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Alabama’s gambling fight, Part III: Confusion in the courts

Josh Moon

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By Josh Moon
Alabama Political Reporter

Standing just outside of his lobbying office in Birmingham, former Gov. Bob Riley is shaking his head at my question, and smiling as if to indicate what I’m asking is possibly the craziest thing in the world.

Except, what I’m asking isn’t the craziest thing in the world. What I’m asking is something that has been told to me by three different people – respectable, knowledgeable people who have no clear reason to lie to me – and something that many other people believe or strongly suspect.

That question is whether Riley, as governor, enjoyed a cozy relationship with the justices who served on the Alabama Supreme Court – a relationship that allowed Riley to push through favorable court decisions and continue, as critics allege, to suppress efforts by casino owners to legally operate electronic bingo machines.

Riley at first said he had no interaction with the justices. When I later asked him about regular meetings with some of them – meetings that were widely discussed – the former governor backtracked slightly and said he did speak with the justices on occasion, but that those conversations never crossed the line. And besides, Riley said, simple conversations wouldn’t exactly sway a group of longtime jurists.

It was a fair point, but the skepticism over Riley’s relationship with and influence over the ALSC has persisted. That interview was more than two years ago, and in the time since, I have heard no fewer than two dozen people refer to the ALSC as “Riley’s Court.”

Regardless of Riley’s actual influence, if any at all, there are a couple of reasons why such theories persist. For starters, the ALSC justices are elected, instead of appointed, and the campaign process, with its various fundraising obligations, opens up several avenues for criticism and allegations of bias.

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Combine the need for fundraising with a few legally questionable decisions, and one outright contradictory decision, and suddenly those looking for a reason to doubt the legal purity of ALSC decisions – and maybe even those who just don’t like coincidences – have cause.

Let me explain …

A Series of Curious Decisions

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At a recent meeting of Gov. Robert Bentley’s Advisory Council on Gaming, an attorney named Eric Johnston – a longtime opponent of gambling – told the council that there is no confusion in the State over the legality of electronic bingo.

Using recent ALSC decisions as evidence, Johnston declared that the “law is settled,” that “there is no confusion,” and that the “Alabama Supreme Court has been consistent” in its findings that electronic bingo is illegal.

That last part is true, and while it’s an excellent, simplified talking point, it is far from being the whole truth. The fact is, the reason electronic bingo law is still unsettled in Alabama is because the ALSC has been so insistent on declaring the games illegal, despite voter and legislative actions that make the games legal.

To explain this appropriately, let’s get into the legal weeds a bit. First, it’s important to note that gambling in Alabama is illegal. Our constitution forbids lotteries, and bingo, by definition, is a form of lottery.

That means that like alcohol sales – which are also illegal according to our constitution – for bingo to be legally played in the state, an amendment to the constitution must be made. There are 18 of those amendments today that allow for bingo to be played for charity in specific counties.

The conflict here is whether or not those bingo amendments in those 18 specific counties allow for electronic bingo machines, which are very similar to slot machines. (They’re not slot machines, because of various characteristics such as the machines are all connected and play against each other, but let’s not get bogged down in that.)

This was the basis for the argument between Riley and casino owners and former Alabama Attorney General Troy King. Riley and his camp thought the games were illegal and that the constitutional amendments in place legalized only the paper form of bingo. King and casino owners reasoned that bingo in any form is still bingo – just like the solitaire game on your smart phone is still solitaire – and that the games – if they met certain standards – were all legal.

After years of the games being operated within the State, in 2010, after several related cases, the ALSC finally went right at the issue. In its often-cited decision in Barber v. Cornerstone, the ALSC declared that the bingo games legalized by most of the amendments in Alabama was the paper sort.

To get there, this is the path the ALSC took.

“…we look to the plain and commonly understood meaning of the terms used in that provision to discern its meaning. As this Court stated in State v. Sayre, ‘The 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.’”

Essentially: whenever there is a legal question raised about the meaning or intent of an amendment, the ALSC said the solution is to determine the intent of the voters.

That seems like a fair process. All but three of Alabama’s bingo amendments were written and passed prior to the invention of electronic bingo machines. It would be ridiculous for anyone to argue that the intent of voters in passing those amendments was to legalize the electronic versions of the game, since those didn’t exist.

But what about the other three? Well, that’s where suspicion and conspiracy theories come in.

A Legal Abomination

Remember that quotation above that was taken directly from the ALSC’s ruling in the Cornerstone case? The one in which the ALSC stated that it is imperative to consider voter and legislative intent when determining the parameters of an amendment?

Funny story: Last March, the ALSC issued an opinion in a case involving VictoryLand casino in Shorter. The casino had challenged the state’s plans to destroy several hundred electronic bingo machines and keep more than $200,000 in cash from a raid in 2013.

A Montgomery Circuit Court judge, who was handpicked to hear the case by then-Chief Justice Roy Moore, ruled in the casino’s favor, finding that VictoryLand had been treated unfairly and that testimony in the case demonstrated clearly that voter and legislative intent when the amendment was passed in 2003 was to legalize electronic bingo.

Such a decision would seem to fall in line with the ALSC’s stated standard for defining amendments.

Except, the ALSC overturned the decision and said this instead:

“Use of ‘voter intent’ to construe a constitutional amendment would open the judicial process to the kind of manipulation that has been identified with the “cottage industry” devoted to manufacturing evidence of legislative ‘intent.’”

That’s an actual quote pulled from the ALSC’s opinion in the VictoryLand case. Place it side by side with the Cornerstone quote and consider the contradiction.

And also consider that the only way the ALSC was able to determine its definition of bingo – the only way it was able to write out its six-pronged test for determining what is “traditional bingo” – was to do in 2009 what it said in 2016 was impossible to do – determine voter and legislative intent by considering the circumstances under which the amendment was passed.

In the wake of the decision, several prominent attorneys from around the State privately mocked the absurdity of a State Supreme Court asserting that voter intent was impossible to determine or that legislative intent couldn’t be determined by the legislators themselves and the records of their floor debates. Such acts are common, established practices in courtrooms across the country and have been for decades.

A long-time law school professor, who asked not to be named, called the decision “a legal abomination.” Another said it “falls outside of the norm, certainly.”

It wouldn’t be the last questionable decision.

Just before Christmas, the ALSC issued another opinion on a case involving GreeneTrack in Greene County. Like the VictoryLand case, the GreeneTrack case involved seized machines and a circuit court judge from Birmingham who was handpicked by the ALSC to hear the case. And like the VictoryLand case, the judge found in favor of GreeneTrack, stating that its amendment clearly legalized electronic bingo, even going so far as to include “electronic marking devices” and “electronic cards” in the amendment.

In its opinion overturning the circuit court’s ruling, however, the ALSC stated that while the amendment allows for the game to be played electronically, the electronic game it allows doesn’t satisfy the parameters of the court’s six-pronged test.

Consider this: the amendment was passed in 2003, long before this debate over electronic v. traditional bingo became a common legal discussion. Those who wrote the amendment had no idea they would need to specifically address a definition adopted six years later by the ALSC. They felt they were going to extraordinary lengths to include the electronic terminology.

Yet, the ALSC treats the entire matter as if the definition was common knowledge. And even though it’s clear that technology advancements have altered the current state of bingo – a reality that should be clear, given that electronic bingo is a federally recognized version of the game and legal at three Indian casinos in the State – the ALSC refuses to look back at voter and legislative intent when the amendment was passed to determine if voters wanted the electronic games.

Consider it like this: the ALSC has decided that only muskets are legal.

A Bad Look

When such curious legal decisions are made by the State’s highest court, even otherwise reasonable and respected people start considering the conspiracy theories.

Could it be that the justices are so beholden to money that they’ve sold out?

Could it be a special interest group has taken control?

Could there be other, personal issues at play?

Such theories begin to build when additional evidence – or, at least, things that might be considered evidence – turn up.

For example, it has been clearly established that the Poarch Creek Indians, who enjoy an unprecedented and highly profitable monopoly in the state, have back-doored campaign funds to Alabama Republicans who have helped block and stall out legislation that might give them competition – competition that would generate millions in tax dollars. The back door that allowed those contributions was political action committees, or PACs, which allow donors to dump buckets of money into campaigns while obscuring just who gave what to whom.

The Poarch Creeks, through their lobbyists’ PACs, were big on back doors in 2010, including one that led to future ALSC justice Tom Parker.
Parker took in multiple donations that year, including a single $100,000 donation, from Patriot PAC, which was set up by Montgomery lobbyist Phillip Kinney. Kinney and his wife are lobbyists for the Poarch Creek Indians.

Patriot PAC received money from a variety of sources, including several other PACs. One of those was Premium PAC, which itself received money from other PACs, including an entity called Strickler Consulting and STEP PAC.

Strickler Consulting also served as a PAC, and it took it money from the Poarch Creek Indians, two electronic bingo machine manufacturers and an Oklahoma Indian tribe that operates electronic bingo casinos in that state.

STEP PAC took in money exclusively from the Poarch Creeks.

And on the same day Strickler Consulting, which took in the PCI money, dished out $250,000 to Premium PAC, $44,700 went to Parker. And two days after PCI dumped $15,000 into Strickler Consulting, that same amount went into another PAC controlled by the Kinneys, Union Street PAC, and 10 days later that same amount went to Parker from Patriot PA.

Does any of that prove wrongdoing or illegal activity? No, not without a clear quid pro quo between the justice and those who contributed to his campaign, and there is no evidence that such exists.

But still, if you’re looking for evidence of a conspiracy, the coincidences and timing feeds those ideas. And it doesn’t stop there.

Sources close to the ALSC believed former Chief Justice Roy Moore could be a ray of hope for casino owners in Macon, Greene and Lowndes counties – simply because Moore had hinted that he would be willing to consider their constitutional arguments.

Astoundingly, despite more than a half-decade of debate over electronic bingo, there has been no oral argument over the matter before the ALSC. Attorneys for VictoryLand requested one in late 2015 and believed they would get one.

Instead, on March 31, a Thursday – an odd day for the ALSC to issue an opinion – the court dropped its VictoryLand opinion without entertaining arguments.

Conspiracies began anew, aided this time by a curious legal arrangement benefitting the son of the sitting chief justice. Caleb Moore, the son of Roy Moore, was arrested in March 2105 for the seventh time – picked up this time on fairly unsubstantial drug possession charges.

A month before the ALSC issued its VictoryLand decision, Caleb Moore, who had a history of drug arrests, had the possession charges dropped when he was allowed to enter a pre-trial diversion that’s normally reserved for first-time offenders.

It didn’t take much imagination to come to the conclusion that strings were pulled to make that happen. And when that happens, it shouldn’t be a surprise to those in power who pull those strings that people automatically believe the worst – they believe the AG’s office pulled those strings in exchange for a favorable ruling.

Of course, the reality is that the pretrial diversion programs are often severely abused by judges and prosecutors and used as money-making schemes. The New York Times recently documented the abuses occurring in Dothan’s court system with the diversion programs.

The Smell Test

That’s the problem with all of what’s been recounted in these gambling pieces: Things don’t pass the smell test.

That’s not to say everything is rotten, but some certainly has been. And when those in authority continually subvert the law, bend the rules, take shortcuts, play favorites and generally disrupt the flow of the way good government and the legal system is supposed to work, people lose faith.

In fact, the Montgomery County Circuit Court judge who presided over the VictoryLand case in 2015 said exactly that in open court and to the AG’s office’s attorneys.

“People are gonna lose faith in y’all if you keep it up,” Judge William Shashy said.

People already have. And probably deservedly so.

 

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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Jefferson County health officer, UAB head say COVID-19 numbers are improving but flu season is near

Eddie Burkhalter

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Dr. Mark Wilson and Will Ferniany, the CEO of the UAB Health System, held a press briefing on Friday to discuss the state of coronavirus and what’s being done to mitigate the disease

Jefferson County Health Officer Dr. Mark Wilson said Friday that the county’s COVID-19 numbers are improving, but with schools reopening and flu season approaching, it’s critical for the public to continue wearing face masks and practicing social distancing. 

Wilson and Will Ferniany, the CEO of the UAB Health System, held a press briefing on Friday to discuss the state of coronavirus and what’s being done to mitigate the disease that has killed 1,825 people in Alabama and infected 102,196.

In the last few weeks, the number of new daily COVID-19 cases and the percent of tests that are positive in Jefferson County has begun to decline, Wilson told reporters, but he put that decline into perspective. 

“Keep in mind though that this is a slight improvement from being at a pretty bad place with really high numbers, so we still have a long way to go,” Wilson said. 

There have been 13,682 confirmed coronavirus cases and 262 deaths in Jefferson County as of Friday, and 939 cases were added within the last week. The county’s seven-day average of new daily cases fell from its peak of 295 on July 18 to 156 on Thursday.

Wilson said there is good evidence that the county’s face covering order is making a difference in the spread of the disease, and that he thanks the public for making that difference, and asked that they keep doing so. 

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“We have four levels of surge,” Ferniany said, referring to UAB Hospital’s process of temporarily adding hospital bed capacity for COVID-19 patients by removing beds from other areas. “We’re on level two capacity.” 

Ferniany said the hospital is running at 90 percent capacity, which he said is a “very full hospital” and that between March and around July 20, the hospital was caring for between 60 and 70 coronavirus patients daily, and reached a peak of 130 patients a little more than a week ago. 

“Today we’re at 97 patients in-house, and roughly 40 percent are in the ICU,” Ferniany said. 

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Ferniany said the hospital’s ability to care for COVID-19 patients is now limited by the numbers of nurses and other staff, and that UAB is “down several hundred nurses” and burnout from long periods of caring for coronavirus patients is common. 

Both Ferniany and Wilson said they’re very concerned about the upcoming flu season and the impact it could have on hospital capacity, as physicians continue to care for COVID-19 patients. 

“The 2018-2019 flu season was the worst flu season we have seen in 40 years, and we actually asked the governor back then to declare a state of emergency because our hospitals were full then with influenza,” Wilson said. 

Wilson urged the public to get their annual flu shots once available on Sept. 1 to help prevent additional strain on hospitals statewide. Public health officials worry that the combination of flu and COVID-19 could be difficult to handle — both on a system-wide level and the level of an individual person.

“We have no reason to think that somebody can’t get the flu and COVID-19 at the same time, which could be a deadly combination,” Wilson said. 

Wilson said while he isn’t certain what Gov. Kay Ivey may decide about the statewide mask order, but “in Jefferson County, it’s very likely I’m going to be pushing to continue face coverings through the flu season,” Wilson said.

Wilson in July advised school superintendents in Jefferson County that middle and high school students should attend school virtually only for the first nine weeks, a stronger recommendation than most superintendents elsewhere have received. 

Wilson told reporters Friday that his recommendation for virtual-only classes to start was done to keep kids, teachers, staff and families safe. 

“We’re probably going to have some cases. It’s inevitable, but what we want to do is everything we can as kids go back to school to reduce the spread within school so that schools can stay open.” 

There are also preliminary plans for a new testing site for children as schools reopen, Wilson said, but those plans continue to be developed. 

Ferniany said UAB Hospital on Thursday got initial approval from the hospital’s board to expand COVID-19 testing capacity. 

Our goal is to try to expand it significantly by the end of December. We probably can’t get it up faster than that, but this pandemic is not going away by the end of December so I think we will have a significant increase in our ability to have rapid tests in place by the end of this year,” Ferniany said.

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Health

Seventeenth Alabama inmate dies after testing positive for COVID-19

Eddie Burkhalter

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(STOCK PHOTO)

William Edward King, 65, is the 17th Alabama inmate to die after testing positive for COVID-19.

King tested positive for COVID-19 on June 1 at a local hospital, where he was being treated for an end-stage preexisting medical condition, the Alabama Department of Corrections announced on Thursday.

King’s condition improved, and he was released, but his health worsened, and he was returned to the hospital on July 26. He was discharged from the hospital on Aug. 11 and was taken to a hospice care area inside the Kilby Correctional Facility, where he died later that day.

Six more inmates and another staff member have also tested positive for COVID-19, ADOC said Thursday.

There have been 296 confirmed coronavirus cases among inmates and 340 self-reported cases among prison staff. Two prison workers at the Julia Tutwiler Prison for Women have died after testing positive for COVID-19.

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Congress

Ivey urges Alabamians to complete census or risk losing federal funding, seat in Congress

Micah Danney

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Gov. Kay Ivey urged all Alabama residents to complete the 2020 census before the Sept. 30 deadline in a 30-second video released on Friday.

In the video, Ivey said, “Complete your 2020 Census today. We only have until Sept. 30th. Without you, Alabama stands to lose billions in funding, a seat in Congress and economic development opportunities.

“It only takes minutes to complete. Go to my2020census.gov or participate by phone or mail. Be counted – if not for you, for those in Alabama who depend on you for a brighter tomorrow.”

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National

Jones says Mitch McConnell failed country by adjourning without COVID-19 aid

Eddie Burkhalter

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U.S. Sen. Doug Jones speaks during a livestreamed press briefing. (VIA SEN. DOUG JONES'S OFFICE)

Sen. Doug Jones, D-Alabama, on Friday expressed his concern over the Senate majority leader adjourning the Senate without passing another round of COVID-19 relief aid.  

Senate Majority Leader Mitch McConnell, R-Kentucky, adjourned the Senate until Sept. 8 without passage of relief aid that Jones said is critical for struggling citizens and businesses. 

Jones’s statement:

“Mitch McConnell’s decision to adjourn the Senate without any further efforts to fulfill the Senate’s obligation to the American public during a healthcare and economic crisis demonstrates an unconscionable failure of leadership. Congress acted swiftly in March as the pandemic took hold and every American who put their lives on hold and stayed home for weeks to prevent the spread of COVID-19 did so out of a patriotic duty and a belief that it would give our government leaders time to implement a plan to get this virus under control.

“Now, it’s been five months and not only do we still have no national strategy, our nation is facing some of the highest rates of coronavirus spread in the world, over 167,000 Americans dead, unprecedented housing and eviction crises on the horizon, and we are slowly coming out of the worst economy since the Great Depression and the highest level of unemployment ever recorded.

“The House of Representatives passed a relief bill on May 15th – three months ago – because it was clear even then that this virus would be with us longer than we had hoped and that more support to American businesses and American citizens would be needed to save lives and save livelihoods. Sadly, however, instead of using this legislation as a framework for a bipartisan relief package, Mitch McConnell buried it in his office and sat on his hands, letting vital programs expire without even participating in efforts to reach agreement. 

“His decision to send the Senate home for the next three weeks is an insult to every sacrifice made, every job lost, every small business that has had to close its doors, every person who had to say their final goodbye to a loved one over Facetime, and every graduation or wedding or birth celebrated over Zoom instead of in person. The American people have done their duty, and today Mitch McConnell has thrown in the towel and given up on doing his.”

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