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Political, Personal Interests Will Likely Decide Gaming Fate (But Should It?)

Bill Britt

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By Bill Britt
Alabama Political Reporter

MONTGOMERY—The future of gaming in Alabama will be a battle between competing businesses, personal and religious interests.

Senate President Pro Tem Del Marsh (R-Anniston) has proposed legislation that would allow competition for gaming revenues between the Birmingham Racecourse, VictoryLand, Greenetrack, and locations owned by the Poarch Creek Indians (PCI). This will also include Mobile Greyhound Park, which is owned by PCI. Marsh’s legislation includes a lottery.

A competing plan reportedly favored by Speaker of the House Mike Hubbard (R-Auburn) would essentially grant PCI a monopoly over all gaming in the State and perhaps a lottery. Hubbard’s reasoning has not been articulated, but much speculation surrounds his motivation.

PCI’s Vice Chair Robbie McGhee has stated the tribe would be willing to advance the State as much as $250 million in exchange for an exclusive compact. This would give the tribe sole rights to table games and slots in the State, while giving the State a one-time windfall of needed cash.

The tribe and their lobbyists have conducted extensive meetings with Hubbard, who has, in turn, reached out to Gov. Robert Bentley to press him on supporting the tribe’s position.

Hubbard, who has been charged by the State with 23 felony counts of public corruption which also includes lobbying the Governor on behalf of his clients, is fighting a very expensive legal battle. He has already used hundreds of thousands in campaign contributions to pay for his criminal defense, and some attorneys have suggested that he may need millions to actually see his day in court, with his current level of legal representation.

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At odds with both plans are ALCAP, an interdenominational ministry whose mission, according the its website serves as, “Alabama’s moral compass,” and  the Alabama Policy Institute (API), a right-wing think thank.

According to Marsh, his plan, which, in part, is based on existing business and free-market competition, would not only generate revenue from taxing gaming, it would also create thousands of jobs.

An exclusive compact with PCI would not result in new, large-scale employment opportunities and would not amount to the reoccurring revenues that would be generated under Marsh’s plan.

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Gov. Bentley has said, that gaming is not the answer to the State’s long-term fiscal health. He remains committed to putting the State on a path of stable growth through targeted tax increases.

However, those within the Governor’s inner-circle believe that the Hubbard plan might receive support, if he will deliver on Bentley’s tax plan. it has been said, a number of tax bills will soon be dropped in the House by members with close ties to Hubbard.

In part, the Hubbard/PCI scheme rests on the Governor’s legal authority to unilaterally sign a compact without the approval of the legislature. If the legislature must approve a compact, then Hubbard’s plan could be in jeopardy. It is widely believed that he cannot win over enough Senators to secure passage of a bill that grants a monopoly to the Poarch Creek Indians.

In compact negotiations states are expected to act in “good faith.” The text of Indian Gaming Regulatory Act (IGRA) takes specific notice in not conferring upon a State or any of its political subdivisions the authority to impose any taxes, fee, charge, or other assessment upon an Indian tribe. So, it would be a delicate balance that would have to be reached between the Governor and the tribe.

There are numerous requirements to ensure tribes and states operate in good faith and to negotiate gaming compacts that will harm neither group and benefit, primarily, tribe members. The emphasis, of course, being on no harm to either and on benefitting the tribe not the State.

According to Florida House of Representatives v. Crist, the The Indian Gaming Regulatory Act (IGRA) clearly prohibits the conduct of Class III gaming activities on Indian lands in the absence of a tribal-state compact that is in effect.  The only exception to the compact requirement Congress envisioned was the promulgation of a gaming compact through administrative procedures after a bad-faith determination and in concert with a proposal selected by a court-appointed mediator.

In 2008, the Florida House of Representatives and its Speaker, Marco Rubio, filed in petition for a writ of quo warranto in the Florida Supreme Court disputing the Governor’s authority to bind the State to the compact that he had signed with the Seminole Indian Tribe of Florida. The Court held “that the Governor does not have the constitutional authority to bind the State to a gaming compact that clearly departs from the State’s public policy by legalizing types of gaming that are illegal everywhere else in the state.”

The same argument was made in North Carolina, where, in 2012, the North Carolina Institute for Constitutional Law found that Governor Bev Perdue “appear[ed] to have exceeded the scope of her authority when she signed the Gaming Compact that expanded current gaming options for the Eastern Band of Cherokee Indians.” 

This was because live table games were not permitted by state law at the time the Governor entered into the compact. This issue was later resolved with by the State’s General assembly. 

Class III table gaming is currently not legal in Alabama and could take a constitutional amendment to make it so.

Case law undercuts the argument that Bentley or any Alabama Governor can act without consent of the legislature.

On the religious front, the idea of expanding gambling has met with fierce opposition in the past.

When gaming interests tried to pass legislation under the banner of Sweet Home Alabama, Citizens for Better Alabama (CBA) a Birmingham based, tax-exempt group was the public face of the opposition.

Led by Birmingham-based attorney A. Eric Johnston, who also works with ALCAP, hundreds of thousands of dollars were donated to the non-profit to fight gambling.

In a 2013 interview with the Alabama Political Reporter, Johnston explained how, then-Governor Bob Riley and Chairman of the ALGOP Mike Hubbard, routed almost a million dollars in contributions through the non-profit and back to a Hubbard owned company.

The non-profit’s Federal 990 report shows that with the aid of Riley and Hubbard, Citizens for a Better Alabama went from raising only around $40,000 in its best years, to almost a million when it came to fighting efforts to expand gambling.

Hubbard’s alliance with PCI seems to indicate that he will not be on the anti-gambling side on this occasion.

Former API policy wonk turned columnist for al.com has said that the State is not broke, “…just either too stupid or too unwilling to solve the real problems we face.” Smith says that raising tax or legalizing gambling is not the answer.

Smith seems to think that there is enough money in the Education Trust Fund to solve the State’s financial woes, even through the fund has suffered proration five out of the last ten years, and only recently obtaining a sizable surplus.

There is little doubt that organizations like ALCAP and API will press hard to stop in efforts to expand gambling.

Regardless of ideological beliefs or the State’s dire fiscal needs, the expansion of gambling will most than likely come down to political maneuvering and personal financial gain.

If past is prologue, the competing interests could likely destroy each other, before doing what is beneficial for the State. Most people would say it is time for the voters to decide gambling’s fate, but as in most things, the opportunists can’t make money if the voter’s have their say. Many are hoping for a mutually beneficial arrangement settled by the voters and not backroom, deals that line politicos’ pockets.

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National

Lawmaker files bill to ban treatments for transgender kids

Jessa Reid Bolling

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Republican Wes Allen, R-Troy, filed a bill to prevent doctors from providing hormone replacement therapy or puberty suppressing drugs to people younger than 19 who identify as transgender.

HB303, the Alabama Vulnerable Child Compassion and Protection Act,  would make it a Class C felony, punishable by up to 10 years in prison, for doctors to prescribe puberty-blocking medications or opposite gender hormones to minors. Allen’s legislation would also ban hysterectomy, mastectomy or castration surgeries from being performed on minors.

“I was shocked when I found out doctors in Alabama were prescribing these types of drugs to children,” Allen said in a news release. “This is something you hear about happening in California or New York but it is happening right here in Alabama and it’s time we put a stop to that practice.”

Allen said that children experiencing gender dysphoria are struggling with a psychological disorder and that they need therapeutic treatment from mental health professionals instead of medical intervention that would leave their bodies “permanently mutilated.” 

“These children are suffering from a psychological disorder, just as someone who is suffering with bipolar disorder or schizophrenia but we treat those patients and try to help them. We should treat these psychological disorders as well.”

In 2018, a policy statement from the American Academy of Pediatrics (AAP) said that:

  • “Transgender identities and diverse gender expressions do not constitute a mental disorder; 
  • Variations in gender identity and expression are normal aspects of human diversity, and binary definitions of gender do not always reflect emerging gender identities; 
  • Gender identity evolves as an interplay of biology, development, socialization, and culture; and
  • If a mental health issue exists, it most often stems from stigma and negative experiences rather than being intrinsic to the child”

The World Health Organization (WHO) announced in 2018 that it was removing “gender identity disorder” from its global manual of diagnoses and reclassify “gender identity disorder” as “gender incongruence,” which is now listed under the sexual health chapter rather than the mental disorders chapter. 

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In a 2018 interview, Dr. Lale Say, a reproductive health expert at the WHO, said that gender incongruence was removed from the list of mental health disorders because “we had a better understanding that this was not actually a mental health condition and leaving it there was causing stigma. So in order to reduce the stigma, while also ensuring access to necessary health interventions, this was placed in a different chapter.”

In 2012, the American Psychiatric Association revised the Diagnostic and Statistical Manual of Mental Disorders (DSM) to remove the term “gender identity disorder” from the manual and add the term “gender dysphoria.”

Allen’s bill will be considered by the Alabama House of Representatives in the coming weeks.

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Elections

Doug Jones raises $2.4 million in first fundraising period of 2020

Staff

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U.S. Sen. Doug Jones, D-Alabama, raised $2.4 million in the first fundraising period of 2020, according to his reelection campaign, which was $500,000 more than he raised during the fourth quarter of 2019. 

Jones has $7.4 million cash at hand, according to his campaign, which released the totals on Thursday. Jones’s latest campaign finance reports weren’t yet posted to the Federal Election Commission website on Thursday. 

“Alabamians across the state are showing their commitment to Doug’s message of One Alabama and his proven track record of standing up for all Alabamians,” said Doug Turner, Senior Advisor for Jones’s campaign, in a statement Thursday. Doug’s work to support working families, fund our HBCUs, modernize our military and expand and protect our health care is resonating with folks throughout Alabama. We are well-positioned to continue to grow our grassroots support and win in November.” 

Jones ended 2019 leading all of his Republican contenders in fundraising, ending the year with $5 million in cash.

 

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Courts

Alabama Democratic Party lawsuit was back in court on Thursday

Josh Moon

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The dispute goes on forever and the lawsuit never ends. 

A Montgomery County Circuit Court judge on Thursday delayed a decision on whether he has the standing to settle an internal dispute within the Alabama Democratic Party but indicated that he’s leaning towards ruling that he does. 

Judge Greg Griffin said he would rule soon on the matter, but made no promise that the decision would come before Alabama’s primary elections on March 3. 

Thursday’s hearing was the latest in the seemingly endless fight over control of the ADP and was the next step in a lawsuit brought by former ADP chairwoman Nancy Worley. Worley and her supporters, which have proven to be a decided minority of the State Democratic Executive Committee, filed the lawsuit late last year after the Democratic National Committee invalidated her re-election as chair and forced the party to change its bylaws and hold new elections. 

Those new elections resulted in Rep. Chris England being elected as party chairman and former Rep. Patricia Todd being elected vice-chair. The new party leadership has the backing of the national party, which pulled funding from ADP because Worley and others refused to rewrite the state party’s bylaws to be more inclusive. 

Worley filed her initial lawsuit prior to the elections in which she was booted out of her position, and Griffin, who was widely criticized for his handling of the case, granted a temporary restraining order that prevented the Reform Caucus of the ADP from meeting. That decision by Griffin was immediately overturned by the Alabama Supreme Court, in a rare, late-Friday evening emergency ruling. 

However, the ALSC did not rule on whether Griffin had standing to settle a dispute within the state party. The court left that question up to Griffin, which was why Thursday’s hearing was held. 

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The entire thing seems to be an exercise in futility at this point. 

The ADP has moved on, with England certifying candidates and DNC officials clearly recognizing him as the rightful party chair. The DNC has no desire to work with Worley, who was stripped of her credentials for failing to follow directives and bylaws of the party. 

Even if Griffin creates a reason to invalidate England’s election, it doesn’t seem to matter much. The DNC has validated it, and it accepted the ADP’s new bylaws and changes to leadership structure. 

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If Worley were to prevail in court, it’s unclear exactly what she would win.

 

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House

House passes landfill bill allowing alternative materials as temporary cover

Brandon Moseley

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The Alabama House of Representatives passed a bill Thursday to change the statutory definition so that temporary “cover” in landfills can be a material other than “earth.”

House Bill 140 is sponsored by State Rep. Alan Baker, R-Brewton.

The bill allows landfills to use alternative daily covers in place of earth to cover landfills until the next business day. “The EPA has allowed this since 1979,” Baker said. It would save landfills the cost of using earth for daily cover.

“This does not change anything in the operating rules for landfills,” Baker said.

A number of members from both parties expressed concerns about this bill on Tuesday, so the bill was carried over until Thursday.

Speaker of the House Mac McCutcheon told reporters, “Sometimes in a debate you can see that the debate is not a filibuster or anti-debate; but rather is an honest effort by members to understand a bill.”

“There was a lot of misinformation out there,” McCutcheon said. The Environmental Services Agency and ADEM were brought in to explain the members and address their concerns.

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McCutcheon said that human biosolids is a separate issue and that Rep. Tommy Hanes has introduced legislation dealing with that issue.

Alternative daily cover is often described as cover material other than earthen material placed on the surface of the active face of a municipal solid waste landfill at the end of each operating day. It is utilized to control vectors, fires, odors, blowing litter, and scavenging. Federal and various state regulations require landfill operators to use such earthen material unless other materials are allowed as alternatives (Mitchell Williams writing on Oct 31 in JDSUPRA).

Soil cover can use valuable air space. Further, it can generate the need to excavate and haul soil to the facility. Alternative daily covers are often advocated to be a more efficient and cost-effective means of cover (Williams).

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Baker said that it would be up to ADEM (the Alabama Department of Environmental Management) in the permit whether to allow a proposed alternative cover or not.

Baker said, “This bill does not change any of the materials used as cover.” “This would keep us from having to use that good earth in landfills when other materials are available. If it becomes a nuisance ADEM can revoke a cover on the permit. Daily cover has to be approved at the discretion of ADEM.”

Baker said that only materials not constituted as a risk to health or are not a hazard can be used.

An environmental attorney shared the list of ADEM alternative covers with the Alabama Political Reporter. The list includes: auto fluff, excavated waste, synthetic tarps, coal ash, petroleum contaminated soil, automotive shredder residue, shredder fluff, wiring insulation, contaminated soils, paper mill (including wood debris, ash shaker grit, clarifier sludge, dregs, lime), 50 percent on-site soil and 50 percent tire chips, spray-on polymer-based materials, reusable geosynthetic cover, automobile shredder fluff, tarps, foundry sand, clay emulsion known as USA Cover Top clay emulsion, non-hazardous contaminated soil, non-hazardous solid waste clarifier sludge, steckle dust all generated from Nucor Steel Tuscaloosa Inc., non-coal ash from Kimberly Clark operations, lagoon sludge from Armstrong World Industries operations, meltshop refractory material from Outokumpu Stainless USA operations, paper mill waste (non-coal ash, slaker grits, dregs, and lime), biodegradable synthetic film, fly ash, residue from wood chipper or paper, slurry with a fire retardant and tactifierl, Posi Shell Cover System, waste Cover, foundry waste, 50 percent soil and 50 percent automobile shredder fluff, incinerator ash, green waste to soil. Sure Clay Emulsion Coating, alternative cover materials (manufactured), compost produced by IREP Montgomery-MRF, LLC, 50 percent saw dust mixed with 50 percent soil, and waste soils considered to be special waste.

McCutcheon said that members did not understand that these were just temporary covers. That was explained to them.

Alabama landfills have used alternative covers for years; but three people sued saying that this was not allowed under Alabama law and that ADEM had exceeded its mandate by permitting alternate covers. On October 11, 2019 the Alabama Court of Civil Appeals found in favor of the plaintiffs.

HB140, if passed, would address this oversight in the Alabama legal code so that ADEM and the landfills can legally continue to use alternate covers and not have the added expense of quarrying dirt for daily cover.

A Senate version of the same bill received a favorable report last week from the Fiscal Responsibility and Economic Development Committee.

HB140 now goes to the Alabama Senate.

 

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