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Ala. SC changes bingo ruling

By Jessica M. Karmasek | Jan 19, 2011


MONTGOMERY, Ala. (Legal Newsline) - The Alabama Supreme Court, in an opinion filed last week, threw out the appeals of a St. Clair County sheriff and district attorney and the State of Alabama in a case questioning the legality of electronic bingo games.

The Court, in its 27-page per curiam opinion filed last Friday, dismissed the appeals because there was no "justiciable controversy," it said.

The appeals, filed by Sheriff Terry Surles, District Attorney Richard J. Minor and the State, stemmed from a ruling by the St. Clair Circuit Court upholding an ordinance adopted by the city of Ashville regulating bingo games within the city.

Surles and Minor had brought a suit against the city, Shooting Star gaming and American Legion Post 170. They alleged Shooting Star and Post 170 sought to operate bingo-gaming devices that were illegal.

On appeal, Surles, Minor and Gov. Bob Riley for the State argued that the definition of "bingo" provided in the ordinance is "unconstitutionally broad."

They also argued that the ordinance conflicts with precedent of the Court, holding that local amendments excepting bingo from the general prohibition on lotteries in the Alabama Constitution "must be narrowly construed to encompass only the game commonly known as bingo."

The Supreme Court's original opinion, filed Jan. 29, 2010, addressed the merits of the issues on appeal.

However, before certificates of judgment were issued, the Court placed the cases on rehearing to determine whether the trial court had jurisdiction over the underlying action.

The Court noted in its new opinion that the city's complaint alleged that Surles indicated he believed that certain bingo games authorized under the ordinance would be illegal, and that he advised licensees when starting up machine bingo operations that the participants would be arrested.

The city then sought a judgment declaring that any future participant playing or in possession of electronic or video bingo machines authorized by the ordinance would be in compliance with Alabama law.

According to the Court, "The city's complaint describes merely anticipated conduct accompanied by a request, which assumes that the anticipated conduct will take place, for an advisory opinion as to the validity of the ordinance authorizing such conduct. However, to be appropriate for judicial determination, a controversy must be justiciable."

By definition, a controversy is "justiciable" when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.

According to the Court, a bona fide justiciable controversy necessary for a declaratory-judgment action is present where "legal rights are thwarted or affected (so as) to warrant proceedings under the Declaratory Judgment statutes."

The Court said in this action, there exists only an "anticipated controversy."

"There has been no damage or injury to the parties, nor have any legal rights been thwarted or affected. Thus, the City's action seeks only advice -- not the resolution of a yet realized controversy. Such an action is nonjusticiable."

There, the Court ruled that the lower court was without subject-matter jurisdiction.

Its judgment, therefore, is void and will not support the appeals, which were subsequently dismissed by the Court.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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