The order from Circuit Judge William Shashy appears to pave the way for VictoryLand to reopen, after being closed for roughly 28 months. The facility shut down after agents for Attorney General Luther Strange seized equipment and money in a February 2013 raid, claiming violations of state anti-gambling laws, VictoryLand had operated lawfully for years under a voter-approved constitutional amendment that allowed bingo in Macon County.
Shashy's ruling grew from a forfeiture hearing in September 2014. The facts and the law appeared to be heavily on VictoryLand's side, and a ruling was expected to come around November 1 of last year. Why did it take so long to get a ruling on a relatively straightforward matter? Why was Shashy's ruling almost eight months late in arriving?
We don't have the answers to those questions, but VictoryLand owner Milton McGregor probably considers it a case of "better late than never." He also probably is relieved to have finally prevailed in a legal matter, considering that the Alabama Supreme Court consistently has violated its own precedents to rule in favor of former Governor Bob Riley (who launched the anti-bingo crusade in 2008) and Strange (who picked up the baton from Riley after being elected AG in 2010).
McGregor told al.com today that he plans to get back in business at VictoryLand, which includes a casino, hotel, and greyhound track. "The decision paves the way for electronic bingo to resume at VictoryLand and for the people of Macon County to once again go back to work and provide for their families," McGregor said in a statement.
Shashy ruled primarily on constitutional grounds, finding that Strange, by closing some electronic bingo facilities and leaving others open, had violated VictoryLand's right to equal protection of the law under the Fourteenth Amendment to the U.S. Constitution. The state, Shashy wrote, was unlawfully "cherry picking" some casinos to target and some to leave alone.
Shashy cited the Alabama Supreme Court's six-pronged test from Barber v. Cornerstone, 42 So. 3d 65 (Ala., 2009), which has been used to determine if casinos are offering a lawful form of bingo. But Shashy found that Barber had been unevenly and unlawfully applied:
Through testimony and discussion with counsel for all the parties, it is undisputed that other facilities within the State have operated the same type of gaming devices for substantial periods of time, even while VictoryLand has been shut down. The State did not dispute that other facilities have the same machines or that they are open. The Court asked State counsel, "My question is, if they've got the same machines, why are they open?" Counsel for the State protested that the State had, at times, raided some of those other facilities; however, the State did not dispute that between August 9, 2010, the date of the first closing of VictoryLand, and the beginning of trial, a period of approximately four years, electronic bingo games like those at issue here were in operation at Tribal Facilities in the State of Alabama continuously and without interruption. The State also did not dispute that during the same time frame, non-Tribal facilities in the State of Alabama also operated bingo games at Center Stage (Houston County), Greenetrack (Greene County) and Greene County Charity Bingo (Greene County) almost continuously for 1,166 days, 1,134 days, and 1,058, respectively. During this same four-year period, Victoryland operated the same type of electronic bingo for only 63 days. Electronic bingo operations ceased at VictoryLand permanently on February 19, 2013, the day of the raid that is the subject of this trial. While electronic bingo operations at VictoryLand remain shuttered, today, both Tribal and non-Tribal facilities within the State of Alabama continue to operate the same type of electronic bingo games. 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.
Such uneven treatment, Shashy wrote, runs contrary to long-held Alabama case law:
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 cherry picking which facilities should remain open or closed. This Court refuses to be used as an instrument to perpetuate unfair treatment. The judiciary "cannot allow our justice system to do injustice in the name of doing justice." Aspinwall v. Gowens, 405 So. 2d 134 (Ala., 1981). "Courts exist to redress or prevent wrongs, not to perpetrate them." Kennedy v. Davis, 55 So. 104 (Ala., 1911).
Shashy then address the constitutional issues at stake:
Equal protection, under the law, is one of the corner stones of our American system. . . . It is so integral to those foundations that the motto "Equal Justice Under Law" is etched into the facade of the United States Supreme Court Building. In order to achieve the equal protection that is so fundamental to our system, the law requires that we must equally apply the law. The Alabama Supreme Court . . . quoting from the United States Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982), stated: "The Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike.'"
Applying this rationale, all facilities operating the same type bingo machines (Center Stage, Greenetrack, and Greene County Charity Bingo) should have the same forfeiture action applied against them each time there is a violation. This has not been done. . . .
This Court is not free to disregard an opinion of the highest court of the United States of America or the State of Alabama, nor is the State of Alabama free to apply the law in an unequal manner. Allowing unequal treatment places the Court in an untenable position.
The Court cannot condone or perpetuate unequal treatment. Perhaps it is best stated by the Supreme Court Justice Lewis F. Powell Jr.: "Equal justice under law is not merely a caption on the facade of the Supreme Court Building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability . . . "
Will Strange appeal to the Alabama Supreme Court, which consistently has ruled in his favor? That is unknown at this time, but Shashy's ruling seems to rest on sturdy legs, the ones that are supposed to under gird the U.S. justice system,