Judge finds that e-bingo is legal in Macon County, and VictoryLand property is due to be returned unless state abides by provisions of U.S. equal-protection clause

Milton McGregor

Electronic bingo is legal in Macon County under a constitutional amendment approved by voters, and the VictoryLand casino is due to have its seized property returned unless the state follows equal-protection provisions of the U.S. Constitution, an Alabama circuit judge ruled last Friday.

Meanwhile, VictoryLand owner Milton McGregor is taking steps to reopen the casino, possibly in a matter of weeks. And Macon County leaders said at a press conference yesterday that they intend to pursue a civil-rights lawsuit against the state for closing VictoryLand in 2013, costing the county more than 2,000 jobs and a significant amount of revenue--all in apparent violation of equal-protection provisions guaranteed by the U.S. Constitution. Tuskegee Mayor Johnny Ford said he has asked Governor Robert Bentley to intervene and stop Attorney General Luther Strange from appealing.

Judge William Shashy said in his Friday ruling that Strange was unlawfully "cherry picking" by seizing property at VictoryLand, while allowing similar facilities to operate freely in other parts of the state. Shashy gave Strange 45 days to enforce the AG's version of the law equally or return VictoryLand's machines, currency, and paperwork. (See the full ruling at the end of this post.)

Shashy issued an order in June that Strange's raids at VictoryLand were unfair and unconstitutional. That ruling, however, did not order the AG's office to return the casino's property, and both sides filed motions asking Shashy to clarify or amend. Friday's ruling did just that, with Shashy finding that e-bingo was legal in Macon County and Strange must return the casino's property unless he takes steps to enforce the state's anti-gambling laws equally.

While Friday's ruling clearly was welcome news for McGregor and VictoryLand, Shashy appears to contradict himself. If e-bingo is legal in Macon County--and Shashy's order clearly states that it is--then the AG's office has been in the wrong all along and, by law, should be forced to return seized property, regardless of any action it might take at other bingo facilities.

To no one's surprise, Strange vowed to appeal Shashy's ruling to the Alabama Supreme Court, which consistently has ignored its own precedents to rule in the AG's favor--and in favor of the state's previous anti-bingo crusader, former Governor Bob Riley. Will that tactic work again for Strange? It's hard to see how it can, given that his team presented no evidence to counter VictoryLand's evidence at the forfeiture hearing upon which Friday's order was based. From Shashy's order:

The Supreme Court of Alabama has recognized that it is proper to consider the intent and will of the people in interpreting the Constitution of the State of Alabama. "The object of all construction is to ascertain and effectuate the intention of the people in the adoption of the [C]onstitution. The intention is collected from the words of the instrument, read and interpreted in the light of its history." State v. Sayre. . . . The use of evidence to aid the Court in its constitutional interpretation is also recognized in Cornerstone. . . . "[In] ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision.

KCED, the parent company of VictoryLand, presented testimony from Ford, Myron Penn, Louis Maxwell, Mary Hicks, and Theodore Samuel. Writes Shashy:

Their testimony was that Amendment 744 was proposed to allow all forms of bingo in Macon County so that they could compete economically with other counties that allowed other forms of bingo, including electronic bingo. Sixteen exhibits offered by KCED, consisting of election flyers, advertisements, proclamations, and newspaper articles, either advocating for or against Amendment 744, were also admitted. These exhibits provided substantial evidence that the voters in Macon County understood bingo to mean all forms of bingo, including electronic. The State of Alabama did not produce any evidence in opposition. Based upon the evidence presented by KCED and the lack of any evidence from the State, the Court concludes that the Macon County voter when voting on the amendment understood it to be all forms of bingo.

Additional evidence made the scenario even more grim for Strange. Writes Shashy:

In addition, KCED submitted evidence that on July 29-30, 2015, the casinos in Greene and Lowndes Counties had in operation 1,798 electronic bingo machines at six casinos. . . .

The State did not deny the existence of these casinos or the electronic bingo machines. Thus, the Court reiterates its ruling that the State of Alabama is cherry picking which facilities should remain open or closed, and this Court will not be used as an instrument to perpetuate this unfair treatment. It is interesting to note that since the Court's Order of June 25, 2015, and the last hearing on August 4, 2015, the number of casinos and machines in Alabama has increased. The Lowndes County casinos began operation between these time periods. The State obviously is not enforcing the law equally.

Why did it take so long for an Alabama judge to come to his senses and recognize what has been obvious for months, for years--that both Strange and Riley have been targeting certain large casinos (in Macon County and Houston County) because they are the primary threats to the market share of the Indian tribes that have paid millions of dollars to help get Strange and Riley elected?

Shashy finally seems to be admitting the likelihood of a quid pro quo involving Strange/Riley and Indian tribes in Mississippi and Alabama. Such an arrangement, of course, is a federal crime, and if proven, would constitute federal-funds bribery.

That is a subject for another day. But for now, it's hard to see how the Alabama Supreme Court--perhaps the most corrupt judicial body in the country (and there is a lot of competition for that "honor') can rule in Luther Strange's favor this time.

At the trial level, VictoryLand essentially pitched a shutout (an appropriate metaphor, we think, with the MLB playoffs starting tonight)--and the final score was something like 16-0. If the Alabama Supreme Court overturns this lopsided e-bingo ruling, it might be inviting a federal investigation that could lead to a number of justices winding up in orange jumpsuits--where they probably should have been some time ago.

VictoryLand Ruling--Legal by Roger Shuler