Opinion of the Justices

• Decision Date: 08 April 1997
• Docket Number: No. 358,358
• Citation: 692 So.2d 107
• Parties: OPINION OF THE JUSTICES.
• Court: Alabama Supreme Court

Page 107

692 So.2d 107

OPINION OF THE JUSTICES.

No. 358.

Supreme Court of Alabama.

April 8, 1997.

Members of the Senate

Alabama State House

Montgomery, Alabama 36104

Dear Senators:

We have received Senate Resolution No. 63, by which you request our opinion on the constitutionality of House Bill No. 160, a bill now pending before the legislature.

Senate Resolution No. 63 reads as follows:

"BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinion on certain important constitutional questions relating to House Bill 160 (the 'Bill') that is now pending before the House of Representatives and is expected to be considered by the Senate in due course, a copy of which bill accompanies this resolution and is made a part hereof by reference. As a basis for the questions with respect to the Bill posed by this resolution, the Senate understands as follows:

"(i) As an exception to the general laws of the state prohibiting gambling (Code of Alabama 1975, Tit. 13A, Chap. 12, [Art.] 2), the Legislature has reserved the right to authorize pari-mutuel wagering on horse or greyhound racing in such locations as may be provided by statute (Code of Alabama 1975, § 13A-12-31).

"(ii) Section 65 of the Constitution of Alabama of 1901, prohibits the Legislature from enacting laws that authorize lotteries or gift enterprises or schemes in the nature of a lottery.

"(iii) In Opinion of the Justices [No. 205], 287 Ala. 334, 251 So.2d 751 (1971), a majority of the Justices of the Supreme Court, in considering whether Section 65 of the Constitution would be violated by the enactment of two bills proposing to authorize pari-mutuel wagering on greyhound racing, expressed the following opinions: (a) the Constitution prevents the Legislature from authorizing a lottery, but it does not prevent the Legislature from authorizing forms of gambling that do not constitute a lottery; (b) since the outcome of a horse or dog race is not determined only by chance, a significant degree of skill is involved in a successful bet on the winning race contestant; and (c) while the amounts won by the winners of a pari-mutuel pool depend upon the participation of other bettors, that factor does not cause the pool to be a lottery because the pari-mutuel system does not determine the winning bettors but only the amounts won by such bettors.

"(iv) In reliance upon the aforesaid Opinion of the Justices [No. 205], statutes have been enacted which authorize pari-mutuel wagering on horse racing or greyhound racing at four racetracks now existing in the state.

"The Bill, if enacted into law, would permit any racetrack in the state, whether such racetrack is now existing or may be hereafter established, to conduct skill dependent wagering games ('skill dependent games') for profit through the use of video display electronic equipment ('permitted

equipment'). The Bill defines a skill dependent game as follows

"Any game of chance played by human players on permitted equipment for money or any other form of value in which the outcome of such game, as measured over multiple plays, can be affected by the human players' application of the principles of probability to the rules of such games and the manner in which the equipment is programmed to play such game.

"Permitted equipment is defined in the Bill as follows:

"Any video display electronic device (EXCLUDING ANY SLOT MACHINE) (i) which, within any given time frame, is used to play a skill dependent game, (ii) which can be played upon payment of a consideration, and (iii) which, by reason of the skill of the player or players and the element of chance, may entitle the player or players to receive a payoff, whether automatically from such equipment or in any other manner.

"The Bill does not identify any particular game that is to be considered a skill dependent game, nor does it identify any particular kind of permitted equipment that may be used to play skill dependent games.

"While not identifying the specific kinds of permitted equipment to be authorized for skill dependent games at racetracks, the Bill, in Section 4(c) thereof, expresses the Legislature's intent to authorize the use of every kind of video display wagering equipment generically described by the Bill, whether now in existence or becoming available in the future. The Legislature further expresses its intent that the act proposed by the Bill is to be given effect if a single type of permitted equipment, among the variety generically authorized by the Bill, is determined to provide a game that does not constitute a lottery by reason of the degree of player's skill involved in such game or as the result of other conditions relating to the use of such equipment.

"This resolution should not be construed as requesting the Justices of the Supreme Court to express any opinion on whether any particular item of permitted equipment reflects the rules of any particular game and involves the skill of the player in such manner as will prevent the game, as played on that equipment, from being considered a lottery or gambling by lot. It is recognized that such a question could only be definitively answered by raising the question in a litigated case and presenting the record of that case to the Supreme Court for appellate review.

"Based on the foregoing, the Senate of Alabama presents the following constitutional questions concerning the effect of Section 65 of the Constitution on the Bill:

"(1) Can the Bill authorize gambling at racetracks in a form other than pari-mutuel wagering on racing without violating Section 65, provided that the form of gambling so authorized involves a sufficient degree of skill on the part of the player as to prevent such gambling from being a lottery or gambling by lot?

"(2) Recognizing that the outcome of a bet on a horse or greyhound race depends upon both chance and the effect of objective factors (e.g., the breeding and performance record of the racing contestants) anticipated by a skilled bettor, can the involvement of significant player's skill in the manner contemplated by the Bill, when such skill influences the outcome of a game also influenced by chance, prevent such game, as a matter of law, from being gambling by lot in violation of Section 65?

"(3) Recognizing that the individual bettors on racing vary greatly in their knowledge of the racing contestants and their ability to apply their knowledge for predictive purposes, can differences in skill among individual players be disregarded in determining, as a matter of law, whether the skill dependent games authorized by the Bill constitute gambling by lot in violation of Section 65?

"(4) Can a player's knowledge and skillful use of the relative values of the possible hands of the game of poker and the relative probabilities of such hands being dealt influence the outcome of poker to such degree as will prevent such game, as a matter of law, from being gambling by lot

in violation of Section 65 of the Constitution

"(5) If the game of poker is influenced by the skill of the player to such extent that it does not constitute gambling by lot, can the Bill lawfully authorize the use of permitted equipment to play the game of poker 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?

"RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send nine true copies of this resolution, together with copies of the pending Bill, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution."

In essence, Senate Resolution No. 63 seeks this Court's opinion as to the scope of § 65 of the Alabama Constitution, which 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."

(Emphasis added.)

We preface our discussion of the scope of § 65 by advising, as we have often advised in the past, that the procedure by which this Court renders advisory opinions is fraught with difficulty. One of the problems is that "the opportunity is not generally available for opposing [persons] to present their respective positions." Opinion of the Justices No. 280, 417 So.2d 936, 936 (Ala.1981). Another difficulty results from the fact that the requests come to us without a body of "pertinent facts ... as is usual in the adversary nature of our judicial system." Id. "[E]xpressions 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 questions submitted." Id. at 937. For these reasons, "the opinions of the individual Justices, promulgated under § 12-2-10, Code of Alabama 1975, are not ... binding." 417 So.2d at 937. See also Opinion of the Justices No. 338, 624 So.2d 107 (Ala.1993); Opinion of the Justices No. 214, 294 Ala. 589, 319 So.2d 715 (1975).

The abstractions with which we are often confronted when we consider requests for advisory opinions are particularly prominent in this request, inasmuch as Resolution No. 63 is not "requesting ... any opinion on whether any particular item of permitted equipment reflects the rules of any particular game." (Emphasis added.) In other words, we are asked to consider the scope of § 65 in purely hypothetical contexts--even in the context of devices that may not...