# Petition for Writ of Certiorari — Jefferson County County Racing Association Association Association, Inc. v. Barber (No. 06-1363) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2424%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## 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 opportu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2424%3A1. Public record. Not legal advice.