MURDOCK, Justice.
On December 30, 2008, Governor Bob Riley issued Executive Order No. 44 creating the Governor's Task Force on Illegal Gambling ("the Task Force"). The order stated that the purpose of the Task Force was "promoting and supporting uniform statewide enforcement of Alabama's anti-gambling laws and to carry out the Alabama Constitution's strong public policy against lottery schemes and illegal gambling." The order created a special prosecutor to serve as the commander of the Task Force, who, in that capacity, is empowered to "have statewide jurisdiction" to "conduct investigations, attend any regular, adjourned or special session of any circuit court ... for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case related to gambling activity in the State of Alabama." Governor Riley appointed former Jefferson County District Attorney David Barber as Task Force commander.
Cornerstone Community Outreach, Inc. ("Cornerstone"), obtained a license from the Town of White Hall in Lowndes County to operate a bingo-gaming facility, which is known as the White Hall Entertainment Center ("the EC"). An LCD screen outside the EC advertises that the EC offers "HOT SLOTS!" for its customers. The EC contains several hundred electronic gaming machines that are played by hundreds of customers every day. Cornerstone purportedly obtained its license so that it could operate charity bingo games in accordance with Amendment No. 674, Ala. Const. 1901 (Local Amendments, Lowndes County, § 3, Ala. Const. 1901 (Off.Recomp.)).
Pursuant to its mandate, the Task Force on March 19, 2009, executed a search warrant on the EC and confiscated approximately 105 electronic gaming machines,
Freedom Trail Ventures, Ltd. ("FTV"), subsequently filed a motion to intervene in the action, alleging that it owned at least some of the machines seized by the Task Force and that it had leased those machines to Cornerstone. The trial court granted FTV's motion for the limited purpose of allowing it to participate in the preliminary-injunction phase of the proceeding.
Shortly after the seizure of property at the EC, the trial court held a conference call with the parties' attorneys to schedule a hearing on the motion for a preliminary injunction. Because the Task Force's action caused Cornerstone to shut down its operation at the EC, Cornerstone requested that the hearing be held immediately. On behalf of the Task Force and Governor Riley, Barber requested that the defendants be given a week to prepare for the hearing. Cornerstone stated that it would agree to Barber's timetable if, in the meantime, it would be permitted to continue its operations at the EC without the threat of another raid by the Task Force during the pendency of this action. The Task Force refused to agree that it would refrain from re-raiding the EC, and thus the trial court set the hearing for two days after the conference call.
During a two-day preliminary-injunction hearing, the trial court heard testimony from the members of the Task Force who had executed the search warrant, from the Task Force's slot-machine expert, Daryl Robert Sertell, and from Cornerstone and FTV's gambling expert, Joseph Valandra. Following the hearing, the trial court entered an order granting Cornerstone and FTV's request for a preliminary injunction, ordering the Riley defendants to return all property seized during the March 19, 2009, raid, and ordering them to refrain from interfering with Cornerstone's operation at the EC during the pendency of this action.
On March 30, 2009, Governor Riley (case no. 1080806) and the members of the Task Force (case no. 1080805) appealed the trial court's issuance of the preliminary injunction.
On April 21, 2009, the Task Force instituted a civil-forfeiture proceeding in the Lowndes Circuit Court seeking forfeiture of all items seized during the March 19, 2009, raid on the EC.
On May 26, 2009, the Riley defendants filed their appellants' brief on the merits of their appeals of the trial court's preliminary injunction. On May 29, 2009, Cornerstone and FTV filed in both appeals a motion asking this Court to dissolve the preliminary injunction and to dismiss the appeals.
We first consider whether the matter before us is moot. It has been held that "`a case is moot when the issues
Chapman v. Gooden, 974 So.2d 972, 983 (Ala.2007) (emphasis omitted; emphasis added).
When one party sues another in an effort to obtain declaratory or injunctive relief contending that the other party's conduct is wrongful, a showing of "voluntary cessation" of the challenged conduct can moot the action. Demonstrating that the action should be deemed moot on this basis, however, is not an easy burden.
Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000). As the United States Supreme Court stated earlier in United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), a "case may nevertheless be moot if the defendant can demonstrate that `there is no reasonable expectation that the wrong will be repeated.'" (emphasis added; quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d Cir.1945)).
The facts of this case are not those of the ordinary voluntary-cessation situation because here the party volunteering to cease some activity is not the party whose activity is challenged in the underlying action. In other words, in the ordinary voluntary-cessation situation, it is the activity challenged in the underlying action that a party volunteers to cease, thereby making the case moot. Here, the activity challenged in the underlying action is the seizure and retention of the electronic gaming machines and related property by the Task Force, as well as the prospect of further interference by the Task Force with the operation of the EC. Cornerstone and FTV asked for and obtained a preliminary injunction against this activity. The
The question then becomes whether Cornerstone's willingness to cease certain of its activities makes appellate review of the preliminary injunction entered by the trial court moot. In one sense, Cornerstone and FTV have agreed voluntarily to cease any effort to possess and use the particular machines seized by the Task Force pending a trial on the merits.
Even assuming for present purposes that Cornerstone and FTV's expressed willingness to voluntarily relinquish the possession and cease the use of the machines in question would otherwise provide support for a finding of mootness, such willingness is not adequate for that purpose in the present case. As noted, voluntary cessation of challenged conduct moots a case only if it is "`absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'" Adarand Constructors, 528 U.S. at 222, 120 S.Ct. 722 (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). As the United States Supreme Court explained in W.T. Grant Co., 345 U.S. at 633, 73 S.Ct. 894, the movant's burden of persuading the court that this standard is met "is a heavy one." See also Concentrated Phosphate Export Ass'n, 393 U.S. at 203, 89 S.Ct. 361 (stating that "[t]he test for mootness in cases such as this is a stringent one").
We cannot conclude that Cornerstone and FTV have met their "heavy burden" of showing that it is "absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur." First, only a small percentage of the machines at the EC were seized; except for a brief interruption after the raid of the EC, Cornerstone never ceased operation of the EC— and continues to operate the EC—using the remainder of its machines. Furthermore, Cornerstone itself has advised this Court that it has already obtained machines to replace those that were seized and since June has engaged in the acts of possessing and using those machines in the same manner in which it used the seized machines. A limitation of the inquiry to only the machines seized by the Task Force, to the exclusion of machines that remain in the possession and use of Cornerstone and, indeed, additional machines that have been specifically procured by Cornerstone for the purpose of replacing the seized machines, would be to read the above-quoted principle from Adarand Constructors more narrowly than is appropriate for purposes of informing a decision as to mootness and, in turn, this Court's jurisdiction to decide an appeal.
We also consider whether the appeals of the preliminary injunction are or could be made moot if this Court were to remand the case in order to allow for a rescission by the trial court of the preliminary injunction. At bottom, what would then be at issue would not be an agreement by Cornerstone and FTV to relinquish their right to engage in any particular conduct, but rather an acquiescence by Cornerstone and FTV in having the trial court rescind an order favoring them. We are aware of no cases in which a willingness by a prevailing party in the trial court to have the case returned to the trial court for purposes of the rescission of the order favoring it moots the proceeding in the appellate court.
Although the present case concerns a preliminary injunction, its posture is similar in material respects to that of City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Erie concerned the owner of a nude-dancing establishment in Erie, Pennsylvania. The city passed an ordinance making it an offense
The United States Supreme Court concluded that "the case is not moot" and proceeded to the merits. 529 U.S. at 289, 120 S.Ct. 1382. On the question of mootness, the Court reasoned as follows:
529 U.S. at 288-89, 120 S.Ct. 1382 (citations omitted).
Unlike the situation in Erie, if Cornerstone and FTV are successful in having the preliminary injunction rescinded by the trial court, there will be no trial court order that would continue to restrict the actions of the Task Force. Nonetheless, the Riley defendants argue that the order, although it will have been rescinded, will be cited as persuasive authority to other trial courts around the State as the issue of the legality of similar electronic gaming machines is litigated in other locales. Although there may be some merit to the Riley defendants' position in this regard, on balance we find it unpersuasive.
The other factors relied upon in Erie, however, do support a conclusion that this Court should not consider the present proceeding moot. Clearly, as to the questions of law that we must consider in addressing the issue of Cornerstone's and FTV's likelihood of success on the merits, both the
We decline to hold that the apparent willingness of a prevailing litigant in the court below to have an appeal to this Court dismissed and the case remanded for the purpose of allowing the lower court to rescind the judgment in its favor deprives this Court of any discretion to decide the matter pending before us. Here, one of the movants, Cornerstone, initiated the present action by filing a complaint against various State officials in the Lowndes Circuit Court. It and FTV then sought a preliminary injunction against those State officials. At their request, the trial court convened a hearing in which both sides participated, presenting witnesses and legal arguments. Cornerstone and FTV succeeded in obtaining the relief they had requested. The Riley defendants then sought, as was their right, appellate review by this Court of the trial court's order for injunctive relief that had been obtained by Cornerstone and FTV. See Rule 4(a)(1)(A), Ala. R.App. P. On April 17, 2009, approximately two and one-half weeks after the filing of the appeals, this Court granted the Riley defendants' motion to stay the trial court's preliminary injunction. On May 26, 2009, the Riley defendants filed their brief on the merits of the appeal. Three days later, on May 29, 2009, Cornerstone and FTV then filed their motions seeking the dissolution of the preliminary injunction and the dismissal of the appeals. Since that time, Cornerstone and FTV also have filed their brief on the merits, and the Riley defendants have, in turn, filed their reply brief. These appeals therefore are fully briefed and ready for decision. Given the continuing live controversy between the parties as to the legality of the electronic gaming machines in question, the ongoing activity of Cornerstone in using machines not seized by the Riley defendants, as well as machines procured by Cornerstone in substitution for those which were seized, the concrete interest that both sides clearly continue to have in the legal questions presented in these appeals, including particularly those legal principles that would be addressed in the course of considering Cornerstone and FTV's likelihood of success on the merits, and the adverseness of the parties relating to these legal questions, we cannot conclude that this Court has no discretion to proceed to consider these appeals.
The observation of the United States Supreme Court in W.T. Grant Co., 345 U.S. at 632, 73 S.Ct. 894,
(Emphasis added; citations and footnotes omitted.)
Even if the case before us properly could be deemed moot and therefore beyond the power of this Court to decide at this juncture, it would fall within a recognized exception to the doctrine of mootness. We already have discussed the reluctance of federal courts to treat as moot a proceeding involving challenged conduct that is capable of recurring, especially where the public interest is in having the legality of the challenged conduct settled. A similar reluctance informs the exception to mootness that has been recognized in Alabama for issues in which there is great public interest and that are likely to recur.
Specifically, the Riley defendants argue that
As the Riley defendants further note, this Court has explained "`the criteria for applying the public interest exception to the mootness doctrine'" as including (1) "the public nature of the question," (2) "the desirability of an authoritative determination for the purpose of guiding public officers," and (3) "the likelihood that the question will generally recur." Riley
Riley defendants' opposition, at 11-12.
Similarly, as to the second criterion, the desirability of an authoritative determination, the Riley defendants argue as follows:
Riley defendants' opposition, at 12.
We need not address all aspects of the Riley defendants' argument with respect to the first two criteria. It is enough that we agree with the Riley defendants' contention that the question before us involves a matter of great public interest and importance and that there is a clear and pressing need for an authoritative determination as to that question.
The parties disagree as to whether the fact that this case comes before us in the form of an appeal from a preliminary injunction should counsel against a decision by this Court to decide the issues presented. This case is before us on an appeal of a ruling on a request for a preliminary injunction, as is permitted by Rule 4(a)(1)(A), Ala. R.App. P. This Court has an obligation to decide these appeals, just as it does any appeal properly before it.
We agree that the legal questions presented here, although presented in the context of an appeal from an order issuing a preliminary injunction, are legal questions of great public interest and importance that are likely to recur and indeed already have recurred in other locales.
We therefore proceed to decide the present appeals.
"The decision to grant or to deny a preliminary injunction is within the trial court's sound discretion. In reviewing an order granting a preliminary injunction, the Court determines whether the trial court exceeded that discretion." SouthTrust Bank of Alabama, N.A. v. Webb-Stiles Co., 931 So.2d 706, 709 (Ala. 2005). As to questions of fact, the ore tenus rule is applicable in preliminary-injunction proceedings. See Water Works & Sewer Bd. of Birmingham v. Inland Lake Invs., LLC, 31 So.3d 686, 689-690 (Ala. 2009). As this Court recently noted in
(Emphasis omitted.)
The plaintiff bears the burden of producing evidence sufficient to support the issuance of a preliminary injunction. Ormco Corp. v. Johns, 869 So.2d 1109, 1113 (Ala.2003). The requirements for a preliminary injunction are well known:
Blount Recycling, LLC v. City of Cullman, 884 So.2d 850, 853 (Ala.2003) (quoting Blaylock v. Cary, 709 So.2d 1128, 1130 (Ala.1997)).
The Riley defendants argue that the term "bingo" in Amendment No. 674 should be narrowly construed because, they argue, the bingo amendment is an exception to the prohibition on lotteries found in Art. IV, § 65, Ala. Const.1901. Cornerstone and FTV respond by contending that, under a "plain-meaning" reading, Amendment No. 674 does not state that it is an exception to the lottery prohibition, and thus it should not be viewed as such. The fact is, however, that this Court has explicitly stated that "`"bingo" is a lottery'" and that
City of Piedmont v. Evans, 642 So.2d 435, 436 (Ala.1994) (quoting and adopting trial court's order).
The statement in Evans confirmed what the Court explained in Opinion of the Justices No. 373, 795 So.2d 630, 634 (Ala.2001): "Since 1980, Alabama has adopted various constitutional amendments creating exceptions to § 65, specifically allowing the game of bingo under certain circumstances. See Ala. Const., Amendments 386, 387, 413, 440, 506, 508, 542, 549, 550, 565, 569, 599, and 612." (Emphasis added.) Thus, the bingo amendments are exceptions to the lottery prohibition, and the exception should be narrowly construed. See also Barrett v. State, 705 So.2d 529, 531 (Ala.Crim.App.
Further, except where the language of a constitutional provision requires otherwise, we look to the plain and commonly understood meaning of the terms used in that provision to discern its meaning. As this Court stated in State v. Sayre, 118 Ala. 1, 28, 24 So. 89, 92 (1897): "The object of all construction is to ascertain and effectuate the intention of the people in the adoption of the constitution. The intention is collected from the words of the instrument, read and interpreted in the light of its history." As this Court noted in Houston County v. Martin, 232 Ala. 511, 514, 169 So. 13, 16 (1936):
In District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the United States Supreme Court explained that
___ U.S. at ___, 128 S.Ct. at 2788 (emphasis added).
In addition to the foregoing principles, in Jansen v. State ex rel. Downing, 273 Ala. 166, 169, 137 So.2d 47, 49 (1962), this Court stated that "[a]lthough a legislative act cannot change the meaning of a constitutional provision, such act may throw light on its construction and, as a legislative interpretation of a particular provision, it is entitled to much weight." The Alabama Legislature itself explained what is meant by "the game commonly known as bingo" when it enacted Ala.Code 1975, § 45-8-150(1). In that statute, the legislature defined the term "bingo" for purposes of Ala. Const.1901, Amendment No. 508 (Local Amendments, Calhoun County, § 1, Ala. Const. 1901 (Off.Recomp.)), which legalized "bingo games" in Calhoun County:
Ala.Code 1975, § 45-8-150(1).
In contrast to the use of merely the term "bingo games" in Amendment No. 508—the same terminology present in Amendment No. 674 at issue here—Ala.
For purposes of the present case, the Riley defendants do not contend that a "bingo game" must be played only on paper cards, and we, therefore, do not address that issue. What the Riley defendants do argue, however, is that the game at issue here does not contain other telltale elements of bingo such as players manually marking a card of some sort, the possibility of "sleeping a bingo" either by failing to mark a square or failing to call out "bingo!" once a player has a winning board, players seeing and hearing that someone has won the game, and a game that lasts longer than six seconds. In short, as the Riley defendants put it, the machines at issue "have none of the elements of human skill and interaction that are fundamental to the game of bingo." Riley defendants' reply brief, at pp. 6-7.
Several authorities cited by the Riley defendants discuss what constitutes the game commonly known as bingo. In Evans, supra, this Court adopted and set out a trial court's ruling that held that "`"Instant bingo" does not constitute "bingo" as allowed by Amendment No. 508 of the Constitution of Alabama.'" 642 So.2d at 436. Amendment No. 508 (ratified in 1990) contains the same relevant language as Amendment No. 674 in legalizing "[t]he operation of bingo games." Piedmont had a municipal ordinance, however, that defined both traditional bingo and a game called "instant bingo." Instant bingo involved
642 So.2d at 436. The trial court, and this Court, concluded in Evans that instant bingo was not the kind of bingo permitted by Amendment No. 508 because it was
642 So.2d at 436-37.
In Barrett v. State, 705 So.2d 529 (Ala. Crim.App.1996), the Court of Criminal Appeals concluded that a game called "U-Pick-Em"
Other jurisdictions also discuss what constitutes the game commonly known as bingo. In Citation Bingo, Ltd. v. Otten, 121 N.M. 205, 910 P.2d 281 (1995), the New Mexico Supreme Court observed that New Mexico's Bingo and Raffle Act permitted licensed organizations to "conduct games of chance commonly known as `bingo' or `raffles' for educational, charitable,
121 N.M. at 206-07, 910 P.2d at 282-83. The Court further contrasted "Power Bingo" with traditional bingo, as follows:
121 N.M. at 206, 910 P.2d at 282. See also, e.g., Bingo Bank, Inc. v. Strom, 268 S.C. 498, 501, 234 S.E.2d 881, 883 (1977) (explaining that "[t]he game of bingo is played by the use of a `Caller' who announces, one at a time, numbers drawn at random from a container into which has been placed numbered balls or objects for that purpose"); Fla. Stat. Ann. § 849.0931(1)(a) ("`Bingo game' means and refers to the activity, commonly known as `bingo,' in which participants pay a sum of money for the use of one or more bingo cards. When the game commences, numbers are drawn by chance, one by one, and announced. The players cover or mark those numbers on the bingo cards which they have purchased until a player receives a given order of numbers in sequence that has been preannounced for that particular game. This player calls out `bingo' and is declared the winner of a predetermined prize.").
The Kansas Legislature defined "bingo" as follows in K.S.A. 79-4701(a), originally enacted in 1975 as enabling legislation for Art. 15, § 3a:
In 1993, the Kansas Legislature amended K.S.A. 79-4701 to include within the definition of "bingo" what it called "instant bingo." Specifically, "instant bingo" was defined as
K.S.A. 79-4701(c).
The attorney general of Kansas challenged the constitutionality of K.S.A. 79-4701, as amended, arguing that
Parrish, 256 Kan. at 751-52, 887 P.2d at 131.
The secretary of the Kansas Department of Revenue was the defendant in the action and contended that
256 Kan. at 752, 887 P.2d at 131. The latter argument is similar to one of the arguments made by Cornerstone and FTV in this case.
The Parrish Court began its discussion by observing that it was undisputed that when the people adopted Art. 15, § 3a, they were not voting for "instant bingo," but rather "bingo," much at it was defined in K.S.A. 79-4701(a). The Parrish Court then noted:
256 Kan. at 754, 887 P.2d at 133. The Parrish Court observed that the so-called "instant bingo" was nothing more than a pull-tab game. Therefore, it considered the issue presented by the case to be: "[W]hether the game of pull tabs, now called instant bingo by the legislature, has sufficient similar characteristics to traditional bingo, now called call bingo, to be considered a game of bingo within Art. 15, § 3a." 256 Kan. at 755, 887 P.2d at 133.
At the outset, the Parrish Court analyzed the issue by emphasizing that "the overriding prohibition of the Kansas Constitution is that `[l]otteries and the sale of lottery tickets are forever prohibited.' Art. 15, § 3." 256 Kan. at 755, 887 P.2d at 133. The Kansas Supreme Court quoted from one of its previous cases, in which it had observed:
256 Kan. at 755, 887 P.2d at 133 (quoting State v. Nelson, 210 Kan. 439, 444, 502 P.2d 841, 845 (1972)).
256 Kan. at 756-57, 887 P.2d at 134 (emphasis added).
The Parrish Court reasoned that "[a]s we have no clear precedent to guide us, we are limited to determining whether instant bingo contains enough of the basic elements or characteristics of bingo to be lawfully defined as a game of bingo." 256 Kan. at 761, 887 P.2d at 136. It proceeded to reject the common characteristics of the game put forth by the intervenor,
The Parrish Court then explained what it believed to be the major characteristics of traditional bingo and contrasted them with the game of "instant bingo" at issue:
256 Kan. at 762, 887 P.2d at 137 (emphasis added). See also Department of Texas Veterans of Foreign Wars of the United States v. Dorning, (CV # 07-S-2144-NE, Sept. 28, 2009) (N.D.Ala.2009) (unreported decision) (citing Barber v. Jefferson County Racing Ass'n, Inc., 960 So.2d 599 (Ala. 2007), and agreeing in dictum that "the electronic machines at issue in this case are said to provide only an entertaining means of revealing the results of an electronic bingo game conducted in the inner workings of a computer server").
Based on the foregoing, we must conclude that the term "bingo" as used in Amendment No. 674 was intended to reference the game commonly or traditionally known as bingo. The characteristics of that game include the following:
Our review of the record in the present case reveals that Cornerstone and FTV failed to introduce substantial evidence from which the trial court reasonably could have concluded that Cornerstone and FTV had a "reasonable likelihood of success" in proving that the electronic gaming machines seized from the EC constituted the game of bingo. Most of the information regarding the manner in which the machines operate was introduced by the Task Force. The police officer who led the raid on the EC actually played some of the electronic gaming machines before the raid. (Cornerstone and FTV did not present a witness who had played the machines.) From the officer's testimony, it seems the machines operate almost exactly like slot machines. In fact, an entire "bingo game" takes approximately six seconds,
The Riley defendants contend that Cornerstone and FTV failed to offer any evidence indicating that the players of the electronic gaming machines know who they are playing against or that they are playing against anyone at all. Cornerstone and FTV counter that "the undisputed evidence was that the machines were linked together, thus allowing for competition between multiple players." Cornerstone and FTV's brief, at p. 38 n. 20. It is true that Cornerstone's expert testified, and the Riley defendants did not dispute, that multiple electronic gaming machines were linked to the same server. The mere fact that the machines may be "linked" in this manner, however, does not demonstrate that players are playing against one another; at most, it leaves open the possibility that it is technologically possible for them to do so.
Cornerstone and FTV rely on the fact that the machines are linked to the same server. The evidence indicates that the server in turn is linked to or uses a computer program that tells the machine being played whether the player of that machine is a winner or loser on that occasion. The outcome is predetermined by the computer program connected to the server. There is no evidence indicating that this "linkage" of individual machines to the server means that the players of the different electronic machines are playing against one another.
On the basis of the foregoing, we cannot conclude that Cornerstone and FTV introduced sufficient evidence from which the trial court could have determined that Cornerstone and FTV had a reasonable likelihood of success on the merits. The trial court's order issuing a preliminary injunction therefore is reversed, and the cause is remanded for further proceedings consistent with this opinion.
1080805—REVERSED AND REMANDED.
1080806—REVERSED AND REMANDED.
STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.
COBB, C.J., and LYONS and WOODALL, JJ., dissent.
LYONS, Justice (dissenting).
I join Justice Woodall's dissent. I note further that Cornerstone and FTV state that "[e]vents occurring after the entry of the preliminary injunction have greatly reduced the threat of further irreparable harm to Cornerstone and FTV and provide them with an adequate remedy at law that was not available at the time the injunction was sought and entered." Paragraph 6, Cornerstone and FTV's motion to dissolve preliminary injunction and dismiss appeals. Cornerstone and FTV also point to the incomplete status of the factual record by reason of the brevity and short notice of the hearing in the trial court.
The Riley defendants opposed the motion, stating:
Riley defendants' opposition to appellees' motion to dissolve preliminary injunction and dismiss appeals, at p. 1. However, a full hearing has been held on the issue addressed on the merits in the main opinion in Charles Baker et al. v. Walker County Bingo et al., Case No. 2007-0400, and an order was entered on October 26, 2009, concluding that electronic bingo constituted an illegal lottery and enjoining such operations. I assume that the parties against whom the injunction was issued will appeal that order to this Court in the event they consider such course of action to be in their best interest. If that occurs, we will have the issue before us on a full record. Moreover, this Court has recently granted expedited review in Sheriff Terry Surles & District Attorney Richard Minor v. City of Ashville et al., Case No. 1080826, and State of Alabama v. City of Ashville et al., Case No. 1081015, also dealing with electronic bingo.
In sum, I find no merit in the Riley defendants' opposition to the motion to dismiss.
This Court has recognized mootness in appeals from injunctions when subsequent proceedings eliminate the necessity of injunctive relief. See Morrison v. Mullins, 275 Ala. 258, 259, 154 So.2d 16, 18 (1963) (an appeal will be dismissed as moot "if an event happening after hearing and decree in circuit court, but before appeal is taken, or pending appeal, makes determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief...."). Under the facts here presented, determination of the appeal in this proceeding is unnecessary, and this appeal should be dismissed with instructions to the trial court to vacate the preliminary injunction, which has heretofore been stayed by order of this Court pending appeal.
The main opinion relies on City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), in which the foundation for the contention of mootness was the prevailing party's cessation of business. The main opinion states:
42 So.3d at 74. Unlike Erie, where the alleged basis for mootness was the prevailing party's simply closing its establishment, here Cornerstone and FTV have confessed the availability of an adequate remedy at law that goes to the basis for the trial court's entry of a preliminary injunction. Had the assertion of mootness prevailed in Erie, the establishment would have still had the favorable ruling from the trial court in place. Here, the concession by Cornerstone and FTV should lead to vacatur of the injunction, undoing the favorable ruling of the trial court. On the other hand, acceptance of the cessation of business as sufficient to moot the proceedings in Erie would have left the municipality
WOODALL, Justice (dissenting).
In my opinion, these appeals from a preliminary injunction should be dismissed as moot. Therefore, I respectfully dissent.
In granting a preliminary injunction, a trial court does not reach the merits of a case. Benetton S.p.A. v. Benedot, Inc., 642 So.2d 394, 401 (Ala.1994). Therefore, "[i]t is well established that when this Court reviews a preliminary injunction, `we are not reviewing a final judgment on a hearing of the case on its merits.'" EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 510 (Ala.2005)(quoting Howell Pipeline Co. v. Terra Res., Inc., 454 So.2d 1353, 1358 (Ala.1984)). Consequently, a proper review of the trial court's order in this case would be limited to a determination of whether the trial court exceeded its discretion in granting the preliminary relief. However, there is no need for this Court to conduct such a review.
By written motion, Cornerstone and FTV have moved "this Court to dissolve the injunction and dismiss the consolidated appeals so that the parties may proceed in an orderly fashion in the trial court towards a determination, based upon a full evidentiary record, of the important issue of server-based bingo under Alabama law." In other words, Cornerstone and FTV want the preliminary injunction from which the Riley defendants have appealed to be dissolved, leaving the parties in the same positions they occupied before the injunction was entered. Stated simply, Cornerstone and FTV no longer insist that they have the right to possess and to use the electronic gaming machines in question pending a final judgment. The Riley defendants, who seek a reversal of the trial court's order, should not be heard to complain of the dissolution of the injunction or the dismissal of their unnecessary appeals. Therefore, this Court should dissolve the preliminary injunction—or remand the case for the trial court to do so—and dismiss the appeals as moot. "There is no doubt of the general rule that if pending an appeal `appellee ... does, or relinquishes the right to do some act in respect to which the appeal was taken,' the appeal should be dismissed." Willis v. Buchman, 240 Ala. 386, 388, 199 So. 892, 894 (1940) (opinion on rehearing) (quoting Caldwell v. Loveless, 17 Ala.App. 381, 382, 85 So. 307, 307 (1920)). There is no reason to deviate from this general rule in this case. The parties' rights remain to be determined on the merits in the trial court, and, as I will explain, the public-interest exception to the mootness doctrine does not apply.
"It is true that an exception [to the mootness doctrine] exists for a `moot case involving issues of great public importance, which may recur in the future.'" Chapman v. Gooden, 974 So.2d 972, 989 (Ala. 2007) (quoting 1A C.J.S. Actions § 81 (2005)). One criterion for applying this exception is "`the desirability of an authoritative determination for the purpose of guiding public officers.'" Chapman, 974 So.2d at 989 (emphasis added). "However, [the public-interest] `exception is construed narrowly ... and a clear showing of each criterion is required to bring a case within its terms.'" Id. (quoting In re Adoption of Walgreen, 186 Ill.2d 362, 365, 710 N.E.2d 1226, 1227, 238 Ill.Dec. 124, 125 (1999))(emphasis added). The decision rendered by the majority is not authoritative;
The majority states "that there is a clear and pressing need for an authoritative determination as to [whether electronic bingo is legal]." 42 So.3d at 76. However, the main opinion is in no way "authoritative." Indeed, only the unnecessary reversal of the preliminary injunction is binding on the trial court. This is so because the factual record for this case is likely to be quite different if and when a final trial is conducted.
According to the majority, this case involves "legal questions of great public interest and importance." 42 So.3d at 77. If that be the case, such questions should be resolved only when this Court receives an appeal from a final judgment on the merits accompanied by a full factual record. Otherwise, this Court will have ignored its own admonition that it should "`not allow the judiciary of this state to become a political foil, or a sounding board for topics of contemporary interest.'" Siegelman v. Alabama Ass'n of Sch. Bds., 819 So.2d 568, 576 (Ala.2001) (quoting Ex parte State ex rel. James, 711 So.2d 952, 962 (Ala.1998)).
COBB, C.J., and LYONS, J., concur.
We note that a question also exists as to Cornerstone's and FTV's standing to seek a dismissal of the appeals based on their contention as to the relative fields of authority of Attorney General King and the Riley defendants. It is not necessary for us to resolve this issue of standing, however, nor the questions raised by Attorney General King, in light of the fact that Governor Riley is a party to this case, see Ex parte Weaver, 570 So.2d 675, 684 (Ala. 1990) ("We recognize that there may be times when the Governor disagrees with the attorney general about matters in litigation. Although we determine that the attorney general is authorized to direct the course of all litigation involving the State and its agencies, the Governor, as `chief magistrate' of the State, may intervene in any such litigation.... As an intervenor, the Governor may express his views and take positions contrary to those argued by the attorney general." (footnote omitted)), that a judgment had been entered against him, and that he has duly filed an appeal from that judgment. We also note that the record and briefs do not contain or reflect an effort by Attorney General King to instruct the Riley defendants not to appeal from the trial court's judgment against them, and he specifically does not "seek to intervene as a party" in this case and does not "take a position on the merits of this appeal."
Given Governor Riley's appeal of the judgment entered against him, and in light of the nature of Attorney General King's position, we need not address further the issues raised by Cornerstone and FTV in their first motions to dismiss.
William Schwarzer, A. Wallace Tashima, James Wagstaffe, Practice Guide: Federal Civil Procedure Before Trial, National Edition, "Mootness" Limitation, CH. 2E-3.
345 U.S. at 630-31, 73 S.Ct. 894 (footnotes omitted). The Court held that the government failed to carry its burden of showing on appeal that the trial court had abused its discretion in concluding that there was no possibility that Hancock and the companies would attempt to interlock again, though it observed that "[w]ere we sitting as a trial court, [the government's] showing might be persuasive." Id. at 634, 73 S.Ct. 894.
We reject Justice Woodall's assertion in his dissenting opinion that our holding today is somehow not "authoritative." Under our rules, preliminary injunctions are a proper subject of appeals to this Court, and this Court is obligated to decide such appeals, no less than we are obligated to decide appeals of permanent injunctions. If, in deciding such an appeal, this Court finds it necessary to decide some legal question, our decision as to that legal question is no less authoritative than if that legal question was presented to us in an appeal from a permanent injunction.
705 So.2d at 531.
