PER CURIAM.
This Court's opinion of January 29, 2010, is withdrawn, and the following is substituted therefor. These appeals are from a ruling of the St. Clair Circuit Court upholding an ordinance adopted by the City of Ashville ("the City") regulating bingo games within the City. On rehearing ex mero motu, we dismiss these appeals because there is no justiciable controversy.
On July 22, 1992, Amendment No. 542, Ala. Const. 1901 (now Local Amendments, St. Clair County, § 2 (Off.Recomp.)), was ratified. That amendment, which applies
Act No. 91-710, Ala. Acts 1991, the "St. Clair County Bingo Act," and an act amending it, Act No. 93-687, Ala. Acts 1993, regulate the operation of bingo games in St. Clair County. Both acts define "bingo" as "that game commonly known as bingo where numbers or symbols on a card are matched with numbers or symbols selected at random."
On December 22, 2008, the city council of the City adopted City Ordinance No. 2008-0011 ("the ordinance"). The ordinance sets forth rules and regulations for licensing, permitting, and operating "machine bingo games" within the City. Among other things, the ordinance sets forth definitions of "bingo," "bingo games," and "machine bingo games." The ordinance provides that no entity may operate machine bingo games without a permit from the City and provides a process for acquiring such a permit.
Subsequently, American Legion, Post 170 ("Post 170"), applied for a "machinebingo permit" to operate electronic bingo games at a "machine-bingo facility," and Shooting Star Entertainment Group, LLC ("Shooting Star"), applied for a permit to establish such a machine-bingo facility. On December 30, 2008, the City filed a declaratory-judgment action, naming as defendants Post 170, Shooting Star, and the sheriff of St. Clair County, Terry Surles. The complaint essentially alleged that Sheriff Surles had indicated that he believed that "electronic, video, or machine bingo" was illegal and that he had "advised that when licensees or permitees [sic] start up machine bingo operations" pursuant to the ordinance, the participants would be arrested. The City thus sought a judgment declaring that the ordinance
Both Shooting Star and Post 170 were later realigned as plaintiffs.
Sheriff Surles answered the complaint and filed a counterclaim for a declaratory judgment. The counterclaim asserted that the City "seeks to allow [Post 170 and Shooting Star] to operate ... an illegal lottery/gambling operation that they classify as machine bingo" and sought a judgment declaring that "machine bingo" uses instruments that are "gambling devices" under Alabama law. Further, Sheriff Surles sought a declaration that the operation of such "machine-bingo" devices is forbidden by Ala. Const. 1901, art. IV, § 65, and Ala.Code 1975, §§ 13A-12-23, -27, -30, and -70, and that the operations proposed by the City, Post 170, and Shooting Star are illegal lotteries or gambling
On February 3, 2009, Richard J. Minor, the district attorney of St. Clair County, filed a complaint and a motion to intervene in the case as a defendant. Minor alleged that, as district attorney of St. Clair County, he was charged with enforcing state law. Post 170 and Shooting Star, he alleged, sought to operate bingo-gaming devices that were illegal under both Ala. Const. 1901, art. IV, § 65, and Amendment No. 542. Neither the ordinance nor the local acts regulating bingo in St. Clair County, Minor contended, could authorize those devices. The trial court granted Minor's motion to intervene.
Trial was held on March 17, 2009. On March 30, 2009, the trial court entered an order upholding the ordinance.
Sheriff Surles and District Attorney Minor filed a notice of appeal (case no. 1080826). The attorney general filed a notice of appearance in the trial court and also filed a separate notice of appeal (case no. 1081015). We consolidated the appeals for the purpose of writing one opinion.
Governor Bob Riley filed several motions in this Court, seeking to intervene as an appellant in these appeals or to file an amicus curiae brief on behalf of Sheriff Surles or District Attorney Minor in case no. 1080826. This Court ultimately granted the Governor's motion to intervene. Minor and the Governor have filed a joint brief; Sheriff Surles has filed his own brief; and the attorney general has filed a brief on behalf of the State of Alabama.
On appeal, Sheriff Surles, District Attorney Minor, and Governor Riley argue that the definition of "bingo" provided in the ordinance is unconstitutionally broad and that the ordinance conflicts with precedent of this Court holding that local amendments excepting bingo from the general prohibition on lotteries in § 65 of the Alabama Constitution must be narrowly construed to encompass only the game commonly known as bingo. This Court's original opinion addressed the merits of the issues on appeal; however, before certificates of judgment were issued, this Court, ex mero motu, placed the cases on rehearing to determine whether the trial court had jurisdiction over the underlying action.
This Court must sua sponte recognize and address the lack of subject-matter jurisdiction owing to the lack of justiciability.
Bedsole v. Goodloe, 912 So.2d 508, 518 (Ala.2005).
Although the Declaratory Judgment Act, codified at Ala.Code 1975, §§ 6-6-220 through -232 ("the Act"), provides for actions to declare the legal rights, status, and relations of parties, the Act does not "`"empower courts to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases."'" Bruner v. Geneva County Forestry Dep't, 865 So.2d 1167, 1175 (Ala.2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963) (emphasis added in Stamps)).
Bedsole, 912 So.2d at 518.
As noted above, the City's complaint alleged that Sheriff Surles had indicated that he believed that certain bingo games authorized under the ordinance would be illegal and that he had "advised that when licensees or permitees [sic] start up machine bingo operations" pursuant to the ordinance, the participants would be arrested. The City thus 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.
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. "`"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...." Anderson, Actions for Declaratory Judgments, Volume 1, § 14.'" Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003) (quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969) (emphasis added in Copeland)). "Thus, `[d]eclaratory judgment proceedings will not lie for an "anticipated controversy."'" Creola Land Dev., Inc. v. Bentbrooke Hous., L.L.C., 828 So.2d 285, 288 (Ala.2002) (quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ.App.1999)). A bona fide justiciable controversy necessary for a declaratory-judgment
Birmingham Bd. of Educ. v. Boyd, 877 So.2d 592, 594 (Ala.2003).
In the instant 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. Ex parte Johnson, 993 So.2d 875, 884 (Ala.2008) ("[A]ny attempt to obtain a declaratory judgment as to a hypothetical future controversy is beyond the subject-matter jurisdiction of the circuit courts."). Therefore, the trial court was without subject-matter jurisdiction; its judgment is void and will not support these appeals, which we now dismiss.
1080826 — ON REHEARING EX MERO MOTU: OPINION OF JANUARY 29, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.
1081015 — ON REHEARING EX MERO MOTU: OPINION OF JANUARY 29, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.
COBB, C.J., and LYONS, WOODALL, STUART, and PARKER, JJ., concur.
MURDOCK, J., concurs in the result.
BOLIN and SHAW, JJ., dissent.
MURDOCK, Justice (concurring in the result).
I concur in the result. See Redtop Market, Inc. v. State of Alabama ex rel. Arthur Green, 66 So.3d 204, 208 n. 1 and accompanying text (Ala. 2010) (Murdock, J., concurring specially).
SHAW, Justice (dissenting).
I respectfully dissent to withdrawing this Court's original opinion and dismissing these appeals on rehearing ex mero motu. In our original opinion in this case, this Court unanimously held that the definition of "bingo" in Ordinance No. 2008-0011 ("the ordinance") failed to comply with applicable law and that the ordinance was therefore unconstitutional. Specifically, we held that the definition of bingo in the ordinance impermissibly deviated from that definition of bingo found in Barber v. Cornerstone Community Outreach, Inc., 42 So.3d 65 (Ala.2009).
It is correct that some portions of the action below sought a declaration as to the legality of certain future conduct, namely, the operation of certain gaming machines and facilities pursuant to the ordinance. That conduct had not yet occurred. Such actions are not maintainable. Specifically, in Baldwin County v. Bay Minette, 854 So.2d 42 (Ala.2003), this Court held that a declaratory-judgment action was nonjusticiable because it sought a declaration regarding an anticipated factual scenario:
854 So.2d at 46.
However, I disagree with the conclusion that all the claims at issue in the underlying case involve anticipated conduct.
Second, the dispute in this case is whether the ordinance is constitutional on its face, not whether some future conduct or factual scenario is valid or legal. The ordinance was enacted and is currently in effect and operation; it is not merely proposed. The City has begun operating its regulatory scheme put in place by the ordinance, and entities have actually applied for the permits authorized by the ordinance. Sheriff Surles and District Attorney Minor contend that the ordinance is unconstitutional.
I see no factual development that needs to unfold in order to make ripe for review the simple determination whether the ordinance complies with Alabama law. Indeed, the issue originally addressed by this Court was not whether any future conduct
Whether American Legion, Post 170, and Shooting Star Entertainment Group, LLC, operate machines as described in the ordinance, which we originally held would be impermissible, or whether they operate games that strictly comply with the description of bingo found in Barber would not be determinative as to whether the ordinance is lawful, would not create more adversity between the parties, and would not solidify the bounds and extent of the controversy, because their conduct is immaterial. Further, such conduct would not convert an examination of the legality of the ordinance from an "abstract proposition" to a "real and substantial" controversy, because the controversy in this case is whether the ordinance complies with the law. This controversy came into being when the ordinance was enacted. See, e.g., Tobe v. City of Santa Ana, 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145, 1152 (1995) ("A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual."). I thus see no need for conduct pursuant to the ordinance to occur in order to create a "realized controversy"; such facts are not material.
This conclusion is demonstrated in Chorba-Lee Scholarship Fund, Inc. v. Hale, [Ms. 1090585, Sept. 30, 2010] 60 So.3d 279 (Ala.2010). In Chorba-Lee, several nonprofit charities operating bingo-gaming establishments in Jefferson County filed an action seeking a declaration as to the validity of certain newly issued bingo-gaming regulations promulgated by the Jefferson County sheriff. Specifically, the charities argued that Ala. Const. 1901, Amendment No. 386 (now Local Amendments to Ala. Const. 1901, Jefferson County, § 2 (Off.Recomp.)), gave regulatory power over bingo gaming exclusively to local municipalities or the county. Certain local acts
It is unclear whether the charities operated their gaming facilities after the sheriff's
No different analysis is required in the instant case. Here, as in Chorba-Lee, the issue is whether the attempts to regulate bingo gaming comply with the local constitutional amendments authorizing such regulation. Whether bingo gaming is actually being conducted adds nothing to the analysis. Stated differently, Chorba-Lee demonstrates that, in the underlying declaratory-judgment action in the instant case, no conduct is necessary to aid in determining the constitutionality of the ordinance.
Further, I see here no jurisdictional bars like those found in Tyson v. Macon County Greyhound Park, Inc., [Ms. 1090548, February 4, 2010] 43 So.3d 587 (Ala.2010) ("Tyson"). In Tyson, Macon County Greyhound Park, Inc., d/b/a VictoryLand ("VictoryLand"), commenced an action in the Macon Circuit Court against John M. Tyson, Jr., individually and in his official capacity as special prosecutor and commander of the Governor's Task Force on Illegal Gaming, seeking injunctive and declaratory relief. Specifically, Victory-Land sought a declaration that certain gaming machines at its facility were legal, as well as an injunction preventing Tyson from seizing them. Tyson contended that the Macon Circuit Court did not have subject-matter jurisdiction over a civil action seeking to enjoin the enforcement of the criminal laws of the State. This Court stated on appeal:
Tyson, 43 So.3d at 589.
Tyson further recognized the danger of "a court exercising equitable jurisdiction... interfer[ing] with the orderly functioning of the executive branch within its zone of discretion in violation of the separation-of-powers doctrine set forth at § 43 of the Alabama Constitution of 1901...." 43 So.3d at 589-90. We held in Tyson:
43 So.3d at 590.
Thus, in Tyson, the target of a possible criminal probe filed a declaratory-judgment action seeking a determination as to whether its conduct was legal, and the relief requested sought to interfere with the executive branch's exercise of its discretion in enforcing the law. Such action, we held, ran afoul of several well established legal principles: that equity generally will not enjoin criminal or quasi-criminal prosecutions; that a declaratory-judgment action will not be entertained for the purpose of deciding matters that should properly be decided in a criminal action; and that the separation-of-powers doctrine of Ala. Const. 1901, § 43, bars a court from interfering with the orderly functioning of the executive branch operating within its zone of discretion.
Certain aspects of the declaratory-judgment action below are clearly impermissible under Tyson. Specifically, the City, Surles, and Minor all attempted to seek a judgment declaring whether anticipated conduct — the operation of electronic machine bingo — would be lawful. The City went even further and sought injunctive relief preventing law enforcement from exercising its discretionary law-enforcement function. This is precisely the type of judicial action this Court in Tyson recognized as impermissible; it is not within the trial court's power to entertain such claims.
That said, the City, Surles, and Minor all also sought a judgment declaring whether the City's ordinance falls within the limited grant of authority provided by Amendment No. 542, Ala. Const. 1901 (now Local Amendments to Ala. Const. 1901, St. Clair County, § 2 (Off.Recomp)); Act. No. 91-710; and Act No. 93-687, to enact a regulatory scheme governing bingo in St. Clair County. These claims are the only claims we addressed in our original opinion in these appeals; this Court was presented a pure question of law that raises none of the concerns expressed in Tyson. Specifically, such a declaration does not involve a determination as to whether certain conduct by the parties would violate the criminal law. Indeed, the facts of this case reveal no allegedly illegal conduct taking place, and no criminal law is at
Finally, an action under the Declaratory Judgment Act to determine whether the regulatory scheme of the ordinance falls within the authority granted by Amendment No. 542, Act No. 91-710, and Act No. 93-687 to regulate bingo does not ab initio interfere with the discretion afforded the executive branch in enforcing criminal laws. The decision this Court reached in its original opinion — that the ordinance is unconstitutional and that the trial court erred in holding otherwise — did not operate to restrict executive-branch discretion in conflict with § 43. Whether any declaratory-judgment action addressing the constitutionality or legality of an ordinance could in the future operate to restrict executive branch discretion — or whether § 43 would bar such future restriction — was not an issue in our original decision.
I see no jurisdictional barrier to this Court's original decision in this matter; therefore, I respectfully dissent from withdrawing the original opinion and dismissing these appeals.
BOLIN, J., concurs.