State v. Epic Tech, LLC

• Decision Date: 28 May 2021
• Docket Number: 1200032
• Citation: 342 So.3d 200
• Parties: STATE of Alabama v. EPIC TECH, LLC, et al.
• Court: Alabama Supreme Court

342 So.3d 200

STATE of Alabama

v.EPIC TECH, LLC, et al.

1200032

Supreme Court of Alabama.

May 28, 2021

*Note from the reporter of decisions: Judge Moore, retired circuit judge, 24th Judicial Circuit, was appointed to preside over this case upon the recusal of the circuit judge in the 17th Judicial Circuit.

Steve Marshall, att'y gen., and Edmund G. LaCour, Jr., solicitor gen., A. Barrett Bowdre, deputy solicitor gen., and John L. Kachelman III, asst. att'y gen., for appellant.

Joel E. Dillard of Dillard, McKnight, James & McElroy, LLP, Birmingham, for appellee Epic Tech, LLC.

John M. Bolton, Montgomery, for appellee Greenetrack, Inc.

Sara N. Tower of Stover Law Firm, LLC, Gadsden, for appellee Dream, Inc.

William G. Somerville and Jade E. Sipes of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellees Next Level Leaders and Tishabee Community Center Tutorial Program.

BOLIN, Justice.

The State of Alabama appeals from an order of the Greene Circuit Court dismissing the State's claims seeking injunctive and declaratory relief "to abate a public nuisance of unlawful gambling," pursuant to § 6-5-120, Ala. Code 1975, against some, but not all, of the defendants below. The circuit court certified its order as final pursuant to Rule 54(b), Ala. R. Civ. P. However, we determine that the order was not appropriate for Rule 54(b) certification; therefore, we dismiss the appeal.

Facts and Procedural History

On October 4, 2017, the State sued Pen-Tech, LLC, d/b/a Encore Gaming Group ("Pen-Tech"); Epic Tech, LLC, d/b/a Epic Tech Software LLC and/or Aurify Gaming ("Epic Tech"); Greenetrack, Inc.; The Center for Rural Family Development, Inc., d/b/a Green Charity; Dream, Inc., d/b/a Frontier Bingo; TennTom Community Development, Inc., d/b/a Frontier Bingo;¹ Tommy Summerville Police Support League, Inc., d/b/a Palace Bingo; and Greene County Sheriff Jonathan "Joe" Benison seeking declaratory and injunctive relief "to abate a public nuisance of unlawful gambling," pursuant to § 6-5-120, Ala. Code 1975." The State alleged in its complaint that the defendants "operate, administer, and/or provide gambling devices at one or more of the five casinos" in Greene County where they also "provide hundreds of slot machines and gambling devices in open, continuous, and notorious use"; that this Court has repeatedly held that the "gambling devices," or electronic gaming machines, are illegal and that the game commonly known as "bingo" cannot be played on the machines; and that the continued operation of the electronic gaming machines by the defendants is both illegal and a public nuisance. The State sought a judgment declaring that the gambling activities being conducted by the defendants are a public nuisance and permanently enjoining the defendants from conducting such unlawful gambling activities.²

Also on October 4, 2017, the State moved the circuit court, pursuant to Rule 65(a), Ala. R. Civ. P., for a preliminary injunction to prevent the defendants from using the electronic gaming machines in Greene County; from receiving any moneys in relation to the electronic gaming machines in Greene County; from transporting or providing any additional electronic gaming machines in Greene County;³ and from receiving, utilizing, and/or providing bingo licenses or permits under Amendment No. 743 (Local Amendments, Greene County, § 1, Ala. Const. 1901 (Off. Recomp.)) for the play of electronic bingo in Greene County.4 The State contended that, by continuing to engage in illegal gambling activity, the defendants continue to operate in clear violation of state law, which works an ongoing harm to the State and to private citizens, creating a public nuisance that must be abated immediately by order of the circuit court.

On November 9, 2017, the State amended its complaint to reallege its nuisance claim seeking declaratory and injunctive relief and to add as defendants Next Level Leaders d/b/a Rivers Edge Bingo and Tishabee Community Center Tutorial Program d/b/a Rivers Edge Bingo (collectively referred to as "Rivers Edge Bingo"). On October 4, 2018, the State again amended its complaint to reallege its nuisance claim seeking declaratory and injunctive relief and to add as defendants the nonprofit organizations Woman-to-Woman, Greene County E-911, and the Greene County Volunteer Fire Association.

All the defendants filed motions to dismiss, generally arguing that the State had failed to join necessary parties as required by Rule 19, Ala. R. Civ. P., that the circuit court lacked subject matter-jurisdiction over the action, and that the State had failed to state a claim upon which relief could be granted. Specifically, the defendants stated that the proceeds from the operation of "electronic bingo games" go to fund numerous charitable organizations in Greene County pursuant to Amendment No. 743. The defendants contended that the State had been informed of 10 such charitable organizations that had been identified as necessary additional defendants that had not been served. The defendants argued that those charitable organizations have legally protected interests in the so-called bingo operations that are threatened by the outcome of the State's action and must be joined as necessary parties.

Second, the defendants argued that the State has repeatedly taken the position that Alabama "courts are without subject- matter jurisdiction to adjudicate in civil proceedings matters that should be decided in criminal proceedings." Citizenship Tr. v. Keddie-Hill, 68 So. 3d 99, 106 (Ala. 2011) (summarizing this Court's holding in Tyson v. Macon Cnty. Greyhound Park, Inc., 43 So. 3d 587, 589 (Ala. 2010) ). Here, the defendants asserted, the State has asked the circuit court to determine the criminality of the defendants’ possession and operation of certain electronic gaming machines. Specifically, the defendants pointed out, the State's complaint alleges that that defendants engaged in illegal gambling activities by allegedly possessing the electronic gaming machines, an action the State says has been "specifically criminalized." The defendants noted that § 13A-12-27(b), Ala. Code 1975, makes "[p]ossession of a gambling device ... a Class A misdemeanor." The defendants argued that, because the State is asking the circuit court to decide an issue in a civil case that must be decided under the criminal laws, the circuit court lacked subject-matter jurisdiction to hear the case.

Third, the defendants argued that the State's complaint should be dismissed pursuant to Rule 12(b)(6), Ala. R. Civ. P., because, they asserted, the State did not have the authority to bring this action. Specifically, the defendants contended that the statute that permitted the State to obtain an injunction to abate a public nuisance involving gaming -- former § 13-7-90, Ala. Code 1975 -- has been repealed. See Wilkinson v. State ex rel. Morgan, 396 So. 2d 86, 88 (Ala. 1981). Further, the defendants argued that their licenses, issued pursuant to the regulatory framework created pursuant to Amendment No. 743, to operate bingo games in Greene County barred the State's nuisance claim because, they alleged, those licenses were intended to encourage a business activity that the relevant governmental authority licenses and a license to conduct a certain activity shields the activity from legal attack as a public nuisance. Thus, the defendants argued that the State has failed to state a claim upon which relief could be granted.

The State responded by arguing that the absent parties identified by the defendants were not necessary to adjudicate the claims in this case. The State contended that this case specifically focused on the State's request to enjoin the activities of the defendants, who, the State alleged, were allowing or conducting the illegal gambling operations in Greene County; the State asserted that it had sued the defendants because they had been identified by the State as the parties that were licensing, permitting, running, or promoting the "electronic gambling" operations in Greene County. Without any indication or proof that the absent parties were responsible for the illegal actions giving rise to the nuisance, the State argued, there was no reason to require their involvement in the case.

The State further argued in its response that it has properly pleaded in its complaint that a nuisance, composed of licensing, permitting, marketing, and offering illegal gambling devices, is ongoing in Greene County. The State argued that any contention by the defendants that its nuisance claim is based on former § 13-7-90, Ala. Code 1975, which was repealed by Act No. 607, § 9901, Ala. Acts 1977, effective May 17, 1978, is misplaced and inapplicable. The State agreed that this particular statute has been repealed and is inapplicable; however, the State contended that its repeal does not preclude the State from acting on behalf of its citizens and upholding the laws of this state, that the repeal of § 13-7-90 may have eliminated a specific statute the State could have used to seek abatement of an illegal gambling nuisance, but that the principles the State relies on are firmly entrenched in Alabama law and govern this action.

The State also argued in its response that it had the authority to bring the public-nuisance claim against the defendants to end their alleged illegal gambling operations. As explained earlier in this opinion, the defendants argued in their motions to dismiss that the circuit court was without jurisdiction to adjudicate this action because, they asserted, the circuit court lacked jurisdiction to adjudicate in civil proceedings matters that should be decided in criminal proceedings. In response the State noted that targets of potential criminal prosecution cannot invoke the jurisdiction of a civil court to enjoin or interfere with the State's enforcement of its criminal laws. See Tyson v. Jones, 60 So. 3d 831 (Ala. 2010). However, the State explained that, here, no...