Alabama Supreme Court embraces judicial activism, and betrays conservatism, to outlaw electronic bingo

Center Stage Alabama casino

One of the primary tenets of postmodern conservatism is that "judicial activism" is bad, very bad. The theory goes that the executive and legislative branches of government should make laws while the judicial branch should play a restrained, interpretative role.

In short, the conservative doctrine holds that judges must never "make law" from the bench, but should craft rulings grounded in law that already exists.

Someone should get that message to the justices, all Republicans, who comprise the Alabama Supreme Court. That's because the Alabama Supremes recently engaged in one of the most blatant acts of judicial activism any of us ever are likely to see. In a unilateral action that is based on--well, pretty much nothing--the high court effectively outlawed electronic bingo in the state. As Dave Barry would say, "I'm not making this up."

Did this involve any legislative or executive action? Nope. Was it grounded in any legitimate legal precedent? Nah. Is it somehow based in Alabama's archaic and outdated constitution? Not on your life. In fact, it flies in the face of constitutional amendments that voters approved in various counties around the state.

Does it resolve the controversy that started in 2008 when then governor Bob Riley, the beneficiary of millions in Indian gaming money, decided to launch a string of raids against non-Indian bingo facilities in the state--and has continued under Attorney General Luther Strange, another Republican who has benefited from large chunks of Indian campaign cash? It sure looks that way to us.

The ruling in question, styled Houston County Economic Development Authority (HEDA) v. State of Alabama, was issued on November 21, 2014, and involved the Center Stage Alabama casino near Dothan. (The opinion is embedded at the end of this post.) Buried on page 30 of the 40-page opinion is the following:

In accordance with the foregoing, we reiterate today that the game traditionally known as bingo is not one played by or within an electronic or computerized machine, terminal, or server, but is one played outside of machines and electronic circuitry.

Did expert witnesses testify to this effect in the HEDA case? Heck, no. The state, which asked for the machines to be declared unlawful, presented no expert witnesses. The only experts on the record were from HEDA, and they testified that the machines did, in fact, play bingo and were lawful under the relevant constitutional amendment.

So how did the Alabama Supremes come to their conclusion? Citing no law as precedent, they declared that expert testimony was not necessary--and pretty much pulled the ruling out of their collective, berobed rear ends.

Oh, the Supremes did trot out their usual case--Barber v. Cornerstone, 42 So. 3d 65 (Ala., 2009)--in an effort to prove that bingo can be played only on paper cards, preferably by people who are at least 95 years old and have blue hair, white hair, or no hair. Almost as an aside, the Supremes declare in HEDA that the six-point test outlined in Cornerstone now applies to all other local bingo amendments in the state.

That's funny because Cornerstone itself doesn't say that. As we've shown in a previous post, Cornerstone clearly was about narrow issues regarding a preliminary injunction in Lowndes County. Back in September 2013, we wrote the following:

We invite readers to click on the link above and read the entire Cornerstone ruling. Taken as a whole, it states that the court was focusing narrowly on: (1) The electronic-bingo facility in Lowndes County; and (2) The lawfulness of the preliminary injunction against the Riley defendants.

That's it--nothing about any other bingo facility in Alabama, nothing beyond a right or wrong ruling on a preliminary injunction.

But now the Alabama Supreme Court cites Cornerstone to essentially outlaw electronic bingo in counties where voters have approved bingo-related constitutional amendments? And those amendments were crafted through the legislative process? And in some locations, electronic bingo was played lawfully for up to five years before Bob Riley came along, with Indian cash dripping out of his pockets, to launch a crusade against non-Indian gaming facilities?

Heck, we've even found a Supreme Court case, issued AFTER Cornerstone, that seems to uphold the provisions of the constitutional amendment in Macon County and finds the e-bingo machines at VictoryLand are legal. Specifically, the case seems to uphold the amendment's language that it is for the county sheriff, not the courts, to define bingo and set rules for its play.

Why should the HEDA ruling scare the bejeebers out of Alabamians, even those who don't give a hoot about bingo or gambling of any kind? The ruling clearly is based on the whims and personal biases of the Supreme Court justices--and not on any legal precedent. In fact, it circumvents the law-making process and overrides the will of voters who approved constitutional amendments.

That hints that Alabama's high court is tainted on the subject of electronic bingo. It also suggests that some of the Indian gaming money that flowed to Bob Riley and Luther Strange has found its way into the pockets of Supreme Court justices.

Thanks to the reporting of The Montgomery Independent's Bob Martin, we already have seen frightening signs of collusion between the Riley team and members of the Supreme Court. In fact, we've written about that issue multiple times, in 2009, 2010, and 2013. (See here, here, and here.)

The HEDA ruling suggests that something of that sort still is going on. If that's the case, it would represent a criminal conspiracy that, if unmasked by the U.S. Department of Justice, would rock Alabama government to its foundation.

At first glance, the HEDA ruling seems to be about little more than bingo. But we suspect something much more sinister is going on beneath the surface.

HEDA v. Alabama