By Bill Britt
Alabama Political Reporter
MONTGOMERY—In response to the State’s request to stay the Judge’s ruling in the VictoryLand case, attorneys for the defense have filed a motion to oppose the pending appeal.
On October 2, Montgomery Circuit Court Judge William Shashy ordered the State to return the property confiscated from VictoryLand within 45 days of his ruling. However, if the State intended not to return the property, it must “initiate legal action… against the four casinos (1,232 electronic bingo machines) in Greene County and the two casinos.”
With its motion to stay, it appears the Office of Attorney General Luther Strange plans to do neither.
In the motion to oppose the stay, defense attorney Joe Espy appeals to the thinking of Chief Justice Roy Moore, who may be best described as a strict constructionist with a bent toward textual interpretation. In the motion, Espy invokes the writings of founding father Thomas Jefferson:
“On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” ~ Thomas Jefferson, Letter to Judge William Johnson, June 12, 1823.
Espy also reminds the jurist that it is incumbent upon elected judges, “to honor the will of the People who are the source of all government.”
Here the defense motion reasserts that deserting voter intent is proper. “Alabama caselaw has made clear for over a hundred years that [t]he object of all construction is to ascertain and effectuate the intention of the people in the adoption of the Constitution. The intention is collected from the words of the instrument, read and interpreted in the light of its history. State v. Sayre, 118 Ala. 1, 28, 24 So. 89, 92 (1897), cited and quoted in Barber v. Cornerstone Comm. Outreach, Inc., 42 So. 3d 65, 79 (Ala. 2009). There can be no just construction or interpretation, effectuating the intent of the people, which is not deduced, not only from the words, but, from the history of any particular part or provision of the instrument.”
They argued and Judge Shashy agreed that the voters of Macon County understood they were voting to legalize electronic bingo. “ Amendment 744 was, overtly and expressly and unavoidably, about whether all forms of bingo including electronic bingo as played in competing locations such as tribal facilities, would be permitted in Macon County in order to ameliorate the economic devastation that only that sort of gaming could fix,” states the motion.”
They also point out, “The State did not even attempt to present a single witness or any evidence to contradict the overwhelming evidence on this point.”
In his two rulings, Judge Shashy has stated Attorney General’s Office, “… obviously is not enforcing the law equally, and that the State is cherry picking which facilities should remain open or closed.”
This is born out by the evidence that other casinos around the State have continued operations unmolested, and even grown in offerings while VictoryLand has been shuttered during the same period.
In the filing, the defense makes the argument that “the State has proceeded aggressively against VictoryLand while allowing at least six other facilities in Greene and Lowndes County to continue operating electronic bingo.”
During the VictoryLand hearing, Assistant Attorney General John Kachelman did not have a ready answer with when pressed by Judge Shashy as to why other casinos remained in operation while VictoryLand was closed.
Kachelman, a former Montgomery Deputy District Attorney, came to the AG’s office in February 2013, were he was mentored by Henry T. “Sonny” Reagan who served as lead counsel against VictoryLand. Reagan left the Attorney General’s Office after it was discovered he had aided the defense in the Speaker Mike Hubbard investigation. Attorney General Luther Strange has said Reagan could not be trusted.
While the final outcome hangs in the balance, Milton McGregor has announced his intensions to open VictoryLand as soon as possible.