Case Nos. 1141044 and 1150027 ════════════════════════════════════════════════

IN THE SUPREME COURT OF ALABAMA

────────────────────────────────── STATE OF ALABAMA, Appellant,

V.

$223,405.86 et al., Appellees.

──────────────────────────────────

KC ECONOMIC DEVELOPMENT, LLC, Cross-Appellant,

V.

STATE OF ALABAMA, Cross-Appellee.

──────────────────────────────────

On appeal from the Circuit Court of Macon County (Hon. William Shashy, sitting by designation,

CV-13-900031)

════════════════════════════════════════════════

REPLY BRIEF OF THE STATE OF ALABAMA

════════════════════════════════════════════════

LUTHER STRANGE Attorney General Andrew L. Brasher Solicitor General John L. Kachelman III Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 (334) 353-2609 (334) 242-4891 (fax) abrasher@ago.state.al.us Attorneys for Appellant/Cross-Appellee

════════════════════════════════════════════════

E-Filed 12/30/2015 @ 03:38:28 PM Honorable Julia Jordan Weller Clerk Of The Court

i  

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... ii 

INTRODUCTION .............................................. 1 

SUMMARY OF ARGUMENT ....................................... 2 

ARGUMENT .................................................. 4 

I. The meaning of Amendment 744 is not an open question under this Court’s case law .................. 4 

A.   County-specific litigation is not required to define the meaning of cut-and-paste local amendments ....................................... 5 

B.  This Court has clearly held that Cornerstone is the law everywhere ............................ 7 

C.  The lower court should have applied Cornerstone to determine the legality of the machines in this case ........................... 10 

II.  Principles of originalism and constitutional interpretation do not support KCED’s position ........ 13 

A.  Objective meaning, not subjective intent, controls in constitutional analysis ............. 13 

B.  Heller supports the State’s position ............ 17 

C.  KCED never explains what, under its view, Amendment 744 allows and disallows .............. 21 

D.  To the extent subjective intent matters, KCED’s revisionist history is simply not credible ........................................ 22 

III. The State did not violate the Equal Protection Clause ............................................... 25 

IV. KCED concedes that the gambling proceeds and devices are forfeit under this Court’s Cornerstone test ................................................. 25 

CERTIFICATE OF SERVICE ................................... 27 

ii  

TABLE OF AUTHORITIES

Cases 

Barber v. Cornerstone Comty. Outreach, Inc., 42 So. 3d 65 (Ala. 2009) ............................ passim

Barrett v. State, 705 So. 2d 529 (Ala. Crim. App. 1996) .................... 8

City of Piedmont v. Evans, 642 So. 2d 435 (Ala. 1994) ............................... 8

District of Columbia v. Heller, 554 U.S. 570 (2008) ............................. 18, 19, 20

Ex parte State, 121 So. 3d 337 (Ala. 2013) ....................... 9, 10, 11

Ex parte Williams, 838 So. 2d 1028 (Ala. 2002) ............................. 11

HEDA v. State, 168 So. 3d 4 (Ala. 2014) ............................. 9, 10

Hope For Families & Cmty. Serv., Inc. v. Warren, 721 F. Supp. 2d 1079 (M.D. Ala. 2010) ................... 24

McDonald v. Chicago, 561 U.S. 742 (2010) ..................................... 18

State v. Greenetrack, Inc., 154 So. 3d 940 (Ala. 2014) ........................... 9, 10

Statutes 

25 U.S.C. § 2703 ..................................... 17, 23

Other Authorities 

Antonin Scalia & Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (2012) .................... 14

Antonin Scalia, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (Amy Gutmann ed. 1998) ............... 15

iii  

Antonin Scalia, A Theory of Constitution Interpretation, Remarks at The Catholic University (October 18, 1996) .................................. 15, 16

H.R. 298, Reg. Sess. (Ala. 2000) ......................... 23

Kim Chandler, Former Attorney General Troy King forms company to promote bingo game, Al.com (April 20, 2013) ................................................... 21

Lewis Carroll, THROUGH THE LOOKING-GLASS AND WHAT ALICE FOUND THERE (PDFreeBooks.org 1995)(1871) ................. 1

Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417 (1899) ............. 15

Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291 (2002) .................................................. 15

Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 Geo. L.J. 1113 (2003) .............. 15

1  

INTRODUCTION

“I don’t know what you mean by ‘glory’,” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t -- till I tell you. I meant ‘there's a nice knock-down argument for you!’”

“But ‘glory’ doesn't mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean -- neither more nor less.”

-- Lewis Carroll, THROUGH THE LOOKING-GLASS AND WHAT ALICE FOUND THERE 46 (PDFreeBooks.org 1995)(1871)

KC Economic Development’s (“KCED”) brief goes all-in on

the Humpty-Dumpty theory of constitutional interpretation.

But the word “bingo” in Amendment 744 does not mean “a game

played on slot machines” just because that is what

Amendment 744’s proponents “choose it to mean.” Amendment

744 is not modeled on any statute--whether federal or from

another state--that has ever been interpreted to allow

electronic gambling. Instead, it is a verbatim cut-and-

paste from Alabama’s other local constitutional amendments,

which have always been interpreted to allow only the

traditional game of bingo. There is no textual “hook” for

reading Amendment 744 differently.

2  

We will address a few of KCED’s specific points in this

reply brief, but our respective legal positions are ships

passing in the night. The State’s position is that the text

of the law matters. The State’s position is that the public

does not need a bench trial on “voter intent” to determine

what a law means--especially when the law uses the exact

same language as other laws on the exact same subject. The

State’s position is that, if the voters in Macon County

want VictoryLand to operate slot-machine-style casino

games, they should pass a law that says something remotely

similar to that. But VictoryLand cannot operate slot

machines under an amendment that provides for the game of

“bingo.”

SUMMARY OF ARGUMENT

The lower court’s decision should be reversed and the

seized proceeds and devices declared forfeit. KCED’s

contrary position rests on an unsupportable interpretation

of this Court’s precedents, a misguided view of established

principles of constitutional interpretation, and an

implausible reading of the factual record in this case.

The lower court erred in declining to apply the six-

part test for “bingo” that this Court established in

3  

Cornerstone. Amendment 744, which is at issue in this case,

is the same in all relevant respects to the local amendment

the Court addressed in Cornerstone. This Court held in

Cornerstone, and in follow-on cases, that the Cornerstone

test applies to all local amendments generally and to

Amendment 744 specifically. Under principles of stare

decisis, the lower court was not at liberty to make up some

new definition of “bingo.” The lower court should have

applied the Cornerstone test.

But, to the extent the meaning of “bingo” in Amendment

744 is an open question, the Court should adopt the

Cornerstone test. KCED’s argument for a more expansive

definition of “bingo” fails for several reasons. First, it

is based on evidence of the subjective intent of the

amendment’s sponsors and supports, not evidence of the

objective meaning of the words the amendment uses. Second,

the U.S. Supreme Court’s decision in Heller undermines

KCED’s position because that decision rests on the kind of

textual analysis that KCED eschews. Third, KCED’s competing

definition is not really a definition at all; it would

allow any form of gambling to be re-characterized as

“bingo,” including table games and lottery tickets. Fourth,

4  

to the extent the subjective intent of the Legislature

matters, the record reflects only that some of Amendment

744’s backers intended to use non-profit bingo as a

loophole for for-profit electronic gambling.

Our initial brief adequately explains why the lower

court’s sua sponte equal protection ruling was erroneous,

and we do not replow that ground in this brief.

Our initial brief explained at great length that KCED’s

gambling devices and proceeds are subject to forfeiture.

KCED does not argue that its gambling activities are

“bingo” under the Cornerstone test. Accordingly, there is

no dispute that, if Cornerstone applies, the State’s

forfeiture petition should be granted.

ARGUMENT

I. The meaning of Amendment 744 is not an open question under this Court’s case law.

KCED’s principal argument is that the word “bingo” in

Amendment 744 means something materially different than it

means in every other local bingo amendment in Alabama. The

circuit court belatedly adopted this argument after KCED

filed its post-judgment motion. But the meaning of the

word “bingo” in Amendment 744 is not an open question under

this Court’s case law.

5  

A. County-specific litigation is not required to define the meaning of cut-and-paste local amendments.

As an initial matter, KCED’s argument is based on the

erroneous assumption that a judicial opinion construing a

particular local amendment does not control when the same

language is used in another local amendment on the same

subject matter. Although the Court’s decision in Barber v.

Cornerstone Comty. Outreach, Inc., 42 So. 3d 65 (Ala.

2009), arose out of a dispute in Lowndes County, this

Court’s definition of the word “bingo” should naturally

apply to the same term in the same amendment that applies

to Macon County. There is no relevant textual difference

between the two amendments. As we explained in our initial

brief, commonsense principles of interpretation require

that courts define the same word the same way when it

appears in two or more laws on the same subject. See State

Br. 33-34.

The lower court’s contrary view is not only legally

erroneous; it is also deeply impractical. Alabama’s

Constitution is chock full of local amendments that are

verbatim replicas of each other. Here are two examples by

subject matter:

6  

Economic development: Amendment 84 (Marion); Amendment 94 (Fayette); Amendment 95 (Blount); Amendment 128 (Bullock); Amendment 183 (Autauga); Amendment 186 (Franklin); Amendment 188 (Greene); Amendment 189 (Lamar); Amendment 190 (Lawrence); Amendment 197 (St. Clair); Amendment 217 (Clarke); Amendment 250 (Sumter); Amendment 263 (Geneva); Amendment 302 (Pickens); Amendment 646 (Marengo); Amendment 312 (Bibb); Amendment 313 (Hale); Amendment 679 (Chilton); Amendment 725 (Covington); Amendment 729 (Henry)

Prohibiting Occupational Tax: Amendment 813 (DeKalb);

Amendment 817 (Jackson); Amendment 841 (Madison); Amendment 842 (Morgan); Amendment 843 (Limestone); Amendment 844 (Lawrence); Amendment 848 (Cullman); Amendment 858 (Baldwin); Amendment 859 (Tuscaloosa)

Under the lower court’s view, a binding Supreme Court

opinion on the meaning of the word “privilege or license

tax” in Amendment 813, which applies in DeKalb County,

would not control the meaning of the exact same phrase in

Amendment 859, which applies to Tuscaloosa County. That

would be a recipe for uncertainty and confusion, requiring

county-specific litigation to determine the meaning of

verbatim, cut-and-paste local amendments.

If local amendments use different words, then they

might need to be interpreted and applied differently. But

this Court should not leave open the possibility that the

words in one local amendment mean something different than

the same words in another, verbatim, amendment. The only

7  

way to make sense of Alabama’s numerous cut-and-paste local

amendments is to treat them all the same.

B. This Court has clearly held that Cornerstone is the law everywhere.

KCED’s argument is also erroneous because this Court

has clearly and specifically held that the Cornerstone test

applies to Amendment 744.

By its very terms, Cornerstone controls the definition

of “bingo” in Amendment 744. First, the Court in

Cornerstone comprehensively examined the ordinary meaning

of the term “bingo” as used in Alabama’s local amendments

and made a pronouncement for the express purpose of binding

lower courts and local government actors. In doing so, it

evaluated the full panoply of objective, publicly-available

documents with a bearing on these amendments’ meaning:

contemporaneous statutes, other States’ similar laws, and

the structure of the amendments themselves. See

Cornerstone, 42 So. 3d at 79.

Amendment 744, which is at issue here, is a verbatim

cut-and-paste from Alabama’s similar local amendments. Of

the eighteen “bingo” amendments in Alabama, Cornerstone

discussed and referenced three directly, including

Amendment 743 (Greene County), which was enacted at the

8  

same time as Macon County’s Amendment 744. The Court

explained that, even though Amendment 743 mentions

“electronic marking machines,” it “contemplates a game in

all material respects similar to the game of bingo

described in § 45–8–150(1), and something that is

materially different from the types of electronic gaming

machines at issue here.” Id. at 80. The obvious implication

from this holding is that amendments such as Amendment 744,

which do not mention electronic machines at all, do not

allow the type of “electronic gaming machines at issue

here.”

Second, Cornerstone applied longstanding precedent

concerning the construction of Alabama’s anti-gambling

laws. Because of the strong public policy against lotteries

as expressed in Section 65 of the Alabama Constitution,

local bingo amendments must be construed narrowly. See

Cornerstone, 42 So. 3d at 78–79. (citing Barrett v. State,

705 So. 2d 529 (Ala. Crim. App. 1996) and City of Piedmont

v. Evans, 642 So. 2d 435, 436 (Ala. 1994)). These

principles of interpretation were well-established when

Amendment 744 was enacted.

9  

Third, Cornerstone created a specific framework for

lower courts and local government actors to determine

whether a game is “bingo.” Before Cornerstone, no clear

definition for “bingo games” existed in state law. The

Court’s six-factor test for the legal definition of “bingo”

resolved “legal questions” over the meaning of “bingo” that

were “likely to recur and indeed already have recurred” in

“other locales.” Cornerstone, 42 So. 3d at 77. The Court

thus “ascrib[ed] meaning to the term ‘bingo’” not only for

the Lowndes County amendment at issue in that appeal, but

also for “similar amendments applicable to other locales.”

Id. at 77 n.9. The Court in Cornerstone made it crystal

clear that its ruling applied to all “similar amendments

applicable in other locales.” Id.

The words this Court used in Cornerstone should have

been enough to establish that its test controlled all local

bingo amendments. But it was not. So, over the past

several years, this Court has expressly reinforced its

holding in Cornerstone and directly applied it to other

local amendments. See Ex parte State, 121 So. 3d 337 (Ala.

2013); State v. Greenetrack, Inc., 154 So. 3d 940 (Ala.

2014); HEDA v. State, 168 So. 3d 4 (Ala. 2014). Indeed,

10  

the Court has expressly held that the Cornerstone test

applies in every county that has a constitutional amendment

allowing charitable bingo. See Greenetrack, 154 So. 3d at

959 (“the game of ‘bingo’ as that term is used in local

constitutional amendments throughout the State is that game

‘commonly or traditionally known as bingo,’... this game is

characterized by at least the six elements we identified in

Cornerstone.”)(emphasis added); HEDA v. State, 168 So. 3d

at 11 (“we have since stated that our analysis in

Cornerstone is applicable to the other local bingo

constitutional amendments in this State”)(emphasis added).

This Court even held that the Cornerstone test specifically

applies to Amendment 744 (Macon County). Ex parte State,

121 So. 3d at 356 (“that test, which refers to the game

commonly and traditionally known as ‘bingo’ and then

describes further elements of that game, is more than clear

enough to serve as guide in measuring the facts of this

case”).

C. The lower court should have applied Cornerstone to determine the legality of the machines in this case.

KCED makes essentially two arguments in support of its

position that the Cornerstone test does not apply to

11  

Amendment 744 as a matter of stare decisis. Neither is

persuasive.

First, KCED erroneously argues that Cornerstone’s

holding is dicta. A holding is dicta only if it is “not

essential to the judgment of the court.” See Ex parte

Williams, 838 So. 2d 1028, 1031 (Ala. 2002). Here, however,

the definition of “bingo” under all of Alabama’s similarly-

drafted local amendments was necessary to determine the

merits of the Cornerstone case. The Court expressly said

as much: “In order to address this element in the present

case, we must first ascribe meaning to the term ‘bingo,’

the term that is used in the constitutional amendment at

issue here and similar amendments applicable to other

locales.” Cornerstone, 42 So. 3d at 77 n.9 (emphasis

added). Moreover, the Court specifically extended the

application of Cornerstone to Amendment 744 when it ordered

that a search warrant be issued for the VictoryLand

facility. Ex parte State, 121 So. 3d at 356 (“that

[Cornerstone] test, which refers to the game commonly and

traditionally known as ‘bingo’ and then describes further

elements of that game, is more than clear enough to serve

as guide in measuring the facts of this case”). Even if the

12  

Cornerstone test was dicta when it was announced, it was

not dicta when it was expressly applied to Amendment 744 in

Ex parte State.

Second, KCED argues that this Court in Ex Parte State

held that the trial court could make up its own law when it

evaluated the State’s forfeiture petition. Specifically,

KCED cites this Court’s admonition in Ex Parte State that,

in granting the warrant, it was not deciding whether the

contraband was necessarily illegal. See KCED Br. 36-37.

KCED misunderstands this portion of the Court’s opinion.

The Court meant that it could not, and would not, prejudge

the legality of the seized contraband based on the search

warrant record. This line of the opinion is not a

permission slip to create idiosyncratic legal standards

that contravene this Court’s prior precedents.

The lower court should have applied this Court’s case

law to determine whether the seized machines and proceeds

are forfeit. There is no dispute that these machines and

proceeds do not meet the Cornerstone test. Accordingly, the

lower court should have granted the State’s petition for

forfeiture.

13  

II. Principles of originalism and constitutional interpretation do not support KCED’s position. As explained above, the meaning of the word “bingo” in

Amendment 744 is not an open question. But, to the extent

the question is open, the Court should use the definition

of “bingo” from Cornerstone. KCED’s argument to the

contrary is based on a misguided caricature of originalism.

KCED argues that Amendment 744 allows “electronic bingo”

because that is what its sponsors told the public they

intended it to allow. In support of this argument, KCED

cites testimony from the amendment’s sponsors, evidence of

town-hall meetings, and flyers distributed by those who

supported and opposed the amendment. See generally KCED Br.

12-21. KCED’s argument fails for several reasons.

A. Objective meaning, not subjective intent, controls in constitutional analysis.

The primary problem for KCED is that the meaning of a

legal text is not controlled by the subjective intentions

of its authors or ratifiers. Although KCED’s brief waxes

philosophic about democracy, its theory of interpretation

is incompatible with the rule of law in a free society. The

State, private businesses, and the general public must be

able to ascertain what a law prohibits or requires based on

14  

the ordinary meaning of its text, not the meaning that a

judge might ascribe based on his view of evidence at a

bench trial. On KCED’s theory, code books and judicial

opinions are pointless: the only way to know what a

provision prohibits or allows is to attend a political

rally, read an advertisement, or talk to a local

legislator. This is a deeply provincial and undemocratic

way to understand the law.

Fortunately, KCED’s theory is not the way

constitutional interpretation actually works.

Constitutional interpretation is not about determining the

subjective intent of the drafters or ratifiers of an

amendment. Constitutional interpretation is about

determining the objective meaning of the words that they

used. “Subjective intent is beside the point. . . .

Objective meaning is what we are after.” Antonin Scalia &

Bryan A. Garner, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS 30 (2012).

Properly understood, constitutional analysis must be

directed at “the original meaning of the text, not what the

original draftsmen intended.” Antonin Scalia, A MATTER OF

INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Amy Gutmann

15  

ed. 1998). “[I]t is what the text means that counts, not

what any particular body or group intended, expected, or

understood.” Vasan Kesavan & Michael Stokes Paulsen, The

Interpretive Force of the Constitution's Secret Drafting

History, 91 Geo. L.J. 1113, 1132 (2003). As Justice Scalia

has explained,

The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent . . .

Antonin Scalia, A Theory of Constitution Interpretation,

Remarks at The Catholic University (October 18, 1996).1

                                                            1 available at http://web.archive.org/web/19980119172058/www.courttv.com/library/rights/scalia.html (last visited on Dec. 23, 2015). See also Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899) (“We do not inquire what the legislature meant; we ask only what the statute means.”); Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 Cal. L. Rev. 291, 398 (2002) (“If the object is to ascertain the meaning of the Constitution as a written document--to discover the content of the rules and standards contained therein, so as to apply them faithfully--we believe the appropriate search is for the original public meaning of the Constitution's language. That is, the meaning the

16  

A free society is governed by rules that are fixed and

ascertainable, not by the loudest voice at a town hall

meeting. As an example, we submit that a constitutional

amendment that legalizes medical marijuana would not

legalize recreational marijuana, even if that is what its

supporters publicly wanted and its critics publicly feared.

Similarly, a law assessing a sales tax will not necessarily

increase spending on schools, even if the law’s supporters

tell the public that the tax will fund education and the

public votes for the tax based on that understanding. In

the same way, an amendment that legalizes non-profit

“bingo” does not allow slot-machine-style gambling, no

matter what the law’s sponsors subjectively intended or

told the public. We are “bound not by the intent of our

legislators, but by the laws which they enacted.” Id.

A proper interpretation of Amendment 744 would mirror

this Court’s analysis in Cornerstone. See 42 So. 3d at 79

(“[t]he intention [of the people] is collected from the

words of the instrument, read and interpreted in the light

                                                                                                                                                                                                

language would have had (both its words and its grammar) to an average, informed speaker and reader of that language at the time of its enactment into law.”).

17  

of its history”). Amendment 744 is a verbatim cut-and-paste

from Alabama’s other local bingo amendments. It was enacted

after the Alabama courts had already construed those

amendments to allow only the ordinary game of bingo. It is

an exception to Alabama’s well-established public policy

against gambling, which must be narrowly construed. There

is no dictionary anywhere that defines “bingo” as a rapid-

fire game played on slot machines. Where other States have

expressly defined “bingo,” they have defined it in a way

that precludes the kind of “electronic bingo” at issue

here. See id. at 81-86. For its part, federal law expressly

allows Indian tribes to play “bingo” with “electronic,

computer, or other technologic aids,” which indicates that

the word “bingo” by itself does not encompass so-called

“electronic bingo.” See 25 U.S.C. § 2703. Regardless of

what Amendment 744’s drafters or supporters may have

subjectively intended, the objective meaning of the word

“bingo” in Amendment 744 does not encompass the kind of

games at issue in this litigation.

B. Heller supports the State’s position.

To support its theory of constitutional interpretation,

KCED relies extensively on District of Columbia v. Heller,

18  

554 U.S. 570 (2008), in which the Court held that the

Second Amendment protects an individual’s right to bear

arms, not merely a State’s right to organize a militia. But

the Supreme Court’s analysis in Heller actually shows how

KCED’s “voter intent” argument is wrong.

The Court in Heller never asked what a particular group

of drafters or voters intended, as a factual matter, when

the country ratified the Second Amendment. Instead, the

Court’s opinion in Heller begins with an extensive textual

analysis of the Second Amendment, from which it concludes

that the Second Amendment protects an individual’s right to

bear arms. Id. at 592. Only after reaching that conclusion

as a textual matter does the Court note that the conclusion

“is strongly confirmed by the historical background of the

Second Amendment.” Id. at 592. Because the Second Amendment

expressly “codified a pre-existing right,” the Court

examined the common law, ratification debates, and other

sources to determine the ordinary understanding of that

pre-existing common-law right. Id. See also McDonald v.

Chicago, 561 U.S. 742, 767–768 (2010) (the right to bear

arms is “deeply rooted in this Nation’s history and

tradition” and “one of the fundamental rights of

19  

Englishmen”). The Court also reviewed contemporaneous legal

documents, such as “analogous arms-bearing rights in state

constitutions that preceded and immediately followed

adoption of the Second Amendment.” Heller, 554 U.S. at 600-

01.

Heller does not support KCED’s position. Here, of

course, we are not dealing with the understanding of a pre-

existing common-law right. And, unlike the Court in Heller,

KCED does not refer to publicly available legal documents

to divine the ordinary meaning of Amendment 744’s terms. In

fact, KCED does not attempt a textual analysis of Amendment

744 at all. KCED (1) ignores Alabama’s historical and

well-established policy against gambling, even though

Heller relied extensively on the common law’s background

recognition of the right to bear arms; (2) ignores the fact

that Amendment 744 is a cut-and-paste from other bingo

amendments, even though Heller relied on contemporaneous

state constitutional provisions to interpret the Second

Amendment; and (3) has nothing to say about how the Alabama

courts had already interpreted local bingo amendments to

allow only the ordinary game of bingo when Amendment 744

was enacted, even though the Court in Heller relied on

20  

existing legal precedents and doctrines to understand the

Second Amendment.

KCED’s analysis actually mirrors the legally erroneous

dissenting opinion in Heller. Instead of relying on sources

of objective meaning, KCED argues that “bingo” in Amendment

744 means “electronic bingo” because that was the specific

intent of its drafters and ratifiers. This is the same

kind of erroneous reasoning the dissent in Heller used to

argue that the Second Amendment secured only the States’

right to a militia, not an individual right to bear arms:

The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States' militias as the means by which to guard against that danger. . . . The evidence plainly refutes the claim that the Amendment was motivated by the Framers' fears that Congress might act to regulate any civilian uses of weapons.

Heller, 554 U.S. at 661-62 (Stevens, J., dissenting).

Indeed, the dissent in Heller criticized the majority for

“giv[ing] short shrift to the drafting history of the

Second Amendment” in the same way KCED criticizes the State

in its brief. Id. Heller does not support KCED’s position.

21  

C. KCED never explains what, under its view, Amendment 744 allows and disallows.

Another fatal problem with KCED’s approach is that it

lacks any limiting principle. Although KCED does not like

this Court’s definition of “bingo” in Cornerstone, it does

not propose a competing definition of its own. KCED repeats

over-and-over that Amendment 744 was intended to allow “all

forms of bingo,” but KCED never explains what that term

means. What are “all forms of bingo?” If bingo can be

played on connected slot machines, can it also be played on

a craps table as former Attorney General Troy King has

suggested?2 Can bingo be played on a roulette table with a

roulette wheel like the “rou-bingo” this Court addressed in

HEDA? Does Amendment 744 allow “instant bingo,” which is

played on a scratch-off lottery ticket?

Under KCED’s analysis, there is no difference between

“bingo” and any other type of gambling. There is nothing

that Amendment 744 does not authorize. KCED is not

proposing a counter-definition of “bingo,” just a blank

check.                                                             2 See, e.g. Kim Chandler, Former Attorney General Troy King forms company to promote bingo game, Al.com (April 20, 2013), available at http://blog.al.com/wire/2013/04/troy_king_promoting_bingo_game.html (last visited on Dec. 28, 2015).

22  

D. To the extent subjective intent matters, KCED’s revisionist history is simply not credible.

Finally, to the extent it matters, there are also

several significant problems with KCED’s view of the

evidence on subjective intent.

First, it is facially absurd for KCED to claim that the

Alabama Legislature unanimously passed Amendment 744 with

the specific intent of allowing slot-machine-style

electronic gambling. If it were really true that every

legislator in the House and Senate subjectively intended to

allow “electronic bingo” in Macon County, then this case

would not be in court. The Legislature would have clarified

its intent to allow “electronic bingo” in Macon County a

long time ago.

The structure of the amendment also makes it especially

unreasonable to believe that the Legislature subjectively

intended to legalize casino-style gambling. If the

Legislature had intended to legalize casino-style gambling,

it would not have left that gambling (1) untaxed and (2)

regulated by a local sheriff’s office. A bill to legalize

electronic gambling in Macon County would look a lot like

HB298, which Representative Johnny Ford introduced in the

2000 legislative session. That bill provided for electronic

23  

gambling at VictoryLand, taxation, state regulation, payout

ratios, and an “electronic linkage between different items

of equipment.” See H.R. 298, Reg. Sess. (Ala. 2000).

That bill failed. The fact that Amendment 744 passed

unanimously three years later--without any of those key

provisions--is very strong evidence that members of the

Legislature did not understand it to allow highly

controversial casino-style gambling.

Second, KCED is drawing the wrong inference from the

fact that Indian tribes were playing so-called “electronic

bingo” in 2003. As we have already explained, the statute

that governs that activity expressly allows the use of

“electronic, computer, or other technological aids.” 25

U.S.C. § 2703. It would have been very easy for the

Legislature to cut-and-paste the federal law that applies

to Indian tribes, instead of the state law that applies to

other Alabama counties. But the Legislature did not

incorporate federal law into Amendment 744. The Court must

respect the Legislature’s decision to copy language that

governed locations where so-called “electronic bingo” was

not being played, instead of the federal law that governs

Indian gambling.

24  

Third, it makes no sense for KCED to claim that

Amendment 744 was drafted with “economic development” in

mind. Amendment 744 provides for non-profit bingo.

Legalizing non-profit activity is not an economic-

development plan. Only if one ignores everything about

Amendment 744’s text does it make sense to view it as a

tool for attracting private investment. And that is

apparently what happened in Macon County from 2003 to 2008:

According to the United States District Court for the

Middle District of Alabama, VictoryLand paid less than 1%

of its “electronic bingo” gross profits to charity even

though it was ostensibly operating for the charities’

benefit. See Hope For Families & Cmty. Serv., Inc. v.

Warren, 721 F. Supp. 2d 1079, 1102 at n.31 (M.D. Ala.

2010). Fairly construed, the record reflects only that some

of Amendment 744’s backers subjectively intended to use

non-profit bingo as a loophole through which to bring for-

profit casino-style gambling to Macon County.

* * *

The goal of constitutional interpretation is to arrive

at the objective, ordinary meaning of a word or phrase. An

individual legislator’s subjective intent does not control,

25  

even if he expressed that intent in advertisements,

handbills, and public meetings. Amendment 744 is a verbatim

cut-and-paste from other local bingo amendments. The

Legislature could have incorporated a very different

federal law, but it declined to do so. The ordinary,

objective meaning of the word “bingo” in Amendment 744 is

the same as in Alabama’s other local amendments.

III. The State did not violate the Equal Protection Clause.

KCED’s brief treats the trial court’s sua sponte equal-

protection-clause ruling as an afterthought. We will take

the same tact. That issue is sufficiently covered in the

State’s initial brief.

IV. KCED concedes that the gambling proceeds and devices are forfeit under this Court’s Cornerstone test.

The State proved that the seized gambling devices and

proceeds are illegal contraband under the Cornerstone test.

KCED does not suggest otherwise. Accordingly, unless this

Court concludes that Amendment 744 authorizes something

completely different than every other local bingo amendment

in Alabama, the Court should order the seized proceeds and

devices to be forfeit.

26  

Respectfully submitted,

Luther Strange Attorney General

BY:

s/ Andrew L. Brasher Andrew L. Brasher Solicitor General John L. Kachelman, III Assistant Attorney General OF COUNSEL:

Office of the Attorney General 501 Washington Avenue Montgomery, AL 36130 (334) 353-2609 (334) 242-4891 (fax) abrasher@ago.state.al.us

27  

CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of December,

2015, a copy of the above and foregoing document has been

filed with the Clerk of the Court using the Appellate

Courts e-Filing System and served by electronic mail to all

parties of record.

John Bolton Charlanna Skaggs Hill Hill Carter Franco Cole & Black P.O. Box 116 Montgomery, AL 36101 jbolton@hillhillcarter.com cskaggs@hillhillcarter.com

Joe Espy III William Martin Espy James Flynn Mozingo P.O. Box 5130 Montgomery, AL 36103 jespy@mewlegal.com wespy@mewlegal.com fmozingo@mewlegal.com

Craig Izard P.O. Box 130277 Birmingham, AL 35213 cizard@bham.rr.com

s/ Andrew L. Brasher Andrew L. Brasher Solicitor General