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%.