ETOWAH BAPTIST Ass'n v. ENTREKIN

• Decision Date: 15 March 2010
• Docket Number: 1080168.
• Citation: 45 So.3d 1266
• Parties: ETOWAH BAPTIST ASSOCIATION v. Sheriff Todd ENTREKIN et al.
• Court: Alabama Supreme Court

45 So.3d 1266

ETOWAH BAPTIST ASSOCIATION

v.Sheriff Todd ENTREKIN et al.

1080168.

Supreme Court of Alabama.

March 15, 2010.

Ralph K. Strawn, Jr., and Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellant.

Donald R. Rhea of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee Sheriff Todd Entrekin.

Jason E. Knowles and Christie D. Knowles of Cusimano, Keener, Roberts, Knowles & Raley, LLC, Gadsden, for appellee CBS Supply, LLC.

Roy S. Moore and Benjamin D. DuPré of Foundation for Moral Law, Montgomery, for amicus curiae Foundation for Moral Law, in support of the appellant.

Troy King, atty. gen., and Corey L. Maze and William G. Parker, asst. attys. gen., and Cheairs Porter, spec. asst. atty. gen., for amicus curiae State of Alabama, in support of the appellant.

PARKER, Justice.

This is an appeal by the Etowah Baptist Association (“EBA”) from an order of the Etowah Circuit Court denying the EBA's motion to intervene in a declaratory-judgment action concerning the licensing of organizations to conduct bingo games in Etowah County. Because we conclude that the circuit court had no jurisdiction over the declaratory-judgment action, we dismiss the appeal.

Background

On September 9, 2008, the sheriff of Etowah County, Todd Entrekin (“the sheriff”), filed a declaratory-judgment action naming as defendants Coosa Entertainment Group, LLC (“Coosa”), and CBS Supply, LLC (“CBS”), two organizations that had applied for permits to conduct bingo games in Etowah County authorized by Amendment No. 506 to the Alabama Constitution of 1901 (now Local Amendments, Etowah County, § 2, Ala. Const. 1901 (Off. Recomp.)) (hereinafter “Amendment No. 506”). ¹

In his complaint, the sheriff asked the Etowah Circuit Court to decide the applicable law under which the sheriff's investigation of applicants for bingo permits must be conducted. He noted that the Alabama Constitution had been amended in 1989 by Amendment No. 506 to legalize bingo in Etowah County and that Amendment No. 506 authorizes the Etowah County Commission to promulgate rules for the issuance of permits and licenses for the operation of bingo games. The sheriff further noted that Amendment No. 506 authorized the legislature to adopt laws supplemental to Amendment No. 506 and that both the Etowah County Commission and the legislature had acted on the authority provided them in Amendment No. 506.

The legislature, contemporaneously with its enactment of Act No. 89-329, Ala. Acts 1989, which proposed Amendment No. 506, enacted Act No. 89-463, Ala. Acts 1989, which was later amended by Act No. 94-135, Ala. Acts 1994, as enabling legislation for Amendment No. 506. Amendment No. 506 included no definition of the word “bingo.” Both Act No. 89-463 and Act No. 94-135 define “bingo” as “that game commonly known as bingo where numbers or symbols on a card or paper sheet are matched with numbers or symbols selected at random.”

The Etowah County Commission, on July 7, 2008, issued a resolution promulgating rules and regulations for the operation of “charitable machine bingo” in Etowah County. Section 1 of the resolution defines “bingo” or “bingo games” as follows:

“(a) ‘Bingo’ or ‘Bingo Games' shall mean any game of chance known as bingo, including any game defined as such by state or federal law (whether or not electronic, computer or other technological aids are used in connection therewith), which incorporates the following elements:

“(i) the game must be played on a grid of five (5) horizontal rows intersected by five (5) contiguous squares contained within the grid;

“(ii) each square in a grid must be designated by a number or other symbol contained in a collection of numbers or symbols used for playing the game;

“(iii) numbers or symbols are selected by a procedure or mechanism entirely or predominately governed by chance and, as such number or symbols are selected during the playing of a particular game, the same numbers or symbols, if they are present on one or more of the squares on any grid in play, are covered or otherwise marked on such grid;

“(iv) the winner or winners of a particular game are the players of those grids for which a previously designated pattern or arrangement is first covered or marked;

“(v) one or more players must compete against one or another for prizes;

“(vi) money may be collected from the players of bingo for the opportunity to participate in the game, and such monetary amounts may vary to reflect the value of the prize for winning a particular game, whether for participation in the whole game or a particular phase thereof, and other factors reflecting the interplay of the amount collected from each player, the size of the prize and the probability of winning; and

“(vii) the prizes for winning the game can be money or anything of value with limits as to amount. To the extent that the foregoing elements are present in the game of bingo, it can be played with different kinds of equipment varying from one end of the spectrum, where traditional cards displaying the playing grids are used with tokens to cover the designated squares on the cards, to the technologically advanced end of the spectrum, where electronic devices perform the operations of the game using computers or micro-processors and interact with the human players by means of an electronic console. If the game of bingo is played on electronic devices which determine and signal the winner, such devices shall be electronically linked to ensure that multiple players are competing against each other. The prizes or evidence thereof for winning bingo games may be disbursed by the electronic devices or consoles used in playing such games at the time each game is won or on different schedules that reflect a record of wins and losses involving multiple games.

“(b) ‘Machine Bingo Game’ shall mean any electronic or mechanical equipment, machine or device, or computer or other technologic hardware or device,

“(i) which is installed, or is to be installed at a Machine Bingo Location and

“(ii) which is used, or can be used, to play Bingo as herein defined. Machine Bingo Games includes any machine, device or hardware that assists a player or the playing of Bingo Games, broadens the participation levels in a common game and includes all of the ancillary Bingo supplies. Examples of Machine Bingo Equipment and Supplies include, but are not limited to, dispensers, readers, electronic player stations, player terminals, central computer servers containing random number generators and other processing capabilities for remote player terminals, electronic consoles capable of providing game results in different display modes, telephones and telephone circuits, televisions, cables and other telecommunication circuits, and satellites and related transmitting and receiving equipment. Machine Bingo Games shall not be deemed to be for any purpose a ‘gambling device’ or ‘slot machine’ within the meaning of the Code of Alabama 1975, Sections 13A-12[-]20(5) and (10) or any other provision of law, whether now in effect or hereafter enacted. Traditional bingo played utilizing paper cards and any devices to assist in the paying of traditional bingo utilizing paper cards shall be exempt under this definition.”

The sheriff's responsibility under the rules established by the Etowah County Commission was to conduct an investigation to determine the appropriateness of the issuance of licenses to applicants for bingo permits.

The sheriff's complaint presented the following issue:

“13. ... [P]ursuant to the rules and regulations as promulgated by the Etowah County Commission in July 2008, [the sheriff] is required to undertake an investigation in order to ascertain and determine the appropriateness of the issuance of a license to the applicant.

“14. However, the responsibility and guidelines governing the investigation and possible issuance of a permit required of the sheriff is either unclear and/or otherwise distinct and different with respect to whether or not the license is being issued as promulgated by the statutory provisions as adopted by the Alabama Legislature as compared to the rules and regulations as promulgated by the Etowah County Commission.

“15. In order to properly comply with the application process and insure an appropriate and proper investigation, it is necessary that this Court declare and determine the appropriate rules, regulations, procedures and/or laws that will serve to guide your plaintiff ... as Sheriff of Etowah County, as he proceeds with this investigatory process.

“WHEREFORE, PREMISES CONSIDERED, it is therefore prayed that this Court will set this matter down for hearing and upon consideration of the information and argument provided, that the Court will ascertain and determine the appropriate body of law and/or regulation that will serve to guide your plaintiff as he initiates and proceeds in the investigatory process necessitated by the submission of an application for a permit to operate bingo in Etowah County, Alabama by these defendants.”

On September 10, 2008, Coosa and CBS filed motions for a summary judgment. Coosa argued that, “[a]s a matter of law, Amendment No. 506 of the Alabama Constitution controls the Sheriff's investigation in issuing the subject permits. Accordingly, any statutory legislation or local resolution that conflicts with the power of the [sheriff], set forth in Amendment [No.] 506, do not apply and should not be followed.” CBS similarly argued that “Amendment No. 506 ... controls the responsibilities and duties of the sheriff with regard to investigation and issuing permits. As a matter of law, to the extent that any other statutes would conflict, or to the extent that any resolution would conflict, the Alabama Constitution, as amended, would prevail.” The sheriff did not file a response or otherwise oppose the summary-judgment motions.

On September 16, 2008, the EBA, claiming an interest in the case by virtue of...