By Bill Britt
Alabama Political Reporter
MONTGOMERY— If confusion and hints of turf wars bubbled up last Thursday and Friday, with Governor Robert Bentley’s signing of Executive Order 13, the roots of the conflict are grounded in the dispute between Gov. Bob Riley and Attorney General Troy King in 2008. The battle between Riley and King over enforcement of State gaming laws was settled under a cloud of suspicion, when the State Supreme Court in Riley v. Cornerstone declared the Governor the “Supreme Executive Authority” and the “Chief Magistrate.”
The Cornerstone Ruling, as it has come to be known, led to an approximate eight-year battle over legal verses illegal bingo which, according to Bentley, has cost the State millions in dollars and human resources.
Last week, on Thursday, Nov. 5, Gov. Bentley announced he was bringing an end to the policy which began under Riley, when he invoked his authority under the Cornerstone ruling to revoke, repeal, and rescind Executive Order 1, which placed the primary responsibility to investigate and enforce Alabama’s anti-gambling laws under the State’s Attorney General. In issuing Executive Order 13, Bentley announced he was returning the primary duty of enforcing State gambling laws to local law enforcement officials.
The official notice to the press was emailed around 10:00 AM. According to Governor Bentley, Attorney General Luther Strange was informed of this decision 30 minutes prior to the official announcement. Gov. Bentley’s call reached General Strange while he was recovering from knee replacement surgery.
Approximately an hour and a half later, the Attorney General’s Office released a statement saying, “Governor Bentley’s Executive Order is in line with my January 7, 2015, memo to Alabama District Attorneys and local law enforcement encouraging them to investigate and enforce our anti-gambling laws. I have been assured by the Governor’s legal advisor that this executive order has no impact on the state’s pending litigation, which I expect will further clarify the law to the benefit of state and local law enforcement.”
Some confusion arose from the assertion that the Governor’s legal advisor had told the Attorney General’s office that Executive Order 13 had, “no impact on the State’s pending litigation.”
On Friday, Gov. Bentley appeared on Montgomery-based talk radio’s News and Views, he told the show’s host, Baron Coleman, that he regretted that informal, private conversations between his office and the Attorney General’s office had been made public in the AG’s press release.
The Governor’s Communications Director, Jennifer Ardis, had previously informed this publication that the Governor’s legal advisors had only relayed to the AG’s office that the Governor was not a party to the litigation. “The message relayed between the Governor’s Office and the Attorney General’s Office was that the Governor had no role and is not a party to the VictoryLand litigation,” wrote Ardis in an email. On the radio, Bentley told Coleman, “We did not tell them what to do,” with regards to the AG”s press release.
These statements, along with the fact that Strange was recovering from a serious and painful surgical procedure has lead to heated speculation surrounding Thursday’s announcements.
Gov. Bentley made it clear he was ending the practice begun under Governor Bob Riley almost eight years ago, which he says cost the State over “9 million dollars and expended immense resources.” He further stated, “[R]ecent judicial rulings have raised concern with the unequal enforcement of Alabama’s criminal laws, including gambling laws, against individuals and businesses,” as a cause to reestablish that, “the responsibility for enforcement of Alabama’s criminal laws most properly lies with the elected sheriffs and district attorneys of each County and is to be guided by their respective interpretation of the laws of the State of Alabama in their capacity as constitutional officers and officers of the courts.”
The Governor did not state the AG’s office had no roll in the enforcement of gambling laws, but that its primarily enforcement belonged with local officials.
On the News and Views radio broadcast Bentley also spoke about constitutional amendments passed in two counties, saying, “We have constitutional amendments in two counties —we have more than that but right now we are talking primarily about two counties and I believe constitutionally you should look at what the Constitution actually says they voted these in counties.”
Only two counties Greene and Macon have passed constitutional amendments allowing bingo since electronic machines have been available. These counties have held that the people voted to allow electric bingo or bingo in any form, something that Riley and in recent years Strange’s office have denied.
The 130-plus page Cornerstone Ruling defines bingo as the traditional game played on paper. It listed the amendments the ruling addresses. It however, did not list the Macon County amendment.
Court documents show that over the last several years, only Macon County’s VictoryLand has been shuttered while other operations have been allowed to do business unmolested.
Last month, Circuit Court Judge William A. Shashy dismissed the State’s case against Milton McGregor, and his VictoryLand Casino, and Dog Track in Macon County, citing a violation of the equal protection clause of the US Constitution.
In his ruling, Judge Shashy found, “The State could not and did not offer any substantive reason why it permitted this state of affairs to continue at other facilities, while taking its present stance against the same operations at Victoryland…The propriety of the State of Alabama electing to currently pursue action against only one facility is of great concern. It is apparent at the present time that the State of Alabama is cherrypicking which facilities should remain open or closed. This Court refuses to be used an instrument to perpetuate unfair treatment.”
Judge Shashy further questioned why the Poarch Band of Creek Indians (PCI) were allowed to run electronic bingo games in Wetumpka, Montgomery, and Atmore, while VictoryLand was closed down for doing the same things. Shashy also referenced operations outside of Dothan and in Greene County.
The Attorney General’s office has appealed that ruling, and has asked the State Supreme Court for a stay of Judge Shashy’s order. Judge Shashy’s ruling is set to go into effect on Nov. 16.
General Strange has repeatedly stated that Shashy’s order did not address the issued raised in the VictoryLand cases and has asked the Supreme Court to address the matter once and for all.
The Attorney General’s office has privately expressed concern over Executive Order 13 because it fears ultimately a governor could stop any investigation by claiming the Attorney General was not faithfully enforcing State laws.
This is perhaps the legacy of Cornerstone and the unintended consequences by Riley’s dogged pursue.
In his ruling, Judge Shashy found that the law was being unequally applied by allowing others gambling facilities without prosecution.
Gov. Bentley raised this issue in Executive Order 13. Bentley raises the same issue as Judge Shashy stating, “Recent rulings have raised concern with the unequal enforcement of Alabama’s criminal laws, including gambling laws.” He questioned why the Creek Indians could legally operate the same machines as VictroyLand. Federal Indian gaming law does not allow a tribe to operate any games which are not legal within a state, raising the unanswered question Judge Shashy asked.
To an outsider, this may look like a turf war, but in the Halls of Justice, this has raised grave concerns over the authority to enforce the law.
In his appearance on News and Views, Gov. Bentley gave the impression that he felt Macon and Greene Counties had a right to operate electric bingo. Only the Macon County law is currently being challenged by the Attorney General’s office.