ELECTRONICALLY FILED 10/30/2009 6:18 PM CV-2007-000400.00 CIRCUIT COURT OF WALKER COUNTY, ALABAMA SUSAN ODOM, CLERK IN THE CIRCUIT COURT OF WALKER COUNTY, ALABAMA
CHARLES BAKER, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. CV-07-400 ) WALKER COUNTY BINGO, et al., ) ORAL ARGUMENT SET: ) November 2, 2009 – 2:00 p.m. Defendants. ) )
DEFENDANTS’ MOTION FOR STAY PENDING APPEAL
COME NOW Agape Ministries, Building Fund of Nauvoo; Capers Chapel CME Church;
Carbon Hill High School; Church Upon the Rocks; Cordova Fire Department; Court of Calanthe;
Curry High Athletics; Curry High School; Farmstead Athletic Association; Granny’s Closet;
Ladies Auxiliary of Nauvoo; Minnie’s Helping Hands; Mt. Carmel Cemetery Organization, Inc.;
Mr. Zion ME Church; Mr. Park @ Yerkwood, AL; Nauvoo Beautification Committee; Nauvoo
Park & Recreation; Old Country Thrift Store; Parrish High School; Sipsey Church of God Ladies
Auxiliary; Sipsey Community Center; Sipsey Fire Department; Sipsey Food Bank; Sipsey
Recreation Center; Sipsey School; Sipsey Volunteer Fire & Rescue Department; St. Cecilia’s
Church Youth Group; The Portal Student Center; TS Boyd School; Walker County Cruisers;
Walker County Honor Guard, Inc.; Walker County Women’s Bowling Association; Wrights
Chapel AME Church; Yerkwood Youth Club, Inc.; House of Prayer; Farmstead Toybowl
Cheerleaders; Lupton Little League; Walker Independent Theater; Mathis Creek Cemetery;
Barney Volunteer Fire Department; Pineywoods Fire Department; Files Cemetery; Farmstead
Athletic Association; Manchester Community Center; Walker County Alternative School; Curry
Fire and Rescue; Community Options; Oakman Band Boosters; Walker County Boots and
Saddle; Parrish High Band Boosters; Short Cemetery; Parrish Elementary School; Pineywoods
01875531.1 Action Committee; Pineywoods Ladies Auxiliary; Dora High School; Church of God of
Prophecy; Dora Band; Argo Volunteer Fire Department; Boldo Lions Club; Cordova Industrial
Development Board; Phillips Freewill Cemetery; Tutweiler Volunteer Fire Department; Boldo
Volunteer Fire Department; Cordova Youth Sports Association; Walker County Firefighters
Association; and all other defendants represented by the undersigned attorneys (collectively
“Movants”), and respectfully request that this Court preserve the status quo as of October 25,
2009 and stay the enforcement of its Order of October 26, 2009. In support of this motion,
Movants show the following:
INTRODUCTION
1. For years, the State of Alabama has struggled to define “bingo.” Local officials,
law enforcement, and ordinary citizens from across the state have wrestled with the scope of the
statutorily and constitutionally undefined phrase “bingo games.” Its definition has proven to be far from the obvious definition that “a layperson” knows instinctively. Absent clear direction from the legislature, Alabama’s courts have been forced to step into the vacuum and provide
necessary guidance as to the meaning of bingo. Evidencing the lack of clarity of the law, however, Circuit Courts from across the State have reached different conclusions as to what games are permissible under materially similar amendments.
2. On Monday, October 26, 2009, this Court entered the fray and found that the electronic games being played in Walker County did not fall within the ambit of the meaning of
“bingo” under the Walker County Amendment. Yet, this Court’s October 26, 2009 Order was
more than just another ballot in the ongoing judicial referendum on the meaning of bingo; this
Court’s Order impacted the lives and livelihood of almost every one of Walker County’s citizens
– from the direct loss of jobs to decreased contributions to schools and fire departments to a
2 01875531.1 decrease of out-of-county visitors who spend time and money in Walker County when they came to play bingo. This impact is tangible, particularly in today’s economy where unemployment is reaching levels unseen for more than 30 years.
3. Movants realize the seriousness of this Court’s conclusion that the games in
Walker County are not legal. While respectfully disagreeing with this Court’s conclusion,
Movants simply note that there remains a serious debate about the meaning of the Legislature’s language in -- and the intent of -- various bingo amendments across that state. Equally serious, however, is that fact that many individuals and families relied on the increased economic activity associated with bingo in Walker County to make house payments, to make car payments, and to buy groceries – i.e., to meet the basic necessities of life. Given (i) the disagreement among
Alabama’s Circuit Courts about the scope of games that qualify as bingo, (ii) the disagreement about the meaning of bingo in Alabama’s public square, and (iii) that the Alabama Supreme
Court will be called upon ultimately to decide all of these issues, Movants suggest that equity and fairness weigh heavily in favor of a stay of this Court’s Order pending appeal.
4. The activities at issue are not malum per se or activities that impose on another’s freedom. Rather, the activity in question has been sanctioned by local political bodies, carried out in broad daylight by ordinary citizens pursuant to various public pronouncements of this
State’s law enforcement officers, and whose revenues are utilized to support numerous charitable purposes as well as to pay the salaries of hundreds of Walker County citizens. Accordingly,
Movants respectfully request that this Court stay the enforcement of its judgment and, thereby, maintain the status quo in Walker County until such time as the Alabama Supreme Court has ruled upon the meaning of bingo, whether in an appeal from this matter or in another case.
3 01875531.1 ARGUMENT
5. On October 26, 2009, this Court enjoined defendants in this action from
“operating any further bingo games using electronic bingo stations or similar electronic
machines.” (See Order at p. 24.) Rule 62(c) of the Alabama Rules of Civil Procedure provides
this Court the authority to stay the operation of this order:
“When a[] . . . final judgment has been rendered granting . . . an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of an appeal from such judgment upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.”
ALA. R. CIV. P. 62(c).
6. In effect, in seeking a stay, Movants ask this court to enjoin the enforcement of
this Court’s order pending appeal. Consistent with Alabama law, Movants seek this stay in order
to preserve the status quo until such time as the Supreme Court makes a final ruling on the
legality of electronic bingo in Alabama generally or in Walker County specifically. See Macon
County Racing Comm'n v. Macon County Greyhound Park, Inc., 574 So. 2d 819, 820 (Ala. Civ.
App. 1990); see also Ex parte Health Care Mgmt. Group of Camden, Inc., 522 So. 2d 280, 282
(Ala. 1988) (“It is well settled that the purpose of a temporary restraining order or preliminary
injunction is to maintain the status quo until the merits of the case can be determined.”).
7. To prevail on a motion for preliminary injunction, a plaintiff must demonstrate
(1) that unless the requested preliminary injunction is entered, it will suffer immediate and irreparable injury; (2) that the plaintiff does not have an adequate remedy at law; (3) that the plaintiff has at least a reasonable chance of prevailing on the merits of his claim; and (4) that the hardship that the preliminary injunction would impose on the defendant does not unreasonably outweigh the benefit the injunction provides to the plaintiff. See Lott v. E. Shore Christian Ctr.,
4 01875531.1 908 So. 2d 922, 927 (Ala. 2005); Macon County Racing Comm'n v. Macon County Greyhound
Park, Inc., 574 So. 2d 819, 820 (Ala. Civ. App. 1990) (providing similar statement of
requirements for entry of injunction); See 4 C.J.S. Appeal and Error § 528 (setting forth similar
statement of requirement to obtain a stay pending appeal). In addressing these requirements,
Alabama’s courts have focused on whether the claimant has demonstrated that it “would suffer immediate and irreparable injury” and “has no adequate remedy at law.” Chunchula Energy
Corp. v. Ciba-Geigy Corp., 503 So. 2d 1211, 1217 (Ala. 1987).
Movants will Suffer an Immediate and Irreparable Injury
8. Absent a stay of this Court’s order, Movants – indeed all of Walker County – will incur severe economic ramifications. As an initial point, each charity receives a substantial sum of money from its participation in charity bingo. For example, the funds from Charitable
Electronic Bingo allowed the Sipsey Fire and Rescue to purchase a functional fire truck that does not leak water. (See Affdvt. of C. Owens at ¶ 4, attached as Exhibit 1.) Because of this purchase, the Sipsey Fire & and Rescue has been able to save 10 houses that would likely have burned had the Fire and Rescue been forced to rely on its old fire truck. (See id..)
9. Although in ways, perhaps, less dramatic than the impact on the Sipsey Fire and
Rescue, numerous other charities have benefitted from Charitable Electronic Bingo. The Walker
County Honor Guard provides ceremonial burial for our country’s veterans and generally
receives approximately $5,000 per month from charitable bingo. (See Affdvt. of E. Riley at ¶ 6, attached as Exhibit 2.) Charitable bingo provides the vast majority of the Walker County Honor
Guard’s funds; indeed, before it began receiving funds from Charitable Electronic Bingo, the
Walker County Honor Guard “had to essentially beg for nickels.” (See id. at ¶ 7.)
5 01875531.1 10. Similarly, both Minnie’s Helping Hands and Granny’s Closet provide food and
clothing to those in need. (See Affdvt. of E. Lawson at ¶ 6, attached as Exhibit 3; Affdvt. of S.
Tucker at ¶ 6, attached as Exhibit 4.) Absent funds from Charitable Electronic Bingo, these
charities would have to reduce the number of people they assist by 80%. (See Affdvt. of E.
Lawson at ¶¶ 7, 9 (noting that without bingo funds Minnie’s Helping Hands would have to
reduce the number of people it helps from approximately 30 to 5 or 6); Affdvt. of S. Tucker at ¶¶
6, 9 (noting that without bingo funds Granny’s Closet would have to reduce the number of
people it helps from about 20 to 4 or 5).)
11. Finally, the Walker County Women’s Bowling Association helps to meet the
educational and subsistence needs of the families of its members as well as donating money to local women’s charities. (See Affdvt. of A. Reynolds at ¶ 6, attached as Exhibit 5.) Charitable
Electronic Bingo provides approximately 95% of the Walker County Women’s Bowling
Association. (See id. at ¶ 8.) Without this support, the Walker Count Women’s’ Bowling
Association will likely be disbanded – and the 300 people a year it assists will have to look for
help from another source. (See id. at ¶¶ 9-10.)
12. Charities across Walker County benefit from – indeed rely on – the funds they
receive from Charitable Electronic Bingo. In turn, Walker County’s citizens benefit from the
good works that these charities do across the region. Absent a stay of this Court’s order, these funds will no longer be available to assist Walker County schools, hospitals, fire departments, or other benevolent and civil activities.
13. The economic trauma extends beyond the charities and their good works. Each bingo hall employs numerous individuals including servers, game operators, security guards, technicians, cooks and other kitchen staff, managers, cashiers, and janitorial staff. For example,
6 01875531.1 Country Classic had 46 full-time employees and 10 part-time employees. (See Affdvt. of S.
Cagle at ¶ 5, attached here to as Ex. 6.) Without the employment provided by operations such as
Country Classic, many of these employees will have a very difficult time making ends meet.
(See Affdvt. of T. Short at ¶ 2, attached as Ex. 7; Affdvt of A. Willcut at ¶ 2, attached as Ex. 8.)
County wide, Charitable Bingo Operations employed at least 827 direct employees. (See id. at ¶
10.)
14. In addition to these direct employees, each bingo hall has numerous “indirect” employees involved in their operations. These individuals include promotional people from the relevant vendors, game installers, and vendor technicians stationed in Walker County to provide the day-to-day service and troubleshooting on the electronic games. (See Affdvt. of S. Cagle at ¶
10.) The prohibition of Charitable Electronic Bingo in Walker County has resulted in at least
191 such indirect employees losing their jobs. (See id.)
15. Bingo operations also have an enormous secondary impact on the economy of
Walker County. For example, the bingo halls utilize local businesses to maintain their buildings
(including the ventilation systems, sprinkler systems, etc.). In addition, because they draw
patrons from other counties in Alabama as well as other states, Charitable Electronic Bingo
operations positively impact hotels, restaurants, gas stations, and other tourism related businesses
in Walker County. (Cf. Affdvt. of S. Cagle at ¶ 10 (noting that “charitable bingo in Walker
County has resulted in an increase in business for stores, gas stations, restaurants, hotels, and
newspapers”).)
16. Finally, the bingo operations are a source of significant tax revenues to the
County, itself. The County’s current ordinance imposes a $500 tax per machine which results in
direct revenue to the County of $3,000,000.00. (See Affdvt. of S. Cagle at ¶ 9 (noting “Walker
7 01875531.1 County could expect to receive over $3,000,000 from license fees for the electronic player
stations”).
17. In short, the Court’s decision to enjoin all defendants to this action from operating
bingo games utilizing electronic player stations is already having a dramatic effect on Walker
County and its residents. If the Court’s order is not stayed pending appeal, these funds will be gone; there is no remedy. Should Defendants’ appeal succeed, there is no way to recoup the
monies lost during the pendency of the appeal; there is no way to provide the missed educational
opportunities; there is no way to “unlive” the days of joblessness. There simply is no adequate
remedy at law to replace the lost funds and jobs associated with bingo operations that the
Supreme Court may (and should) find to be legal.
Conflicting Decisions Among Alabama’s Circuit Courts Weigh in Favor of Stay
18. Although an injunction typically requires a showing that the movant has a
reasonable likelihood of success on the merits, this element is necessarily problematic in
requesting a stay pending appeal because granting the stay “would be an admission of error” on
the trial court’s part. See 4 C.J.S. Appeal and Error § 528. Accordingly, “a court should
consider all of the factors and balance the equities, and where the showing on the other factors
strongly favors interim relief, a court may exercise its discretion to grant the stay if the movant
has made a substantial case on the merits.” Id. (internal footnotes omitted). As demonstrated
above, the ongoing and future harm to Movants and Walker County generally is undeniable and
in and of itself weighs heavily in favor of a stay. The uncertain state of Alabama’s law
governing bingo makes even more clear the judiciousness and prudence of staying the execution
of this Court’s order.
8 01875531.1 19. Specifically, the legal landscape calls into question whether electronic bingo as
played in Walker County is indeed illegal. As this Court is aware and noted in its opinion,
numerous amendments authorize the operation of bingo games in other counties in Alabama.
Many of these amendments are materially similar to the Walker County Amendment.
Significantly, other Circuit Courts in Alabama have interpreted these amendments to allow
electronic bingo.
20. For example, Amendment 542, ratified in 1992, authorizes “[t]he operation of
bingo games for prizes or money by certain nonprofit organizations for charitable, educational,
or other lawful purposes” in St. Clair County . . . .” ALA. CONST. amend. 542. Interpreting this
Amendment (which is materially similar to the Walker County Amendment), the Circuit Court
for St. Clair County concluded that “Bingo . . . may be conducted on electronic devices or
machines so long as all elements listed in paragraph five (5) above are present.” Significantly,
the circuit court did not find that bingo required any specific element of human interaction.1
21. Similarly, in 2000, Amendment 674 to the Alabama Constitution was ratified.
Utilizing language almost identical to the Walker County amendment, Amendment 674 authorizes “[t]he operation of bingo games for prizes or money by certain nonprofit organizations for charitable, educational, or other lawful purposes” in The Town of White Hall
1 In Paragraph Five (5), the St. Clair Court defined bingo as having the following characteristics:
A. A game played on a card containing a grid of five rows intersecting five columns containing a series of numbers or symbols in each square, with no two cards containing the same pattern of number or symbols in any one game; B. Number or symbols are generated at random from a finite pool which corresponds to the pool of numbers or symbols contained on the cards. C. The numbers or symbols generated are covered on the cards; D. The game must be played by two or more individuals competing against one another; and E. The winner(s), either by game-ending patterns or interim patterns, are those card holders being the first to match specific predetermined patterns.
City of Ashville v. American Legion Post 170, Civil Action No. 2008-0382, In the Circuit Court for St. Clair County, Alabama, Final Decree (Mar. 30, 2009) at p. 4.
9 01875531.1 that is located in Lowndes County. Only seven months ago, the Circuit Court for St. Clair
County addressed whether electronic bingo was legal under Amendment 674 in the context of a
petition for a temporary restraining order asking the Court to maintain the status quo. The Court
granted the petition for temporary restraining order and allowed the White Hall Entertainment
Center to continue operations. Although a preliminary order, the Circuit Court for Lowndes
County did find that the charity owner and operator of the White Hall Entertainment Center had
a reasonable chance of demonstrating that the electronic bingo machines in question are legal.
Cornerstone Community Outreach, Inc. v. Riley, et al., Civil Action No. CV-09-900019, In the
Circuit Court for Lowndes County, Alabama, Order of March 28, 2009 at p. 6.
22. In recognizing the reasonable chance that the electronic bingo machines in use in
White Hall were legal, the Circuit Court for Lowndes County found that the law regarding electronic bingo was not clear, noting that even the Special Prosecutor for Governor Riley’s Task
Force on Illegal Gambling had stated that the Task Force’s intent was to “find an appropriate case to get to the Alabama appellate court to get a ruling on whether or not electronic bingo is legal or not.” See id. at p. 3. Based on this statement, the court found that “[i]t could reasonably be inferred from the Special Prosecutor’s own words that the issue of the legality of electronic bingo remains unresolved and that the Task Force was charged with the mission of finding a case, which would, once and for all, address the issue of whether electronic bingo is legal in the
State of Alabama.” Id.
23. The actions of local governing bodies also suggest that it is not unreasonable to conclude that electronic player stations such as the ones in use in Walker County are legal.
Indeed, Etowah County, the City of Tarrant, and the City of Ashville, among others, have all adopted local ordinances that provide for and regulate electronic bingo machines that are very
10 01875531.1 similar to the ones at issue in this case. Accordingly, the conflicting decisions from Alabama
Circuit Courts regarding the legality of electronic bingo, weigh in favor of a stay. The very
existence of these conflicting decisions suggests that Movants have a substantial case on the
merits and, in fact, that there is a reasonable chance that Movants could prevail on appeal.
CONCLUSION
24. The need for finality and clarity on the law of bingo is one thing on which all
sides to the multiple lawsuits throughout our State can agree. Until such finality (and thus
clarity) is reached via a ruling by the Supreme Court of Alabama or by legislative action,
prudence counsels maintaining the status quo: neither expanding bingo in Walker County nor
shutting down the current bingo operations. By granting such a stay, this Court would avoid
unnecessarily creating an economic crisis for Movants and Walker County.
WHEREFORE, Movants respectfully request that (i) this Court stay the enforcement of
its October 26, 2009 Order until such time as an appeal from this case is decided by the Supreme
Court or the issue of the legality of electronic bingo is otherwise resolved by the Supreme Court or Legislature and (ii) as a part of such stay, specifically enjoin and prohibit Plaintiffs from taking actions that interfere with the operation of Charitable Electronic Bingo so long as such operations are done in a manner consistent with the operations in place prior to the entry of the
October 26, 2009 Order.
Respectfully submitted,
s/ Barry A. Ragsdale Barry A. Ragsdale (RAG003) Sirote & Permutt, P.C. 2311 Highland Avenue South Birmingham, Alabama 35205
11 01875531.1
s/Herbie Brewer Herbie Brewer (BRE019) 341 West Nineteenth Street Jasper, Alabama 35501 (205) 384-1411
s/Lisa M. Ivey Lisa M. Ivey (IVE004) 341 19th St. W Jasper, Alabama 35501-5323 (205) 384-1411
NOTICE OF HEARING
Please be advised that the foregoing Motion has been filed with the Clerk of the Circuit
Court for Walker County, Alabama and that the same is set for a hearing before the Honorable
Robert S. Vance on NOVEMBER 2, 2009 at 2:00 p.m.
This the 30th day of October 2009.
Respectfully submitted,
______Of Counsel
12 01875531.1 CERTIFICATE OF SERVICE
I certify that the foregoing has been served upon all counsel of record by the Alacourt System’s electronic mail service this October 30, 2009.
______Of Counsel
13 01875531.1