing

Assn,

(Barber).

To

Inc.,

960

the

extent

So.
the

14

Barber v. Jefferson Cnty.

2d

599,

circuit

603

(Ala.

court

made

2006)
fact

findings,

those

findings

are

reviewed

for

clear

error.

Because the trial court heard evidence ore tenus at the

forfeiture

proceeding,

the

trial

courts

judgment

is

presumed to be correct unless the record shows it to be

contrary to the great weight of the evidence.
McConathy, 911 So. 2d 677, 681 (Ala. 2005).

Ex parte

See also Ala.

Code 12-2-7(1).
SUMMARY OF THE ARGUMENT
The trial court made three errors, which resulted in
the judgment below.
First, the trial court incorrectly concluded that the
State

violated

the

Equal

Protection

Clause

of

the

Constitution by enforcing the gambling laws in Macon County

against the seized property. KCED never made this argument
in

the

trial

court,

and

it

introduced

no

admissible

evidence to show that the State was enforcing the gambling

laws

in

partial

manner.

Even

if

such

evidence

were

introduced, however, the trial court did not find that the
State was treating similar parties dissimilarly based on an
unconstitutional
standard

for

classification,

selective

which

prosecution.

In

is
fact,

the
the

legal
trial

courts sua sponte equal protection analysis is contrary to

15

the only legal argument that KCED made--an argument that

VictoryLand

should

be

treated

differently,

not

that

it

should be treated the same, as other gambling operations.

Second, the trial court erroneously held that the words
bingo games in the local bingo amendment applicable to
Macon

County

should

be

interpreted

differently

same words in other local bingo amendments.

than

the

The trial

courts reasoning flies in the face of a long line of this

Courts precedents in which it has held that the six-factor
test in Cornerstone applies to all of Alabamas local bingo
amendments.
precedent,

Even if the Court were to reconsider that

its

reasoning

Countys local amendment.

should

still

apply

to

Macon

The relevant portion of Macon

Countys amendment is exactly like the amendment at issue

in Cornerstone and exactly like the amendment at issue in
an earlier case, Evans, which held that such language must
be strictly and narrowly construed.

The drafters of Macon

Countys amendment testified that they intentionally used

the

same

ordinary

language
words

of

of

other

the

law

Alabama
control,

amendments.
not

secret

technical meaning intended by the laws proponents.

16

The
or

Finally, because the trial court misapplied the law,

the trial court erroneously denied the States petition for
forfeiture.
gambling
factor

KCED

devices

did

were

not

consistent

test.

Cornerstone

meaningfully

And

with
the

argue

this
State

that

its

Courts

six-

proved

with

overwhelming evidence that the gambling devices seized from

VictoryLand do not play the game of bingo as this Court
has

defined

it.

Accordingly,

the

gambling

unlawful and subject to forfeiture.

established

that

the

money,

devices

are

Moreover, the State

records,

and

other

paraphernalia that it seized from VictoryLand were related

to unlawful gambling, even though KCED contested the link.
Because the great weight of evidence established that the
gambling

activity

at

VictoryLand

violated

the

law,

the

trial court erred when it denied the States petition for

forfeiture.
This Court should reverse the trial court and enter
judgment for the State.
ARGUMENT
This Court has made clear that Alabamas constitution
and

statutes

schemes

and

prohibit
the

evil

the

vicious

practice
17

of

system

gaming,

in

of

lottery

all

their

protean

shapes.

Barber,

quotation

marks

Alabamas

constitution

960

omitted).

So.

Local

should

Cornerstone, 42 So. 3d at 78.

be

2d

at

bingo

614

(internal

amendments

narrowly

to

construed.

These amendments, including

Macon Countys, permit only the traditional game of bingo.

Regardless of actions by local officials, the question of
what the constitution means by the term bingo is a purely
legal question that must be decided by the courts.

Ex

parte

is

State,

121

So.

3d

at

356.

No

state

amendment

exempted from the analysis in Cornerstone. Houston County

Economic Development Authority v. State, 168 So. 3d 4, 11
(Ala. 2014)(holding that the analysis in Cornerstone is
applicable

to

the

other

local

bingo

constitutional

amendments in this State).

In light of this body of law, the trial court made
three

errors

in

this

case.

First,

the

trial

court

erroneously dismissed the States forfeiture petition based

on an erroneous equal protection argument, which no one
ever raised and the federal courts have rejected on these
same facts.

Second, the trial court erroneously held that,

as a matter of law, the definition of bingo in the local

bingo amendment that applies to Macon County is materially
18

different

than

comparable

the

local

definition

amendments.

of

the

Third,

same

the

word

trial

in

court

declined to grant the petition of forfeiture, even though

the States evidence proved the illegality of the gambling
devices and proceeds under established law.
I.

The trial court improperly dismissed this action under

the Equal Protection Clause of the United States
Constitution.
The trial courts initial error arises from its first

order

dismissing

the

case.

C.

1041-1046.

Instead

of

dealing with the question of the gamblings legality, the

trial court dismissed the case sua sponte on the grounds
that the State is cherry-picking which facilities should
remain open or closed.
that

this

Protection
courts

purported
Clause

reasoning

C. 1044.

The trial court held

cherry-picking

of

the

is

U.S.

violated

the

Equal

Constitution.

The

trial

manifestly

incorrect

under

the

applicable law and facts.

A.
The

There is no evidence of partiality

application or enforcement of the law.
evidence

before

the

trial

court

in
fails

the
to

substantiate the accusation that the State is improperly or

dissimilarly enforcing the law. This Court is well aware of
the ongoing efforts to enforce the anti-gambling laws in
19

our state. Gambling laws that are regularly enforced by

forfeitures

and

convictions

in

Jefferson,

Madison,

and

Mobile counties are actively undermined in other counties.

In this atmosphere, the State has attempted to enforce the
laws

as

best

as

possible

with

the

limited

resources

available. These efforts most assuredly are not a violation

the U.S. Constitution.
The trial court relied on testimony and discussion
with counsel for all the parties to conclude that illegal
gambling devices were openly operated in other areas of the
State.

C.

1042.

This

evidence

was

inadmissible.

KCED

offered demonstrative charts of law enforcement activities,

but

those

charts

have

no

foundation

in

testimonial

evidence.

R. 734, 749-752. But, even if KCEDs charts and

attorney

conversations

were

proper

evidence,

that

evidence would still fall far short of the kind of evidence

that is required to make a finding of a violation of equal
protection.

See

Supp.

generally

R.

20-55.

KCEDs

evidence and attorney conversations purport to show only

that gambling operations have reopened after the State has
closed
this

them

one.

and
This

filed

forfeiture

evidence

is
20

not

actions
about

precisely
the

States

like
law

enforcement

actions

at

all;

it

concerns

the

actions

of

third parties who are breaking the law even though the
State is litigating (and in some cases has already won)
forfeiture actions against their so-called electronic bingo
machines.
In fact, the trial courts conclusion that the State is
engaged in the selective enforcement of gambling laws is
belied by public records, including cases that have gone
before this Court, which this Court can judicially notice.
The trial court claimed that the State has not enforced
gambling laws in Houston County, but this Court granted the
States request to forfeit gambling devices and proceeds
HEDA v. State, 168 So. 3d 4

from Houston County last year.

(Ala. 2014).

The trial court claimed that the State has

not enforced gambling laws in Greene County, but this Court

has resolved multiple appeals arising out of the States
efforts

to

do

precisely

that,

see,

e.g.,

State

v.

Greenetrack, Inc., 154 So. 3d 940 (Ala. 2014), and the

State held a trial in an electronic bingo gambling case
as recently as October 2015 in Greene County. See State v.
$191,249.11

et

al.

(Greene

Co.

900041)(pending final order).

21

Circuit

Court,

CV-2014-

The trial court claimed that

the State has not enforced gambling laws with respect to

the Poarch Band of Creek Indians, but the State filed a
federal lawsuit to contest the legality of those gambling
Alabama v. PCI Gaming Authority et al., 801

activities.

F.3d 1278 (11th Cir. 2015).

In light of the number and

variety

has

of

cases

the

State

filed

to

enforce

the

gambling laws, it blinks reality4 for the trial court to

find that the State has enforced the laws selectively.
B.

The trial courts equal protection

erroneous as a matter of law.

analysis

is

Even assuming that the trial courts fact-finding is

correct,

its

sua

legally erroneous.

sponte

equal

protection

analysis

is

This is so for several reasons.

First, the defendant in this forfeiture action is the

property, not a person.

Property does not have an equal

protection

the

general

right

rule

government

can

in

under

federal

forfeiture

forfeit

Constitution.

proceedings

illegal

contraband,

is

that

even

if

The
the
the

contraband is seized in a way that violates a persons

constitutional rights. See, e.g., I.N.S. v. Lopez-Mendoza,
468

U.S.

1032,

104647

(1984);

United

States

Miller-El v. Dretke, 545 U.S. 231, 234 (2005).

22

v.

United

States Currency $31,828, 760 F.2d 228, 230-31 (8th Cir.

1985); United States v. MONKEY, A Fishing Vessel, 725
F.2d 1007, 1012 (5th Cir. 1984); Idaho Dep't of Law Enf't
By & Through Richardson v. $34,000 U.S. Currency, 824 P.2d
142, 145 (Idaho Ct. App. 1991); United States v. United
States Currency Totaling $87,279, 546 F. Supp. 1120, 1126
(S.D.

Ga.

1982).

Any

other

rule

would

require

the

government to return cocaine, meth, and marijuana when the

drugs were seized without a warrant or probable cause.
Second,
prosecutors

the

Constitution

discretion

to

does

use

not

limited

eliminate

resources

in

a
the

wisest way. Instead the United States Supreme Court has

explained that the governments exercise of prosecutorial
discretion violates the Constitution only if the discretion
is

based

on

an

unjustifiable,

unconstitutional

ground.

Accordingly, the first step of an equal protection claim

based

on

selective

prosecution

is

to

show

that

the

prosecution is based upon an unjustifiable standard such

as

race,

religion,

or

other

arbitrary

classification.

Oyler v. Boles, 368 U.S. 448, 456 (1962).

Here, the trial court did not find that the States
purported selective enforcement of the laws was based on an
23

unjustifiable

classification.

The

trial

court

instead

reasoned that any disparity in the enforcement of the law

violates the Constitution, regardless of the reasons for
that disparity.
[T]he

That ruling is obviously not the law.

conscious

enforcement

is

violation.

Id.

exercise

not

in

of

itself

Contrary

to

some

selectivity

federal

the

trial

in

constitutional
courts

legal

reasoning, the Constitution does not require the State to

illegal activity in order to stop any

stop all

illegal

activity.
Third, the federal courts have evaluated and rejected
this

precise

supporters
treatment

equal-protection

have
of

made

it

in

dissimilarly

claim
other

situated

when

VictoryLands

cases.

[D]ifferent

persons

does

not

violate the Equal Protection Clause. Jackson v. BellSouth

Telecomms.,

372

F.3d

1250,

1273

(11th

Cir.

2004).

The

Middle District of Alabama has explained that gambling in

Macon County is not comparable to gambling in Greene County
for the purposes of the Equal Protection Clause:
Greene Countys constitutional amendment
defines
bingo
as
including
an
electronic marking machine. To the
contrary, the word electronic does not
appear in Macon Countys Amendment No.
24

744; it only later appeared

sheriffs rules and regulations.

in

the

Ford v. Strange, No. 2:13-CV-214-WKW, 2013 WL 6804193 at

*4,

n.5

(M.D.

Ala.

Dec.

23,

2013)

(citations

omitted).

And, the Eleventh Circuit has explained that Indian casinos

are not situated similarly to VictoryLand because gaming
on

Indian

lands

is

regulatory

regime

in

subject
which

to

the

an

State

entirely
may

distinct

often

have

lesser role. Ford v. Strange, 580 F. Appx. 701, 714 (11th

Cir. 2014). KCED obviously has no similar argument that
federal Indian law gives it the right to operate gambling
devices that are illegal under state law.
C.

The trial courts sua sponte equal-protection

ruling is contrary to the sole argument made by
KCED.

Finally, it was error for the trial court to sua sponte

inject the Equal Protection Clause into this case. KCED
never

made

an

equal-protection-clause

argument,

and

the

trial courts equal-protection analysis is contrary to the

only argument KCED did make.
ever

made

is

that

Macon

The only legal argument KCED

Countys

amendment

should

be

interpreted differently than every other comparable bingo

amendment in Alabama. See generally R. 781-795.

In other

words,

judicial

KCED

argued

to

the
25

trial

court

that

decisions that apply in other areas of Alabama do not apply

with respect to them because the voters in Macon County
intended

something

different.

This

is

an

argument

for

special treatment, not equal treatment. The lower courts

sua sponte equal protection ruling is inconsistent with the
only legal argument that KCED made in the lower court.
II. The trial court improperly redefined the game of
bingo based on testimony regarding voter intent
despite this Courts definition in Cornerstone.
The

trial

courts

second

error

came

in

its

order

granting KCEDs post-trial motion, in which the trial court

accepted

KCEDs

only

legal

argument.

KCED

erroneously

argued, and the trial court erroneously held, that the word
bingo

in

Amendment

744

has

special

definition

that

allows so-called electronic bingo to be played on devices

that are indistinguishable from slot machines. The trial
court

reached

this

result

in

spite

of

the

fact

that

Amendment 744 does not use the word electronic.

The

trial court reached this result in spite of the fact that,

prior to Amendment 744s passage, the Alabama courts had
already

held

that

the

word

bingo

in

local

amendments must be given its common, ordinary meaning.

bingo
The

trial court reached this result in spite of this Courts

26

case law holding that the word bingo means the same thing
in every local bingo amendment.
for

its

anomalous

conclusion

The trial courts support

was

testimony

and

evidence

about so-called voter intent at the time of Amendment

744s passage. The trial courts reasoning was erroneous.
A.

This Court has firmly established the definition

of the game of bingo in Macon County and all other
counties with bingo amendments.

This Court has already defined the game of bingo for

Alabamas local constitutional amendments, but the trial
court ignored that definition. In Cornerstone, this Court
held that local bingo amendments must be construed based on
the ordinary meaning of the term bingo, interpreted in
light of the history of the terms use. See Cornerstone, 42
So. 3d at 79 (Ala. 2009) (quoting State v. Sayre, 24 So.
89, 92 (Ala. 1897)). The Court explained that except where
the

language

of

[the

terms

used

in]

constitutional

provision[s] requires otherwise, we look to the plain and

commonly
provision

understood
to

meaning

discern

its

of

the

meaning.

terms
Id.

used

in

The

that
Court

emphasized that the Constitutions words and phrases were

used in their normal and ordinary as distinguished from

27

technical or secret meaning.

Id. (quoting District of

Columbia v. Heller, 554 U.S. 570, 576 (2008)).

The Court properly looked to the history of local bingo
amendments

in

The

Cornerstone.
statutes

Alabama

in

to

Court

Alabama

develop

its

reviewed

and

six-prong

definitions

definitions

from

test

from

other

in

local
states

before issuing a six-prong Cornerstone test for whether a

game is bingo. See generally, 42 So. 3d at 81-86.

The

Court also cited to its longstanding caselaw that local

bingo amendments must be construed narrowly in light of the
states strong public policy against lotteries as expressed
in Section 65 of the Alabama Constitution.

See id. (citing

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

of

Piedmont

v.

Evans,

642

So.

2d

435,

436

(Ala.

1994)).
Based

on

its

understanding

of

the

common,

ordinary

definition of bingo, the Court in Cornerstone adopted a

six-factor
Although

test
the

specifically
Lowndes

for

case

the

before

concerned

County,

legal

the

Amendment

definition

the
charity
674,

Court

in

bingo
the

rule

of

bingo.

Cornerstone
amendment
the

in

Court

established in that case applies with full force in all

28

counties with these amendments. The Court in Cornerstone

announced

that

appellees

it

was

suggestion

deciding
that

the

the

case,

case

had

despite
become

the

moot,

because it needed to resolve 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 amendment at issue
in that appeal, but also for similar amendments applicable
to other locales. Id. at 77 n.9.
The

Court

Cornerstone

test

has
in

continued
subsequent

to

apply

cases

the

six-factor

regarding

illegal

gambling in Alabama. 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).

The

Court has held that this definition for the game of bingo
applies in every county that has a constitutional amendment
allowing charitable bingo. Greenetrack, 154 So. 3d at 959
(holding that 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
29

identified

in

Cornerstone.)(emphasis

added).

The

Court

also held that the Cornerstone test specifically applies in

Macon County when it granted the search and seizure warrant
that led to the forfeiture in this case.
explained
commonly

that
and

that

test,

traditionally

which
known

There, the Court

refers
as

to

the

game

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. Ex parte State, 121 So. 3d 337, 356 (Ala. 2013).
B.

Amendment 744 is a cut-and-paste from other local

bingo amendments without any special or unique
language.

Even if the Court were inclined to reconsider the body

of law that we have discussed above, it should not.

As a

matter of text and history, the Cornerstone definition of

bingo is entirely consistent with the use of the term
bingo in Macon Countys local amendment.

This is so for

at least three reasons.

First,

the

relevant

portion

of

Amendment

744

is

identical to the same portion in Amendment 674, which was

at

issue

in

Cornerstone.

Amendment

674

provides

that

[t]he operation of bingo games for prizes or money by

nonprofit

organizations

for

charitable,
30

educational,

or

other lawful purposes shall be legal.

No.

674

(Lowndes

County).

Amendment

Ala. Const. amend.

744

provides

[t]he

operation of bingo games for prizes or money by nonprofit

organizations for charitable, educational, or other lawful
purposes

shall

be

(Macon County).

legal.

Ala.

Const.

amend.

No.

744

This operative statement about what is

allowed under the amendment can be found in many other

local bingo amendments in Alabama as well.

As an Appendix

to this brief, we have reproduced the applicable language

from each of Alabamas local bingo amendments and noted any
differences between those amendments and Macon Countys.
See Appendix.
Second,

when

the

voters

of

Macon

County

adopted

Amendment 744 in the early 2000s, this Court had already

held that the identical language in Amendment 508 had to be
The operative phrase of the

narrowly construed in Evans.

Macon County amendment is identical to Amendment 508, which

was

addressed

in

Exactly

Evans.

like

Amendment

744,

Amendment 508 provides [t]he operation of bingo games for

prizes

or

money

by

certain

nonprofit

organizations

for

charitable, educational, or other lawful purposes shall be

legal.

Ala. Const. amend. No. 508.

31

By incorporating the

exact

phrasing

drafters

of

of

pre-existing

Amendment

744

local

amendments,

incorporated

this

the

Courts

announced understanding of those amendments.

Third,

Amendment

744

is

completely

devoid

of

any

language that could reasonably be interpreted to allow a

special

definition

technological

of

devices.

bingo
At

that
the

includes
time

electronic

Amendment

744

or
was

enacted, federal law had long provided that Indian tribes

could conduct the game of chance commonly known as bingo
(whether or not electronic, computer, or other technologic
aids are used in connection therewith). 25 U.S.C. 2703.
There

are

legitimate

debates

about

what

that

language

allows. See Alabama v. PCI Gaming Authority et al., 801

F.3d 1278 (11th Cir. 2015).

But the drafters of Amendment

744 did not use that language. Instead, they simply copied
Alabamas other local bingo amendments, which say nothing
about so-called electronic bingo or the use of machines.
C.

Dubious legislative history cannot overturn this

Courts
established
definition
of
bingo
in
derogation of the text of the amendment.

KCED argues, and the trial court agreed, that Amendment

744 allows for the playing of so-called electronic bingo
because of the voters intent behind the amendment. During
32

trial, KCED produced several witnesses that testified that

when

ratifying

Amendment

744

it

was

the

intent

of

the

voters and legislators to approve the play of so-called

electronic

bingo.

R.

632-763.

Essentially,

this

testimony was offered to show that this Courts ruling in

Cornerstone did not apply to Macon County.
35.

See also R. 790-795.

Supp. 1 R. 2-

To the extent the trial court

relied on this testimony and evidence, it committed three

errors.
1.

The plain and common meaning, not a secret or

technical meaning, controls the interpretation
of a constitutional provision.

The trial court ignored the fact that the words in

Macon Countys amendment are the same words in other local
amendments in Alabama.

When interpreting the Constitution,

we must first look at the plain meaning of the words. Ex

parte Waddail, 827 So. 2d 789 (Ala. 2001); City of Bessemer
et al. v. E.B. McClain et al., 957 So. 2d 1061 (Ala. 2006);
Bright v. Calhoun, 988 So. 2d 492 (Ala. 2008).
In interpreting a statute, this Court
must ascertain and effectuate the intent
of the Legislature as expressed by the
statute ...When determining legislative
intent from the language used in a
statute,
a
court
may
explain
the
language, but it may not detract from or
add to the statute...When the language is
33

clear, there
construction.

is

no

room

for

judicial

Water Works & Sewer Bd. of City of Selma v. Randolph, 833

So. 2d 604, 607 (Ala. 2002)(citations omitted).

Regardless

of what voters and legislators say, it cannot be that the

people of Macon County intended that bingo mean something
completely

different

when

they

enacted

constitutional

amendment with exactly the same words as other local bingo

amendments. Instead, when a drafter pulls language from an
obvious

source,

courts

rightly

presume

that

the

drafter

intends the words be interpreted in the same way.

[T]he

general rule [is] that adoption of the wording of a statute

from another legislative jurisdiction carries with it the
previous judicial interpretations of the wording. Carolene
Products Co. v. United States, 323 U.S. 18, 26 (1944).5
5

See also State By & Through Dep't of Highways v. Pub. Emp.

Craft Council of Montana, 529 P.2d 785, 787 (Mont. 1974)
(When legislation has been judicially construed and a
subsequent statute on the same or an analogous subject is
framed in the identical language, it will ordinarily be
presumed that the Legislature intended that the language as
used in the later enactment would be given a like
interpretation.); Kean's v. Par. of E. Baton Rouge, 668
So. 2d 1343, 1347 (La. Ct. App. 1996)(when a municipality
or parish chooses to adopt a tax ordinance which copies the
language of a state tax statute, the interpretations given
to the state statute are deemed to be incorporated in the
municipal or parish ordinance).
34

2.

The ipse dixit of a single legislator or a

handful of voters is irrelevant.

When interpreting a law, the court cannot rely on the

words of the legislator or a group of voters in derogation
of the laws plain text.
legislative

body

is

what

The overall intent of the entire

is

deemed

important

after

it

passes a law and that intent is derived from the text:

The intention of the Legislature, to
which effect must be given, is that
expressed in the statute, and the courts
will not inquire into the motives which
influenced the Legislature or individual
members in voting for its passage, nor
indeed as to the intention of the
draftsman or of the Legislature so far as
it has not been expressed in the act. So
in ascertaining the meaning of a statute
the court will not be governed or
influenced by the views or opinions of
any or all of the members of the
Legislature,
or
its
legislative
committees or any other person.
James v. Todd, 103 So 2d. 19, 28 (Ala. 1957). The views of
a single legislator are irrelevant.6 Similarly, testimony

See Ex parte Ankrom, 152 So. 3d 397, 414 n.8 (Ala. 2013)(This Court
will not rely solely on the views of a single legislator in
ascertaining the intent of a bill, even when that legislator was a
sponsor of the bill.); Utility Ctr., Inc. v. City of Ft. Wayne, 868
N.E.2d 453, 459 (Ind. 2007) (In interpreting statutes, we do not
impute the opinions of one legislator, even a bill's sponsor, to the
entire legislature unless those views find statutory expression.);
Doe v. Bridgeport Police Dep't, 198 F.R.D. 325, 348 n. 16 (D.Conn.
2001) (Post-enactment views of those involved with the legislation
should not be considered when interpreting the statute.); Davis v.
City of Leawood, 893 P.2d 233, 244 (Kan. 1995) (concluding that

35

from a few voters cannot be determinative of the intent of

all voters in a jurisdiction. See Most Worshipful Grand
Lodge of Ancient Free & Accepted Masons of Kansas v. Bd. of
Cnty. Commrs of Cnty. of Shawnee, 912 P.2d 708,714 (Kan.
1996) (finding that a small group of affidavits are not a
representative

sample

of

Kansas

voters

and

have

little

value as evidence of voters intent).

Regardless of what the voters or legislators meant to
say or wanted to say, Amendment 744 says nothing about
electronic bingo.
interpretation

of

There is no textual hook for imposing an

bingo

in

Amendment

744

that

is

different from the definition of the same word when used in

other local bingo amendments. [T]o seek the intent of the
provision's
intentions

drafters
of

[the]

or

to

voters

attempt
into

some

to

aggregate

abstract

the

general

purpose underlying the Amendment, contrary to the intent

expressed by the provision's clear textual meaning, is not
the proper way to perform constitutional interpretation.
Thomas v. Nevada Yellow Cab Corp., 327 P.3d 518, 522 (Nev.

post-enactment statements of individual legislators are not

reliable indicators of the legislative intent); In re F.D.
Processing, Inc., 832 P.2d 1303, 1308 (Wash. 1992) ([T]he comments
of a single legislator are generally considered inadequate to
establish legislative intent.).

36

2014).

The

words

of

law

must

speak

for

themselves.

Constitutional interpretation is not a show of hands.

3.

Amendment 744s drafters intentionally omitted

language that would address electronic
bingo.

Finally, to the extent the testimony of legislators and

voters

is

relevant

at

all,

it

underscores

that

the

Legislature intended Amendment 744 to be interpreted the

same way as other local bingo amendments, although they
rightly

feared

that

local

authorities

would

adopt

an

expansive definition.
Legislators
Amendment
played

744

in

and
was

other

voters

testified

proposed,
places

generally, R. 632-763.

they

using

that,

knew

at

bingo

electronic

the
was

time
being

devices.

See

But, in spite of their knowledge,

they did not include any language in Amendment 744 that

would

expand

the

definition

of

bingo

electronic bingo or bingo in all its forms.

Legislature

and

voters

were

apparently

to

include

Because the

aware

of

the

potential for electronic bingo, but chose not to include

words to that effect, the only reasonable conclusion is
that they did not intend to broaden the definition.

It is

not proper for a court to read into the statute something

37

which the legislature did not include although it could

have easily done so.

City of Pinson v. Utilities Bd. of

City of Oneonta, 986 So. 2d 367, 373 (Ala. 2007) (quoting

Noonan v. EastWest Beltline, Inc., 487 So. 2d 237, 239
(Ala. 1986)).
Moreover, former Representative Johnny Ford, who was
the sponsor and author of Amendment 744, testified that
this

was

no

oversight.

intentionally

chose

differentiate
amendments.
there.

See

not

Amendment
R.

Instead,

he

to

language

add

744

661

(I

from

didnt

I decided not to...).

testified

all
fail

that

that

would

other

to

place

he

bingo
it

in

The implication from his

testimony is that he did not want other members of the

Legislature to know that he had a secret or special
meaning for the word bingo in Amendment 744. Allowing a
legislators secret, unexpressed intent to become law would
defeat the purpose of the legislative process.

The intent

of

words

the

legislature

is

legislature voted on.

expressed

in

the

the

A laws meaning must be in the open,

not a secret hidden in the mind of a bills sponsor.

*

38

The

trial

court

completely

disregarded

this

Courts

definition, its application in Macon County, and the clear

instruction by this Court to apply this definition to the
Ex parte State, 121 So. 3d at 356.

games at VictoryLand.

If the trial court had heeded this Courts direction, it

would

have

properly

excluded

testimony

from

former

legislators and other witnesses regarding the passing of

Amendment 744.

See, e.g., Eagerton v. Terra Res., Inc.,

426 So. 2d 807, 809 (Ala. 1982) (The motives or reasons of

an individual legislator are not relevant to the intent of
the full legislature in passing the bill.).
trial

court

used

such

testimony

to

Instead the

promulgate

its

own

idiosyncratic interpretation of the meaning of bingo. The

trial courts decision to ignore this Courts case law and
the plain text of Amendment 744 was erroneous.
III. The trial court failed to apply Cornerstone and
incorrectly found that KCEDs machines were legal
gambling devices.
The trial court never applied the Cornerstone test to
the machines and gambling proceeds at issue in this case.
But the uncontroverted evidence supports the forfeiture and
condemnation
court

of

applied

the
the

seized

evidence.

wrong

legal
39

Because

standard,

the
the

trial
court

incorrectly found that the machines, servers, and specific

devices are lawful gambling devices.
5.

The

Court

should

reverse

Supp. 2 Vol. 1 R. 2-

that

finding

and

render

judgment for the State.

Under this Courts controlling Cornerstone decision and
its

progeny,

the

only

game

authorized

by

state

bingo

amendments is the ordinary, traditional game commonly known

as

bingowith

all

of

its

human

skill

elements

intact.

Cornerstone, 42 So. 3d at 8081; Ex parte State, 121 So. 3d

at 356 (stating that the 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

repeatedly

in

Macon

County).

Moreover,

said

that

Alabamas

bingo

this

Court

amendments

must

has
be

strictly and narrowly construed, while all prohibitions on

gambling

are

to

be

given

broad

construction.

See

Cornerstone, 42 So. 3d at 78; City of Piedmont, 642 So. 2d

at 436; Barrett, 705 So. 2d at 532; Foster v. State, 705
So. 2d 534, 538 (Ala. Crim. App. 1997); Greenetrack, 154
So.

3d

940

(Ala.

2014).

Under

40

these

precedents,

purported bingo game must, at a minimum, strictly comply

with each and every one of the following six criteria:
1. Each player uses one or more cards with spaces
arranged in five columns and five rows, with an
alphanumeric or similar designation assigned to
each space.
2.
Alphanumeric
or
similar
designations
randomly drawn and announced one by one.

are

3. In order to play, each player must pay

attention to the values announced; if one of the
values matches a value on one or more of the
players cards, the player must physically act by
marking his or her card accordingly.
4. A player can fail to pay proper attention or to
properly mark his or her card, and thereby miss an
opportunity to be declared a winner.
5. A player must recognize that his or her card
has a bingo, i.e., a predetermined pattern of
matching values, and in turn announce to the other
players and the announcer that this is the case
before any other player does so.
6. The game of bingo contemplates a group activity
in which multiple players compete against each
other to be the first to properly mark a card with
the predetermined winning pattern and announce
that fact.
Cornerstone,

42

So.

3d

intentionally

ignored

the

at

86.

application

factors in this case.

41

The
of

trial
these

court

required

A.

The evidence showed that the games available for

play on electronic machines at VictoryLand were
unlawful gambling devices, not the traditional
game of bingo.

Although the screens on KCEDs machines often showed

the word bingo and even displayed a small grid, the game
on those screens was not the traditional game of bingo.
From

players

perspective,

[w]on

or

lost,

you

just

pressed [a button] one time to play and ran through a game

cycle and stopped.
1.
The
cards.

R. 104.

The VictoryLand games did not involve cards.

games

offered

at

VictoryLand

did

not

Cornerstone, 42 So. 3d at 86; C. 3696.

involve
Instead,

the games showed a small digital representation of a grid

with five columns and five rows.

R. 100.

No paper cards

were ever used to play the so-called electronic bingo

machines.

R. 129, 136.

Mr. Williamson agreed that the

game uses no physical cards; the alphanumeric designations

are not verbally announced one by one; and the players are
not required to pay attention to the values announced and
match the values on a card or physically mark his or her
card accordingly.

R. 532-534.

Amendment 744, like all other Amendments, requires a

bingo card used by the player. A video depiction of a
42

card, which the player can only watch, is insufficient.

HEDA, 168 So. 3d at 13 (rejecting HEDAs argument that an
electronic depiction of a bingo grid will suffice).
2.
The

The numbers in the VictoryLand games were not

drawn and announced like traditional bingo.

VictoryLand

requirement

that

games

did

not

satisfy

the

[a]lphanumeric

Cornerstones
or

similar

designations [be] randomly drawn and announced one by one.

42 So. 3d at 86.
games

were

The numbers involved in the VictoryLand

supposedly

number generator.

randomly

R. 484, 490.

drawn

using

random

The display of numbers on

the VictoryLand games is so rapid-fire that not only the

video depiction of a ball draw, but the entire game, is
over within mere seconds after the player presses play.
136-137.
that

it

leaves
numbers.
of

The draw appears [v]irtually, all at once so

is
no

too

fast

possibility

for

[a

for

player]
player

to

recognize

interaction

and

between

R. 137; see also R. 238 (calling the appearance

numbers

with).

R.

on

the

screen

faster

than

could

keep

up

This computer-speed mockery of announcing could

never be held as compliance with this Courts requirement.

Thus, the rapid pace and lack of public announcement of the
numbers fail to satisfy the second Cornerstone factor.
43

3.

The VictoryLand games did not require players

to pay attention to the announced values or
physically act to mark each announced value.

The VictoryLand games did not require players to pay

attention to the values announced or physically act when
one of the values matches a value on one or more of the
players cards by marking his or her card accordingly.
Cornerstone, 42 So. 3d at 86.

On the games, the player

must do nothing except place a bet, press a button to start

play and wait for the results. R. 550-553.

Not only was a

player not required to pay attention to the ball draw, but

attempting to pay attention could not affect the outcome of
the

game.

R.

102103.

Moreover,

attempting

to

pay

attention was pointless because the player was not allowed

to personally decide what numbers on his card were matching
numbers and physically daub them accordingly.

R. 102, 533.

The only matching numbers that the machines daubed were the
numbers, if any, recognized and highlighted by the computer
as part of a winning pattern. R. 103, 534.
At

VictoryLand,

the

machine

pays

attention

to

the

values displayed in the mass ball draw and automatically

marks any winning pattern on the players screen. On most
machines, the player simply places a bet and presses play
44

and watches the machine display a result within seconds. On

a few other machines, the player is prompted to press the
button a second time, which then causes only the numbers
already identified by the machine as matches to be daubed.
R.

239,

497.

Neither

Cornerstones mandate.

of

these

scenarios

satisfies

In order for the game to be legal

bingo, the game must require that each player must pay
attention to the values announced; if one of the values
matches a value on one or more of the players cards, the
player

must

physically

accordingly.

act

by

marking

42

Cornerstone,

So.

3d

his

or

her

card

at

86

(emphasis

added).
Agent
meaningful

Sisson
role

in

testified
playing

that
the

the

game

player
displayed

gambling machines:
Q. Were you required to pay any attention
at all to the number drop display in
order to win on these machines?
A. No, sir.
R. at 137.
Q. Were you ever required to
identify and mark any of the
matching numbers on your bingo
as those numbers appeared in
drop?
45

personally
individual
video grid
the number

has
on

no
the

A. No, sir.
Q. If the matching number was not part of
a
winning
pattern,
was
it
ever
highlighted by the machine?
A. I can't answer that. I -- there were
times when I wasn't given an opportunity
to compare.
Q. Could you ever personally highlight or
mark a number on the video bingo grid if
the machine had not highlighted it for
you?
A. No, sir.
Q. When there was a winning pattern on
your video bingo grid, who identified or
what identified that pattern to you?
A.
The
computer
determined
pattern and informed me of such.

winning

Q. Did you have time to react in any way

to one number before the rest of the
numbers appeared on the screen?
A. No, sir.
Q. When the number drop display was
complete, could you ever mark a matching
number that was not part of the winning
pattern highlighted by the machine?
A. No, sir.
Q. Did the machine decide what numbers to
mark as matches on the bingo video grid
or did you decide?
A. The machine did -- or the network did.
I -Q. Was it possible for you to fail to any
mark any one matching number on your
46

video bingo card display on any of these

machines that you played?
A. Well, in the sense that I wasn't
required to mark anything, I couldn't
fail to mark anything.
R. at 138-139.

Most telling of all, Agent Sisson testified

that he could play the machines with his eyes closed.

R.

106.
Witnesses agree, including VictoryLands own, that once
the player presses the play button to start the game, the
player is not required to pay any attention to the numbers
displayed on the machines video screens.

R. 10506, 137,

239, 362, and 534. VictoryLands own expert admits that the
computer software does all comparative analysis between the
drawn values and the digital representation of a bingo card
on

the

screen.

R.

534.

No

human

decision

making,

interaction, or ability could influence which numbers were

daubed or what the outcome would be.

Since the player was

not required to pay attention to the ball draw at all, much

less

to

each

number

as

it

is

drawn,

and

neither

was

required to physically mark one matching value on his

card when he personally spotted it, these machines fail the
Cornerstone test for that reason alone.
So. 3d at 86.
47

Cornerstone, 42

The machines also included bonus rounds, in which the

game cycles without any interaction from [the player] at
all as the computer generated numbers, populated the grid,
selected winning patterns, and continued that cycle without
any input at all from a player.

R. 124.

Instead, the

machine would play multiple bingo games by itself with no

human interaction.

R. 558.

When a player won during

these bonus rounds, the machines automatically credited his

or her account.

R. 124.

Both regular play and bonus play on the VictoryLand

machines did not require players to pay attention to any
numbers.
players
initiate

Instead, unlike the traditional game of bingo,

were

only

required

press

the

play

of

game

everything else.

the

a
and

single
the

button
machine

to
did

In the bonus rounds, a player was not

required to physically act in any way in order to receive

credit for that win.

Because the games on the VictoryLand

machines did not require a player to pay attention or act

in the way a player must during traditional bingo, these
games do not satisfy the third Cornerstone factor.

48

4.

The

The VictoryLand games did not permit a player

to sleep a bingo, as in the traditional game
of bingo.

trial

court

failed

to

determine

that

the

VictoryLand games do not permit a player to fail to pay

proper attention or to properly mark his or her card, and
thereby miss an opportunity to be declared a winner in the
manner of traditional bingo.
86.

See Cornerstone, 42 So. 3d at

In the VictoryLand games, as shown above, the player

is not required to pay any attention at all to the video

depiction of a ball draw or the video depiction of a bingo
grid in order to win.

Failing to pay attention to those

things does not negatively affect the players chances of

winning,

and

paying

attention

does

the

player

no

good

because the player cannot avoid nor overrule the machines

fully

automated

decisions

on

what

numbers

match,

what

numbers will be daubed, what if any winning patterns will

be recognized. Likewise, a player cannot react to a called
number during a game on the machines by marking the wrong
number on his card.
Agent

Sisson

specifically

testified

about

impossibility:
Q. Was it possible for you to fail to any
mark any one matching number on your
49

this

video bingo card display on any of these

machines that you played?
A. Well, in the sense that I wasn't
required to mark anything, I couldn't
fail to mark anything.
R.

139.

Instead,

the

recognizing and matching.

gambling
Id.

machines

do

all

the

A player does not have to

pay attention to the ball draw at all.

A player cannot

improperly or accidentally daub a number.

In fact, the

machines

Agent

ignore

any

attempt

to

daub.

Sisson

testified about his inability to daub:

Q. Did the machine require you to make
your own decision about what numbers you
wanted to daub on your video bingo grid
and then daub on that basis?
A. Well, you couldn't. Even if you wanted
to, you couldn't daub that card.
R. 102-103.
game

through

Because a player could not lose a VictoryLand

inattention

or

improper

marking,

these

machines fail to comply with the fourth Cornerstone factor.

5.

The

The VictoryLand games did not require a player

to recognize winning patterns or announce such
a pattern in competition with other players,
as in traditional bingo.

VictoryLand

games

did

not

require

player

to

recognize that his or her card has a bingo, i.e., a

predetermined pattern of matching values or to announce

50

to the other players and the announcer that this is the

case before any other player does so.
3d

at

86.

KCEDs

attempts

to

draw

Cornerstone, 42 So.
analogies

between

traditional bingo and the games at VictoryLand again fall

flat.
As evidence before the trial court proved decisively, a
player does not have to recognize a predetermined pattern
to play or win on the machines.

R. 240.

Instead, the

computer makes all of those decisions by itself:

Q. Did the machine decide what numbers to
mark as matches on the bingo video grid
or did you decide?
A. The machine did -- or the network did
...
Q. Could you as
claim a bingo?

the

player

mistakenly

A. I mean, I never had to claim one at

all; so, if I was to jump up an [sic]
holler bingo, it wouldn't have any effect
on what was going on anyway.
R. 139-140.

All witnesses agree that the machine not only

determines whether there are any matching values, but also

determines whether any matches form a winning patternall
on a fully automated basis.

R. 72, 10607, 125, 13840,

240, and 400.

51

The
players
pattern.
players.

player
or

also

does

announcers

not

that

have

they

to

have

notify
a

any

other

matching

bingo

Nobody audibly announces bingo to the other

R. 107 and 363.

Former Agent Crocker testified

to the absence of audible interaction between players or an

announcer while playing the games.
Q. When you played the machines at
VictoryLand, did you hear or see anyone
announcing those numbers or those balls
that had been drawn one by one to the
people playing the game?
A. No, sir, I did not.
Q. Did you at any point in time hear an
announcer calling out numbers or anything
else to player's in the game?
A. No, sir.
Q. Did you at any time hear the players
announcing out that they had had a bingo
or a matching pattern on their cards?
A. No, sir.
R. 238.
Q. Were you required to announce to other
player's that you had a winning pattern
in order to win the game?
A. No, sir.
Q. Did you ever have to yell out bingo?
A. No, sir.

52

R. 240.

The absence of announcing anything violates the

Supreme Courts fifth Cornerstone requirement.

Nor

did

the

VictoryLand

games

require

players

to

announce their winning bingo pattern to anyone at all, much

less before any other player had a winning pattern.
107.

R.

In fact, players at VictoryLand could not learn of

anyone

elses

wins

or

identify

the

person

who

particular game, even if they wanted to. R. 107.

won

any

The only

possible way a player may have been able to tell they were
playing the same game would be if they were sitting sideby-side and could look at the other persons game screen.
R. 143.
Unlike traditional bingo, where players compete to be
the first to identify and announce bingo, the actions of
other players in the VictoryLand games were immaterial to
an individuals game play.
140.

Players

never

saw

competing against anybody.

Because

the

Players were racing no one.

any

indication

that

they

R.
were

R. 96.

VictoryLand

games

identified

winning

patterns instead of requiring players to recognize them,

did not require players to announce a winning pattern to
anyone, and did not exclude any players from winning once
53

one player announced a win, the trial court correctly found

that they did not satisfy the fifth Cornerstone factor.
6.

The
despite
games

The VictoryLand games were not like the group

activity of traditional bingo because they
involved
individuals
playing
at
separate
computer terminals, unable to determine who
else was participating in the same game.

trial
the

look

court

failed

overwhelming
nothing

to

properly

evidence

like

the

that

apply
the

traditional

the

law

VictoryLand

game

of

bingo.

These games are not a group activity in which multiple

players

compete

against

each

other

to

be

the

first

to

properly mark a card with the predetermined winning pattern

and announce that fact.

Cornerstone, 42 So. 3d at 86.

But even if the games at VictoryLand were configured to

require a minimum of two players, that hardly constitutes a
group activity.

And a player at VictoryLand had no way of

knowing how many players were involved in any given game,

or what players were involved in the same game.
Also,

as

announce

discussed
a

supra,

winning

players

pattern.

were

Merely

not

R. 142.

required

linking

to

various

terminals through a central server is not sufficiently like

the

traditional

game

Cornerstone factor.

of

bingo

See R. 487-488.
54

to

satisfy

the

sixth

* * *
The only question before the trial court should have
been whether the games meet the Cornerstone factors.

And

the evidence was decisive at every point: the machines do

not satisfy Cornerstone and do not play bingo as defined by
this

Court.

The

fully-automated

game

that

state

law

enforcement officers observed, videoed, and played at the

VictoryLand facility fails to fully preserve any, much less
all,

of

these

important

human

and

interactive

elements.

The so-called electronic bingo games at VictoryLand are

played entirely by machines on a server-based system, and a
player is not actively involved in any of the steps of play
of any games on the seized machines.
shows

without

daubing

and

entirely

by

contradiction
pattern
the

that

Indeed, the evidence

the

identification

machine.

The

drawing,
are

player

all
is

matching,
completed
given

no

opportunity to do anything other than place a bet and press

a button to initiate play, and on a few of the machines, to
press daub once when told to do so. This complete lack of
human

skill,

human

ability,

human

recognition,

human

performance of the steps of play, and human attention in

the play of the games is fatal to any claim that this form
55

of gambling is legal bingo.

These machines are merely slot

machines playing illegal games.

B.

The servers and related electronic devices seized

from VictoryLand were part of the networked system
that facilitated illegal gambling.

It was undisputed in the trial court that the servers

and

other

networked

electronic
gambling

equipment

system.

were

This

part

makes

of

them

the

same

subject

forfeiture under Barber, 960 So. 2d 599 (Ala. 2006).

to

This

Court has already held that server-based slot machines with

gambling elements dispersed throughout the various units
and

processes

of

the

integrated

network

are

illegal

Id. at 614; see also HEDA, 168 So. 3d

gambling machines.

at 17 (agreeing that linking various terminals through a

central

server

is

game of bingo).
had

to

answer

not

sufficiently

like

the

traditional

As a result, the question the trial court

was

whether

these

specific

servers

facilitated illegal gambling.

Although this Court has held that expert testimony is
unnecessary to prove such facts, testimony from KCEDs own
expert actually supports the finding that the servers were
an integral and necessary component of the gaming systems.
In

addition,

the

record

reflects
56

that

the

particular

servers seized from VictoryLand were part of the illegal

gaming systems at VictoryLand.
According to KCED expert Richard Williamson, pursuant
to the request by the Sheriff of Macon County, they looked
at

server,

testing.

software

R.

482-488.

and

player

stations

for

The

player

consoles

had

connected to the server to play the game.

The

server

matched

numbers

on

the

their
to

be

R. 488, 491.

terminal

with

numbers and displayed winning number combinations.

drawn

R. 497.

The system also maintained a count of the players credits,

transmitting

the

players

VictoryLand cashier.

account

R. 394-395.

information

to

Even some minimum player

settings were controlled by the server programming.

482, 497, 537.
regarding

the

the

R.

The server recorded all the information

game

play

activities

including

the

card

number and prize value. R. 494. According to Williamson,

the machines he tested were connected to a server in order
to operate at all.

R. 488.

When state agents executed the warrant, a VictoryLand

employee who had the proper credentials to log into the
server

assisted

them

controlled which devices.

in

identifying

which

servers

R. 253-263. Agents disconnected

57

and seized servers that were networked with the terminals.

Id.

Agent Larry Crocker testified that the servers were

linked in an internal network that controlled the gaming

devices at VictoryLand.

R. 263-264. Agent Sisson testified

that as other state agents powered down the servers, he saw

that the terminals displayed a network connection lost
message.

R. 155.

KCEDs own expert explained that servers facilitated

game play on terminals like those at VictoryLand, and the
record

shows

that

the

particular

servers

seized

by

the

State facilitated game play on VictoryLand terminals.

As

discussed, these networked machines were part of an illegal

gambling operation that was not bingo under Cornerstone.
Such networked machines constitute illegal gambling devices
or

slot

machines.

See

Barber,

960

So.

2d

at

614.

Accordingly, the evidence attests that the State properly

seized the servers and the trial court should have ordered
the servers forfeited.
C.

The trial court should have granted the States

petition for forfeiture of the currency, records,
and other gambling paraphernalia seized from
VictoryLand.

It was error for the trial court to refuse the States

petition

to

forfeit

the

gambling
58

proceeds,

records

and

paraphernalia that the State seized. The States evidence

established that the currency seized from the cashier area
and

ATMS

were

used

as

bets

or

stakes

gambling activity at VictoryLand

in

the

illegal

Likewise, the records

that the State seized relate to that gambling activity.

The

evidence

at

trial

established

that

undercover

agents obtained PIN numbers enabling them to play on the

machines by giving money to the cashiers, and they received
money or winnings in their account by cashing out with the
cashiers.

R. 236-237.

in the cashier area.

Agents seized currency from drawers

R. 313-323.

They seized currency

from kiosks located inside VictoryLand.

R. 323-329. They

also seized currency from the account services area. R.

329-332.
of

player

All of these areas were connected to the purchase

cards,

use

of

player

cards,

and

cashing-out

activity at VictoryLand.
This evidence required the entry of an order that the
currency was used as bets or stakes in an illegal gambling
operation.

See Ala. Code 13A-12-30(c) (providing for the

seizure and forfeiture of money used as bets or stakes

used

in

violation

of

the

law).

KCEDs

speculative

assertions during trial that the money could have come from
59

the bar or the restaurant are insufficient to rebut this

evidence or contradict the evidence.

Agents found money in

an envelope that was connected to the restaurant, but they

did not seize either.
money

from

the

ice

restaurant areas.

R. 337.
cream

Nor did agents seize any

parlor,

R. 340.

bar,

pari-mutuel,

or

The agents were careful to

seize only the money that was connected to the illegal

gambling, not money that may have been generated through
other legal means.
showed

that

cashier

the

cage

and

Thus, the unrebutted evidence at trial

only

business

account

illegal gambling machines.

being

services

conducted

area

related

at

the

to

the

Wade v. State, 986 So. 2d 1212,

1220 (Ala. Civ. App. 2007).

Ala. Code 13A-12-30 provides for the forfeiture of
gambling records possessed in connection with an illegal
gambling operation.
records

that

State agents looked for and seized

related

to

the

ownership,

the

use,

the

operation of the gaming devices that were located inside

the facility, looking for records that showed who -- how
the machines were operated, who owned the machines, where
the machines came from, whether there was -- there were
funds

that

were

generated

-60

or

proceeds

that

were

generated from the operation of the machines.

R. 368-370.

As discussed above, the gambling activities at VictoryLand

were unlawful.

The State properly seized the records of

that unlawful operation.

CONCLUSION
This Court should REVERSE the trial court and RENDER
JUDGMENT for the State.

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

61

CERTIFICATE OF SERVICE
I hereby certify that on the 19th day of November, 2015,
a copy of the above and foregoing document has been filed
with the Clerk of the Court using the Appellate Courts eFiling 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

62

APPENDIX

Comparison of Amendment 744 (Macon County) Language to

Other Amendment Language
Amendment 744
(Macon Co.)

The operation of bingo games for prizes or money by nonprofit

organizations for charitable, educational, or other lawful
purposes shall be legal in Macon County.
same as Macon Co.

Other Amendments
Amendment 386
(Jefferson Co.)

The operation of bingo games for prizes or money by nonprofit

organizations for charitable or educational purposes shall be
legal in Jefferson county, subject to the provisions of any
resolution or ordinance by the county governing body or the
governing bodies of the respective cities and towns, within
their respective jurisdictions.

Amendment 387
(Madison Co.)

The operation of bingo games for prizes or money by nonprofit

organizations for charitable or educational purposes shall be
legal in Madison county, subject to the provisions of any
resolution or ordinance by the county governing body or the
governing bodies of the respective cities and towns, within
their respective jurisdictions.

Amendment 413
(Montgomery Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations for charitable, educational, or other
lawful purposes shall be legal in Montgomery county, subject
to the provisions of any resolution or ordinance by the
county governing body or the governing bodies of the
respective cities and towns, within their respective
jurisdictions as provided by law regulating such operation.

Amendment 440
(Mobile Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations for charitable, educational, or other
lawful purposes shall be legal in Mobile county, subject to
the provisions of any resolution or ordinance by the county
governing body or the governing bodies of the respective
cities and towns, within their respective jurisdictions as
provided by law regulating such operation.

Amendment 506
(Etowah Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations for charitable or educational
purposes shall be legal in Etowah county, subject to the
provisions of any resolution by the county commission.

Amendment 508
(Calhoun Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations for charitable, educational, or other
lawful purposes shall be legal in Calhoun county, subject to
the provisions of any resolution or ordinance by the county
governing body or the governing bodies of the respective
cities and towns, within their respective jurisdictions as
provided by law regulating such operation.

Amendment 542

The operation of bingo games for prizes or money by certain

(St. Clair Co.)

nonprofit organizations for charitable, educational, or other

lawful purposes shall be legal in St. Clair County, subject
to the provisions of any resolution or ordinance by the
county governing body or the governing bodies of the
respective cities and towns within their respective
jurisdictions as provided by law regulating such operation.

Amendment 549
(Walker Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations for charitable, educational, or other
lawful purposes shall be legal outside of the corporate
limits of the City of Jasper in Walker County, subject to any
resolution by the county governing body as provided by law
regulating the operation of bingo.

Amendment 550
(Jasper)

The operation of bingo games for prizes or money by certain

nonprofit organizations for charitable, educational, or other
lawful purposes shall be legal in the corporate limits of the
City of Jasper in Walker County, subject to any resolution or
ordinance by the city governing body as provided by law
regulating the operation of bingo.

Amendment 565
(Covington Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations and certain private clubs for
charitable, educational, or other lawful purposes shall be
legal in Covington County, subject to any resolution or
ordinance by the county commission as provided by law
regulating the operation of bingo.

Amendment 569
(Houston Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations and certain private clubs for
charitable, educational, or other lawful purposes shall be
legal in Houston County, subject to any resolution or
ordinance by the county commission as provided by law
regulating the operation of bingo.

Amendment 599
(Hartselle,
Falkville, &
Decatur)

The operation of bingo games for prizes or money by nonprofit

organizations for charitable, educational, or other lawful
purposes shall be legal only within the boundaries of the
Cities of Hartselle and Falkville and that area of the City
of Decatur located within the boundaries of Morgan County,
subject to any resolution or ordinance by the governing
bodies of the respective cities and towns, within their
respective jurisdictions.

Amendment 612
(Russell Co.)

The operation of bingo games for prizes or money by certain

nonprofit organizations and certain private clubs for
charitable, educational, or other lawful purposes shall be
legal in Russell County, subject to any resolution or
ordinance by the county commission as provided by law
regulating the operation of bingo.