OPINION OF THE JUSTICES

• Decision Date: 24 April 2001
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

795 So.2d 630

OPINION OF THE JUSTICES.

No. 373.

Supreme Court of Alabama.

April 24, 2001.

Members of the House of Representatives Alabama State House Montgomery, Alabama

Dear Representatives:

We have received House Resolution No. 251 requesting the opinions of the Justices of the Supreme Court as to whether Senate Bill No. 257 ("S.B. 257"), now pending before the Legislature, is a revenue-raising measure that should originate in the House of Representatives, pursuant to § 70 of the Constitution of Alabama of 1901. Your synopsis of S.B. 257 states:

"This bill would provide that bona fide coin-operated amusement machines shall not be subject to the criminal prohibition against possessing gambling devices; would amend the exemption of racing facilities from existing gambling laws in order to accommodate other licensed wagering activities at such facilities; would authorize each racing commission in the state to license each racing facility under its jurisdiction to conduct skill dependent wagering games and prescribe the terms and conditions of such license; would confer upon each racing commission, in addition to the powers that it has to license and regulate racing and pari-mutuel wagering thereon, the same or similar powers to license and regulate the conduct of skill dependent wagering games; would exempt skill dependent wagering games from the prohibitions of certain criminal and civil statutes and provide that certain acts related to skill dependent wagering games shall constitute crimes; and would levy certain state and local license taxes on the conduct of skill."

Since the adoption of Ala.Code 1975, § 12-2-10, authorizing the Justices of this Court to issue advisory opinions when requested by the Governor or either house of the Legislature, the Justices of this Court have consistently restricted their opinions to questions concerning the constitutionality of pending legislation under specific provisions of the Alabama Constitution or the United States Constitution. Opinion of the Justices No. 259, 373 So.2d 1050 (Ala.1979). Generally, the Justices make every effort to answer these questions. However, "expressions of opinions, hastily and abstractly considered, may well pose a greater danger of confusion and uncertainty than the exercise of judicial restraint in declining to respond to the question submitted." Opinion of the Justices No. 280, 417 So.2d 936, 937 (Ala. 1981). The opposite is likewise true, i.e., the failure to appropriately and completely answer a question propounded by a house of the Legislature may present an even greater danger where the legislation as to which the question is posed threatens vital constitutional principles.

"There is also an obligatory duty of the courts, which are vested with the power to pass upon the constitutionality of statutes, to not overlook or disregard constitutional demands, which the judges are sworn to support, and therefore, when it is clear that a statute transgresses the authority vested in the Legislature by the Constitution, it is the duty of the courts to declare the act unconstitutional, and from this duty they cannot shirk without violating their oaths of office."

McCall v. Automatic Voting Mach. Corp., 236 Ala. 10, 13, 180 So. 695, 697 (1938). It is imperative for this Court to declare acts unconstitutional when the Legislature transgresses its constitutional authority; it is equally imperative for this Court to address the constitutionality of a bill as to which the Legislature requests an advisory opinion. It is axiomatic that proposed legislation cannot be based on an unconstitutional premise. "Undeniably, the legislature cannot enact a statute that conflicts with the Constitution, that is, that prohibits that which is permitted by the Constitution or that permits that which is prohibited by the Constitution." City of Birmingham v. Graffeo, 551 So.2d 357, 361-62 (Ala.1989). Our review of S.B. 257 leads us to conclude that it wrongfully presupposes the constitutionality of certain "skill-dependent games" played upon "electronic, electrical, or mechanical equipment," referred to in S.B. 257 as "game related equipment."

The Senate sponsors seem to have relied upon Opinion of the Justices No. 358, 692 So.2d 107 (Ala.1997), in drafting S.B. 257. In that opinion, a majority of the Justices, giving an advisory opinion on House Bill No. 160, opined that as long as "some degree of skill" is required in a gambling activity, that activity differs from a lottery in kind, rather than in degree, and thus, the Justices reasoned, H.B. 160 did not violate Alabama's constitutional prohibitions against authorizing a lottery. Opinion of the Justices No. 358 went further to answer the question whether the use of certain equipment to play video poker instituted gambling by lot "if such equipment is designed and programmed to reflect correctly the rules of poker and the relative values and probabilities of the possible hands in poker." 692 So.2d at 113. The Justices answered that it did not.

We believe Opinion of the Justices No. 358 has resulted in the very confusion and error it expressly sought to avoid; therefore, this Court should clarify the law regarding the constitutional prohibition against lotteries and schemes in the nature of lotteries contained in § 65, Constitution of Alabama 1901, as it applies to S.B. 257. The failure to address and clarify this underlying constitutional question creates a great danger that local and state officials will similarly rely upon Opinion of the Justices No. 358 to the detriment of the citizens of this State.

We do not believe that under § 70 of the Alabama Constitution of 1901, S.B. 257 may originate in the Senate. To say that it may would mislead the members of the Alabama Legislature and the citizens of this State to believe that the underlying provisions of S.B. 257 are constitutional,¹ when they clearly are not. This Court should not avoid the question of the constitutionality of S.B. 257 under § 65 in an attempt to address only the precise and narrow question posed by the House of Representatives. This Court should never imply that a bill that it believes is unconstitutional can originate in either house of the Legislature. This Court should never, by silence, encourage the corruption and immorality² that § 65 was meant to prevent. For the reasons demonstrated in this advisory opinion, we reject the opinion expressed by a majority of the Justices in Opinion of the Justices No. 358. Because we consider S.B. 257 to be unconstitutional, that act cannot properly originate in either house of the Alabama Legislature.

I. Historical Analysis of Lotteries in America

In its infancy, the United States generally regarded lotteries favorably. Ronald J. Rychlak, Lotteries, Revenues and Social Costs: A Historical Examination of State-Sponsored Gambling, 34 B.C.L.Rev. 11, 12 (1992). This attitude was primarily attributable to the States' weak tax base and decentralized government. 34 B.C.L.Rev. at 12. Lotteries eventually became so popular and prolific that one writer has noted: "By 1776, a lottery wheel existed `in every city and town large enough to boast of a courthouse and a jail.'" 34 B.C.L.Rev. at 27, citing Henry Chafetz, Play the Devil: A History of Gambling in the United States from 1492 to 1955, at 25 (1960).

However, America's infatuation with lotteries was relatively short-lived, because of widespread fraud and the related social problems. 34 B.C.L.Rev. at 13, 32. In 1825, Chief Justice Marshall, writing for the United States Supreme Court in Brent v. Davis, 23 U.S. 395, 402, 6 L.Ed. 350 (1825), referred to the policy of "tolerating lotteries" as "questionable." Later, heavy opposition to lotteries began "as part of general social reform that included ... movements for ... peace, women's rights, educational reform, prison reform and abolition of slavery." 34 B.C.L.Rev. at 32, citing Charles T. Clotfelter & Phillip J. Cook, Selling Hope: State Lotteries in America 36-37 (1989). In fact, in 1842, "Democrats [were] swept to power because of their opposition to lotteries." 34 B.C.L.Rev. at 32, quoting National Institute of Law Enforcement and Criminal Justice, U.S. Department of Justice, The Development of the Law of Gambling: 1776-1976, at 269-70 (1977).

Describing the social problems attending lotteries, the librarian of Congress wrote that there existed "a general public conviction that lotteries are to be regarded, in direct proportion to their extension, as among the most dangerous and prolific sources of human misery." 34 B.C.L.Rev. at 12-13, citing A.R. Spoffard, Lotteries in American History, S. Misc. Doc. No. 57, 52d Cong., 2d Sess. 194-95 (1893) (Annual Report of the American Historical Society). In fact, the problems lotteries created were of such a magnitude and were so pervasive that by the late 1800s the States were nearly unanimous in imposing constitutional prohibitions on lotteries. 34 B.C.L.Rev. at 37. Against this backdrop, Alabama included a constitutional prohibition of lotteries in its Constitution of 1875. The 1901 Constitution adopted verbatim the 1875 Constitutional language. Section 65 of the Constitution of Alabama of 1901 now 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 all acts, or parts of acts heretofore passed by the legislature of this state, authorizing a lottery or lotteries, and all acts amendatory thereof, or supplemental thereto, are hereby avoided."

Since 1980, Alabama has adopted various constitutional amendments creating exceptions to § 65, specifically allowing the game of bingo under certain circumstances. See Ala. Const., Amendments 386, 387, 413, 440, 506, 508, 542, 549, 550, 565, 569, 599, and 612.

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