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Fairfield Community Clean Up Crew, Inc. v. Hale

United States District Court, N.D. Alabama, Southern Division

October 27, 2017

FAIRFIELD COMMUNITY CLEAN UP CREW, INC., Plaintiff,
v.
MIKE HALE, in his official capacity as Jefferson County Sheriff, et al., Defendants.

          MEMORANDUM OF OPINION

          L. Scott Coogler, United States District Judge.

         Before the Court is Sheriff Mike Hale (“Sheriff Hale”) and Attorney General Steve Marshall (“Attorney General Marshall”) (collectively “Defendants”)'s Motion to Dismiss the Amended Complaint or, in the Alternative, Motion for Summary Judgment. (Doc. 19.) For the reasons explained herein, Defendants' motion is due to be GRANTED in PART and DENIED in PART.

         I. Factual and Procedural Background

         Plaintiff Fairfield Community Clean-Up Crew, Inc. (“Community”) is an Alabama non-profit corporation and charitable organization organized under the Fairfield Municipal Bingo Ordinance No. 1024G. (Doc. 18 ¶ 2.) Sheriff Hale is the Sheriff of Jefferson County and Attorney General Marshall is the Attorney General for the State of Alabama. (Doc. 18 ¶ 12; Doc. 19 ¶ 1.) Defendants informed Community that it was in violation of Alabama law because of its operation of illegal gambling devices and slot machines and ordered Community to cease its bingo operations. (Doc. 18 ¶ 19.) On February 24, 2017, Defendants executed a search warrant on Community's bingo facility and seized Community's property from that location. (Doc. 18 ¶ 18.) Later that same day, Community instituted this action against Defendants. (Doc. 1; Doc. 19 ¶ 14, Ex. 2.)

         A. Alabama Constitutional Amendments and Fairfield's Ordinances Pertaining to Community's Claims

         Article IV, § 65 of the Alabama Constitution generally prohibits lotteries, including bingo, in the State of Alabama. See Barber v. Cornerstone Cmty. Outreach, Inc., 42 So.3d 65, 78-79 (Ala. 2009). Section 65 provides:

The legislature shall have no power to authorize lotteries or gift enterprises for any purposes, and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets, or tickets in any scheme in the nature of a lottery; and all acts, or parts of acts heretofore passed by the legislature of this state, authorizing a lottery or lotteries, and all acts amendatory thereof, or supplemental thereto, are hereby avoided.

Ala. Const. of 1901, art. IV, § 65. Amendments to the Alabama Constitution of 1901 allow bingo in certain counties by creating exceptions to the general prohibition of “lotteries” in § 65. One such amendment, Amendment 386, allows bingo in Jefferson County. See Chorba-Lee Scholarship Fund, Inc. v. Hale, 60 So.3d 279, 280 (Ala. 2010). Amendment 386, as amended by Amendment 600, states:

The operation of bingo games for prizes or money by nonprofit organizations for charitable or educational purposes shall be legal in Jefferson County, subject to the provisions of any resolution or ordinance by the county governing body or the governing bodies of the respective cities and towns, within their respective jurisdictions. The said governing bodies shall have the authority to promulgate rules and regulations for the licensing and operation of bingo games, within their respective jurisdictions . . .

Ala. Const. of 1901 amends. 386, 600.

         Pursuant to Amendments 386 and 600, the City of Fairfield enacted the City of Fairfield Bingo Ordinance (the “Bingo Ordinance”) establishing rules and licensing procedures for the operation of bingo within the city. (See Doc. 18 Ex. A.) The Bingo Ordinance defines “bingo” and “bingo games” and specifically refers to the use of electronic devices to play bingo:

To the extent that the foregoing elements are present in the game of bingo, it can be played with different kinds of equipment varying from one end of the spectrum, where traditional cards displaying the playing grids are used with tokens to cover the designated square on the grids, to the technologically advanced end of the spectrum, whether electronic devices perform the operation of the game using computers or micro processors and interact with the human players by means of an electronic console.

Fairfield, Ala., Ordinance No 1024G, § 2 (2011).

         B. Community's Electronic Bingo Operations

         Community obtained a license from the City of Fairfield and opened a “bingo” establishment that included the use of electronic bingo. (Doc. 18 ¶¶ 2, 15.) Community has maintained that the operation of the bingo establishment, including electronic bingo, was legal under its interpretation of the above-quoted constitutional amendments and the Bingo Ordinance. (Doc. 18 ¶ 15.)

         On February 23, 2017, a Jefferson County District Court Judge issued a search warrant for the facility where Community conducted its bingo operations. (Doc. 18 ¶ 17.) The warrant further commanded the seizure of (1) any U.S. currency or (2) evidence of violation of Alabama Constitutional Amendments 386 and 600 and Ala. Code § 13a-12-20 et seq. relating to illegal gambling. (Doc. 18 ¶ 17; Doc. 19 Ex. 1.) The following day, February 24, 2017, the Jefferson County Sheriff's Office executed a search warrant on the bingo facility and seized Community's electronic bingo machines as well as other property. (Doc. 19 Ex. 2.) Also on February 24, 2017, but later in the day, Community filed this action. (Compare Doc. 1 at 1 (filing time of 3:12 PM) with Doc. 19 Ex. 2 (Search Warrant Worksheet listing “time entered” at 8:30 AM).) While Community requested a Temporary Restraining Order (“TRO”) on February 24, 2017, the parties agreed the motion was moot when filed given the execution of the search warrant earlier that day. (See Doc. 6.)

         Following the seizure of Community's bingo equipment, the District Attorney for Jefferson County filed a civil petition styled State of Alabama ex rel. Washington v. Harris, CV-2017-900185, on March 6, 2017 in the Circuit Court of Jefferson County. The district attorney sought the condemnation and forfeiture of the alleged illegal gambling devices that were seized pursuant to the February 24, 2017 search of Community's bingo facility. (Doc. 19 Ex. 3.) The petition specifically asked the court to find that the devices seized during execution of the warrant were in violation of Alabama law. (Id.) At the time of this Memorandum of Opinion, the state-court civil forfeiture action is still pending.

         II. Standard of Review

         Defendants raise sovereign immunity and ripeness challenges. To the extent the Court has jurisdiction, Defendants argue it should abstain from hearing Community's claims under the Younger abstention doctrine.[1] (Doc. 19 at 2.) Both the sovereign immunity and ripeness defenses pose jurisdictional questions, so in that respect this motion is governed by Federal Rule of Civil Procedure 12(b)(1). See Digital Props. v. City of Plantation, 121 F.3d 586, 591 (11th Cir.1997) (ripeness); Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir. 1996) (sovereign immunity). The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942).

         A “facial attack” on the complaint asks the Court to determine whether the plaintiff has alleged a basis for subject matter jurisdiction and takes the allegations in the complaint as true for the purposes of the motion. Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008). On the other hand, a “factual attack” challenges the existence of subject matter jurisdiction using material extrinsic to the pleadings, such as affidavits or testimony. Id. at 1233. “Since such a motion implicates the fundamental question of a trial court's jurisdiction, a ‘trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case' without presuming the truthfulness of the plaintiff's allegations.” Makro Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008) (quoting Morrison v. Amway Corp., 323 F.3d 920, 925(11th Cir. 2003)). Here, Defendants rely on a number of exhibits submitted with their motion to dismiss, the Court thus construes Defendants' motion as a “factual attack.”

         III. Discussion

         Community's claims for relief implicate the limits of the Court's subject matter jurisdiction under the Eleventh Amendment and ripeness doctrine. After determining it has subject matter jurisdiction over some of these claims, the Court then finds that it should abstain from hearing Community's remaining claims under the Younger doctrine.

         A. Eleventh Amendment Immunity

         The Eleventh Amendment generally grants state officials sued in their official capacities immunity from suits brought by private citizens. See U.S. Const. amend. XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). States can waive their Eleventh Amendment immunity. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Alabama has not waived its sovereign immunity. See id.; see also Ala. Const. of 1901, art. I, § 14 (“[T]he State of Alabama shall never be made a defendant in any court of law or equity.”). The Eleventh Circuit has held that the Attorney General and County Sheriffs of Alabama are state officials protected from suit under the Eleventh Amendment. Melton v. Abston, 841 F.3d 1207, 1234 (11th Cir. 2016) (Eleventh Amendment immunity applies to Alabama Sheriffs); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336-40 (11th Cir. 1999) (discussing Eleventh Amendment immunity's application to suits against Alabama Attorney General).

         Congress can also abrogate Eleventh Amendment immunity in certain situations. Fla. Prepaid, 527 U.S. at 670. “Congress can abrogate [E]leventh [A]mendment immunity without the state's consent when it acts pursuant to the enforcement provisions of section 5 of the fourteenth amendment.” Carr v. City of Florence, 916 F.2d 1521, 1524 (11th Cir. 1990) (citing Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 (1985)). While Congress has the power to do so, it has never ...


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