Ex Parte State Et Al.(in Re Governor Bob Riley Et Al. v. Cornerstone Cmty. Outreach Inc.

• Decision Date: 30 July 2010
• Docket Number: 1090808.
• Citation: 57 So.3d 704
• Parties: Ex parte State of Alabama et al.(In re Governor Bob RILEY et al.v.CORNERSTONE COMMUNITY OUTREACH, INC., et al.State of Alabamav.Chad Dickie et al.).
• Court: Alabama Supreme Court

57 So.3d 704

Ex parte State of Alabama et al.(In re Governor Bob RILEY et al.

v.CORNERSTONE COMMUNITY OUTREACH, INC., et al.State of Alabama

v.Chad Dickie et al.).

1090808.

Supreme Court of Alabama.

May 21, 2010.Rehearing Denied July 30, 2010.

John M. Tyson, Jr., Timothy W. Morgan, and Martha Tierney, of the Office of Governor Bob Riley, as special prosecutors for the Governor's Task Force on Illegal Gambling, for petitioners State of Alabama, Governor Bob Riley, David Barber, Emory Folmar, and Christopher Murphy; and Henry Theodore Reagan II, of the Office of Governor Bob Riley, for petitioners Governor Bob Riley, David Barber, Emory Folmar, and Christopher Murphy.Robert D. Segall, J. David Martin, and Shannon L. Holliday of Copeland, Franco, Screws & Gill, P.A., Montgomery, and Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, LLC, Selma, for respondent Cornerstone Community Outreach, Inc.; and Joe Espy III and William M. Espy of Melton, Espy & Williams, P.C., Montgomery, for respondent Freedom Trail Ventures, Ltd.J. Douglas McElvy and Elizabeth C. Wible, deputy attys. gen.; H.E. Nix, Jr., deputy atty. gen.; Cheairs M. Porter, special asst. atty. gen., Office of the Attorney General, filed brief on behalf of Attorney General Troy King, in support of his motion to dismiss and opposition of the petition for the writ of mandamus.MURDOCK, Justice.

The issues raised by this petition for a writ of mandamus are: (1) whether law-enforcement activities and litigation pursued by attorneys and other officers who are otherwise appropriately authorized by the governor to do so are “nullities” without the approval of the attorney general or the local district attorney and (2) whether the attorney general has the right to assume control of such activities and litigation. Because we answer both questions in the negative, we grant the petition and issue the writ of mandamus.

I. Facts and Procedural History

Cornerstone Community Outreach, Inc. (“Cornerstone”), obtained a license from the Town of White Hall in Lowndes County to conduct games of bingo. The basis for Cornerstone's license was a local constitutional amendment that authorizes charity bingo games. Amendment No. 674, Ala. Const. 1901 (Local Amendments, Lowndes County, § 3, Ala. Const. 1901 (Off.Recomp.)), states: “The operation of bingo games for prizes or money by nonprofit organizations for charitable, educational, or other lawful purposes shall be legal in The Town of White Hall....” Purportedly on the basis of its license and this local amendment, Cornerstone opened and operated what is known as the White Hall Entertainment Center (“the EC”).

In December 2008, Governor Bob Riley issued Executive Order No. 44 creating the Governor's Task Force on Illegal Gambling (“the Task Force”). In part, Executive Order No. 44 states:

“WHEREAS, Article IV, Section 65 of the Constitution of Alabama of 1901 provides: ‘The legislature shall have no power to authorize lotteries or gift enterprises for any purposes, and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery ...;’ and

“....

“WHEREAS, the Supreme Court of Alabama has held that bingo is a form of lottery and is therefore illegal in Alabama, except where expressly authorized by a constitutional amendment. See City of Piedmont v. Evans, 642 So.2d 435, 436–37 (Ala.1994); and the conduct of bingo, within specified parameters, is authorized in 16 counties and two municipalities by local constitutional amendments, none of which, however, defines ‘bingo;’ and

“WHEREAS, in 1997, in a unanimous opinion authored by now-Chief Justice Sue Bell Cobb, the Alabama Court of Criminal Appeals ruled that where bingo is authorized but not otherwise defined by local constitutional amendment, ‘bingo’ means nothing other than ‘the ordinary game of bingo;’ the Court upheld the appellant's conviction and 12–month prison sentence for promoting gambling and possession of a gambling device where the appellant had contended that the gambling activity he operated was ‘bingo’ within the meaning of the local constitutional amendment and local ordinance; and the Court, acknowledging ‘this state's strong public policy against lotteries as expressed in § 65 of the Alabama Constitution,’ declared that bingo is a ‘narrow exception to the prohibition of lotteries in the Alabama Constitution’ and, accordingly, held that ‘no expression in [an] ordinance [governing the operation of bingo] can be construed to include anything other than the ordinary game of bingo ’ lest the ordinance be ‘inconsistent with the Constitution of Alabama.’ See Foster v. State, 705 So.2d 534, 537–538 (Ala.Crim.App.1997) (emphasis added); and

“....

“WHEREAS, it is common knowledge that, notwithstanding the clear holding of Foster, there is occurring at sites across this State, under the name of ‘bingo,’ gambling activity which no reasonable observer could assert in good faith to be ‘the ordinary game of bingo,’ particularly slot-machine style gambling in which an electronic device or system automatically processes an instant game of virtual ‘bingo’ upon activation and a wager by the human player, the outcome of which is based predominantly on chance rather than on any meaningful human interaction or skill; and

“WHEREAS, regardless of the ‘game’ in question, the possession of slot machines and gambling devices is illegal in all 67 counties in Alabama pursuant to Section 13A–12–27, Code of Alabama 1975, which provides: ‘A person commits the crime of possession of a gambling device if with knowledge of the character thereof he manufactures, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of: (1) A slot machine; or (2) Any other gambling device, with the intention that it be used in the advancement of unlawful gambling activity;’ and

“WHEREAS, none of the local constitutional amendments relating to bingo exempts bingo operators from the State's criminal laws against slot machines and other gambling devices; and

“....

“WHEREAS, in 2006, the Supreme Court of Alabama ruled that machines which ‘look like, sound like, and attract the same class of customers as conventional slot machines, and, when integrated with the servers, serve essentially the same function as [ ] slot machines,’ are illegal slot machines and further reaffirmed that ‘Alabama's gambling law ... is not so easily evaded. It is “the policy of the constitution and laws of Alabama [to prohibit] the vicious system of lottery schemes and the evil practice of gaming, in all their protean shapes.” ’ Barber v. Jefferson County Racing Association, Inc., 960 So.2d 599, 614 (Ala.2006) (emphasis added) (citations omitted); and

“WHEREAS, notwithstanding the Alabama Supreme Court's clear, emphatic, and repeated remonstrations against every artful attempt to circumvent Alabama's anti-gambling laws, there is an obvious lack of uniformity in the enforcement of these laws from county to county—a state of affairs which has produced serious confusion about which activities are lawful and which are not, and which is being exploited by gambling's promoters to expand and entrench illegal gambling activity in Alabama;

“NOW THEREFORE, I, Bob Riley, Governor of the State of Alabama, by virtue of the authority vested in me by the Constitution and laws of Alabama, and for other good and valid reasons, which relate thereto, do hereby establish the Governor's Task Force on Illegal Gambling for the purpose of promoting and supporting uniform statewide enforcement of Alabama's anti-gambling laws and to carry out the Alabama Constitution's strong public policy against lottery schemes and illegal gambling.

“BE IT FURTHER ORDERED, that the Task Force shall be composed of the Director of the Department of Public Safety and such agents and investigators as he or she shall designate,¹ the Administrator of the Alcoholic Beverage Control Board and such agents and investigators as he or she shall designate,² and a supernumerary district attorney, who shall be appointed by the Governor as a Special Prosecutor and who shall serve as the Task Force Commander.

“BE IT FURTHER ORDERED, that the Task Force shall serve as a resource for local prosecutors and law enforcement officials who request assistance in the investigation and prosecution of gambling-related crimes. The Task Force may provide technical assistance, investigative support, law enforcement personnel, and any other assistance requested by local authorities reasonably necessary to enforce Alabama's anti-gambling laws.

“BE IT FURTHER ORDERED, that the Special Prosecutor, pursuant to Section 12–17–216, Code of Alabama 1975, shall have statewide jurisdiction and is hereby authorized, with the support of the Task Force, to conduct investigations, attend any regular, adjourned or special session of any circuit court in any of the judicial circuits of Alabama for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case related to gambling activity in the State of Alabama.”

(Emphasis added, other than as indicated.) See Ala.Code 1975, § 36–13–9 (governor's power to issue executive orders).

By letter dated December 29, 2008, Governor Riley appointed former Jefferson County District Attorney David Barber as commander of the Task Force. The letter of appointment to Barber stated:

“Based upon your position as a supernumerary district attorney, I also formally request that you provide assistance to this Office as a special prosecutor in the investigation and prosecution of illegal gambling activity throughout the State of Alabama, pursuant to Section 12–17–216 of the Code of Alabama.

“By copy of this letter to the Attorney General, the Chief Justice, the Administrative Office of Courts, and the District Attorney's Association, I am informing each of them of...