Attorney General Troy King’s statement on gambling

Published 1:14 pm Wednesday, February 17, 2010

Good afternoon. Let me begin on a personal note. It has been my privilege to work in the Office of the Governor of Alabama on two different occasions and for two different governors – Fob James and Bob Riley. No one in this state has more respect for the Office of the Governor than I do. From first-hand knowledge and experience, I can tell you that that office is the most powerful office in our state, and, when used properly, it can do great things for our people. For the past 6 1/2 years, Bob Riley has exemplified the good that can be done with such power. I have always admired him and I have held his accomplishments in the highest regard. I was proud to have worked for him and to have called him a mentor and a friend . . . I still am.

What brings us here today may best be described as a situation where the right thing is being done the wrong way . . . and with serious consequences. That “right thing” is to seek an answer to a legal question: can bingo be played electronically where constitutional amendments, approved by the voters, allow it. The Governor and I have differed over where this question should be answered. I still do not think the kind of judicial activism he seeks is best. Nevertheless, the Governor has set us on a course where that is how these matters will be settled. That said, no crisis was required to answer this question. Such questions are answered hundreds of times a day in an orderly way in courthouses across Alabama. This is a simple question that needs a simple answer – yes or no. So far, those who favor bingo and those who oppose bingo have played loose and fast with the court decisions, seeking some public relations advantage from mischaracterizing the latest court ruling. It is time for a definitive yes or no answer to be sought and gotten. If the answer is no, we must immediately close down every bingo game in Alabama and deliver a monopoly to the Indians. Incredibly, contrary to what our citizens have been told, as of today – 416 days since the Governor appointed a gambling task force – that question still has not even been put before the Alabama Supreme Court. In fact, as recently as November 13, 2009, the Supreme Court expressly stated that the question of the legality of electronic bingo in Alabama had not been brought before it, and, therefore, they were expressly declining to answer it. Do not take my word for it, read it for yourselves. As you all know, a simple, definitive answer from the Alabama Supreme Court would become indisputable law – law that is definitive, clear, and due to be uniformly enforced. Until then, we will continue to struggle with the difficulties of having a mishmash of 17 different constitutional amendments in 16 different counties and no amount of saying the law is uniform will make it uniform. Until clarity comes, gambling operators will continue tweaking their operations to stay one step and one more lawsuit ahead of the law.

It is my honor to have been practicing law in state government for 16 years. Four years in Governor James’ office, four years as an assistant attorney general, two years in Governor Riley’s office, and six years as Attorney General. In all those 16 years, I have never seen a more ill-advised and reckless approach to a legal issue than the current approach now being undertaken by the Governor’s task force. Rather than moving quickly in a court of law to obtain the answer, the task force has regrettably chosen drama, intimidation, and force. Anyone, anyone, who questions the appropriateness of their actions (whether by questioning the costs of these activities or the necessity of the reckless approach that has led to armed law enforcement standoffs over misdemeanor violations of state law or by pointing to the monopoly that is being delivered to the Indian casinos throughout Alabama) is given the same response from Mr. Tyson, the Governor, and their spokesmen – that they are simply enforcing “the rule of law.” I submit that there are other “rules of law” that are just as important and that are being ignored – such as equal enforcement of the law, equal protection of the law, and due process under the law. Pointing out that these laws are also important and that they are due to be respected does not place one on the side of the pro-bingo debate, but, rather, on the side of the Constitution. After all, those who wrote the Constitution and its amendments, men like Thomas Jefferson and Alexander Hamilton, did not have a side in a bingo dispute when they wrote these ideals into our United States Constitution, its Bill of Rights, and its amendments. Instead, they had in mind putting some of America’s most prized liberties into words and into a document from which these principles would still be protecting us over two centuries later. Without understanding that all of these ideals work together to make a single rule of law that protects all of us from our government, the “rule of law” becomes less a process and more a weapon that serves political agendas as “might makes right.” That is not the nature of our system, our state, or our citizens.

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State law clearly establishes the Attorney General as the state’s chief law officer, and the Supreme Court has affirmed this to be the case on many occasions. It is within the authority of the Office of the Attorney General to intervene into the controversial and irresponsible activities of the task force, and to direct Mr. Tyson’s actions. Frankly, that is an option that I have strongly considered for the past two weeks. The task force’s pending armed confrontation with Greene County authorities left me no choice but to consider this option. It is beyond comprehension that we now find ourselves in a position where armed law enforcement in Greene County may soon be confronted by armed state troopers – all in the name of the “rule of law.” This situation was unnecessary and cannot be tolerated. The safety of law enforcement officers and even the general public cannot be so recklessly put at risk. Yet, out of deferential respect for the Governor, assuming direction over Mr. Tyson is not an option that I am prepared to exercise . . . yet.

I will not question the Governor’s intentions or his motivations. I have made it clear that I will not engage in the empty, counterproductive rhetoric surrounding this issue, and I intend to keep it that way. I invite the Governor to rejoin me on a higher level from which we can implement a solution to this problem that does not demean the process. Regardless of the personal attacks that may have to be endured to perform my constitutional and statutory obligations as Attorney General, I am duty bound to inform the Governor when it is the legal opinion of this Office and its lawyers that his actions are questionable or potentially expose our state to devastating liability . . . even if he does not want to hear it . . . perhaps, especially when he does not want to hear it. I have offered this advice in general terms on several occasions. It has gone unheeded. Perhaps, that is because my advice to this point has been general. Today, I seek to correct that.

As a friend, as a lawyer, as a former legal advisor to Governor Riley, as Attorney General – I remind the Governor that the “rule of law” is more than mere words, and certainly more than a catch phrase, which, when repeated, can justify any action. It is a process, the very foundation upon which fair and orderly government depends. It is not too late for the task force to correct its ill-advised and dangerous course. I am, therefore, advising the Governor, I am imploring the Governor, to immediately implement the following specific, responsible three-step plan:

First, John Tyson, Commander of the Governor’s Task Force, should immediately file simultaneous and expedited actions seeking declaratory judgments in Greene, Houston, Lowndes, and Macon Counties, over the question of whether those counties’ amendments, enabling statutes, local rules or regulations, and ratification debates permit electronic bingo in those jurisdictions. Mr. Tyson should, as quickly as possible, file the Governor’s test cases in every county where he challenges the lawfulness of the bingo operation, develop a full record complete with expert testimony, and seek review of each decision in the Alabama Supreme Court where definitive rulings can finally be had. A federal judge has stated that civil declaratory actions such as I am recommending are proper. He is right.

Second, Mr. Tyson and the Governor’s task force should take steps in the civil courts in Lowndes County, Houston County, Greene County, and Macon County to determine whether sufficient evidence exists to keep these facilities that are closed closed and to close others. After all, such decisions must be made by courts in accordance with proper legal processes. Forcing their closure with threats of massive warrantless raids after attempts to get a search warrant is denied by a judge is not such a process . . . and saying so does not put one on the side of the gambling interests. After all, if this is allowed, it may not be gamblers to whom it happens next. If Mr. Tyson cannot close these facilities through a proper court proceeding, he should not attempt to close them by force, fear, or intimidation.

Third, in light of the fact that we anticipate these facilities will abide by court instructions, Mr. Tyson should not risk harm to law enforcement or the public with further warrantless raids. The elected district attorneys in the various circuits can continue to enforce the criminal laws there.

Even as these matters wind their way through the courts, I again call on the Legislature, which to this point has not acted, to end this whole debate by allowing the people of Alabama to settle this issue of whether they want electronic bingo in their state at the ballot box with the passage of the short, straightforward constitutional amendment I have proposed that would replace the 17 constitutional amendments we now have that allow bingo and the confusion they create with a single, simple, statement of law. My amendment simply allows our citizens to vote to prohibit electronic bingo with no preferences or special protections for anyone. In 1901, Alabama’s bingo law was this. Today, it is this. This is neither uniform nor easy to enforce. The people of our state should have the ability to make it both again.

Today, I will be sending the Governor a letter outlining these recommendations. I urge him to take these steps toward a safe, fair, and reasonable resolution. Failing to do so will leave me, once again, with no choice but to re-evaluate this Office’s response.