Petition for Writ of Certiorari — Jefferson County County Racing Association Association Association, Inc. v. Barber (No. 06-1363)
Supreme Court brief2006
Ask Donna
What actually matters in this document.
Text
No. QO 6) 56 2 APR 1+ Onn?
In The
Supreme Court of the Anited States
JEFFERSON COUNTY RACING ASSOCIATION, INC.,
D/B/A THE BIRMINGHAM RACE COURSE,
Petitioner,
v.
DAVID BARBER, IN HIS CAPACITY AS DISTRICT
ATTORNEY OF JEFFERSON COUNTY, ALABAMA,
Respondent.
¢
On Petition For A Writ Of Certiorari
To The Supreme Court Of Alabama
6
PETITION FOR WRIT OF CERTIORARI
*
WILLIAM M. SLAUGHTER JOHN M. BOLTON III
Counsel of Record SASSER, BOLTON, STIDHAM
J. MICHAEL REDIKER & SEFTON, PLC.
MICHAEL C, SKOTNICKI 100 Colonial Bank Boulevard
PETER J. TEPLEY P.O. Box 24127
VINCENT J. GRAFFEO Montgomery, AL 36117
HASKELL SLAUGHTER YOUNG Telephone: (334) 532-3400
& REDIKER, LLC Siceiaid tin ksi
2001 Park Place North /ounsel for pce
1400 Park Place Tower
Birmingham, AL 35203
Telephone: (205) 251-1000
J. MARK WHITE
AUGUSTA S. DOWD
WILLIAM M. BOWEN, JR.
WHITE ARNOLD ANDREWS
& Down PC.
2025 3rd Avenue North,
Suite 600
Birmingham, AL 35203
Telephone: (205) 323-1888
COCKLE LAW BRIEF PRINTING CO) S00) 275-8964
OR CALL COLLECT «402: 342-2531
II.
IIl.
QUESTION PRESENTED FOR REVIEW
Whether a candidate for state judicial office exercis-
ing the First Amendment freedom of speech right to
present his or her opinion on legal and political issues
to voters, as recognized by this Court in Republican
Party of Minnesota v. White, 5386 U.S. 765 (2002),
bears a concurrent responsibility as a judge to recuse
or be disqualified if an appearance of partiality is cre-
ated by that expression of opinion in order to protect a
litigant’s right under the Fourteenth Amendment to
Due Process of law?
Whether a litigant’s Fourteenth Amendment Due
Process rights are violated when: (a) the chief justice
of a state’s highest appellate court (who sits on all ap-
peals), as well as the court itself, fail to respond in
any way to a fact-supported motion for recusal ad-
dressed to both the chief justice and the court; (b) the
court’s opinion gives no indication of the degree of the
chief justice’s involvement; (c) the court fails to record
a vote for the chief justice although there are indica-
tions he participated in the deliberations; and (d) both
the chief justice and the court again fail to address
the issue of his involvement in the appeal when the-
issue was directly raised on application for rehearing?
Whether the Due Process protections of the Four-
teenth Amendment require that a state appellate
court ruling be vacated when one or more appellate
judges who participated in the appeal improperly
failed to recuse in response to a party’s recusal mo-
tion?
PARTIES TO THE PROCEEDINGS
Petitioner:
Jefferson County Racing Association, Inc., d/b/a the
Birmingham Race Course
Respondent:
David Barber, in his capacity as District Attorney of
Jefferson County, Alabama
The following party was also an appellee in the
Supreme Court of Alabama, but is not a petitioner in this
petition, and is being served as a respondent herein:
Innovative Sweepstakes Systems, Inc.
The following are not parties hereto, but were amicus
curiae in the proceedings before the Supreme Court of
Alabama in support of the Respondent, and are being
served as respondents herein:
Bob Riley, Governor of Alabama
Troy King, Attorney General of Alabama
Foundation for Moral Law
ill
RULE 29.6 STATEMENT
Pursuant to Supreme Court Rule 29.6, Jefferson
County Racing Association, Inc., d/b/a the Birmingham
Race Course (“JCRA”), a nongovernmental corporation,
submits this corporate disclosure statement:
JCRA has no parent corporation. There is no publicly
held corporation that owns ten percent or more of JCRA’s
stock.
1V
TABLE OF CONTENTS
| Page
QUESTIONS PRESENTED FOR REVIEW. .............. i
PARTIES TO THE PROCEEDINGS ................0 wee ii
Fe ee IEE, siisisissisccnsintcesssvicctsctensninneiees iii
Se NE IEEE Wik stbnckcnitcnncnnictvesincisaiusasivntesens iv
Se OE FONs BEE eictnsicsstnccavnentonictousstescenion vii
TABLE OF APPENDICES .................scccsseceees epeumaains xi
Ee ME ii dca Kesciercnseisvsnnientintdicdennendsuniawesinins 1
JURISDICTION OF THE COURT.................ccesecceeees 1
CONSTITUTIONAL PROVISIONS INVOLVED....... 1
STATEMENT OF THE CAGE: ....ceccssvvccscoveescosesevesosers 2
TF. BACKGROUND q.ccercccsssosvesessecssesssesseccesonsoosons 2
A. Pre-Litigation History .......s.cccccccoessesees ee,”
B. Proceedings in the Circuit Court of Jef-
I I escicescstnendesscarrvevaseridsenitienss 6
ke Pa ares BIE TN vet dccecensanevesscracvicienionmimionen 7
A. Proceedings in the Supreme Court of Ala-
I ia cienetiliuietntisincansanetiitinetnantanteciiteascaiins 7
B. The Contested Supreme Court Elections... 7
C. Chief Justice Nabers’ Campaign Com-
mercial Attacking the Owner of JCRA..... 7
D. JCRA’s Motion to Disqualify Chief Jus-
Ce IE seddasu bch rokncckteniintsacninenivemeiemnine 8
E. The Anti-Gambling Statements of Chief
Justice Nabers and Justices Stuart,
Bolin and Smith to CCA .............cceceeeeeeees 8
TABLE OF CONTENTS — Continued
Page
F. JCRA’s Motions to Disqualify Justices
Stuart, Bolin and Smith ...........cc..ccccssccees
G. The Rulings on the Motions to Disqualify
Justices Bolin, Smith and Stuart and the
Lack of a Ruling on the Motion to Dis-
qualify Chief Justice Nabers....................
H. Chief Justice Nabers’ Undisclosed Par-
ticipation In the Appeal.................:seeeeeeee
I. JCRA’s Petition for Rehearing before a
SE ana seivecocintamnnnusekseaniséaisanitare
SURI TE tisndhesiexsesssiverstninaecnscnsuinieesaiimcariainsioqrenens
I.
IN ORDER TO GUARANTEE A LITIGANT’S
CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW, JUDGES WHO USE
THEIR RIGHT TO STATE THEIR OPIN-
IONS ON LEGAL OR POLITICAL ISSUES
IN AN ELECTION CAMPAIGN HAVE A
DUTY TO RECUSE IF AN APPEARANCE
OF A LACK OF IMPARTIALITY ARISES
WHEN THE ISSUE COMES BEFORE
Re FAT EPAUNUE 46eipiadlncnaucnssiasnvanscojacianitansncees
A. The Nonrecusals of Justices Bolin, Smith |
and Stuart Violated JCRA’s Fourteenth
Amendment Right of Due Process or Law....
B. Chief Justice Nabers’ Nonrecusal and His
Participation in the Appeal Also Violated
JCRA’s Right to Due Process of Law........
15
16
TABLE OF CONTENTS -— Continued
Page
II. BECAUSE THE INFLUENCE ON A PANEL
DECISION BY A JUDGE WHO FAILS TO
RECUSE AND IMPROPERLY PARTICI-
PATES IN DELIBERATIONS CANNOT BE
MEASURED, DUE PROCESS REQUIRES
THAT THE RULING BE VACATED AND A
NEW UNTAINTED PANEL APPOINTED...... 21
A. United States Circuit Courts of Appeals
Have Vacated Rulings of Multimember
Panels Based on the Appearance of Par-
tiality Caused by the Nonrecusal and
Participation of a Member Who Was Not
Rh) rT 25
B. State Court Decisions Also Support Va-
catur and Remand in this Case ............... 28
SPER PLIRIY secinccnsrecctenscercersoscerssvtesnerenseteersscoereness 30°
TABLE OF AUTHORITIES
Page
CASES
Acromag-Viking v. Blalock, 420 So. 2d 60 (Ala.
STUIITT hcheiehbniochsbehahiiaetneceoahiitiadtecabbasialiashsasiatebeaioniadcicadiaoiaiee 16
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) ....passim
American Cyanamid v. Federal Trade Comm’n, 363
te PUES inti osernsickecrecanasiteaceuntanetdinidecdanesadanne 25
Antoniu v. Sec. & Exch. Comm’n, 877 F.2d 721 (8th
8 OR ECS TE TOR A IE NE EEE 25, 28
Barber v. Jefferson County Racing Ass’n, Inc., Nos.
1050625 and 1050857, 2006 WL 3462147 (Ala.
Ey Hig Se iaiallaiieoeiicasabeateichbanssiabiaihchdiiaiteiielitit a oieeaa ais 1
Berkshire Employees Ass’n of Berkshire Knitting
Mills v. Natl Labor Relations Bd., 121 F.2d 235
A UTEP hicsicsedsccaciabadcleansinlendeciseiiinladbabbideitatiastectiieticen 25, 26, 27
Bradshaw v. McCotter, 796 F.2d 100 (5th Cir. 1986)........ 25
Cinderella Career & Finishing Schs., Inc. v. Federal
Trade Comm’n, 425 F.2d 583 (D.C. Cir. 1970) ...25, 26, 27
City of Bessemer v. McClain, No. 1031917, 2006 WL
2089923 (Ala. July 28, 200G6)..........-ccccccccssercscevensencecceeee 22
Ex parte City of Dothan Pers. Bd., 831 So. 2d 1 (Ala.
SITIES sikccsinsiaiaebseseccldinsacecinborasnaselsicesdetansauachaatacininateauibintubaiath basta bia 16
Hicks v. City of Watonga, 942 F.2d 737 (10th Cir
eI stiniicehinssicaniainsaiaccia damnit anieande ices ree 25, 28
Holley v. State, 542 So. 2d 952 (Ala. Crim. App
NP we israswiicsivaias dsadesdacaphaialisabeieiah ciate aacildadaiiacidiaieialtdalacinaia a acacia 10
In re Murchison, 349 U.S. 133 (1955)...........ccceccceeeeees 15,22
vill
TABLE OF AUTHORITIES — Continued
Page
Johnson v. Sturdivant, 758 S.W.2d 415 (Ark. 1988) ...28, 29
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980).......... eee 15
People for the Ethical Treatment of Animals v.
Bobby Bersoni, Ltd., 894 P.2d 337 (Nev. 1995),
overruled on other grounds by Towbin Dodge,
LLC v. Eighth Judicial Dist. Court of State ex rel.
County of Clark, 112 P.3d 1063 (Nev. 2005)...........:::0 29
Republican Party of Minnesota v. White, 536 U.S.
BP CD srentasceisecsentsimenicectevisevsentenmoctiniasetucniseel passim
Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977)........... 25, 28
Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995)......... 25, 26, 27
Texaco, Inc. v. Federal Trade Comm’n, 336 F.2d 754
(D.C. Cir. 1964), vacated on other grounds, 381
is > 25} nn sessesesnssveaesncersncensecsseeecess 25, 28
Yamaha Motor Corp. v. Riney, 21 F.3d 793 (8th Cir.
MUIIID cicicckessonnsuioshiurestopuinwerntiedecvidiasietmanebulauanpndectiannintaaxsmevts 25
UNITED STATEs CONSTITUTION:
To, CI, CI, Tivivcesivtintecsecevensiccsinsecionceen 1, 3, 13, 18, 30
0y oe AD, MUNDI, Fak Weg OB vecacescsccssccneenttiesiccecencomesers passim
STATUTES:
Oe I sais cttlcndsphenicatagHacnncseinicnensnsidescdhevitens 1
ace stahelenennontnnindetieds 28
I Fe tI a viisrcecctetirncctndcncncaspesesenduniebtnsnenepineeees 22
Ala. Code § 13A-12-20(10)..............csccsscccrcssrrerreenserssssssesseres 1
ix =
TABLE OF AUTHORITIES — Continued
Page
RULES:
RD ili
Ala. Canons of Jud. Ethics, Canon 3C(1) ...........cccc0008 15,17
OTHER AUTHORITIES:
THE FEDERALIST No. 78 (Alexander Hamilton)................ 14
Michelle T. Friedland, Disqualification or Suppres-
sion: Due Process and the Response to Judicial
Campaign Speech, 104 CoLumM. L. REv. 563
Joanna Cohn Weiss, Tough on Crime: How Cam-
paigns for State Judiciary Violate Criminal De-
fendants’ Due Process men, 81 N.Y.U. L. REv.
ROE Ce re ies tievisercescecesvneverserers 13
Jason E. Williams, Republican Party of Minnesota
v. White Threatens Judicial Impartiality in
Texas, 41 TIGUB. Tis TEs Bek COED ccacccccocscovscscsceccececses 13
U.S. Senate Judiciary Committee Holds a Hearing
on the Nomination of John Roberts to be Chief
Justice of the Supreme Court, 109th Cong., 2005
WL 2237049, (Sept. 14, 2005) (statement of John
Fee EI) viceiecccsnh ea tldieitarttecdecesvecnceseusvesees 14
Robin DeMonia, A Christian Group by any other
Name, The Birmingham News, September 17,
SAIS oensnsinnedndana ne aiibictdetacieereeacevereesceceneeyes 8
Jim Galloway, Alabama Group Says It and Reed
Have Clean Hands, Atlanta Journal Constitu-
thoes, Ful D, Sie vecerevvecescececerveceses 2,6
TABLE OF AUTHORITIES — Continued
Page
Drew Jubera, There’s Nothing Civil about Ala.
Judicial Race, Chief Justice Campaign Turns
~— ‘Mean Spirited’, Atlanta Journal Constitution,
Head G, BOOE, GBI crecensccoressncrcsvintenstcsincimmniones Sida 3,19
Phillip Rawls, Chief Justice Steps Aside from Exxon
Mobil Appeal, Associated Press, October 30, 2006........ 11
Phillip Rawls, Riley, Attorney General Push for
Anti-Gambling Bill, The Decatur Daily, Feb. 8,
Jay Reeves, Nabers, Cobb Fight for Chief Justice
Tops Ala. Judicial Races, Associated Press, Nov.
DT, SINE sccosnaseiisinsaadneniesstanusbaiedarthinaatabinaninniaenaintael 7
Eric Valesco, Gambling Money, False Ad Claims
Fly, The Birmingham News, October 25, 2006.............. 8
Christian Action Alabama, http://www.ccbama.org/
issues/gambling.asp (last visited April 9, 2007)............. 3
xi
TABLE OF APPENDICES
Page
APPENDIX A- Opinion of the Alabama Supreme
Court (with the Nonrecusal Statements from
Justices Bolin, Smith and Stuart) filed December
SII bili ciietisieek net cate le App. 1
APPENDIX B- Order of the Alabama Supreme
Court (denying the Motions for the recusal or
disqualification of Justices Bolin, Smith and Stu-
art) filed December 1, 2006...............:ccccsesseseeseseees App. 44
APPENDIX C —- Order of the Alabama Supreme
Court (denying oral argument) filed October 24,
rae asisihinins sihianiseeneadinciineihesebaailiieaiaaasdaacenilcean aunbdbipisdaiicoada App. 46
APPENDIX D — Order and Judgment of the Circuit
Court of Jefferson County, Alabama filed Janu-
APPENDIX E-—Order of the Alabama Supreme
Court denying rehearing filed January 12, 2007....App. 69
APPENDIX F-Order of the Alabama Supreme
Court denying rehearing filed January 12, 2007 ....App. 70
APPENDIX G -— Constitutional Provisions Involved... App. 71
APPENDIX H — Jefferson County Racing Associa-
tion, Inc.’s Application for Rehearing filed in the
Alabama Supreme Court on December 15, 2006
(which includes copies of JCRA’s previously filed
Motions for the recusal or disqualifications of
“Chief Justice Nabers and Justices Bolin, Smith
I Ue setasintiertitinncnichchiceisteinpsidiiesd pied decid apendiagel App. 72
APPENDIX I — Jefferson County Racing Associa-
tion, Inc.’s Brief in Support of Application for
Rehearing filed in the Alabama Supreme Court
ONE CPDOIE Te, I veces scstnssveinnincinterincevitiinnesetins App. 158
xil
TABLE OF APPENDICES -— Continued
Page
APPENDIX -J - Excerpts from the Record on
Appeal in the Alabama Supreme Coutt.............. App. 182
APPENDIX K - Transcription of Alabama Supreme
Court Chief Justice Drayton Nabers’ 2006 Televi-
sion Campaign Commercial ...........::ccesescessereeeens App. 218
APPENDIX L — Newspaper Articles............:sssee0 App. 220
OPINIONS BELOW
The December 1, 2006 opinion of the Alabama Su-
preme Court which reversed the January 31, 2006 judg-
ment of the Circuit Court of Jefferson County in favor of
the Petitioner Jefferson County Racing Association, Inc.,
d/b/a the Birmingham Race Course (“JCRA”) and held that
JCRA’s operations were in violation of Alabama Code,
§ 13A-12-20(10), is set forth in App. A, beginning at App. 1.
See also Barber v. Jefferson County Racing Ass’n, Inc.,
Nos. 1050625 and 1050857, 2006 WL 3462147 (Ala. Dec. 1,
2006).
The December 1, 2006 order of the Alabama Supreme
Court which denied JCRA’s Motion for the recusal or
disqualification of Justices Jacquelyn “Lyn” Stuart, Mi-
chael Bolin, and Patti Smith, but failed to address the
Motion for recusal or disqualification of Chief Justice
Drayton Nabers, is set forth in App. B, beginning at App.
44.
The January 12, 2007 orders of the Alabama Supreme
Court overruling JCRA’s Application for Rehearing with-
out opinion, are set forth in the Appendices E and F, at
App. 69-70.
JURISDICTION OF THE COURT
This Court has jurisdiction to review this matter
pursuant to 28 U.S.C. § 1257(a) to decide whether the
Alabama Supreme Court violated the Due Process protec-
tions of the Fourteenth Amendment of the United States
Constitution. The judgment of the Alabama Supreme”
Court was entered on December 1, 2006. The Petitioner
timely sought rehearing, which was denied on January 12,
2007. Accordingly, this Petition is timely.
CONSTITUTIONAL PROVISIONS INVOLVED
The provisions involved are: Amendment I and
Amendment XIV, §1 of the United States Constitution.
These provisions are set forth in App. G at App. 71.
STATEMENT OF THE CASE
I. BACKGROUND
In the 1950’s and 1960’s many politicians in Alabama
gained notoriety and electoral success by campaigning on
their staunch support of racial segregat »n laws. More
recently, as state lotteries and casinos have encroached into
neighboring states, the legality and morality of gambling has
become a heated issue in Alabama elections. Public pro-
nouncements of opposition to all forms of gambling have
become an important campaign tactic for some candidates.
Just as certain politicians in Alabama once pandered to the
electorate regarding issues of race, some candidates now
found their campaigns on opposition to gambling in order to
curry favor with special interest voter groups.’
Since this Court’s opinion in Republican Party of
Minnesota v. White, 536 U.S. 765 (2002), some candidates
for Alabama judicial office have publicly taken formal
positions on such topics as well as others and these elec-
tion campaigns have quickly become indistinguishable
from hotly-contested campaigns for non-judicial offices.
Thus, as Alabama politics once represented an extreme
in racial demagoguery, it has now become an example of the
extremes that may be reached in judicial elections. The
broad embrace that certain Alabama judicial candidates
have given to the free speech rights recognized in White
' Indeed, several powerful political interest groups in Alabama publicly
oppose all forms of gambling, even those forms which have been authorized
by the Alabama Legislature. The opposition to gambling in Alabama reached
a fever pitch in 2000 when opposition forces such as the Christian Coalition
of Alabama (now called Christian Action Alabama) (collectively “CCA”)
succeeded in convincing a majority of voters to defeat a statewide referendum
that would have repealed the provision in the Alabama Constitution
prohibiting lotteries. It was later learned that in its zeal to oppose gambling,
CCA had actually accepted thousands of dollars in gambling-generated
contributions from Mississippi casino operators, which was used to fund a
campaign to defeat the Alabama lottery referendum. See, e.g., Jim Galloway,
Alabama Group Says It and Reed Have Clean Hands, Atlanta Journal
Constitution, July 2, 2005, at Al; App. L at App. 220.
has not gone unnoticed by those who study the judiciary.
Referring to Alabama’s recent judicial elections, Roy Schot-
land, Georgetown University law professor and judicial
selection expert stated: ““We may be looking at the first real
post-White campaigning,’ ... ‘You don’t have to think about
whether you're electing a judge or a state senator. It’s disas-
trous.” Drew Jubera, There’s Nothing Civil about Ala.
Judicial Race, Chief Justice Campaign Turns ‘Mean-
Spirited, Atlanta Journal Constitution, June 5, 2006, at Al;
App. L at App. 228. According to the same article, some
judicial commentators believe the consequences for Alabama
judicial politics, which has been described as “a ‘bare-knuckle
fight,’ a ‘political mud bog,’ and ‘a mess,’” is that “judges’
integrity with the public” [is undermined], . . . “the influence
of special interest voter groups [is intensified], and ... “the
chances of a jurist having to recuse himself in cases where he
has been outspoken on an issue [is increased].” Jd. at App.
225, 228 (emphasis added). ze
This petition provides this Court with an opportunity to
address the post-White tension between a judicial candidate’s
free speech rights under the First Amendment and a liti-
gant’s right to Due Process under the Fourteenth Amend-
ment by defining under what circumstances judges must
recuse based upon their prior campaign speech, and what
the appropriate remedy is where judges who improperly
failed to recuse were part of a multi-member tribunal. This
petition presents all the elements necessary for resolution of
these questions that naturally follow from White: (i) expen-
sive and hotly disputed judicial election campaigns in 2004
and 2006 where Alabama Supreme Court judicial candidates
took formal public positions opposing gambling in answer to
a powerful special interest group’s voter guides;’ (ii) litigation
* CCA is also active in influencing elections of candidates to state
offices through the use of widely distributed “voter guides” which set
forth the responses of candidates, including those for judicial offices, to
the questionnaire on whether the candidate agrees with the CCA
position on various issues such as gambling. See App. H at App. 105-
106, 122. As is plainly noted on its internet web site, Christian Action
Alabama opposes all forms of gambling in Alabama, even those such as
(Continued on following page)
4
involving a sweepstakes promotion, which that special
interest group deemed to be gambling; (iii) a widely-
disseminated judicial campaign television commercial by
the sitting chief justice aired while the appeal was pend-
ing, attacking gambling and calling the owner of the
company in the sweepstakes case before him a “casino
boss”; and (iv) the subsequent refusal on appeal by certain
then-elected Alabama Supreme Court justices to recuse or
be disqualified by the court, or to even fully address the
issue of the apparent partiality of the justices caused by
their campaign speech.
A. Pre-Litigation History
In the 1980’s, the Alabama Legislature authorized
pari-mutuel wagering on horse and greyhound racing in
Jefferson County. The Jefferson County Racing Associa-
tion, Inc. (“JCRA”) runs the Birmingham Race Course,
which operates facilities for live greyhound racing as well
as simulcast horse and greyhound racing from other
locations. JCRA’s primary business activity is pari-mutuel
wagering and racing activities. App. J at App. 200, Stipu-
lated Fact 17. By 2005, the attraction of pari-mutuel
wagering was waning and attendance at the Race Course
was decreasing. In an effort to increase attendance and
promote authorized pari-mutuel betting, JCRA con-
structed a CyberCenter at the Race Course, which offered
Internet computer terminals that allowed patrons to
access the Internet, computer programs, pari-mutuel
betting information (such as tip sheets for races) and other
information services. Id. at App. 200, Stip. 7; App. 205,
Stip. | 22. To access CyberCenter services, patrons pur-
chased Cybertime at fair market value. Jd. at App. 200,
Stip. 1] 8-9. JCRA also contracted with Innovative Sys-
tems, Inc. (“Innovative”) to design a sweepstakes promo-
tion (the “Sweepstakes”) to promote the CyberCenter. Jd.
bingo which are lawful. Christian Action Alabama, http:/Awww.ccbama.
org/issues/gambling.asp (last visited April 9, 2007).
5
at App. 199, Stip. {| 3; App. 201, Stip. 9 10. As part of the
promotion, a customer who purchased CyberCenter services
also received entries in the Sweepstakes that could result in a
cash prize. Id. at App. 201, Stip. J 10. Persons who wished to
participate in the Sweepstakes but who did not want to
purchase Cybertime could obtain “no purchase necessary”
Sweepstakes entries. App. J at App. 201, Stip. J 10.
Whether a Sweepstakes entry was a winning entry was
determined at the time the entry was issued. Jd. However, the
Sweepstakes was designed so that a participant could reveal
his entries in an entertaining manner on a reader that looked
and sounded like a slot machine. Jd. at App. 201, Stip. 7 11.
Despite their appearances, the readers did not determine the
outcome of the sweepstakes entries. Jd. at App. 207, Stip. J 29.
Alternatively a participant could have his entries read on a
computer terminal or by calling a toll free number. Jd. at App.
201, Stip. 7 11. If a customer’s Sweepstakes entry was a
winner, he could obtain more Cybertime or receive a cash
payment. App. J at App. 201, Stip. J 11; App. 207, Stip. J 27.
Innovative designed the Sweepstakes, including the free
entry feature, to ensure that it complied with Alabama law.
Prior to opening the Sweepstakes promotion, Innovative and
JCRA took a number of steps to make sure it did not violate
Alabama law. Innovative obtained legal opinions from experi-
enced counsel. Jd. at App. 202, Stip. ] 13. JCRA and Innova-
tive: (a) demonstrated the Sweepstakes system for a
representative of the Alabama Attorney General, who advised
that if the Sweepstakes were operated as represented, it
would be legal (/d. at App. 211, Stip. 41); (b) met with the
Sheriff of Jefferson County and his attorney and demon- .
strated how the Sweepstakes would work; (c) spoke with the
District Attorney of Jefferson County and invited him to a
demonstration (Ud. at App. 212, Stip. 7 43); and (d) demon-
strated the Sweepstakes system to the Jefferson County
Racing Commission, which enacted a resolution approving the
promotion (Jd. at App. 213, Stip. J 44).
On December 22, 2005, only a short time after the
Sweepstakes promotion began, the Sheriff’s Department
executed a search warrant and seized equipment needed to
6
operate the Sweepstakes. That same day CCA's president
John Giles (who is recognized as one of the “most powerful
religious conservatives in the state,” Jim Galloway, Alabama
Group Says It and Reed Have Clean Hands, Atlanta Journal
Constitution, July 2, 2005, at Al; App. L at App. 221) wrote to
the Alabama Attorney General claiming that JCRA’s Sweep-
stakes promotion was illegal gambling, informing the Attor-
ney General that one of the major tenets of CCA was
“protecting our communities from the expansion of gambling,”
and expressing his disappointment with the lack of leadership
that had been shown to “bring a halt to the cancerous plague
of gambling expansion” in Alabama. App. J at App. 190.
B. Proceedings in the Circuit Court of Jef-
ferson County
While the raid was going on, JCRA filed a lawsuit in
the Circuit Court of Jefferson County to enjoin the Sher-
iff’s seizure of the Sweepstakes’ equipment and to obtain a
declaration that the promotion was legal under Alabama
law. App. D at App. 49. Both Innovative and the District
Attorney intervened in the case. Jd. at App. 48, 49 n.1. The
trial court conducted a bench trial and accepted the
parties’ stipulated facts. Id. at App. 50.
CCA had representatives present during the trial. The
Sheriff’s expert witness, Robert Sertell, admitted that he
had been sitting with two representatives of CCA, Dan
Ireland and Eric Johnston, during the trial before he was
called to testify. App. J at App. 183. Mr. Sertell further
admitted that he had conversations about JCRA with CCA
president Giles before Sertell’s deposition in this case. Jd.
at App. 184-185. Moreover, in his letter to the Alabama
Attorney General, Giles described Sertell as a CCA “un-
dercover expert.” Jd. at App. 193.
After the bench trial, the trial court held that the
Sweepstakes promotion was lawful and enjoined the
Sheriff from further actions against the Sweepstakes. App.
D at App. 67.
II. APPEAL BELOW
A. Proceedings in the Supreme Court of Ala-
bama
The District Attorney, but not the Sheriff, appealed
the ruling to the Alabama Supreme Court.
B. The Contested Supreme Court Elections
During the appeal, Chief Justice Nabers (who had
been appointed to fill a vacancy) was seeking election to
that office, and Justice Stuart was up for reelection. Chief
Justice Nabers was engaged in a hotly-contested campaign
against Judge Sue Bell Cobb that was described as “a
rough-and-tumble race” and “the nation’s most expensive
judicial campaign of the year.” Jay Reeves, Nabers, Cobb
Fight for Chief Justice Tops Ala. Judicial Races, Associ-
ated Press, Nov. 7, 2006.
C. Chief Justice Nabers’ Campaign Commer-
cial Attacking the Owner of JCRA
While the case was on appeal, Chief Justice Nabers ran
television advertisements accusing his challenger of taking
“gambling money” for campaign contributions. One of those
ads referenced by name contributions from Milton McGregor,
who is widely known as the controlling owner of JCRA, and
implied that his contributions were tainted or improper.’ In
this advertisement, which aired while the appeal was pend-
ing, Chief Justice Nabers proclaimed that he had fought
against the “gambling bosses” and even referred to Mr.
McGregor as a “casino boss.” App. K at App. 218-219. This
commercial aired across Alabama and was the subject of much
media commentary. One of Nabers’ ads claimed that Judge
* The trial court’s Declaratory Judgment and Injunction noted that
JCRA “has been referred to as Milton McGregor’s Company.” App. D at -
App. 148. In addition, CCA president Giles in his letter to the Attorney /
General notes that JCRA’s Birmingham Race Course is “owned by
Milton McGregor” App. J at App. 194.
8
Cobb had “accepted money from gambling interests —
including Birmingham Race Track Owner Milton
McGregor; the Poarch Creek Indians and PC] Gaming,
which run[s] three Alabama casinos; and Greenetrack,
which offers video gaming.” Eric Valesco, Gambling Money,
False Ad Claims Fly, The Birmingham News, October 25,
2006; App. H at App. 150-151.
D. JCRA’s Motion to Disqualify Chief Justice
Nabers
On October 24, 2006, the Alabama Supreme Court
issued an Order denying oral argument.‘ App. C at App.
46. Because this Order did not indicate that Justice
Nabers had recused or disqualified himself, JCRA imme-
diately filed its Motion to Disqualify Chief Justice Drayton
Nabers requesting his recusal or disqualification. App. H
at App. 123-133. The Motion, which cited his campaign ad
as evidence, argued that Chief Justice Nabers should
recuse or be disqualified under both the Alabama Canons
of Judicial Ethics (“Ethical Canons”) and Due Process
grounds. Jd. at App. 124-129.
E. The Anti-Gambling Statements of Chief
Justice Nabers and Justices Stuart, Bolin
and Smith to CCA
Shortly after JCRA filed that recusal Motion, CCA
released its 2006 General Election Voter Guide.’ Id. at
App. 122. Unlike his challenger, who refused to announce
her positions on the various issues in the Voter Guide,
* Two appeals were consolidated at the Alabama Supreme Court, and
the appeal, therefore, had two case numbers — 1050625 and 1050857.
* By this time, CCA had split from the National organization and
changed its name to Christian Action Alabama. The split occurred because
the National Organization claimed that the Alabama chapter had violated
the terms of a settlement agreement with the IRS concerning the organiza-
tion’s candidate questionnaires and voter guides. Robin DeMonia, A Chris-
tian Group by any other Name, The Birmingham News, September 17, 2006.
9
Chief Justice Nabers used the Voter Guide to publicly
state his opposition to the establishment of gambling. The
Voter Guide, which was distributed throughout the State
and was available on CCA’s website, stated that Chief
Justice Nabers “agrees” on the issue of “oppose establish-
ment of gambling.” Jd. Not only is CCA’s opposition to all
gambling in any form stated in detail on its website, but as
noted above, CCA took the position that the very Sweep-
stakes promotion at issue in this appeal was illegal gam-
bling. See App. J at App. 194-196.
Like Chief Justice Nabers, Justices Bolin, Smith and
Stuart also used CCA to publicly pronounce their opposi-
tion to gambling during their own contested elections.
Justice Stuart, who was also involved in a contested
election in 2006, used the 2006 CCA Voter Guide to pub-
licly state while the appeal was pending that she agreed
with CAA’s opposition to the “establishment of gambling.”
App. H at App. 122. Justices Bolin and Smith, who were
involved in contested elections in 2004, both publicly
stated during their election campaigns through the 2004
CCA Voter Guide that they, like CCA, “oppose gambling.”
_Id. at App. 106. The opponents of Chief Justice Nabers and
Justices Stuart, Smith and Bolin in these elections de-
clined to respond to the questionnaires regarding the issue
of gambling. Jd. at App. 106, 122.
F. JCRA’s Motions to Disqualify Justices
Stuart, Bolin and Smith
After CCA’s 2006 Voter Guide was published, JCRA filed
its Amendment to Motion to Disqualify Chief Justice Nabers
on November 6, 2006. Id. at App. 134-144. That same day,
JCRA filed its Motion to Disqualify Justice Stuart and
shortly thereafter its Motion to Disqualify Justices Bolin and
Smith. Jd. at App. 90-106, 107-22. Among other things, the
Amendment and the new recusal Motions noted that the
Justices’ positions opposing gambling had been made in a
CCA voter guide and that CCA had been intimately involved
in this case. The Justices and the court were also informed
that: CCA had representatives present throughout the trial
10
who had been sitting with the Sheriff’s expert witness; the
Sheriff’s expert had conversations with CCA's president
about JCRA’s operation before his deposition in the case;
and that the Sheriff’s expert had been described by CCA's
president as a CCA “undercover expert.” App. H at App.
91-92, 108. The Amendment and the new recusal Motions
also argued that these Justices should be disqualified
under the Ethical Canons and also on Due Process
grounds. Id. at App. 95-99, App. 112-115.
G. The Rulings on the Motions to Disqualify
Justices Bolin, Smith and Stuart and the
Lack of a Ruling on the Motion to Dis-
qualify Chief Justice Nabers
On December 1, 2006, the Alabama Supreme Court
issued its Opinion in the matter, reversing the trial court
and finding that the Sweepstakes’ readers were illegal slot
machines even though nothing of value was ejected from
the readers. See App. A at App. 1-36. Alabama precedent
had long held that “in order for a gambling device to be
defined as a slot machine, it must actually eject something
of value from the machine.” Holley v. State, 542 So. 2d 952,
954 (Ala. Crim. App. 1989). This new direction and aban-
donment of precedent by the Court on the requirements
for a slot machine were evident “judicial legislation” and
added to the appearance of partiality. By the time the
opinion was issued, Chief Justice Nabers had lost his
election bid. The Opinion included Statements of Nonre-
cusal by Justices Bolin, Smith and Stuart, all of whom
participated in the appeal and concurred in the Court’s
Opinion reversing the trial court’s ruling in favor of JCRA
and Innovative. App. A at App. 36-43. That same day, the
remaining members of the Court (except Chief Justice
® At the time the appeal was pending, the Alabama governor and
attorney general had introduced unsuccessful legislation to bar a pari-
mutuel betting entity like JCRA from conducting a sweepstakes
promotion like the one at issue. Phillip Rawls, Riley, Attorney General
Push for Anti-Gambling Bill, The Decatur Daily, Feb. 8, 2006.
11
—
Nabers) issued a short Nonrecusal Order denying JCRA’s and
Innovative’s Motions to Disqualify Justices Bolin, Smith and
Stuart and adopting the Statements of Nonrecusal. App. B at
App. 44-45. The nonrecusal statements of Justices Bolin,
Smith and Stuart and the court’s Nonrecusal Order did not
address CCA’s involvement in the case or Chief Justice
Nabers’ advertisement calling JCRA’s owner a “casino boss.”
App. A at App. 36-43, App. B at App. 44-45. Chief Justice
Nabers never responded to the Motion to Disqualify him, and
did not recuse himself.’ In addition, the Alabama Supreme
Court never ruled on the Motion to Disqualify Chief Justice
Nabers, even though JCRA had specifically requested that the
remaining members of that court order his disqualification or
recusal upon his failure to do so. App. H at App. 139, J 7.
H. Chief Justice Nabers’ Undisclosed Par-
ticipation in the Appeal
Although Chief Justice Nabers’ name does not appear
on the Alabama Supreme Court’s Opinion of December 1,
2006, JCRA had reason to believe that he had actually
participated in the appeal. JCRA was informed and
believed that he was actively involved in the deliberations,
and that he participated in an opinion reversing the trial
court that was scheduled to be released just before the
election but which was then withheld from release after
JCRA filed its Motion for his recusal or disqualification.
Specifically, JCRA was informed and believed that:
" In contrast, on October 30, 2006, just four days after JCRA filed
its Motion to disqualify him, Chief Justice Nabers, in an unprecedented
pres“ release from the Alabama Supreme Court, announced that
because of his prior position as state finance director he was not
participating in Exxon-Mobil’s appeal of the largest verdict in Alabama
history. The Exxon case was (and still is) pending before the Alabama
Supreme Court. No disqualification request had been filed in that case.
“Nabers’ campaign spokesman, Clay Ryan, said he assumed the
Supreme Court issued the announcement because ‘the honor of the
court is being called into question in a series of campaign ads.’” Phillip
Rawls, Chief Justice Steps Aside from Exxon Mobil Appeal, Associated
Press, October 30, 2006.
12
1. An opinion of the Alabama Supreme Court revers-
ing the circuit court was scheduled to be released on
October 27th 2006, less than two weeks prior to the
election. App. H at App. 154, { 4.
2. Chief Justice Nabers was present when the case
was being discussed by the court, participated in “all
deliberations, meetings ... leading up to the opinion and
... voted on the case.” Id. at App. 154, { 5.
3. “Chief Justice Nabers made his position regarding
the case known to other members of the Court, brought to
bear influence upon other members of the Court to adopt
his position, and discussed the political ramifications of
the decision with other members of the Court and with
political consultants and operatives.” Jd. at App. 155, {| 9.
4. Chief Justice Nabers improperly discussed the
case with Governor Riley, who advocated the reversal of
the trial court’s opinion. Jd. at App. 155, | 6."
I. JCRA’s Petition for Rehearing before a
Neutral Court
On December 15, 2006, JCRA and Innovative filed
timely Applications (Petitions) for Rehearing in the Ala-
bama Supreme Court, requesting a rehearing before a
newly appointed, neutral court that was untainted by the
involvement of the four justices — Bolin, Nabers, Smith
and Stuart — who should have recused themselves or been
disqualified from hearing the Appeal. App. H at App. 72-
157. JCRA’s-Application included the grounds that the Due
Process Clause of the Fourteenth Amendment required the
recusal of Justices Bolin, Nabers, Smith and Stuart. Jd. at
App. 75-76. JCRA also raised each of the points set forth
above concerning the undisclosed participation of Chief
Justice Nabers in its Application and in an affidavit
* Governor Bob Riley, who appointed Chief Justice Nabers and who
was seeking re-election, filed an amicus brief in opposition to JCRA’s
position and issued a press release asking the Court to rule against
JCRA. Id. at App. 156-157.
13
supporting the Application. Jd. at App. 84-85, 153-156. JCRA
stressed that the issue of Chief Justice Nabers’ participation
in the appeal was an issue that the members of that court
had an obligation to resolve. Although the District Attorney
moved to strike JCRA’s affidavit concerning the undisclosed
participation of Chief Justice Nabers, a Motion JCRA op-
posed, the Alabama Supreme Court did not strike the
affidavit. Instead, on January 12, 2007, the court merely
overruled JCRA’s and Innovative’s Applications for Rehear-
ing without opinion. App. E at App. 69; App. F at App. 70.
Based on the existence of important Due Process
violations, JCRA files this Petition.
REASONS FOR GRANTING THE PETITION
Certiorari review is warranted for consideration of the
critical intersection of two fundamental Constitutional
rights: (1) the fundamental right of a litigant under the
Due Process Clause of the Fourteenth Amendment to have
his case decided by a court that is both impartial in fact as
well as in appearance, and (2) the right of a judicial
candidate under the First Amendment to speak regarding
legal issues that may be of interest to certain voters. This
case presenis the question which inexorably follows from
the opinion in Republican Party of Minnesota v. White, 536
U.S. 765 (2002), of when a judicial candidate’s exercise of
his free speech rights gives rise to a concomitant responsi-
bility by the elected judge under the Due Process clause to
recuse where issues or parties on which the judge has
stated his opinion come before the court on which he sits.
Since the release of the White opinion, this question
has been discussed by legal commentators and scholars
who have waited for this Court to grant certiorari review
in a case like this.’ The issues presented here are of great
«
* See, e.g., Joanna Cohn Weiss, Tough on Crime: How Campaigns
for State Judiciary Violate Criminal Defendants’ Due Process Rights, 81
N.Y.U. L. REv. 1101 (2006); Michelle T. Friedland, Disqualification or
Suppression: Due Process and the Response to Judicial Campaign
Speech, 104 CoLu. L. REV. 563 (2004); Jason E. Williams, Republican
(Continued on following page)
14
importance and extend beyond the dispute below. Justices
of this Court have repeatedly refrained in their nomina-
tion hearings from answering Senators’ questions on
specific legal issues because to do so would risk the conse-
quence of “undermin[ing] the integrity of the judicial
process.” U.S. Senate Judiciary Committee Holds a Hear-
ing on the Nomination of John Roberts to be Chief Justice
of the Supreme Court, 109th Cong., 2005 WL 2237049
(Sept. 14, 2005) (statement of John Roberts). The present
case provides the exact contrary scenario — elected judges
who have not refrained from speaking on issues likely to
come before them, but who instead have used their free
speech rights to gain the approval of powerful special
interest voter groups. This petition presents this Court
with the unique opportunity to define for elected judges
the breadth and form of their concomitant responsibility to
protect the integrity of the judicial process and to protect a
litigant’s Due Process rights when the judge as a candi-
date has used the free speech rights identified in White.
The issues raised here give this Court the opportunity
to prevent the decay of the character of our judicial system
which, as noted by Alexander Hamilton in THE FEDERALIST
No. 78, has neither the power of the “sword [nlor the
purse.” Court rulings will be respected only as long as the
judiciary’s integrity is not questioned. If elected judges are
viewed as no more than politicians whose “duty to decide
cases” does not lead to service of the law but instead to
service of special interest voter groups, then the people’s
trust in the impartiality and fairness of the judiciary will
cease. This Court should grant certiorari and issue a
ruling that will safeguard not only the Due Process rights
of litigants but also the integrity the American judicial
system.
Party of Minnesota v. White 1 eatens Judicial Impartiality in Texas,
41 Hous. L. REv. 201 (2004),
15
ARGUMENT
I, IN ORDER TO GUARANTEE A LITIGANT’S
CONSTITUTIONAL RIGHT TO DUE PROC-
ESS OF LAW, JUDGES WHO USE THEIR
RIGHT TO STATE THEIR OPINIONS ON LE-
GAL OR POLITICAL ISSUES IN AN ELEC-
TION CAMPAIGN HAVE A DUTY TO RECUSE
IF AN APPEARANCE OF A LACK OF IMPAR-
TIALITY ARISES WHEN THE ISSUE COMES
BEFORE SUCH JUDGES
“The Due Process Clause [of the Fourteenth Amendment]
entitles a person to an impartial and disinterested tribunal in
both civil and criminal litigation.” Marshall v. Jerrico, Inc.,
446 U.S. 238, 242 (1980). This requirement of impartiality is
violated when a judge sits on a case where he has an interest
in the outcome that “would offer a possible temptation to the
average ... judge to ... lead him to not hold the balance nice,
clear and true.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822
(1986) (quoting Ward v. Village of Monroeville, 409 U.S. 57, 60
(1972)). Further, because “justice must satisfy the appearance
of justice,” Due Process requires a judge’s disqualification
where such temptation exists even if the judge were actually
unbiased. Aetna, 475 U.S. at 825 (a case involving a justice of
the Alabama Supreme Court) (quoting Jn re Murchison, 349
U.S. 133, 136 (1955)).
Alabama Canon of Judicial Ethics 3C(1) recognizes
the full extent of a litigant’s right to the impartial tribunal
required by Due Process.” It states, in relevant part:
A judge should disqualify himself in a pro-
ceeding in which ... his impartiality might rea-
sonably be questioned, including but not limited
to instances where:
(a) he has personal bias or prejudice con-
cerning a party....
The canons are not merely suggestive, but have “the force and
effect of law.” In the Matter of Sheffield, 465 So. 2d 350, 355 (Ala. 1985).
16
(emphasis added). In accord with Due Process protections,
disqualification is required under this Ethical Canon when
“facts are shown which make it reasonable for members of
the public, or a party, or counsel opposed to question the
impartiality of the judge.” Acromag-Viking v. Blalock, 420
So. 2d 60, 61 (Ala. 1982). Thus, the test for recusal under
this Ethical Canon is based on the appearance of a lack of
impartiality. This is an objective standard, and is not
decided by a judge’s own subjective belief that he or she
can decide the case impartially. Instead, the test is
whether a reasonable person with knowledge of the facts
would objectively find a reasonable doubt concerning the
judge’s impartiality. Ex parte City of Dothan Pers. Bd., 831
So. 2d 1, 11 (2002). As discussed below, when faced with
JCRA’s recusal Motions, the Alabama Supreme Court
failed to apply the proper standard for recusal or disquali-
fication based on the appearance of partiality and thereby
violated JCRA’s Constitutional right to Due Process of law.
The Alabama Supreme Court’s December 1, 2006
opinion contained Statements of Nonrecusal for Justices
Stuart, Smith and Bolin, who were listed as voting in the
opinion. However, there was no statement of nonrecusal for
Chief Justice Nabers and his vote was not listed in the
opinion, even though, as discussed above, JCRA is informed
and believes that he participated in the appeal. App. H at
App. 84-85, 153-156. While the court also issued an order
which denied the recusal Motions as to Justices Stuart,
Smith, and Bolin, it failed to even address the Motion
regarding Chief Justice Nabers. App. B at App. 44-45.
A. The Nonrecusals of Justices Bolin, Smith,
and Stuart Violated JCRA’s Fourteenth
Amendment Right to Due Process of Law
Justices Bolin, Smith and Stuart should have recused
themselves or been disqualified under the requirements of
the Due Process Clause. They had each made a public
statement supporting CCA’s anti-gambling positions in
recent contested judicial elections, with Justice Stuart
stating her position while this appeal was pending. CCA
17
had taken the public position that JCRA’s Sweepstakes
operation was illegal gambling. CCA was intimately involved
in the underlying case — its own “undercover expert” testified
against JCRA at trial, and its representatives were present
and recognized at the trial. Moreover, the chief justice of
their court, who had also sought to curry favor with CCA’s
members by endorsing CCA’s anti-gambling position, was
airing television ads calling the owner of JCRA a “casino
boss.” Given this atmosphere, the Due Process Clause
required nothing less than these justices’ recusal. Yet, as
discussed below, they not only refused to recuse, but their
nonrecusal statements and the court’s Nonrecusal Order also
ignored critical Due Process issues.
Justice Bolin’s nonrecusal statement, with which
Justices Stuart and Smith concurred and which the Court
approved by its separate order denying the recusal Mo-
tions, was based on his interpretation of Republican Party
of Minnesota v. White, 536 U.S. 765 (2002). Justice Bolin
concluded that he had a First Amendment right to “an-
nounce or discuss personal views on an issue such as
gambling.” App. A at App. 41. Although he acknowledged
this free speech right may later require his disqualifica-
tion under Alabama Ethical Canon 3C(1), his analysis of
when such disqualification is required, which was adopted
by the court as a whole, is fatally flawed and resulted in a
violation of the JCRA’s Due Process rights. While Justice
Bolin noted that the Canon includes a requirement for
disqualification of a judge if his “impartiality might
reasonably be questioned,” he failed to address the point of
JCRA’s Motion, which was that his disqualification was
required under the Canon and under the Due Process
Clause because a reasonable person would objectively
question his impartiality in deciding the appeal. Id. at
App. 42. Instead of analyzing his participation under this
correct standard, he argued that a judge is presumed
impartial and that he could hear the case because of his
own subjective belief that he bore no bias or prejudice that
18
affected his vote.’ The nonrecusal statements of Justices
Stuart and Smith similarly avoided the critical analysis of
whether their “impartiality might reasonably be ques-
tioned” by an objective observer. Justice Stuart simply
wrote that (subjectively) she believed herself to be impar-
tial despite her personal opinion opposing gambling. App.
A at App. 36-39. Justice Smith wrote to emphasize her
constitutional duty to decide cases. Jd. at 39-40.
Taken as a whole, the nonrecusal statements of
Justices Stuart, Smith and Bolin, which were adopted by
the Alabama Supreme Court, erroneously extend this
Court’s opinion in White to an unconstitutional breadth.
Those justices (and the Alabama Supreme Court) used
White to support the position that a judicial candidate’s
First Amendment free speech rights and a judge’s duty to
decide cases trump a litigant’s Fourteenth Amendment
Due Process rights such that recusal or disqualification is
not required when the candidate’s public statements do
not prove actual bias or cause the judge to subjectively
admit bias, but only create an appearance of partiality. By
failing to address the fundamental issue of the appearance
of partiality raised in JCRA’s Motions, the Alabama
Supreme Court, in effect, wrote this Due Process standard
entirely out of the law. However, the First Amendment
does not exist in a vacuum. It exists alongside the Four-
teenth Amendment and its Due Process requirements.
" Justice Bolin also stated that JCRA’s Motion had an “inherent
inconsistency” because it was based on his public statement opposing
gambling and it is JCRA’s contention that its Sweepstakes promotion
was not gambling. Jd. at App. 43. His contention, however, overlooks
that the trial court concluded in its final order that while JCRA’s
Sweepstakes did not violate Alabama’s gambling law, it appeared to
JCRA’s customers that they were gambling. App. D at App. 64. More-
over, the facts presented by JCRA to the Alabama Supreme Court in
support of its recusal Motions demonstrated that the CCA was inter-
ested in the litigation and had taken a position that the JCRA‘s
Sweepstakes was illegal gambling, App. H at App. 80-81, such that
Justice Bolin had been made aware that his public position agreeing
with that of the CCA created the appearance he would not be impartial.
Thus, there was no inconsistency in JCRA’s Motion.
19
JCRA’s Application for Rehearing explained to the
Alabama Supreme Court that the reasoning underlying the
nonrecusal statements was not supported by a proper
reading of White and contradicted the long-established
standards for Due Process the court itself had recognized.
Nevertheless, the court overruled the application without
opinion, ignoring the key Due Process issues left unanswered
by the nonrecusal statements. This Court must correct these
errors of law as the United States Constitution does not and
cannot allow Alabama judges to ignore the requirements of
the Fourteenth Amendment’s Due Process Clause.
B. Chief Justice Nabers’ Nonrecusal and His
Participation in the Appeal Also Violated
JCRA’s Right to Due Process of Law
The situation involving JCRA’s Motion for the recusal
or disqualification of Chief Justice Nabers is unique and
constitutes an additional violation of JCRA’s right to Due
Process of law. In addition to adopting CCA’s anti-
gambling position, he also ran a campaign ad attacking
the well-known owner of JCRA — a litigant before his court
— as a “casino boss” when the very issue before the court
was whether JCRA’s Sweepstakes was illegal gambling.
There can be no question that the Due Process Clause
demanded his recusal or disqualification. Chief Justice
Nabers himself stated that if a judicial candidate declares
a position during a campaign that a litigant thinks hurts
his case, the litigant can file a motion for recusal. Drew
Jubera, There’s Nothing Civil about Ala. Judicial Race,
Chief Justice Campaign Turns ‘Mean Spirited’, Atlanta
Journal Constitution, June 5, 2006, at Al; App. L at App.
299. But when JCRA made such a motion, both Chief
Justice Nabers and the Alabama Supreme Court ignored it
and acted as if it had never been made.
Moreover, there are ample reasons to support a conclu-
sion that, while his name does not appear on the opinion
ultimately released, Chief Justice Nabers was involved in
the court’s deliberations. Admittedly, the factual allegations
of the affidavit of Milton McGregor filed in support of the
20
Application for Rehearing were not based upon first-hand
knowledge but upon information and belief. This is because
discovery regarding the cloistered deliberations of the Alabama
Supreme Court was simply not available on the Application for
Rehearing. Neither Chief Justice Nabers nor the court has
denied the factual allegations. Instead, the court left the issue
of Chief Justice Nabers’ participation glaringly unanswered.
The following points, however, must be noted:
¢ Although the District Attorney moved the Ala-
bama Supreme Court to strike the McGregor af-
fidavit, the court did not respond to the Motion
and thus the affidavit has not been stricken.
e Though, in the weeks leading to the December 1,
2006 release of the court’s opinion in the case below,
Chief Justice Nabers had issued a sua sponte recusal
statement in another pending appeal, he did not re-
spond to JCRA’s recusal Motion. See supra at 11 n.7.
* The Alabama Supreme Court issued an order ad-
dressing the recusal Motions concerning Justices
Bolin, Smith and Stuart but did not address the
one concerning Chief Justice Nabers.
¢ Chief Justice Nabers and the Alabama Supreme
Court had the opportunity to deny the allega-
tions concerning Chief Justice Nabers’ participa-
tion in the appeal but have never done so.
These points add to the appearance of partiality created by
Chief Justice Nabers’ refusal to recuse and his failure to be
disqualified by the court.
Moreover, even without consideration of the affidavit,
it is clear that (1) despite taking a public position against
even legal forms of gambling by means of the CCA voter
guide, (2) despite basing his election campaign on “fighting
gambling,” (3) despite disparaging the majority owner of
JCRA as a “casino boss” in a campaign advertisement
aired while the appeal was pending, and (4) despite
criticizing his political opponent for accepting a campaign
contribution from that person (App. H at App. 149-152),
Chief Justice Nabers did not recuse or disqualify himself
21
in the appeal below, which involved a sweepstakes operation
claimed by the district attorney and the CAA to be gambling,
when asked to do so. Instead, both he and the court ignored
that Motion and remained silent regarding the degree of his
participation in the deliberations, as if ignoring the issue
would make it go away. However, this continuing silence
shouts loudly. It proclaims that no member of the court is
willing to go on record and simply state that Chief Justice
Nabers did not participate in the appeal.
Regardless of the fact that a vote was not recorded for
Chief Justice Nabers on the court’s opinion, given the nature
of his public statements and advertisements in a multi-
million dollar political campaign for Alabama’s highest
judicial office while the appeal was pending, his failure to
recuse or be disqualified, resulted in a violation of JCRA’s
Constitutional Due Process right to a tribunal which had the
appearance of impartiality. Given that Chief Justice Nabers
did not recuse himself and was not disqualified by the Court,
the fact that no vote was recorded for him on the Court’s
opinion is not an indication that he did not participate in the
Court’s deliberations. Instead, his failure to affirmatively
recuse or be disqualified, combined with his and the court’s
silence on the issue on Application for Rehearing, further
heightens the appearance of partiality. Accordingly, this
Court should hold that Chief Justice Nabers’ nonrecusal and
the lower court’s failure to disqualify him was a violation of
JCRA’ss right to Due Process.
Il. BECAUSE THE INFLUENCE ON A PANEL
DECISION BY A JUDGE WHO FAILS TO
RECUSE AND IMPROPERLY PARTICIPATES
IN DELIBERATIONS CANNOT BE MEAS-
URED, DUE PROCESS REQUIRES THAT THE
RULING BE VACATED AND A NEW UN-
TAINTED PANEL APPOINTED
To remedy the Due Process violations of the Alabama
Supreme Court, this Court must vacate the December 1,
2006 opinion of the Alabama Supreme Court and remand
the appeal to be decided by an Alabama Supreme Court
22
composed of justices untainted by the violations.” This
remedy is supported by the holding in Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813 (1986), particularly the concurring
opinions of three Justices of this Court, as well as by opin-
ions of the Circuit Courts of Appeals, federal district courts,
and state appellate courts. This body of case law going back
more than sixty years demonstrates that Due Process
mandates not only that tribunals be impartial, but also that
they have the full appearance of impartiality. Our Constitu-
tion demands no less. In re Murchison, 349 U.S. 133, 136
(1955).
In Aetna, this Court vacated the ruling of the Alabama
Supreme Court because the participation by Justice Embry
violated the appellant’s Fourteenth Amendment Due Process
rights. This Court held that because Justice Embry had a
“direct, personal, substantial [and] pecuniary” interest in the
appeal before the court, he impermissibly acted “as a judge in
his own case.” 475 U.S. at 814 (citations omitted). This Court
further held that Justice Embry’s involvement offered the
possible temptation for him “not to hold the balance nice, clear,
and true” and thereby violated the appellant's Due Process
rights. Jd. at 822 (citations omitted). This violation occurred not
because it was determined that Justice Embry was actually
biased, but merely because the facts demonstrated that the
Alabama court’s ruling lacked the appearance of impartiality
required by the Due Process Clause. Jd. This Court determined
that the appropriate remedy for the violation, based on the fact
Justice Embry had cast the decisive vote in a 5-4 decision and
had authored the opinion, was to vacate the ruling in order to
serve the “appearance of justice.” Jd. at 825.
Moreover, Aetna suggests that had different facts
been presented, this Court would have recognized a Due
Process violation even if Justice Embry had been less in-
volved. This Court explained that because the parties had not
2 Alabama law provides for the appointment of special justices to
sit on appeals where there are an otherwise insufficient number of
justices to decide the appeal. See Ala. Code § 12-2-14; City of Bessemer
v. McClain, No. 1031917, 2006 WL 2089923, at *5 (Ala. July 28, 2006).
23
briefed or argued the broader issue of whether the improper
involvement of only one member of a multi-member panel
would require vacatur of the panel’s decision, it was inappro-
priate to address the issue. Jd. at 828 n.4. However, the
concurring opinions of Justices Brennan and Blackmun, with
whom Justice Marshall joined, stated that the Court’s opinion
should not be read as being dependent on the fact that Justice
Embry cast the decisive vote or wrote the opinion.
Justice Brennan stated that the Aetna opinion should not
be interpreted as applicable only where a judge improperly
fails to recuse and casts the deciding vote. He explained:
Finally, I understand that the Court’s opinion
is not to be read to suggest that the outcome might
be different had Justice Embry not provided the
necessary fifth vote in the court below.... Justice
Embry’s participation in the court’s resolution of the
case, while he was fully aware of his interest in its
outcome, was sufficient in itself to impugn the deci-
sion. .. . [E]xperience teaches us that each member’s
involvement plays a part in shaping the court’s ul-
timate disposition. The participation of a judge who
has substantial interest in the outcome of a case of
which he knows at the time he participates _neces-
sarily imports a bias into the deliberation process.
This deprives litigants of the assurance of impartial-
ity that is the fundamental requirement of due proc-
ess.
475 U.S. at 830-31 (Brennan, J., concurring) (italics in
original, underline added).
Justice Blackmun, joined by Justice Marshall, con-
cluded that any participation by Justice Embry in the
lower court’s deliberations was sufficient to violate Due
Process. Justice Blackmun noted that the influence of a
biased judge on the opinion of a court cannot be measured.
Id.
[Elven if had Justice Embry not written the
court’s opinion, his participation ... would have
violated the Due Process Clause. ... To discern a
constitutionally significant difference between
the author of an opinion and the other judges
24
who participated in a case ignores the possibility
that the collegial decisionmaking process that is
the hallmark of multimember courts led the au-
- thor to alter the tone and actual holding of the
opinion to reach a majority, or to attain unanim-
ity. And because this collegial exchange of ideas
occurs in private, a reviewing court may never
discover the actual effect a biased judge had on
the outcome of a particular case. We should not
attempt the ... task of distilling Justice Embry’s
particular contribution to determine whether the
result would have been the same had he disquali-
fied himself at the outset. I would not want other
appellate courts to read the Court’s opinion today
to suggest that such an inquiry provides an ap-
propriate guarantee of due process.
The violation of the Due Process Clause oc-
curred when Justice Embry sat on this case, for
it was then the danger arose that his vote and
his views, potentially tainted by his interest in
the pending Blue Cross suit, would influence the
votes and views of his colleagues.
475 U.S. at 832-33 (Blackmun, J., concurring in the
judgment) (emphasis added).
In sum, the Aetna holding demonstrates that the
appearance of partiality on the part of the Alabama
Supreme Court created by the refusal of Justices Bolin,
Nabers, Smith and Stuart (or any single justice) to recuse
resulted in a violation of JCRA’s rights under the Due
Process Clause. Furthermore, as the Aetna concurring
opinions make clear, the only sufficient remedy for this
violation is vacatur of the Alabama Supreme Court’s
opinion. What is at stake here — the very integrity of our
judicial system — demands nothing less. Such a ruling
would be fully consistent with opinions based on similar
circumstances from the majority of United States Circuit
Courts of Appeals that have considered the issue, as well
as many other courts.
25
A. United States Circuit Courts of Appeals Have
Vacated Rulings of Multimember Panels
Based on the Appearance of Partiality
Caused by the Nonrecusal and Participation
ofa Member Who Was Not the Deciding Vote
The vast ma majority of the Circuit Courts of Appeals that
have addressed the issue have held that a ruling by a multi-
member tribunal is fatally tainted if only one member wrongly
participated because of bias or the appearance of bias, even if
such member's vote was unnecessary to reach a majority
vote.” The seminal opinion is Berkshire Employees Ass’n of
Berkshire Knitting Mills v. National Labor Relations Bd., 121
F.2d 235 (3d Cir. 1941). The court was presented with a
petition to set aside a ruling of the National Labor Relations
Board (“NLRB”) and a petition to seek evidence from the
NLRB on whether the mill and the employees’ association
(collectively “Berkshire”) had received a “full and fair hearing”
before the NLRB. 121 F.2d at 236. Berkshire sought evidence
that prior to the hearing a member of the NLRB had asked an
executive of a client company of Berkshire to influence Berk-
shire about an employee strike. Jd. at 238.
Although the Third Circuit recognized that an adminis-
trative body such as the NLRB plays a different and broader
role than that of a court, it recognized that “resolution of
contested questions by an impartial and disinterested
tribunal” was still required by Due Process. Jd. The court
'* Six of the seven Circuit Courts of Appeals that have decided the issue
have ruled favorably to the Petitioner's position. See Texaco, Inc. v. Federal
Trade Comm'n, 336 F.2d 754 (D.C. Cir. 1964), vacated on other grounds, 381
U.S. 739 (1965), Cinderella Career & Finishing Schs., Inc. v. Federal Trade
Comm'n, 425 F.2d 583 (D.C. Cir. 1970); Berkshire Employees Ass'n of
Berkshire Knitting Mills v. National Labor Relations Bd., 121 F.2d 235 (3d
Cir. 1941); American Cyanimid v. Federal Trade Comm’n, 363 F.2d 757 (6th
Cir. 1966); Antoniu v. Sec. & Exch., 877 F.2d 721 (8th Cir. 1989); Yamaha
Motor Corp. v. Riney, 21 F.3d 793 (8th Cir. 1994); Stivers v. Pierce, 71 F.3d 732
(9th Cir. 1995); Staton v. Mayes, 552 F.2d 908 (10th Cir. 1977); Hicks v. City of
Watonga, 942 F.2d 737 (10th Cir. 1991). The only Circuit Court of Appeals not
to adopt the majority view is the Fifth Circuit. See Bradshaw v. McCotter, 796
F.2d 100 (5th Cir. 1986).
26
rejected the NLRB’s contention that its decision should be
upheld because only one member of the Board was alleged to
have lacked impartiality and he was not the deciding vote. It
held that: “Litigants are entitled to_an impartial tribunal
whether it consists of one man or twenty and there is no way
which we know of whereby the influence of one upon the
others can be quantitatively measured.” Jd. at 239 (emphasis
added). Based on the conclusion that Berkshire’s Due Proc-
ess rights may likely have been violated, the Court of Ap-
peals granted the petition for it to seek evidence, with the
case to be reconsidered by the members of the board who
were not disqualified should such bias be proved. /d.
Cinderella Career and Finishing Schools, Inc. v.
Federal Trade Comm’n, 425 F.2d 583 (D.C. Cir. 1970),
illustrates the proper ruling in a case involving public
statements by members of the tribunal. Cinderella sought
relief from orders of the Federal Trade Commission
(“FTC”) relating to certain allegedly deceptive business
practices. 425 F.2d at 584. Cinderella argued that the
chairman of the FTC should have recused himself from the
review of the initial decision of a hearing examiner be-
cause the chairman had made public statements which
suggested he had prejudged the case. Jd. at 584-85.
A public speech made by the chairman while Cinder-
ella’s appeal of the hearing examiner’s ruling was pending
criticized “ads that offer a college education in five weeks,”
and indicated to the Circuit Court of Appeals his bias against
Cinderella. Id. at 590. Noting that it had “no concern for or
interest in the public statements of government officers, but
_.. }was] charged with the responsibility of making certain
that the image of the administrative process is not trans-
formed from a Rubens to a Modigliani,” and, quoting Berk-
shire, the Circuit Court vacated the FTC's ruling and
remanded the case for reconsideration without the chairman.
Id. at 590, 592.
Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995), recog-
nized that the concurring opinions in Aetna are consistent
with the older case law from the Circuit Courts of Appeals.
In Stivers, the Ninth Circuit had to decide whether a
27
district court had erred in granting summary judgment on the
plaintiffs claim against members of Nevada's private detective
licensing board for allegedly violating his Due Process rights.
The court found Stivers had a right to an unbiased tribunal and
held that this right was violated when a single biased member
of the board took part in the unanimous ruling denying him a
license. 71 F.3d at 746-48. The court looked to the concurring
opinions in Aetna and the opinions in Cinderella and Berkshire
to answer the question of “whether bias on the part of one
member of a multi-person tribunal violates Due Process,
without any showing that the member’s bias affected the
tribunal’s decision.” Jd. at 746-47. Noting that the issue had not
been addressed by the majority opinion in Aetna, but that the
concurring opinions and other Circuit Courts of Appeals had
held that such a Due Process violation still required vacatur of
the ruling, the Stivers court concluded:
As Justice Brennan observed in Aetna Life, it
is difficult if not impossible to measure the impact
that one member’s views have on the process of col-
lective deliberation. Each member contributes not
only his vote but also his voice to the deliberative
process. Thus, the fact that the tribunal’s vote was
unanimous does not mean that the bias of one
member had no effect on the result. ~
We therefore hold that where one member of a
tribunal is actually biased, or where the circum-
stances create the appearance that one member is
biased, the proceedings violate due process. The
plaintiff need not demonstrate that the biased
member’s vote was decisive or that his views influ-
enced those of other members.
Id. at 747-48 (footnote omitted, emphasis added).
Likewise, several other Courts of Appeals opinions have
involved public statements by a tribunal member which
caused an appearance of bias resulting in a Due Process
28
violation even though the biased member did not cast the
deciding vote.“
B. State Court Decisions Also Support Vaca-
tur and Remand in this Case
Although there are several opinions by state appeals
courts and federal district courts addressing the issue of
whether the ruling of a tribunal must be vacated if one of
its members failed to recuse and improperly participated,
two state supreme court opinions address the issue when
the tribunal is an appeals court. In Johnson v. Sturdivant,
758 S.W.2d 415 (Ark. 1988), the court was petitioned for
rehearing by Georgia Pacific Corporation seeking the
disqualification of the original opinion’s author, Justice
Purtle, because he had a personal claim pending against
an insurer of one of the other appellants and, relying on
Aetna, also seeking the disqualification of other justices
that had participated in the ruling. 758 S.W.2d at 415-16.
The court recognized that under Aetna its opinion had to
be vacated because Justice Purtle had authored the
opinion, but also recognized that, like here, because the
opinion had “departled] from past decisions and head[ed]
in a different direction,” disqualification of all the judges
who participated and appointment of a court of special
justices to decide the appeal was required in order to pre-
serve the public’s trust. Jd. at 416. The Court explained:
“ See Texaco, Inc., 336 F.2d at 760 (“Chairman Dixon's participa-
tion in the hearing amounted ... to a denial of due process which
invalidated the order under review.”); Staton, 552 F.2d at 914 (holding
that Staton had a viable “civil rights claim” because statements made
by “Mayes for the removal of Dr. Staton ... reveal a tribunal not
meeting the demands of due process for a hearing with fairness and the
appearance of fairness.”); Antoniu, 877 F.2d at 726 (“Even though Cox
recused himself prior to the filing of the SEC’s final decision, there is no
way of knowing how Cox’s participation affected the Commissioner’s
deliberations. Accordingly, we nullify all Commission proceedings. . . .”);
Hicks, 942 F.2d at 748 (holding that Hicks had a viable claim under 42
U.S.C. § 1983 because “if Mrs. Diffy is found to have been biased when
she cast her vote... , her presence will have tainted the tribunal.”).
29
“While we are not expected to be a perfect institution, we
are expected to always try to do the right thing. ... Given
the unavoidable choice of letting a decision stand under a
cloud or removing the cloud entirely, we choose the latter.”
Id. Although not expressly stated, the Arkansas Supreme
Court’s ruling was plainly dictated by the conclusion that
such action was necessary to preserve the appeliant’s Due
Process rights. The same result is warranted here, where
the Alabama Supreme Court’s opinion not only involved a
Due Process violation by the participation and votes of
justices who should have recused, but also involved an
opinion, like the one by the court in Johnson, that “headed
in a different direction” in relation to its interpretation of
Alabama’s gambling device statute.
In People for the Ethical Treatment of Animals v.
Bobby Berosini, Ltd., 894 P.2d 337 (1995), overruled on
other grounds by Towbin Dodge, LLC v. Eighth Judicial Dist.
Court of State ex rel. County of Clark, 112 P.3d 1063 (Nev.
2005), the Nevada Supreme Court was presented with a
petition for rehearing based on the contention that a judge
sitting on the appeal should have recused. The recusal
motion was based on the judge’s membership on the advisory
board for a foundation allegedly associated with PETA. 894
P.2d at 433-34. Although the court concluded that the judge
was not actually biased, it granted the motion to disqualify
“to avoid even the appearance of impropriety and to promote
public confidence in the integrity of the judicial process.” Jd.
at 438. The PETA court then vacated the opinion even
though the judge had not cast a decisive vote. Citing the
concurring opinions in Aetna, the PETA court concluded that
although the judge’s vote could be considered surplusage
because three other justices signed the opinion, “the role
collegiality plays in appellate decisions mandates full recon-
sideration of this matter.” Jd. at 341-42.
These federal and state court opinions demonstrate
that what is required of the members of a tribunal in order
to render rulings in accordance with a party’s right to Due
Process of law has not changed in sixty years. In this case
concerning whether JCRA’s Sweepstakes promotion was
illegal gambling, four Alabama justices had made political
30
statements agreeing with CCA’s position opposing any
form of gambling, CCA had taken the public position that
JCRA’s Sweepstakes was illegal gambling, CCA had
participated in the bench trial, and the expert who testi-
fied against JCRA was proclaimed to be a CCA “under-
cover expert.” However, the court ignored the facts of
CCA's participation in the case and failed to answer the
issue of the appearance of partiality raised in JCRA’s
Motions to Disqualify. Moreover, even though the chief
justice aired a campaign commercial during the appeal
calling the owner of JCRA a “casino boss,” both he and the
court failed to even acknowledge JCRA’s Motion to Dis-
qualify him. Under these facts, the appearance of bias on
the part of four members of the Alabama Supreme Court
unquestionably violated JCRA’s Due Process rights and
requires that the court’s opinion be vacated.
CONCLUSION
This Court’s opinion in White recognized that a
judicial candidate has a right under the First Amendment
in an election campaign to state his or her positions on
issues or parties. That opinion did not answer the question
of what Due Process requires the judge to do when such
issues or parties come before the elected judge. The an-
swer to that question, now presented here, is that when
the judge’s use of free speech intrudes upon a litigant’s
rights under the Fourteenth Amendment thereby creating
a court that has the objective appearance of partiality, the
judge must recuse or be disqualified. The amazing facts
and circumstances presented by this Petition demonstrate
that four justices of the Alabama Supreme Court should
have recused or been disqualified, but were not, resulting
in glaring violations of JCRA’s Due Process rights. Accord-
ingly, JCRA requests the vacatur of the Alabama Supreme
Court’s opinion as the remedy for such a violation.
Respectfully submitted,
WILLIAM M. SLAUGHTER
Counsel of Record
J. MICHAEL REDIKER
MICHAEL C. SKOTNICKI
PETER J. TEPLEY
VINCENT J. GRAFFEO
HASKELL SLAUGHTER YOUNG &
REDIKER, LLC
2001 Park Place North
1400 Park Place Tower
Birmingham, AL 35203
Telephone: (205) 251-1000
J. MARK WHITE
AUGUSTA S. DowbD
WILLIAM M. BOWEN, JR.
WHITE ARNOLD ANDREWS & DowpD P.C.
2025 3rd Avenue North, Suite 600
Birmingham, AL 35203
Telephone: (205) 323-1888
JOHN M. BOLTON III
SASSER, BOLTON, STIDHAM &
SEFTON, P.C.
100 Colonial Bank Boulevard
P.O. Box 24127
Montgomery, AL 36117
Telephone: (334) 532-3400
Counsel for Petitioner
App. 1
Appendix A
APPENDIX A - OPINION OF THE ALABAMA
SUPREME COURT FILED DECEMBER 1, 2006
Notice: This opinion is subject to formal revision before
publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgom-
ery, Alabama 36104-3741 ((334) 242-4621), of any typo-
graphical or other errors, in order that corrections may be
made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2006-2007
1050625
David Barber, in his capacity as District Attorney
for the Tenth Judicial Circuit of Alabama
V.
Jefferson County Racing Association, Inc.,
d/b/a the Birmingham Race Course;
and Innovative Sweepstakes Systems, Inc.
1050857
David Barber, in his capacity as District Attorney
for the Tenth Judicial Circuit of Alabama
V.
Jefferson County Racing Association, Inc.,
d/b/a the Birmingham Race Course;
and Innovative Sweepstakes Systems, Inc.
App. 2
Appendix A
Appeals from Jefferson Circuit Court
(CV-05-7684)
(Filed Dec. 1, 2006)
WOODALL, Justice.
David Barber, in his capacity as District Attorney for
the Tenth Judicial Circuit of Alabama, appeals from a
judgment in favor of the Jefferson County Racing Associa-
tion, Inc., d/b/a the Birmingham Race Course (“the
JCRA”), and Innovative Sweepstakes Systems, Inc. (“In-
novative”) (referred to collectively as “the owners”), in the
owners’ action for injunctive and declaratory relief as to
allegations that they are operating illegal gambling
devices at the Birmingham Race Course (“the race
course”). We reverse that judgment and render a judgment
for Barber.
I. Procedural Background
On December 15, 2005, the owners began operating at
the race course an activity they advertised as a “Quincy’s
MegaSweeps” (“the MegaSweeps”). The activity was
interrupted on December 22, 2005, when Jefferson County
Sheriff Mike Hale began executing a warrant authorizing
the seizure of all records and computer equipment related
to the operation of the MegaSweeps. That same day, the
JCRA filed a complaint against Sheriff Hale seeking
declaratory and injunctive relief from the seizure. The
JCRA alleged that it was “conducting a sweepstakes
promotion at the race course to promote the race course
and its lawful activities as well as the opening of an
internet café and digital communications center.” (Empha-
sis added.) The JCRA sought a judgment (1) declaring that
App. 3
Appendix A
its MegaSweeps operation was lawful and (2) enjoining
Sheriff Hale from interfering with its MegaSweeps opera-
tion. It also sought a judgment declaring that the “Ala-
bama gambling statutes ... upon which the... search and
seizure [were] based” are “unconstitutionally vague.” It
more specifically challenged the constitutionality of Ala.
Code 1975, § 13A-12-20(4), which defines gambling. By
consent of the parties, the trial court issued a preliminary
injunction, enjoining further seizure of equipment and
ordering the return of all property that had been removed
from the race course. The court, however, also enjoined
operation of the MegaSweeps pending resolution of the
underlying dispute.
On December 29, 2005, Innovative, as the owner of
the computer equipment and system at issue in this case,
moved to intervene. That motion was granted on January
4, 2006. On January 17, 2006, Barber moved to intervene
and filed a counterclaim for declaratory and injunctive
relief. Barber sought a judgment declaring (1) “that the
components of the [MegaSweeps] operation ... are in fact
illegal gambling devices that are subject to forfeiture” and
(2) “that the operation ... is an illegal lottery under
Section 65 of the Alabama Constitution and Alabama Code
§ 13A-12-20, et seg.” He also sought an order permanently
enjoining the operation of “such gambling devices and/or a
lottery in Jefferson County.” That same day, the trial court
granted Barber’s motion to intervene. The Alabama
Attorney General appeared i: the case and filed a memo-
randum in opposition to the owners’ constitutional chal-
lenge.
Subsequently, on January 31, 2006, following a bench
trial, the trial court — without specifically referring to
App. 4
Appendix A
Barber’s counterclaims — entered a judgment declaring
that the MegaSweeps operation was not a lottery and that
it did not involve the use of slot machines or gambling
devices. The court permanently enjoined Sheriff Hale
“from further actions against [the MegaSweeps] operations
at the [race course], provided [the owners] operate the
[MegaSweeps] as represented.”
Sheriff Hale did not appeal. However, on February 14,
2006, Barber filed a notice of what purported to be an
interlocutory appeal in case no. 1050625, challenging the
injunctive aspect of the trial court’s judgment. Specifically,
the issue, as Barber framed it on his docketing statement,
was “(wjhether the trial court properly enjoined law
enforcement from seizing equipment used in such opera-
tion or otherwise taking action against the MegaSweep!|s]
operation at the Birmingham Race Track.” Concurrently,
he filed a motion in the trial court to alter, amend, or
vacate the judgment, or to grant a new trial. In that
motion, Barber contended, among other things, that the
January 31 judgment was not final because it did not refer
specifically to his counterclaims. That same day, the
owners moved this Court to dismiss Barber’s interlocutory
appeal. They contended that the January 31, 2006, judg-
ment was, in fact, a final judgment, effectively disposing of
Barber’s counterclaims and precluding an interlocutory
appeal. Furthermore, they argued, Barber’s pending
postjudgment motion rendered an appeal of a final judg-
ment premature.
On March 21, 2006, the trial court denied Barber’s
post-judgment motion. The following day, the owners
apprised this Court of that order and asserted that Bar-
ber’s interlocutory appeal merged with the final judgment,
App. 5
Appendix A
from which he had a right to appeal. On that ground, they
urged us to dismiss the appeal in case no. 1050625. Also,
on March 22, 2006, Barber appealed from the postjudg-
ment order, in case no. 1050857. The appeals were consoli-
dated for briefing. Various amici curiae filed briefs in
support of Barber, namely, (1) Governor Bob Riley, (2)
Attorney General Troy King, (3) the Alabama District
Attorneys Association, and (4) the Foundation for Moral
Law (“the Foundation”).
The parties now agree that all the issues presented in
this dispute are subsumed in case no. 1050857. Conse-
quently, we dismiss the appeal in case no. 1050625 as
moot.
Il. Case No. 1050857
Two dispositive issues are presented: (1) whether the
MegaSweeps operation at the race track involves the use
of slot machines and, if so, (2) whether the definition of
gambling in § 13A-12-20, Ala. Code 1975, is unconstitu-
tionally vague.
A. Standard of Review
Our review of a declaratory judgment is ordinarily
governed by the ore tenus standard. State Farm Mut. Auto.
Ins. Co. v. Brown, 894 So. 2d 643 (Ala. 2004); Alfa Mut.
Ins. Co. v. Small, 829 So. 2d 743 (Ala. 2002). However, the
standard “is not applicable where the evidence is undis-
puted, or where the material facts are established by the
undisputed evidence.” Salter v. Hamiter, 887 So. 2d 230,
234 (Ala. 2004). Neither does the ore tenus rule apply to
the trial court’s legal conclusions or misapplications of the
App. 6
Appendix A
law to undisputed facts. Eubanks v. Hale, 752 So. 2d 1113,
1144-45 (Ala. 1999).
The material facts in this case are undisputed or
uncontroverted and the questions presented are legal
ones, as the trial court expressly acknowledged. Therefore,
our review is de novo. Brown, 894 So. 2d at 647.
B. Slot Machine
Barber contends that the MegaSweeps operation
involves the use of slot machines, in violation of Ala. Code
1975, § 13A-12-27. Section 13A-12-27 provides, in perti-
nent part:
“(a) A person commits the crime of posses-
sion 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) Aslot machine; or
“(2) Any other gambling device, with
the intention that it be used in the ad-
vancement of unlawful gambling activity.”
A “slot machine” is defined as follows:
“A gambling device that, as a result of the inser-
tion of a coin or other object, operates, either
completely automatically or with the aid of some
physical act by the player, in such a manner that,
depending upon elements of chance, it may eject
something of value. A device so constructed or
readily adaptable or convertible to such use is no
less a slot machine because it is not in working
App. 7
Appendix A
order or because some-mechanical act of manipu-
lation or repair is required to accomplish its ad-
aptation, conversion or workability. Nor is it any
less a slot machine because apart from its use or
adaptability as such it may also sell or deliver
something of value on a basis other than chance.”
Ala. Code 1975, § 13A-12-20(10) (emphasis added).'
“A person engages in gambling if he stakes
or risks something of value upon the outcome of a
contest of chance or a future contingent event not
under his control or influence, upon an agree-
ment or understanding that he or someone else
will receive something of value in the event of a
certain outcome.”
Ala. Code 1975, § 13A-12-20(4). “Something of value” is
defined as “[aJny money or property, ... or article ex-
changeable for money or property or any form of credit or
promise directly or indirectly contemplating transfer of
money or property or of any interest therein, or involving
extension of a service entertainment or a privilege of
playing at a... scheme without charge.” Ala. Code 1975,
§ 13A-12-20(11).
Barber insists that the trial court erred in discounting
the operation and effect of key pieces of computer equip-
ment when they are integrated within the MegaSweeps
network. He contends that when those pieces are consid-
ered “collectively,” they are gambling devices within the
‘A “gambling device” is defined as “lalny device, machine,
paraphernalia or equipment that is normally used or usable in the
playing phases of any gamoling activity, whether that activity consists
of gambling between persons or gambling by a person involving the
playing of a machine.” Ala. Code 1975, § 13A-12-20(5).
App. 8
Appendix A
context of § 13A-12-27. This contention requires a descrip-
tion of the components of the MegaSweeps system and
how it functions as an integrated whole in its historical
context.
1. Function of the System
On January 14, 2006, before Barber moved to inter-
vene, the parties filed a joint stipulation of facts (“the
stipulation”). According to the stipulation, as supple-
mented by facts that are undisputed or uncontroverted,
Innovative is a wholly owned subsidiary of Multimedia
Games, Inc. (“Multimedia”), which “provides computer
equipment and software to promote the gaming activities
of Native American, charitable gaming establishments,
and state, national, and international lotteries.” In 2005,
Multimedia began discussions with the owners of the race
course regarding the development of a project to promote
the race course, the “primary business activity” of which
“is pari-mutual wagering and racing activities for its
patrons.” Those discussions produced the scheme for the
MegaSweeps operation.
To implement its plan, Multimedia devised a sophisti-
cated computer system to be installed at the race course.’
The JCRA describes it as a “unique one-of-a-kind system
that was basically developed from scratch.” JCRA’s brief,
at 58 n.18. Essentially, it involved the sales of Internet
* Direct quotations in Part II.B.1. of this opinion are from the
stipulation unless otherwise noted.
* According to Multimedia’s chief executive officer, the system used
at the race course is the “most sophisticated” system in operation.
App. 9
Appendix A
access in conjunction with chances to win cash prizes.
“Innovative was incorporated to continue Multimedia’s
implementation, design and deployment of” the system.
The Internet-access aspect of the system installed at
the race course is variously described as a “cyber café” or
“the CyberCenter.”
“8. Patrons obtain access to the services of
the CyberCenter by purchasing computer access
time (‘cybertime’) at a rate of one (1) dollar for
four (4) minutes. ...
“9. The rate[ ] charged for [cybertime] is fair
market value.
oe
“22. The products and services offered at
the CyberCenter ... provide for {[, among other
things,] ... personal computer usage, Internet
access and voice communications via the Inter-
net, and information on pari-mutual wager-
ing.... The CyberCenter features computer
terminals that provide access to a personal com-
puter with broadband Internet connection where
users can browse the Internet, access email, and
learn about and use commercial software appli-
cations licensed for use on that computer termi-
nal. The package offered at the CyberCenter
includes . . . services such as photocopying, print-
ing, photographic reproduction ... ; access to
software programs for use in preparing tax re-
turns, computer games, and basic computer
skills tutorials (for Windows, Microsoft Office,
other programs and the Internet itself); and the
sale or rental of certain computer hardware,
including headsets that can be used for voice
App. 10
Appendix A
communications and flash drives for data reten-
tion and transfer. ...
“
“24. Customers must have an account in
order to purchase cybertime. With that account
number, the System keeps track of how much cy-
bertime a customer has purchased and how
much that customer has used. The account is
accessed through a plastic account access card
containing an encoded magnetic strip similar to a
credit card. Once cybertime has been purchased,
it can be used at any one of the ... computer
terminals located in the CyberCenter on both
floors of the Birmingham Race Course facility.
The computer terminals have restricted access
requiring use of attached card swipe readers.”
The gaming aspect of the system is explained in the
stipulation as follows:
“10. The Birmingham Race Course offers a
sweepstakes called the [MegaSweeps]. For every
one (1) dollar of cybertime purchased, the con-
sumer receives 100 entries in the [MegaSweeps].
The results of the respective entries, i.e., whether
each is a winning or losing entry, are predeter-
mined when the consumer purchases cybertime at
the point of purchase.
“11. The customer determines whether the
sweepstakes entries are winners by reading the
results online or on one of the 116 computers in
the CyberCenter, calling a toll-free phone num-
ber, or by placing the computer access card in one
of more than 1,300 electronic readers |‘the read-
ers’] that display winning and losing entries in
an entertaining format, but standing alone are
App. 11
Appendix A
otherwise dumb terminals. Once the results have
been revealed, winning entries are paid. ...
“18. All sweepstakes entries, whether ob-
tained with the purchase of cybertime, by mail
(without a purchase], or by request at the facility
[without a purchase), are drawn in the same
manner. Entries cannot be changed or altered at
any time.
“19. Although a customer does not immedi-
ately know the sweepstakes results when the en-
tries are [assigned] to him, the customer is
provided with a number of ways to reveal the re-
sults. The customer can learn the outcomes of his
sweepstakes entries by accessing a website re-
motely, using the computer terminals, by calling
a toll-free phone number, or by revealing the out-
comes on a reader.
“20. The Birmingham Race Course has over
1,300 readers. The readers are divided among
different entertainment scenarios, and each
reader reveals a batch of entries in a quantity se-
lected by the customer. The customer swipes his
account card to activate a reader. Once activated,
the customer presses a button on the reader to see
the results of the selected number of entries.
“21. The entries the customer receives after
the purchase of cybertime are the same entries
that are revealed. When a customer’s sweep-
stakes entries are revealed, those sweepstakes
entries are marked as revealed and they cannot
be revealed again. If a customer chooses te use a
reader to reveal entries, a server selects the or-
der in which a customer’s outcomes are revealed.
App. 12
Appendix A
The total prize value of the subset is sent to the
reader so the reader can show the outcome to the
customer. For example, when a customer elects
to reveal five of the customer’s sweepstakes en-
tries, a server might select five of the customer’s
sweepstakes entries that happen to be non-
winners, in which case the appropriate commu-
nication would be relayed to the reader, and the
reader would display that outcome to the cus-
tomer. Alternatively, a server might select five of
the customer’s sweepstakes entries that happen
to be winners and relay the appropriate commu-
nication to the reader. The reader will ultimately
display the exact value of the customer’s sweep-
stakes entries.”
(Emphasis added.)
The trial court found that the “readers are designed
and « ranged so that they look and sound like slot ma-
chines.” Lt. Paul Hogan, who conducted preseizure “un-
dercover operations” at the race track, stated that the
readers would indicate a winning entry by “dings, tones
and simulated change falling as in a slot machine.” Accord-
ing to Lt. Hogan, the readers also had casino-style names
“such as Bunch O’Luck, Crazy Blue Streak, Reel Thrills,
Sun Dogs, Flamingo 7’s, Major Money, Krazy Farm, Ed
McMahon’s Star Magic, Cherry Pop, Fruit Cccktail De-
luxe, China Seas, Lock and Win, Double Cash Money, and
many others.” The payout percentage, that is, the ratio of
winnings to the amount expended by the players, is 92%.
Indeed, the typical reader was originally manufactured as
a slot machine and had been modified for use in conjunc-
tion with the peculiar components of the MegaSweeps
system, which include:
App. 13
Appendix A
“26. Central Database. The central compo-
nent of the System is a database where the cus-
tomer’s account is tracked. The account
maintains the cardholder’s information, the bal-
ance of purchased cybertime remaining, the
quantity of sweepstakes entries issued, and the
balance of sweepstakes winnings revealed, but
not yet redeemed.
“27. Point of Sale Terminals. The Point of
Sale Terminals allow customers to purchase cyber-
time for their accounts and to redeem any revealed
winning sweepstakes prizes. The Point of Sale
Terminal is connected to the Universal Point of
Sale server which handles all transactions and
connections with the Central Database. When a
customer purchases cybertime a request is for-
warded from the Point of Sale to the Universal
Point of Sale server where it is credited to the
customer’s account in the Central Database. This
sale of cybertime also triggers the System to give
a customer promotional sweepstakes entries by
associating them with the Customer’s account at
the time of purchase.
“28. Computer Terminals. The Computer
Terminals are state-of-the art personal com-
puters that are the primary access point for the
services sold by the CyberCenter. The Computer
Terminals are equipped with a suite of licensed
commercial software applications (like Microsoft
Office) that can be used by customers on the local
computer and they allow broadband access to the
Internet. The Computer Terminals have attached
swipe card readers that provide customers access
by swiping their account access cards. The Com-
puter Terminals are connected to a server called
the CyberCenter Kiosk Webservice (‘Computer
App. 14
Appendix A
Terminal server’) that deducts cybertime from
the customer’s account as the customer uses ac-
cess time at the Computer Terminal.
“29. The Readers. The Readers reveal
sweepstakes entries. The Readers are designed
to show sights and sounds that heighten the sus-
pense and excitement of the sweepstakes. The
Readers reveal the outcomes to the customers in
groups. The Readers do not determine the out-
come of the sweepstakes; rather, they merely re-
veal the outcome to the customer in an
entertaining manner. The only random process
that takes place on the Reader is the determina-
tion of which entertaining display to use to show
a losing outcome or a winning outcome of equal
value. For example, a Reader might have several
hundred different ways of showing a non-
winning sweepstakes outcome to the customer.
“30. Servers. The Point of Sale Terminals,
Computer Terminals, and Readers are connected
to three separate servers. The Universal Point of
Sale server runs from the CyberCenter back of-
fice and handles requests from both the Point of
Sale and Recharge Kiosks. The Universal Point
of Sale server credits the customer’s account in
the database with cybertime when purchases are
made at either the Point of Sale or the Recharge
Kiosks and gives the customers sweepstakes en-
tries. The Computer Terminal server also runs
from the CyberCenter back office and controls
access to the Computer Terminals. When a cus-
tomer swipes an account access card at a Com-
puter Terminal, the Computer Terminal server
determines whether the customer has cybertime
available. If so, the Computer Terminal server
allows the customer access to the Computer
App. 15
Appendix A
Terminal. The Computer Terminal server keeps a
record of the cybertime available on the cus-
tomer’s account. The Reader server determines
which of the customer’s sweepstakes entries will
be revealed on any given request. For example, if
a customer makes a request at a Reader to reveal
five sweepstakes entries and the customer has
100 available, the Reader server determines
which five entries to reveal. The Reader server
then sends the information on the five entries to
the Reader and marks those five entries as re-
vealed in the database.
“31. Customer Tracking Terminal (CTT).
The CTT provides a mechanism for entering the
customer’s account data into the System and is-
suing a customer account card. Customers new to
the CyberCenter must sign up and get an ac-
count card to begin tracking cybertime. The CTT
interfaces with the Customer Tracking System.
“32. Customer Tracking System (‘CTS’). The
CTS provides an interface between the central
database and the CTT. In addition to facilitating
account creation and data entry, the CTS can be
leveraged to facilitate promotions.
“33. Recharge Kiosk. The recharge kiosks
are automated stations that allow existing cus-
‘tomers with account access cards to purchase
additional cybertime and add it to their accounts.
If customers have won cash prizes in the sweep-
stakes, they can use the Recharge Kiosks to [ap-
ply] those winnings towards additional cybertime
purchases. The Recharge Kiosks are connected to
the Universal] Point of Sale server.
App. 16
Appendix A
“34. Management Terminal. The manage-
ment terminals allow users to monitor and con-
trol the system. They provide access to reports on
how the System works and on the current state
of the System. Management Terminals are per-
sonal computers running proprietary software
that provides them with a means of requesting
and displaying information from the Central Da-
tabase. Customers who call in to determine the
outcome of their sweepstakes entries will be ser-
viced by employees of the CyberCenter through
the Management Terminals. Management Ter-
minals provide access to information from the
database through their connection to the Man-
agement Terminal Service.
“35. Management Terminal Service (MTS’).
The MTS connects the Management Terminals to
the Central Database. The MTS packages re-
quests for information from the Management
Terminals and returns the data requested from
the database. The MTS runs on a server in the
back office of the CyberCenter.”
(Emphasis added.)
In a nutshell, the MegaSweeps system functions as
follows: A consumer wishing to play the readers opens an
account by obtaining a magnetically encoded card, either
by mail or at the point of sale at the race track. In either
event, the account is simultaneously assigned, by the
central database and a server, a number of MegaSweeps
entries corresponding to the amount of cybertime the
consumer obtained. The assignments are selected from
any 1 of 20 pools containing 200 million entries in each
pool. According to Clifton Lind, Multimedia’s chief execu-
tive officer, the entries in each pool are “randomized by
App. 17
Appendix A
chance” before they are assigned to a consumer. The
consumer activates one of the 1,300 readers by inserting
his slide card into a slot on the reader. Once activated, the
reader allows a consumer to reveal his entries. The con-
sumer chooses an option and presses a button. Subse-
quently, the reader server reveals the selected number of
entries. Whether those entries correspond to any of the
winning entries that were assigned to the consumer’s
account at the point of sale is determined by a computer
algorithm. The consumer may continue selecting options
until all of his entries have been revealed.
When the consumer “logs off” the reader, his account
status is maintained in the central database. The system
will print out a report of the transaction, including the
amount of winnings, if any. Subsequently, the consumer
may collect his winnings at a “cash advance cage.” In the
alternative, he may exchange his winnings for more
cybertime and, consequently, additional MegaSweeps
entries, by inserting his card into one of the recharge
kiosks and entering the amount of his winnings to be
applied toward the purchase of more cybertime.
Barber contends that the “readers are slot machines
with certain parts removed.” Barber’s brief, at 48 n.12.
Thus, he insists, the readers are illegal because they are
“‘readily adaptable or convertible’ to slot machines” within
the definition of § 13A-12-20(10). Id.
In its order, the trial court concluded that the readers
are not slot machines because the “readers are ‘dumb
terminals,’” reasoning (1) that “no element of chance is
present at the readers,” and (2) that “no consideration is
paid or can be paid to use the readers.” (Emphasis added.)
App. 18
Appendix A
Barber, however, contends that both these elements are
present if the components of the system are understood as
working “collectively” and that “the trial court erred in
looking solely at the readers to determine whether gam-
bling devices were present.” Barber’s brief, at 47 (empha-
sis added).
With a payout percentage of 92%, the owners do not —
and could not — argue that the third element of gambling
is absent in this case, that is, they do not contend that
prizes are not being awarded. Instead, echoing the ration-
ale of the trial court, Innovative insists that because the
winning entries are predetermined within the central
database at the moment the “player receives his card,”
prizes are not awarded on the basis of a “future contingent
event,” within the meaning of § 13A-12-20(4). Innovative’s
brief, at 66. Thus, this case turns on whether the
MegaSweeps involves the elements of chance and consid-
eration.
2. Chance
By “chance,” we mean “a lack of control over events or
the absence of ‘controllable causation’ — ‘the opposite of
intention.’” Opinion of the Justices No. 373, 795 So. 2d
630, 635 (2001) (quoting Black’s Law. Dictionary 231 (6th
ed. 1990)).
“Slot machines have come a long way since
Charles Fey invented the first nickel three-reeler
in a small machine shop in San Francisco in
1895.... There are slot .machines that have
eliminated the handle, requiring only the press-
ing of a button to set the wheels spinning. Some
slot machines don’t even have slots; the number
App. 19
Appendix A
of times a player can pull the handle (or press
the button) is displayed as replays in a window of
the machine.
“Charles Fey, if he were alive today, would
recognize all of these machines as refinements of
his invention.”
I. Nelson Rose, Gambling and the Law 83 (Gambling
Times, Inc. 1986) (emphasis added). Today, “most slot
machines in casinos are not manually operated.... ”
Christine Hurt, Regulating Public Morals and Private
Markets: Online Securities Trading, Internet Gambling,
and the Speculation Paradox, 86 B.U.L. Rev. 371, 428-29
(2006). More and more, such machines are controlled by
computer. Jd. at 441, nn. 382 & 383. Indeed, modern slot
machines may be “stand-alone or network computers.” Jeff
Dense, The Socioeconomic Impact of Gaming in the Virgin
Islands, 8 Gaming L. Rev. 175, 176-77 (2004) (emphasis
added). Thus, a device is no less a slot machine because it
operates within a network, that is, because it shares
computer-processing equipment with a number of similar
devices.
In that connection, Innovative states:
“By [constructing its system so that] winning and
losing entries [would be determined] before the
card is handed to the person and by not charging
any consideration for the entries themselves, In-
novative designed the [MegaSweeps] so that [the]
required statutory element(s] of ‘gambling device’
— something staked ‘upon the outcome of a con-
test of chance or a future contingent event’ -
would be missing.”
App. 20
Appendix A
Innovative’s brief, at 12 (emphasis added). However,
Barber and certain amici curiae argue that when a con-
sumer obtains his or her card with the assigned
MegaSweeps entries, “chance occurs at [that] point of sale.”
The Foundation’s brief, at 7 (emphasis added). We agree.
It is axiomatic that one may not lawfully do indirectly
what is unlawful to be done directly. It is uncontroverted
that at least some of the readers had been adapted for
such use from their former function as stand-alone, or
mechanical, slot machines. The adaptation was described
by Robert Sertell, Sheriff Hale’s expert witness, in the
following colloquy:
“Q. Now, did you see any [of the] readers on
[January 4, 2006, that were seized by the
sheriff in December]?
of
“A. [By Sertell]. There-was one, sir, yes, sir.
“Q. Did you take it apart?
“A. Yes.
“Q@. And what did you see in it that was any-
thing of note?
A. The cabinet had a Baily Manufacturing
name plate on the side.[*] The internals of
* Bally Manufacturing Company “is one of the oldest names in
gaming, and was the dominant manufacturer of slot machines until
[International Gaming Technology] took over that role in the 1980s.”
John Grochowski, The Slot Machine Answer Book: How They Work,
How They've Changed and How to Overcome the House Advantage 68
(Bonus Books 2d ed. 2005).
App. 21
Appendix A
the cabinet had been removed and replaced
with what was apparently a computer or a
personal computer unit. There was provision
inside for the bill-acceptor mechanism to be
replaced if necessary. It was missing when I
saw it. There was, indeed, the traditional
cash box still in place. There was a ticket
printer validator loaded still in place, that
could have received and/or issued bar-coded
tickets. That magazine was full. There was,
I believe, a power supply in the cabinet and
that is about it.”
(Emphasis added.)
Significantly, the statutory definition of a slot machine
includes any device that is “constructed or readily adapt-
able or convertible to such use,” regardless of whether it is
“in working order or [whether] some mechanical act of
manipulation or repair is required to accomplish its
adaptation, conversion or workability.” § 13A-12-20(10)
(emphasis added). Just as the readers were adapted to
function within the computerized MegaSweeps network,
they cculd be retooled to operate as they were originally
designed.
In this case, the element of chance is satisfied at the
point of sale — before the readers are activated — by the
same central database and other computer equipment that
serve to operate the readers. It is immaterial that the
readers do not, themselves, assign values to the entries. In
short, the element of chance is as much a feature of the
MegaSweeps network system as of a stand-alone slot
machine.
App. 22
Appendix A
3. Consideration
Barber contends that the trial court erred in holding
that the element of consideration was absent in the
operation of the MegaSweeps system. Arguing to the
contrary, the owners first insist that the only consideration
paid by consumers is not for MegaSweeps entries, but for
cybertime, which is sold at fair market value. The owners’
argument, however, ignores the last sentence of § 13A-12-
20(10): “Nor is it any less a slot machine because apart
from its use or adaptability as such it may also sell or
deliver something of value on a basis other than chance.”
(Emphasis added.)
This portion of the statute deals with the recurring
attempts by gaming interests to invest slot machines with
legitimacy as ordinary vending machines. See, e.g.,
Higdon v. McDuff, 233 Ala. 497, 172 So. 636 (1937); Skates
v. Hartsfield, 216 Ala. 618, 114 So. 10 (1927); Cagle v.
State, 18 Ala. App. 553, 93 So. 206 (1922) (machine yield-
ing either chewing gum or nickels upon the deposit of a
nickel was an illegal slot machine); and Painter v. State,
163 Tenn. 627, 45 S.W.2d 46 (1932). “Slot machines were
invented that dispensed almost worthless mints with
every nickel played so the operator could say that the
customer always received something for his money.” Rose,
Gambling and the Law 89. “The early courts were split on
whether this converted the slot machine into a legitimate
vending machine, until it was pointed out that players
continued to put in their nickels long after the mints had
run out.” Id. (emphasis added). Consequently, the statute
impels us to inquire beyond the fact that the consumer
always receives something for his money. It requires us to
App. 23
Appendix A
consider the substance of the transaction, rather than its
form.
Doing so accords with the general rule that “a slot
machine which, in return for a coin deposited therein,
dispenses merchandise represented to be of the value of
such coin, accompanied at occasional and uncertain
intervals by a varying amount of money ... , or more
broadly, one which provides an element of chance, is a
gambling device.” 38 Am. Jur. 2d Gambling § 104 (1999).
Thus, “[w]here the return to the player is . . . dependent on
an element of chance, a slot machine is a gambling device,
even though the player is assured of his money’s worth of
some commodity and hence cannot lose.” Id. (emphasis
added). Such inquiry is also consistent with Ala. Code
1975, § 8-1-150 (“All contracts founded in whole or in part
on a gambling consideration are void.”), and with this
Court’s “‘“‘general disposition’”’” in the gambling context
to “‘“‘regard|| always the substance and not the sem-
blance of things, so as to prevent evasions of the law.’”’” Ex
parte Ted’s Game Enters., 893 So. 2d 376, 380 (Ala. 2004)
(quoting Opinion of the Justices No. 373, 795 So. 2d 630,
640 (Ala. 2001), quoting in turn Opinion of the Justices No.
277, 397 So. 2d 546, 547 (Ala. 1981) (emphasis added in
Opinion No. 373)).
To be sure, MegaSweeps “delivers something of value,”
namely, cybertime, on the basis of something “other than
chance.” Upon the tender of a minimum payment, con-
sumers invariably receive four minutes of cybertime, in
addition to 100 MegaSweeps entries. The owners contend
that the consideration is paid for the cybertime, and,
consequently, that the MegaSweeps entries are free. This
argument does not pass statutory muster, however, if,
App. 24
Appendix A
looking through the form of the operation to its substance,
consumers are paying for the entries, in whole or in part,
regardless of the cybertime acquired in conjunction with
those entries. See § 13A-12-20(11) (“[a]ny money or prop-
erty” paid or received is consideration). In other words, if
they are paying to play the readers, rather than to ac-
quire, or in addition to acquiring, cybertime, the element
of consideration set forth in § 13A-12-20(10) and (11) is
satisfied.
The evidence on this issue was undisputed or uncon-
troverted. The trial court found that “few customers were
using the [Internet kiosks],” but that customers “were
lined up at all hours to use the readers.” Also, the fact that
the owners provided more than 11 times as many readers
as Internet kiosks suggests an expectation that the read-
ers would be the major attraction.
Indeed, consumers purchased additional cybertime —
with the accompanying entries — even though they already
had large quantities of unused cybertime on their accounts.
The recharge kiosks, which allowed consumers to apply
their “winnings toward additional cybertime purchases,”
facilitated those transactions. In fact, consumers who
purchased cybertime were apprised only of the number of
entries credited to their account, not the amount of cyber-
time, unless they used the recharge kiosks or specifically
asked MegaSweeps personnel about the cybertime.
The payout percentage is 92%. This percentage
coincides with the industry standard for casino-style slot
machines, which “typically pay back 90% to 98% of all
money played, thus providing a hold for the house of 2% to
10%.” Mark G. Tratos, Gaming on the Internet, 3 Stan. J.L.
App. 25
Appendix A
Bus. & Fin. 101, 111 (1997). By contrast, the typical
payout percentage for a “temporary promotional sweep-
stakes” is “one half of one percent.” Midwestern Enters.,
Inc. v. Stenehjem, 625 N.W.2d 234, 240 (N.D. 2001).
Moreover, the duration of “promotional sweepstakes
occasionally offered by fast food chains, or in connection
with candy, sodas, miscellaneous food or other established
retail products,” is typically “limited,” Tenn. Op. Att’y Gen.
No. 02-089 n.5 (August 21, 2002), as opposed to the dura-
tion of the MegaSweeps, which is indefinite. The payout
percentage and duration of the operation are indicative of
“the true purpose of the game.” Stenehjem, 625 N.W.2d at
240.
Indeed, the trial court found it “obvious that most of
the customers are more interested ih getting [the]
MegaSweeps entries than they are in using the [Internet
kiosks].” The court further found that
“the [owners] undertook [the MegaSweeps] to at-
tract customers who wanted to gamble, or, at
least, those who could be made to think that they
were gambling. [The owners’} advertising through
television commercials and billboards promoted
playing [the] MegaSweeps as an alternative to
attending gambling establishments at Green-
track, |Alabama,] or Philadelphia and Biloxi,
Mississippi.”
(Emphasis added.) These facts and findings refute the
owners’ argument that, because cybertime is sold at fair
market value, the MegaSweeps operation falls outside the
statutory definition of a slot machine. Clearly, a substan-
tial number, if not the majority, of customers pay to play
App. 26
Appendix A
the readers, rather than to acquire, or in addition to
acquiring, cybertime.
The owners next contend that there is no considera-
tion for the entries, because minimum quantities may be
obtained by mail or at the point of sale without charge.
However, this Court has held that the availability of free
chances is not necessarily dispositive of whether the game
is a gambling scheme. Grimes v. State, 235 Ala. 192, 178
So. 73 (1937).
Grimes involved a “bank-night” scheme —- common
during the depression era, Roger J. Traynor, Quo Vadis,
Prospective Overruling: A Question of Judicial Responsibil-
ity, 50 Hastings L.J. 771, 786 (1999) - in which, in order
“(tlo promote business, theaters conducted drawings and
made prizes available to patrons who bought tickets or, in
some cases, to individuals who registered for the drawing
but were not required to buy a ticket.” Roland J. Santoni,
An Introduction to Nebraska Gaming Law, 29 Creighton L.
Rev. 1123, 1131 (1996) (emphasis added). Consistent with
this practice, the operators of the Ritz Theater in Tusca-
loosa held a drawing each Thursday night for a cash prize.
Grimes v. State, 28 Ala. App. 4, 178 So. 69 (1937) (setting
forth the underlying facts). “A registration booth was
maintained during all hours of each day of the week in the
marquee of the theater, where registration cards could be
signed” by irdividuals wishing to participate in the draw-
ing. 28 Ala. App. at 5, 178 So. at 69. Stubs of all such cards
were placed in a “hopper” and made up the pot from which
each drawing was taken. 28 Ala. App. at 6, 178 So. at 70.
“(NJo charge of any kind was made or any consideration
exacted from any one, and the signing of such card was
absolutely free, no one being required to purchase a ticket
App. 27
Appendix A
of admission to register.” 28 Ala. App. at 5, 178 So. at 69
(emphasis added).
“In addition to the original registration card,
[however,] those patrons of the theater who at-
tended a [matinee] performance of the theater
prior to the hour of the drawing on the day of the
drawing, viz., Thursday of each week, were per-
mitted, if they so desired, to sign an additional
card |‘the matinee card’) other than the registra-
tion card....”
28 Ala. App. at 6, 178 So. at 70 (emphasis added). Prizes
were awarded only to persons who had signed the matinee
card, unless the person whose name was drawn was
present on the premises and stepped forward within two
minutes, to claim his prize. 28 Ala. App. at 6, 178 So. at 70.
Cecil B. Grimes, as “city manager of the ... [Tusca-
loosa] theaters,” was “convicted of conducting a lottery.” 28
Ala. at 5, 178 So. at 69. The Court of Appeals affirmed the
conviction, and Grimes sought certiorari review, which
this Court denied with a written opinion. 235 Ala. at 192,
178 So. at 73.
The only issue presented to this Court was whether
the element of consideration was satisfied, where “every-
body [could] register, and [could] participate in the draw-
ing by being either in the theater, or on the outside, in
position to appear and claim the prize within two min-
utes.” 235 Ala. at 193, 178 So. at 74. The Court inquired:
“How can it be said patrons ... have paid anything for a
chance, if they have a like chance without paying?” Jd.
Holding that the element was satisfied, however, the
Court focused on the recipient of the consideration, that is,
App. 28
Appendix A
“Iwas] there a consideration moving to him?” 235 Ala. at
193, 178 So. 2d at 74. Thus, the Court reasoned that “the
lure of bank night [was] the show, and the chance for a
prize, as against the chance without the show.” 235 Ala. at
193-94, 178 So. at 74 (emphasis added). “[{L]ooking
through form and dealing with reality,” the Court recog-
nized that “the plan [was] intended to fill the theater, not
the lobby outside,” and that “the success of the plan in
swelling the patronage, and consequent income through
the scheme of chance [was] the final proof of a considera-
tion paid and a consideration received.” 235 Ala. at 194,
178 So. at 74.
Finally, the Court stated:
“That the prize may go to some one who has
paid nothing does not negative the fact that many
have paid for their chance. Because some have
not been drawn into the gambling phase does not
render it any the less a lottery, with whatever of
evil it engenders, as to the large public who have
paid.” |
235 Ala. at 194, 178 So. at 74 (emphasis added). Grimes
thus stands for the proposition that the opportunity for
free plays does not a negate the element of consideration,
or obviate an inquiry into the purpose and effect of the
operation as “the final proof of . . . consideration.” See also
Clark v. State, 262 Ala. 462, 462, 80 So. 2d 312, 312 (1955)
(the purpose and effect of the operation is a factor in decid-
ing whether “consideration [is] moving to the operator”).
In support of their argument that the opportunity for
free plays negates the element of consideration, the
owners cite Pepsi Cola Bottling Co. of Luverne v. Coca-
Cola Bottling Co., 534 So. 2d 295 (Ala. 1988) (“Pepsi
?
App. 29
Appendix A
Cola”), a short, per curiam opinion holding that an “‘In-
stant Cash’ promotion,” operated by Pepsi Cola Bottling
Co. of Luverne, Inc. (“Pepsi”), did not constitute a lottery.
534 So. 2d at 296. The promotion “offered a prize of
$10,000 to someone presenting [bottle] caps containing all
the letters” spelling “‘Pepsi Instant Cash.’” Jd. “For [that]
campaign, Pepsi distributed 25,000 cards with a similar
opportunity at participating stores and advertised via
store displays and radio that no purchase was required to
participate in the game. Cards could also be obtained by
telephone request and by writing the bottling plant or
production center in Columbus, Georgia.” 534 So. 2d at
296. In holding as it did, the Court did not discuss, over-
rule, or attempt to distinguish Grimes. It merely stated
that “the ‘Pepsi Instant Cash’ game [was] not a lottery,
because participants were not required to purchase cards
in order to play.” 534 So. 2d at 297.
We need not decide whether Pepsi Cola conflicts with
Grimes, because it is distinguishable from this case in at
least two important respects. First, unlike the sweep-
stakes in Pepsi Cola, MegaSweeps is a permanent, high-
stakes game. “[I]t does nwt follow that simply because low-
stakes, temporary promctional sweepstakes with pay-out
rates of one-half of one percent that offer free play are not
pursued as lotteries, we must conclude high-stakes,
permanent games with pay-out rates of [ninety-two]
percent are immune from the definition of [gambling]... .”
Midwestern Enters., Inc. v. Stenehjem, 625 N.W.2d at 240
(“Lucky Strike” machine, which dispensed a “two-minute
pre-paid phone card” in addition to a “game piece giving
the buyer a chance to win up to $500 in cash,” having a
payout percentage of 65%, was an illegal gambling device,
App. 30
Appendix A
despite a limited opportunity to play the machine for free).
Second — and more fundamentally — Pepsi Cola, unlike
this case, did not involve the use of an alleged gambling
device. The facts in Pepsi Cola did not require, or invite,
an analysis of § 13A-12-27 and § 13A-12-20(10) and (11).
In particular, there was no allegation, like the one here,
that the game involved the use of a slot machine. Thus,
Pepsi Cola is inapposite.
We think “Charles Fey, [inventor of the slot machine,]
if he were alive today, would recognize [the accessorized
MegaSweeps readers] as refinements of his invention.”
Rose, at 83. Innovative conceded that it constructed its
system “so that [the] required statutory element|s] of [a]
‘gambling device’ — something staked ‘upon the outcome of
a contest of chance or a future contingent event’ — would
be missing.” Innovative’s brief, at 12 (emphasis added).
The flaw in Innovative’s approach is that the elements are
not “missing” from the mechanics of the scheme. They are
simply dispersed throughout the various units and processes
of the integrated network.
The owners propose that they have found, and ex-
ploited, a “loophole” in the law. Indeed, the trial court
stated:
“The evidence convinces the court that through
careful planning the [owners] have found a loophole
in the patchwork of Alabama’s anti-gambling laws
and they have taken advantage of that loophole. In
the words of the Sheriff’s expert witness, Robert
Sertell, the [owners’] sweepstakes promotion was
‘trying to pul] a tractor-trailer through a loop-
hole.’ This court agrees that the jowners] have
taken advantage of weaknesses in the law... .”
App. 31
Appendix A
(Emphasis added.) Alabama’s gambling law, however, 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.’” Opinion of the Justices No. 83, 249 Ala.
516, 517, 31 So. 2d 753, 754 (1947) (quoting Johnson v.
State, 83 Ala. 65, 67, 3 So. 790, 791 (1887) (emphasis
added)). In the computer age, the fact that chance takes
place at the point of sale rather than at the readers them-
selves is simply inconsequential.
Thus, the readers are slot machines as to those who
pay to play them. Are they any less so because a few
patrons play for free? We think not. “Because some have
not been drawn into the gambling phase does not render it
any the less [a slot machine], with whatever of evil it
engenders, as to the large public who have paid.” Grimes,
235 Ala. at 194, 178 So. at 74 (emphasis added). Gratui-
tous entries obtained by mail or at the race track do not
legitimize the high-stakes MegaSweeps any more than
some opportunity for free plays could render innocuous a
conventional slot machine. The trial court’s contrary
holding was, therefore, error.
C. Vagueness
The JCRA challenges the statutory definition of
gambling as unconstitutional as applied to this particular
case. Because the trial court held in favor of the owners on
their substantive claims, it did not address the JCRA’s
* Our conclusion that the accessorized readers are slot machines
renders unnecessary any discussion of whether they are also a lottery.
App. 32
Appendix A
constitutional arguments. More specifically, the trial court
stated:
“The {owners} have ... argued that the rele-
vant statutes, Ala. Code (1975) Section 13A-12-
20 et seq., are unconstitutional as applied to this
case because of vagueness.... The argument
may have merit, but because of the conclusion
reached by the court that the plaintiffs’ promo-
tional scheme is lawful, the constitutional issue
need not be addressed.”
Because we disagree with the trial court as to the legality
of the MegaSweeps operation, the constitutional issue is
squarely before us, and we address JCRA’s vagueness
challenge.
“In reviewing the constitutionality of a statute, we
‘approach the question with every presumption and
intendment in favor of its validity, and seek to sustain
rather than strike down the enactment of a coordinate
branch of the government.’” Moore v. Mobile Infirmary
Ass’n, 592 So. 2d 156, 159 (1991) (quoting Alabama State
Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d 810, 815
(1944)). Overcoming that presumption is a heavy burden,
which is borne by the party challenging the validity of the
statute. Densmore v. Jefferson County, 813 So. 2d 844, 856
(Ala. 2001); Jefferson County Bd. of Health v. City of
Bessemer, 293 Ala. 237, 301 So. 2d 551 (1974).
The JCRA specifically challenges only § 13A-12-20(4),
which provides, in pertinent part:
“A person engages in gambling if he stakes or
risks something of value [consideration] upon
the outcome of a contest of chance or a future
App. 33
Appendix A
contingent event not under his control or influ-
ence, upon an agreement or understanding that
he or someone else will receive something of
value in the event of a certain outcome.”
(Emphasis added.) The essence of the JCRA’s argument, as
we understand it, is that if this Court holds that the
elements of chance and consideration are present in the
MegaSweeps system, those terms are unconstitutionally
vague. We disagree.
“Vagueness may invalidate a criminal law for either of
two independent reasons. First, it may fail to provide the
kind of notice that will enable ordinary people to under-
stand what conduct it prohibits; second, it may authorize
and even encourage arbitrary and discriminatory enforce-
ment.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999).
However, “‘{mJere difficulty of ascertaining its meaning or
the fact that it is susceptible of different interpretations
will not render a statute ... too vague or uncertain to be
enforced.’” Scott & Scott, Inc. v. City of Mountain Brook,
844 So. 2d 577, 589 (Ala. 2002) (quoting City of Birming-
ham v. Samford, 274 Ala. 367, 372, 149 So. 2d 271, 275
(1963)). “[F]lew words possess the precision of mathemati-
cal symbols, most statutes must deal with untold and
unforeseen variations in factual situations, and the practi-
cal necessities of discharging the business of government
inevitably limit the specificity with which legislators can
spell out prohibitions.” Boyce Motor Lines, Inc. v. United
States, 342 U.S. 337, 340 (1952). “Consequently, no more
than a reasonable degree of certainty can be demanded.
Nor is it unfair to require that one who deliberately goes
perilously close to an area of proscribed conduct shall take
—
App. 34
Appendix A
the risk that he may cross the line.” Id. (footnote omitted;
emphasis added).
Moreover, “[a] statute is not vague when the meaning
of the words in controversy can be fairly ascertained by
reference to judicial determinations, the common law,
dictionaries, treatises or even the words themselves, if
they possess a common and generally accepted meaning.”
Bowers v. State, 283 Md. 115, 125, 389 A.2d 341, 347
(1978) (emphasis added).
The JCRA does not allege that the meanings of the
words “chance” and “consideration” are mysterious or new.
Actually, “[glambling is as old as man, and certainly as old
as the common law.” Rose, at 75. The elements of gambling
under § 13A-12-20(4) are the same as those at common
law, namely, the payment of (1) consideration, for the (2)
chance to win (3) a prize. See Grimes v. State, 235 Ala. at
193, 178 So. at 74; Kyle D. Craddock, The Cardstock
Chase, Trading Cards: A Legal Lottery? 8 Gaming L. Rev.
310, 314 (2004) (the “three basic [common-law] elements of
gambling [are] consideration, chance, and prize”). Thus,
the meanings of the words “chance” and “consideration”
are easily apprehended by reference to “judicial determi-
nations [and] the common law,” at which they “possess a
common and generally accepted meaning.” Bowers v. State,
283 Md. at 125, 389 A.2d at 347. Moreover, the element of
consideration in the specific context of this case is meticu-
lously defined in § 13A-12-20(11).
In that connection, the amicus curiae brief filed by the
Attorney General contends that there is no “vagueness,”
and “no confusion about what the law requires,” the only
issue being one of fact, that is, how the MegaSweeps
App. 35
Appendix A
functions. Brief of Attorney General, at 10. Indeed, this
case turns not so much on the definitions of “chance” and
“consideration” as on their applications to the undisputed
facts.
In the final analysis, Innovative created a system
composed of what were formerly slot machines, which look
like, sound like, and and attract the same class of custom-
ers as conventional slot machines, and, when integrated
with the servers, serve essentially the same function as
did the slot machines. In a carefully planned venture,
Innovative transferred the element of chance from the
readers to a server, merged the MegaSweeps entries with
cybertime, and staked the success of ite venture on the
legal efficacy of the transfer and merger. The owners have
identified neither statutory law nor caselaw suggesting
that such displacement and merger are legally significant.
Having “take[n] the risk that” their venture “may cross
the line,” it is not “unfair to require” that the owners bear
the consequences of failure. Consequently, the JCRA has
not demonstrated that the statutory scheme is unconstitu-
tional.
Ill. Case No. 1050625
Our resolution of the issues in case no. 1050857
necessarily resolves the issues in case no. 1050625. There-
fore, the appeal in case no. 1050625 is dismissed as moot.
IV. Summary
In summary, the trial court erred in focusing on the
function of the MegaSweeps readers in isolation. When
integrated as they are with the servers, central database,
App. 36
Appendix A
and related computer equipment, the readers are slot
machines as that term is defined by § 13A-12-20(10) and
§ 13A-12-27. Moreover, § 13A-12-20 is not unconstitution-
ally vague. For these reasons, the judgment in favor of the
owners is reversed and a judgment is rendered in favor of
Barber.
1050625 — APPEAL DISMISSED.
1050857 — REVERSED AND JUDGMENT RENDERED.
See, Lyons, Harwood, Stuart, Smith, Bolin, and
Parker, JJ., concur.
Stuart, Smith, and Bolin, JJ., file statements of
nonrecusal.
ore
STUART, Justice (statement of nonrecusal).
Jefferson County Racing Association, Inc., d/b/a the
Birmingham Race Course (hereinafter referred to as
“JCRA”), has moved for my recusal in these appeals. In its
motion the JCRA alleges:
“1. Justice Stuart is currently engaged in a
political campaign for re-election to the office of
Justice of the Alabama Supreme Court.
“J. Justice Stuart has publically indicated
that she opposes the ‘establishment of gambling.’
The recently released Christian Action Alabama
2006 General Election Voter Guide reflects that
Justice Stuart ‘agrees’ on the issue of ‘oppose es-
tablishment of gambling’... .
“
App. 37
Appendix A
“6. Justice Stuart has taken a political and
ethical posture against gambling, has made her
views public and has made her anti-gambling po-
sition a basis of why she should be re-elected a
Justice of the Alabama Supreme Court. This
stance is indicative of a bias that could squarely
impact the parties, interests, and issues in these
appeals.
“7. ... [The core issue of the above-
referenced cases concerns whether certain ...
business activities constitute unlawful gambling
or a lawful sweepstakes operation.
“
“13. A judge or justice must be a neutral
decision maker and not an advocate. The issue
presented by this motion is not about political
speech. It is about a stated and demonstrated ac-
tual bias and prejudice to a participant and an.
issue in a legal case before this Court.
“
“Therefore, it is clear that the Canons of Ju-
dicial Ethics mandate that a justice cannot sit on
a case involving the issue of whether certain ac-
tivities constitute unlawful gambling or a lawful
sweepstakes operation when one of her political
campaign platforms is against gambling. Justice
Stuart must disqualify/recuse herself from the
above-styled cases.”
Innovative Sweepstakes Systems, Inc., has also moved for
my recusal in these appeals on the same grounds.
App. 38
Appendix A
Canon 3.C., Ala. Canons of Jud. Ethics, provides:
“(1) A judge should disqualify fher]self in a
proceeding in which [her] disqualification is
required by law or [her] impartiality might rea-
sonably be questioned, including but not limited
to instances where:
“(a) [She] has a personal bias or preju-
dice concerning a party....”
Judges are required to make decisions based on the
application of the law to the facts, despite their personal
opinions.
“A judge’s views on matters of law and policy
ordinarily are not legitimate grounds for recusal,
even if such views are strongly held. See Richard
E. Flamm, Judicial Disqualification: Recusal
and Disqualification of Judges § 10.2 (1996) (col-
lecting cases). After all, judges commonly come to
a case with personal views on the underlying
subject matter. ... Far from necessarily warrant-
ing recusal, typically such views merely mark an ~
active mind. See Laird v. Tatum, 409 U.S. 824,
835, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (‘Proof that
a (judge’s]) mind ... was a complete tabula rasa
... would be evidence of lack of qualification, not
lack of bias.’); John Leubsdorf, Theories of Judg-
ing and Judge Disqualification, 62 N.Y.U. L. Rev.
237, 250-51 (1987) (discussing Judge Jerome
Frank’s statement that ‘lilf ... bias and partial-
ity be defined to mean the total absence of pre-
concep*ions in the mind of the judge, then no one
has evew had a fair trial and no one ever will’).”
United States v. Snyder, 235 F.3d 42, 48 (1st Cir. 2000).
App. 39
Appendix A
I have personal opinions about many issues. As a trial
court judge I made, and as a Supreme Court Justice I now
make, my decision in a case based on the application of the
law to the facts in that particular case, regardless of my
personal opinion. I have always done so, and I will con-
tinue to do so. (
Because my personal opinions do not influence my
decisions as a Justice of this Court, I decline to recuse
myself.
Smith, J., concurs.
eS
SMITH, Justice (statement of nonrecusal).
Jefferson County Racing Association, Inc., d/b/a the
Birmingham Race Course, and Innovative Sweepstakes
Systems, Inc., have filed motions seeking my recusal in
these consolidated appeals. For the reasons expressed by
Justice Stuart and by Justice Bolin in their statements of
nonrecusal, I also decline to recuse myself.
I write separately to emphasize that I have a constitu-
tional duty to decide cases, and that duty is balanced with
the requirement of impartiality.
“The Constitution of the United States and the
Constitution of Alabama of 1901 impose on
judges the duty to decide cases. See U.S. Const.
art. III, § 1 (vesting the ‘judicial Power of the
United States ... in one supreme court, and in
such inferior courts as the Congress may from
time to time ordain and establish’); id. at art. VI
(‘[A}ll ... judicial Officers, both of the United
States and of the several States, shall be bound
App. 40
Appendix A
by Oath or Affirmation, to support this Constitu-
tion.... ); Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 218-19, 115 S. Ct. 1447, 131 L. Ed. 2d
328 (1995) (‘Article III establishes a “judicial de-
partment” with the “province and duty” ... to de-
cide . . . “case[s}.”’) (quoting Marbury v. Madison, 5
U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803) (em-
phasis added)); Marbury, 5 U.S. at 180 (stating
that a judge’s oath to support the Constitution
requires that he exercise the judicial power and
decide cases in a manner consistent with funda-
mental law); Pierson v. Ray, 386 U.S. 547, 554,
87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967) (‘It is a
judge’s duty to decide all cases within his juris-
diction.... ’); Ala. Const. 1901 amend. 328,
§ 6.01(a) (‘([T]he judicial power of the state shall
be vested exclusively in a unified judicial system
which shall consist of a supreme court. .. . ’); id.
at § 279 (requiring ‘all officers, executive and ju-
dicial, ... [to] take the following oath or affirma-
tion: “I, , solemnly swear ... that I
will support the Constitution of the United
States, and the Constitution of the State of Ala-
bama ... and that I will faithfully and honestly
discharge the duties of the office upon which |
am about to enter”’); Federated Guaranty Life
Ins. Co. v. Bragg, 393 So. 2d 1386, 1389 (Ala.
1981) (‘“{I]t is the duty of the judge to adjudicate
the decisive issues involved in the controversy
... and to make binding declarations concerning
such issues, thus putting the controversy to
rest. ...”’) (citation omitted).”
Dunlop Tire Corp. v. Allen, 725 So. 2d 960, 976 (Ala. 1998)
(See, J., statement of nonrecusal).
Stuart, J., concurs.
App. 41
Appendix A
BOLIN, Justice (statement of nonrecusal).
Innovative Sweepstakes Systems, Inc., and the Jeffer-
son County Racing Association, Inc., have each filed a
motion seeking my recusal in these appeals because a
Christian Coalition voter guide for the 2004 election
indicated my agreement with the Christian Coalition on
the issue of gambling, in that I was shown as agreeing
next to the phrase “oppose establishment of gambling.”
In Republican Party of Minnesota v. White, 536 U.S.
765 (2002), the United States Supreme Court addressed
the issue whether a judicial candidate’s First Amendment
rights were violated by a canon of the Minnesota Code of
Judicial Conduct that prohibited him from announcing his
views on disputed legal or political issues. The Supreme
Court held that this prohibition, known as the “announce
clause,” did violate the First Amendment rights of judicial
candidates.
Thus, the United States Supreme Court has ruled
that a judicial candidate’s First Amendment rights permit
the candidate either to announce or discuss or to refuse to
announce or discuss personal views on an issue such as
gambling. Each individual candidate is therefore constitu-
tionally permitted to express his or her views in a manner
that allows those views to be disseminated to the citizenry
— in this case, answers in response to specific questions on
a questionnaire.
White teaches that judicial candidates may respond to
questions such as those that were asked in the 2004
Christian Coalition voter guide. I note that the Alabama
Judicial Inquiry Commission, following the United States
Supreme Court’s release of White, withdrew an advisory
App. 42
Appendix A
opinion in which it had opined that a judicial candidate
would be violating the Alabama Canons of Judicial Ethics
if the candidate answered certain questions on a question-
naire issued by the Christian Coalition in anticipation of
the 2000 elections. See Christian Coalition of Alabama uv.
Cole, 355 F.3d 1288 (11th Cir. 2004). The withdrawal of
this advisory opinion was in keeping with White and
reflected the Judicial Inquiry Commission’s view that
answers to questions such as those in the Christian
Coalition questionnaire were permissible free speech.
The question then arises as to whether answering
such questions would violate Canon 3.C.(1), Ala. Canons of
Jud. Ethics, which provides:
“(1) A judge should disqualify himself in a
proceeding in which his disqualification is re-
quired by law or his impartiality might reasona-
bly be questioned, including but not limited to
instances where:
“(a) He has a personal bias or pre-
judice concerning a party, or personal knowl-
edge of disputed evidentiary facts concerning
the proceeding. ...”
In this proceeding, I have no knowledge whatsoever of any
disputed evidentiary facts not disclosed in the record nor
any bias or prejudice either for or against any party, and
there were no allegations in the recusal motion that I had
such knowledge or bias. The only remaining issue is
whether there is anything else by which my “impartiality
might reasonably be questioned.”
All judges are presumed to be qualified and unbiased.
Gary uv, Crouch, 867 So. 2d 310 (Ala. 2003). The burden of
App. 43
Appendix A
proof is on the party making a motion to disqualify or
recuse to establish that the judge whose disqualification or
recusal is sought is biased or prejudiced against a party.
Ex parte Monsanto Co., 862 So. 2d 595 (Ala. 2003). In
2004, I expressed the view that I “oppose the establish-
ment of gambling.” My position on that issue is consistent
with the law of Alabama; gambling is illegal in this State.
I also oppose other acts that violate the laws of the State
of Alabama, such as murder, rape, and robbery, but my
personal opposition to the above acts does not prevent me
from fairly and unbiasedly participating in cases involving
such acts.
The main opinion in this case strictly applies the law
as it exists in the State of Alabama to the facts that are
before the Court. The opinion contains no bias or prejudice
in favor of or against gambling, and I brought no bias or
prejudice to my participation in it. Furthermore, the
movants’ position in the present case is that their activi-
ties do not constitute gambling but instead constitute a
promotional sweepstakes. Therefore, there is an inherent
inconsistency in the movants’ argument that I should
recuse myself from this case because I have indicated an
opposition to the legal establishment of gambling and
their argument on appeal that their enterprise is not
gambling at all.
After due consideration, I decline to recuse myself.
Stuart and Smith, JJ., concur.
App. 44
Appendix B
APPENDIX B - ORDER OF THE ALABAMA
SUPREME COURT FILED DECEMBER 1, 2006
[LOGO] IN THE SUPREME COURT OF ALABAMA
December 1, 2006
1050625 -
David Barber, in his capacity as District Attorney for the
Tenth Judicial Circuit of Alabama v. Jefferson County
Racing Association, Inc., d/b/a the Birmingham Race
Course; and Innovative Sweepstakes Systems, Inc. (Ap-
peal from Jefferson Circuit Court: CV-05-7684)
1050857
David Barber, in his capacity as District Attorney for the
Tenth Judicial Circuit of Alabama v. Jefferson County
Racing Association, Inc., d/b/a the Birmingham Race
Course, and Innovative Sweepstakes Systems, Inc. (Ap-
peal from Jefferson Circuit Court: CV-05-7684)
ORDER
The appellees’ motions for the recusals of Justice Lyn
Stuart, Justice Patricia Smith, and Justice Mike Bolin
having been submitted to those Justices;
And Justice Stuart, Justice Smith, and Justice Bolin
having declined to recuse themselves;
And the appellees’ motion for am order directing
Justice Stuart, Justice Smith, and Justice Bolin to recuse
themselves having been submitted to and considered by
this Court;
App. 45
Appendix B
IT IS ORDERED THAT the motion for an order
directing Justice Lyn Stuart, Justice Patricia Smith, and ©
Justice Mike Bolin to recuse themselves in the above-
referenced appeals is denied.
Done this the 1st day of December, 2006.
See, Lyons, Harwood, Woodall, and Parker, JJ.,
~ concur.
App. 46
Appendix C
APPENDIX C - ORDER OF THE ALABAMA
SUPREME COURT FILED OCTOBER 24, 2006
[LOGO] IN THE SUPREME COURT OF ALABAMA
October 24, 2006
1050625
David Barber, as District Attorney of Jefferson
County, Alabama v. Jefferson County Racing As-
sociation, Inc. d/b/a The Birmingham Race
Course et al. (Appeal from Jefferson Circuit
Court: CV-05-7684)
1050857
David Barber, in his capacity as District Attor-
ney for the Tenth Judicial Circuit of Alabama v.
Jefferson County Racing Association, Inc., d/b/a
The Birmingham Race Course; Mike Hale; and
Innovative Sweepstakes Systems, Inc. (Appeal
from Jefferson Circuit Court: CV-05-7684).
NOTICE
Pursuant to Rule 34(a), Alabama Rules of Appellate
Procedure, the request for oral argument is denied. These
appeals are submitted on briefs October 24, 2006.
cc:
Hon. J. Scott Vowell, Circuit Judge
Marc J. Ayers, Attorney
Matthew H. Lembke, Attorney
Michael R. Pennington, Attorney
Hon. J. Alan Baty, District Attorney
William J. Baxley, Attorney
H. Hampton Boles, Attorney
John M. Bolton, III, Attorney
William M. Bowen, Jr., Attorney
App. 47
Appendix C
Matthew F. Carroll, Attorney
Michael] K. Choy, Attorney
Augusta Dowd, Attorney
Bingham D. Edwards, Jr., Attorney
Charles M. Elmer, Attorney
J. Eric Getty, Attorney
Vincent J. Graffeo, Attorney
Ed R. Haden, Attorney
Wyatt R. Haskell, Attorney
G. David Johnston, Attorney
J. Michael Rediker, Attorney
Alan T. Rogers, Attorney
Michael C. Skotnicki, Attorney
William M. Slaughter, Attorney
Will Hill Tankersley, Jr., Attorney
Peter J. Tepley, Attorney
Charlie D. Waldrep, Attorney
J. Mark White, Attorney
Hon. Troy King, Attorney General
Hon. Kevin C. Newsom, Asst. Attorney General
Benjamin D. DuPre, Attorney
Gregory M; Jones, Attorney
Keith S. Miller, Attorney
Roy S. Moore, Attorney
Mike O’Dell, Attorney
Scott L. Rouse, Attorney
Thomas W. Sorrells, Attorney
Kenneth D. Wallis, III, Attorney
App. 48
Appendix D
APPENDIX D - ORDER AND JUDGMENT OF
THE CIRCUIT COURT OF JEFFERSON COUNTY,
ALABAMA FILED JANUARY 31, 2006
IN THE CIRCUIT COURT OF JEFFERSON
COUNTY, ALABAMA CIVIL DIVISION
JEFFERSON COUNTY RACING )
ASSOCIATION, INC. d/b/a THE )
BIRMINGHAM RACE COURSE, )
and INNOVATIVE SWEEP-
STAKES SYSTEMS, INC.
)
)
)
PLAINTION®, ) CIVIL ACTION NO
ve ) CV 05-7684 JSV
MIKE HALE, IN HIS OFFICIAL ?
CAPACITY AS SHERIFF )
OF JEFFERSON COUNTY, )
ALABAMA, .
)
DEFENDANT.
DECLARATORY JUDGMENT AND INJUNCTION
(Filed Jan. 31, 2006)
I.
THE CASE
This action was brought by the plaintiff, the Jefferson
County Racing Association, Inc., d/b/a the Birmingham
Race Course (the Race Course), whose primary business
activity is pari-mutuel wagering on live and simulcast
greyhound racing and on simulcast horse racing at the
Race Course facility located in the eastern area of Bir-
mingham. This entity has been referred to as Milton
McGregor’s company. The intervenor, who has been aligned
by the court as a plaintiff, is Innovative Sweepstakes
App. 49
Appendix D
Systems, Inc., (Innovative), the owner of the gaming
equipment which is at the center of this litigation. Innova-
tive is a wholly owned subsidiary of Multimedia Games,
Inc., (Multimedia), a publicly traded company, which
provides computer equipment and software to promote
gaming activities. The defendant is Mike Hale, in his
official capacity as Sheriff of Jefferson County, Alabama.’
It is undisputed that the Race Course’s pari-mutuel
wagering is legal under current Alabama law, but on
December 15, 2005, the Race Course opened a “CyberCen-
ter” and began an activity it called “Quincy's Sweep-
stakes.” After six days of operation, deputies of the
Jefferson County Sheriffs Department obtained a search
warrant and, on December 22, 2005, raided the facility.
They began seizing the equipment used to operate the
Sweepstakes on the grounds that the Sweepstakes consti-
tuted an illegal lottery or gambling scheme.
While the-raid was progressing, the Race Course filed
this action and sought a temporary restraining order to
require the Sheriff to cease and desist the seizure, alleging
that the Sweepstakes was a legal sweepstakes promotion
under Alabama law. This court conducted an expedited
hearing on the application for a T.R.O. and by agreement
of the parties issued a preliminary injunction to preserve
the status quo and to allow the parties to brief and pre-
pare their case for trial. The court also suspended further
operation of the Sweepstakes until the merits of the case
’ Pursuant to Ala. Code (1975) § 6-6-227, the Alabama Attorney
General received notice of the plaintiffs’ case including the constitu-
tional challenge to the relevant statute. The court allowed the Jefferson
County District Attorney to intervene.
App. 50
Appendix D
could be considered. Because of the intervening holidays,
the case was set for trial on January 3, 2006.
On January 3, 2006 the court again heard arguments
of counsel and the Sheriff agreed that he no longer re-
quired physical possession of the seized equipment.
Therefore, the equipment was ordered to be returned to
the Race Course and the disputed issue of responsibility
for payment of the moving expenses was reserved by the
court. The parties jointly requested additional time to try
to narrow the disputed issues of fact and former Supreme
Court Justice Ralph Cook agreed to facilitate their nego-
tiations. The trial was continued for two weeks.
The court conducted a bench trial on January 17 and
18, 2006, and the stipulated facts were submitted as Joint
Exhibit Number 1. As a result, there are few remaining
issues of disputed fact.
Il.
THE ISSUE
The fundamental issue this Court must decide is the
legality of the Sweepstakes. The Sheriff contends that the
Sweepstakes promotion at the Race Course facility consti-
tutes an unlawful lottery and/or gambling scheme under
Alabama law. The Sheriff asserts that the CyberCenter
being promoted by the Race Course is a “sham,” and that
patrons are actually paying consideration for sweepstakes
entries.
On the other side, the plaintiffs deny that the Cyber-
Center is a sham and contend that the Sweepstakes is a
lawful sweepstakes promotion under Alabama law because
App. 51
Appendix D
no consideration is required to participate in the Sweep-
stakes. Plaintiffs also deny that the operation involves
gambling or gambling devices. Plaintiffs assert that the
Sweepstakes is a promotional plan designed to attract
patrons to the Race Course facility, to promote the Cyber-
Center, and to enhance the pari-mutuel activities, thereby
increasing income. Plaintiffs further contend that the
Alabama gambling statutes are unconstitutionally vague
as applied to the facts of this case.
Il,
- THE FACTS
In 2005 the Race Course engaged Multimedia to
develop a sweepstakes promotion as part of a marketing
plan to promote the Race Course. During the development
process, both the Race Course and Multimedia sought
opinions from those it considered to be experts in the area
of sweepstakes promotions to help them determine
whether or not their proposed operation complied with
applicable Alabama law.
On May 25, 2005 plaintiffs demonstrated the Sweep-
stakes operation to the Alabama Attorney General’s office.
After seeing the demonstration and being furnished with
additional requested documentation, the Attorney Gen-
eral’s office advised the plaintiffs that sweepstakes pro-
motions are legal in Alabama and that the promotion
would be lawful if the Sweepstakes were operated as
demonstrated. The Attorney General’s office informed the
App. 52
Appendix D
plaintiffs that they would give the same opinion if other
law enforcement agencies were to inquire.’
The stipulations also reflect that representatives of
the plaintiff had discussions with the Sheriff and the
District Attorney and offered to demonstrate the Sweep-
stakes to them prior to beginning operations. The plain-
tiffs proceeded with the promotion plans and the Race
Course’s Sweepstakes began on December 15, 2005.
During the trial the court was given a courtroom
demonstration of the Sweepstakes at the Race Course.
To play the Sweepstakes at the Race Course, a patron
must first open an account to obtain a plastic account
access card containing an encoded magnetic strip similar
to that on a credit card. To open an account the customer
presents his/her driver’s license to a Race Course atten-
dant who scans the license into the Race Track’s computer
system. The patron then receives the access card at no
charge as well as an individual account number similar to
a PIN: Plaintiffs call the card a “Qcard.”
After obtaining the Qcard, the patron moves to a Point
of Sale Terminal where he/she may purchase Internet time
(cybertime). The sale of cybertime also triggers the system
to give the customer promotional Sweepstakes entries. For
* Stipulation #41. The Sheriff subpoenaed Troy King, the Alabama
Attorney General, to testify at the trial but King immediately filed a
motion to quash the subpoena. He also filed a petition for a writ of
mandamus in the Alabama Supreme Court requesting that court to
stay the trial unti] the motion to quash could be considered. On the
morning of the trial, this court granted King’s motion to quash the
subpoena and the case proceeded to trial.
App. 53
Appendix D
each $1.00 spent the patron receives four minutes of
Internet time and is given 100 MegaSweeps entries, each
of which represents a separate chance to win a cash prize.
The rate charged for access to the CyberCenter is compa-
rable to rates charged by providers of similar computer
services and is “fair market value.” There is no separate
charge for the Sweepstakes entries.
In the CyberCenter there are 116 state-of-the-art
computers. The customer swipes his/her Qcard and logs
onto a computer that tracks the amount of Internet time
available to the customer, deducting the used time from
the customer’s account. The computers provide the cus-
tomers with broadband Internet connections allowing the
user to browse the Internet, to access email and to obtain
many of those services that are available on the Internet.
The CyberCenter can also be used to make telephone calls ;
via the Internet, to make copies, to print digital photo-
graphs, to send faxes, and so forth. The computers can be
used to gain access to online information about greyhound
and horse races and the customer can access pari-mutuel
tip sheets and other information used for handicapping
live and simulcast racing sites around the country.
As stated, when the customer buys Internet time
he/she also gets Sweepstakes entries in Quincy’s
MegaSweeps. Whether or not the customer has a winning
or losing entry is predetermined at the time the customer
purchases Internet time. Once the customer has been
given the Sweepstakes entry, it cannot be changed and the
customer cannot tell by looking at the card whether he/she
has drawn a winning entry. The customer may determine
whether the Sweepstakes entries are winners or losers at
the CyberCenter, by accessing a website remotely, by
App. 54
Appendix D
calling a toll-free telephone number, or by going to an
electronic Reader.
The most popular way to learn the result of an entry
is through the use of the more than 1,300 electronic
Readers that display winning and losing entries. To learn
the result of an entry from a Reader, the customer swipes
his Qcard to activate the Reader and then presses a button
on the Reader to see the results. The customer may select
one entry or a batch of entries to be read at the same time.
The demonstration and other evidence makes it clear
to the court that these Readers are designed and arranged
so that they look and sound like slot machines at a gam-
bling casino. But while they look, sound and act like a
gambling machine, the evidence shows that they are not
gambling machines. These machines do not determine who
wins or who loses. There is no chance involved. The
Reader simply reads and displays the results of the prede-
termined sweepstakes entries. As plaintiff conten
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.