FOR IMMEDIATE RELEASE
NEWS ADVISORY
March 31, 2016
For More Information, contact:
Luther Strange
Mike Lewis (334) 353-2199
Alabama Attorney General
Joy Patterson (334) 242-7491
Page 1 of 2
ATTORNEY GENERAL STRANGE HAILS ALABAMA SUPREME COURT DECISION
AGAINST VICTORYLAND AS A RESOUNDING VICTORY IN SETTLING STATE
LAW THAT ELECTRONIC BINGO IS ILLEGAL
(MONTGOMERY) – Attorney General Luther Strange hailed the Alabama Supreme Court’s
decision Thursday against VictoryLand as a resounding victory for the rule of law and the
definitive word that electronic bingo is illegal in Alabama.
“The Alabama Supreme Court’s ruling is abundantly clear that electronic bingo is illegal and
repeated court challenges to the contrary will not change that fact,” said Attorney General
Strange. “I cannot say it any better than the court itself.”
The Alabama Supreme Court ruling observed:
“Today’s decision is the latest, and hopefully the last, chapter in the more than six years’ worth
of attempts to defy the Alabama Constitution’s ban on “lotteries.” It is the latest, and hopefully
the last, chapter in the ongoing saga of attempts to defy the clear and repeated holdings of this
Court beginning in 2009 that electronic machines like those at issue here are not the “bingo”
referenced in local bingo amendments. It is the latest, and hopefully the last, chapter in the
failure of some local law-enforcement officials in this State to enforce the anti-gambling laws of
this State they are sworn to uphold, thereby necessitating the exercise and performance by the
attorney general of the authority and duty vested in him by law, as the chief law-enforcement
officer of this State, to enforce the criminal laws of this State. And finally, it is the latest, and
hopefully last, instance in which it is necessary to expend public funds to seek appellate review
of the meaning of a simple term — “bingo” – which, as reviewed above, has been declared over
and over and over again by this Court. There is no longer any room for uncertainty, nor
justification for continuing dispute, as to the meaning of that term. And certainly the need for any
further expenditure of judicial resources, including the resources of this Court, to examine this
issue is at an end. All that is left is for the law of this State to be enforced.”
Attorney General Strange added, “I consider the work of my office in bringing the issue of
electronic gambling to the courts for final judgement to now be complete. It is now up to the
Governor, ALEA, and local authorities to ensure that the law is properly enforced.
501 Washington Avenue * Montgomery, AL 36104 * (334) 242-7300
www.ago.alabama.gov Page 2 of 2
“I am proud of the work of the many local law enforcement jurisdictions who have performed
their duty to enforce our laws and I am equally proud of my legal team in bringing this case and
the question of electronic bingo to a successful conclusion.”
–30 –
Supreme Court Opinion Attached
REL:03/31/2016
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2015-2016
1141044
State of Alabama
v.
$223,405.86 et al.
1150027
KC Economic Development, LLC
v.
State of Alabama
Appeals from Macon Circuit Court
(CV-13-900031)1141044, 1150027
PER CURIAM.
The State of Alabama appeals from two orders of the Macon
Circuit Court dismissing the State’s petition for forfeiture
of certain electronic-gambling devices and related records and
currency located at VictoryLand casino (appeal no. 1141044).
We reverse both orders and render a judgment for the State in
appeal no. 1141044. KC Economic Development, LLC (“KCED”),
cross-appeals (appeal no. 1150027). We dismiss KCED’s cross-
appeal as moot.
I. Facts and Procedural History
On February 15, 2013, in Ex parte State of Alabama, 121
So. 3d 337, 340 (Ala. 2013), this Court issued a writ of
mandamus ordering Circuit Judge Tom F. Young, Jr., to issue a
search warrant “as to certain allegedly illegal gambling
devices and related items” located at the VictoryLand casino
in Shorter. The warrant was issued the following day and was
executed on February 19, 2013. During the search pursuant to
the warrant, the State seized 1,615 gambling machines,
1
$263,105.81 in currency, and related servers, terminals, and
other equipment. On February 25, the State filed in the Macon
1
The amount of currency stated in the style of this case
was a preliminary count that was later revised.
21141044, 1150027
Circuit Court a “Petition for Forfeiture and Condemnation” of
th items seized. See ß 13A-12-30, Ala. Code 1975 (providing
for forfeiture to the State of unlawful gambling devices,
records, and money “used as bets or stakes” in unlawful
gambling activity). The petition named Macon County Greyhound
Park, Inc. (“MCGP”), and KCED as the persons found in
2
possession of the seized property.
On August 23, 2013, this Court, in response to a petition
filed by the State, issued a writ of mandamus disqualifying
Judge Young from presiding over the forfeiture proceeding. Ex
parte State (In re State v. $223,405.86 U.S. Currency et al.)
(No. 1120757). All the other eligible judges in the Fifth
Judicial Circuit, which includes Macon County, voluntarily
recused themselves. On November 12, 2013, Montgomery Circuit
Judge William Shashy was appointed to preside over the case.
On December 9, 2013, Judge Shashy scheduled a bench trial for
June 3, 2014. The trial date was extended for three months at
the request of the parties. On September 9-12, 2014, Judge
Shashy conducted a four-day bench trial. The State’s witnesses
2
MCGP owns land and buildings at 8680 County Road 40 in
Shorter that it leases to KCED, which operates Quincy’s 777
casino at that location. “VictoryLand” is a trade name of
MCGP.
31141044, 1150027
testified about the characteristics of the seized machines,
which the State argued were illegal gambling devices.
Witnesses for KCED testified that the intent of the voters who
in 2003 ratified Macon County’s “bingo amendment,” Local
Amendment, Macon County, ß 1, Ala. Const. 1901 (Off. Recomp.)
(“Amendment No. 744”) was to legalize the very types of
devices that had been seized. Nine months later, on June 25,
2015, Judge Shashy entered an order dismissing the forfeiture
action on equal-protection grounds, i.e., on the basis that
the State tolerated at other locations in Alabama the
operation of casinos that used the same type machines at issue
in this forfeiture case. The order did not address the issue
of the legality of the machines.
On July 7, 2015, KCED filed a postjudgment motion
requesting that the trial court specifically find that the
intent of the voters in approving Amendment No. 744 was to
authorize the use in Macon County of electronic-gambling
machines like those allegedly available at other locations in
the State. KCED additionally requested that the trial court
order that all the seized property be returned. The State,
also dissatisfied with the court’s order, disagreed that it
41141044, 1150027
had selectively enforced Alabama’s gambling laws and contended
that the equal-protection rationale was legally untenable. The
State also argued that under settled Alabama law the seized
machines were illegal gambling devices and thus contraband.
KCED filed a rebuttal to the State’s response, which included
two affidavits from individuals who attested that they had
visited casino locations in Alabama subsequent to the trial
court’s June 15 order and found in operation electronic-
gambling machines just like those seized as contraband at
VictoryLand.
On August 4, 2015, Judge Shashy held a hearing on the
postjudgment motions. On October 2, 2015, he issued an order
that provided the findings of fact sought by KCED and
concluded that “the Macon County voter when voting on the
amendment understood it to be all forms of bingo.” He also
repeated his finding from the June order that the State of
Alabama was “cherry picking which facilities should remain
open or closed” and thus was “not enforcing the law equally.”
Judge Shashy then entered a conditional order for return of
the seized property: “Unless the State of Alabama initiates
legal action and/or forfeiture proceedings within 45 days
51141044, 1150027
against [casinos in Greene County and Lowndes County], then
all seized equipment, records, and currency shall be returned
to [KCED].” The State appealed from the trial court’s orders;
KCED “out of an abundance of caution” cross-appealed to
preserve its claim for return of the seized property and its
position that the seized machines were legal under Alabama
law. To prevent the trial court’s 45-day deadline for return
of property from being triggered during the pendency of the
appeal, the State moved this Court to stay the order, which
3
this Court granted on November 9, 2015.
II. Standard of Review
When a judge tries a case without a jury, we apply the
following standard of review:
“‘[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.’ Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002). ‘”The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment.”‘ Waltman v. Rowell, 913 So. 2d 1083, 1086
(Ala. 2005) (quoting Dennis v. Dobbs, 474 So. 2d 77,
79 (Ala. 1985)). ‘Additionally, the ore tenus rule
does not extend to cloak with a presumption of
3
Additional facts, as applicable, will be provided in the
“Analysis” section below.
61141044, 1150027
correctness a trial judge’s conclusions of law or
the incorrect application of law to the facts.’ Id.”
Fadalla v. Fadalla, 929 So. 2d 429, 433 (Ala. 2005).
III. Analysis
The State challenges the trial court’s orders on three
grounds: (1) that the equal-protection analysis was erroneous;
(2) that the trial court’s reliance on “voter intent” to
define the word “bingo” was improper; and (3) that the
machines in question do not constitute “bingo” under prior
decisions of this Court and therefore are contraband that is
due to be forfeited. KCED cross-appeals, asking for relief in
its favor beyond that ordered by the trial court.
A. Equal Protection
- Background
The attorney for KCED began his opening statement at
trial by displaying a chart entitled “Facilities in Alabama
with Electronic Bingo Machines.” The chart listed the number
of days five different organizations allegedly had operated
electronic-gambling machines in Alabama claimed to constitute
“bingo” in the preceding four years and one month. According
to the chart, (1) three tribal casinos had operated such
machines every day during that period and (2) two casinos in
71141044, 1150027
Greene County and one in Houston County had been open and
operating such machines for an average of 1,119 days in the
same period — 75% of the time, or three years out of the
four. By contrast, VictoryLand allegedly had operated such
machines in the same period for only 63 days — 4% of the
time, or two months. The chart was a demonstrative device; no
evidence was offered at trial to substantiate the numbers
reflected on the chart. KCED’s purpose in displaying the chart
was to show that such machines were in use in other locations
in Alabama and, therefore, to argue that “Victoryland, like
the other facilities in Alabama, can run the same thing so the
people of Macon County can have the same thing.” KCED did not
raise a formal equal-protection claim but instead relied
primarily on the argument that the intent of the voters in
approving Amendment No. 744 was to approve the same type of
machines KCED claimed other casinos had in operation.
The trial judge seized upon the statement of KCED’s
counsel that the same machines as in the forfeiture proceeding
before the trial court were freely available to patrons at
other locations in the State. On his own initiative, Judge
Shashy raised the equal-protection issue with KCED’s counsel.
81141044, 1150027
“THE COURT: Is there an equal protection claim*
“MR. JOE ESPY (KCED): Well, we may have to
eventually go there. We are trying to go this other
route first.”
The trial court jousted with counsel for the State about what
appeared to the court to be an injustice. The State argued
that it had consistently enforced the law but that certain
facilities had reopened after their machines had been seized
and cases were tied up in litigation.
“THE COURT: Well, I mean, it gets to equal
protection to me.
“….
“MR. REAGAN (STATE): But, Your Honor, we have
conducted law enforcement operations at every
facility and tried to be consistent with our
approach to dealing with this problem. And if folks
reopen, when the State is able to go in and seize
machines, we do it each time.”
The only witness who arguably offered testimony about the
equal-protection issue was Dr. Lewis Benefield, a veterinarian
and the chief operating officer of KCED. He stated that during
the week preceding the trial he had visited the three tribal
casinos in Alabama as well as the casino at Center Stage in
Houston County and had in those casinos played machines
similar to those at issue in the forfeiture proceeding. No
91141044, 1150027
witness offered testimony to verify the numbers on the chart,
which was not given an exhibit number until the end of the
posttrial hearing. During closing argument, neither the
parties nor the trial court mentioned the equal-protection
issue. The State filed a posttrial brief arguing that the
seized machines were illegal gambling devices under Alabama
law and that KCED’s “voter-intent” argument should be
rejected.
The trial court’s decision in its order of June 25, 2015,
dismissing the forfeiture case relied solely and exclusively
on the equal-protection argument the court itself had raised
during opening statements and discussed with counsel. The
court rejected what it referred to as the unequal application
of the law and accused the State of “cherry picking which
facilities should remain open or closed.” Furthermore, the
court asserted that such disparate treatment of VictoryLand
violated the Equal Protection Clause of the United States
Constitution, which, he stated, is “one of the cornerstones of
our American system.” Noting that “Equal Justice Under Law”
was “etched into the facade of the United States Supreme Court
Building,” the trial court quoted the statement of that Court
101141044, 1150027
that “‘all persons similarly circumstanced shall be treated
alike.'” Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting F.S.
Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). The
trial court then stated that it would apply that principle to
the case before it:
“Applying this rationale, all facilities operating
the same type bingo machines (Center Stage,
Greenetrack and Greene Charity Bingo) should have
the same forfeiture action applied against them each
time there is a violation. This has not been done.
At the present time, the facilities at Center Stage,
Greenetrack and Greene Charity Bingo are open for
business. VictoryLand remains closed.”
The trial court then reasoned:
“This Court is not free to disregard an opinion of
the highest court of the United States of America or
the State of Alabama, nor is the State of Alabama
free to apply the law in an unequal manner. Allowing
unequal treatment places the Court in an untenable
position. The Court cannot condone or perpetuate
unequal treatment.”
The court’s order concluded with the statement of United
States Supreme Court Justice Lewis F. Powell, Jr., that equal
justice under the law “is perhaps the most inspiring ideal of
our society. … It is fundamental that justice be the same,
4
in substance and availability ….” “For the foregoing
4
Although Judge Shashy did not provide a citation for this
quote, it appears as an appendix to In re Arkansas Bar Ass’n,
178 S.W.3d 457, 459 (Ark. 2003) (Appendix, Recommendation to
111141044, 1150027
reasons,” the trial court stated, “this case is hereby
DISMISSED.” (Capitalization in original.)
The trial court’s order, which ignored four days of trial
testimony and the issues raised by the parties, apparently
disturbed both sides; their postjudgment motions requested the
court to rule on the issues actually raised at trial. KCED
requested a finding that the intent of the voters who ratified
Amendment No. 744 was “to allow all forms of bingo games …
including electronic bingo as played on the equipment at issue
in this case.” The State denied that it had selectively
enforced the law. Noting that “KCED never made an equal
protection clause argument,” the State requested that the
court withdraw its order and address the merits of the State’s
assertion that the machines seized from VictoryLand were
illegal under Alabama law.
Create an Arkansas Access to Justice Commission). Justice
Powell’s statement appeared in the context of a recommendation
for expanded indigent legal services. The final phrase of the
sentence, which the trial court omitted, is “without regard to
economic status.” Indigency is not a characteristic commonly
associated with those who own and operate gambling casinos.
See Hope for Families & Cmty. Serv. v. Warren, 721 F. Supp. 2d
1079, 1102-03 (M.D. Ala. 2010) (stating that gross profits for
VictoryLand in 2007 and 2008 approximated $125 million per
year and that payouts to contracting charities did not exceed
1% of those amounts).
121141044, 1150027
On August 4, 2015, the court held a hearing on the
posttrial motions. The State objected to the trial court’s
basing its ruling on conversations with counsel and a chart
that was never admitted into evidence. The State also objected
on timeliness grounds to two affidavits offered by KCED at the
hearing in which recent visitors to local casinos stated that
they had seen machines at those casinos identical to the
machines seized from VictoryLand. Primarily, however, the
State implored the trial court to rule on the issue before it:
whether the machines that had been seized at VictoryLand were
lawful in Alabama. The trial court refused to do so because of
its concern about equal enforcement of the gambling laws. The
following colloquy took place between the trial court and
counsel for the State:
“THE COURT: You know, I have a hard time — people
are going to lose faith in you guys; they are going
to lose faith in the court system because you’re
only going after one.
“MR. KACHELMAN (STATE): Your Honor, I think they
lose more faith in the court system whenever
decisions are not made that are according to the
law. Then we have to appeal them up, and then they
come back. …
“THE COURT: But wait a minute. Wait a minute. I
haven’t ruled on that issue on whether it’s legal or
illegal.
131141044, 1150027
“MR. KACHELMAN: I understand that.
“THE COURT: I haven’t gotten that far, because I
can’t get past the fact that you guys have all these
places open, and you’re sitting there blaming it on
the local people.
“And it’s obvious that the local folks are not going
to do it, and you know they’re not going to do it.
You know as well as I do they’re not going to do it,
so it comes to you.
“And, then, if you’re going to do it to one, you’re
going to have to do it to all. That’s all I’m
saying. And if you’re not going to do it to all,
then just leave it, just forget about all of them.
You can’t pick and choose. That’s my problem.”
(Emphasis added.)
In its order issued after the hearing the court relied on
the recently submitted affidavits as evidence that 1,232
electronic-gambling machines similar to the machines at issue
here were operating in Greene County and that 566 such
machines were operating in Lowndes County.
- Quality of the Evidence
In the posttrial hearing the State asked the trial court
“to throw out speculation and charts that are not founded on
evidence and rule on the evidence in the case.” The court
responded by asking KCED’s counsel to substantiate the figures
on the time chart.
141141044, 1150027
“THE COURT: Mr. Espy, where did you get those days
in the chart?
“MR. JOE ESPY: We had people who were familiar
personally with them to go do them.”
The State also argued in its appeal brief that the “days open”
chart was inadmissible. “KCED offered demonstrative charts of
law enforcement activity, but those charts have no foundation
in testimonial evidence.” State’s brief, at 20. The
evidentiary competence of the “days open” chart, objected to
below and raised on appeal, is thus properly before us.
“The arguments of counsel are not evidence.” Deng v.
Scroggins, 169 So. 3d 1015, 1028 (Ala. 2014). See also Turner
v. W. Ridge Apartments, Inc., 893 So. 2d 332, 335 (Ala. 2004)
(same); American Nat’l Bank & Trust Co. of Mobile v. Long, 281
Ala. 654, 656, 207 So. 2d 129, 132 (1968) (“The unsworn
statement of counsel [is] not evidence ….”); and Ex parte
Russell, 911 So. 2d 719, 725 (Ala. Civ. App. 2005) (“The
unsworn statements, factual assertions, and arguments of
counsel are not evidence.”). The trial court’s use of the data
in the “days open” chart and its “discussion with counsel for
all the parties” as the factual basis for the equal-protection
ruling in its first order was improper. Lacking a foundation
151141044, 1150027
in admissible evidence, the trial court’s equal-protection
ruling cannot survive review.
In the posttrial hearing, however, the court had
available the two affidavits of recent visitors to local
casinos. Although the State objected to the affidavits as
untimely, a court has discretion to admit new evidence in a
postjudgment hearing. Ex parte Johnson, 673 So. 2d 410, 412
(Ala. 1994). The State did not object on confrontation
grounds. Thus, the trial court could properly consider the
affidavit evidence, which it restated in its second order,
indicating that other casinos in the State were currently
operating machines similar to those that had been seized at
VictoryLand. Additionally, Dr. Benefield testified during the
trial that he had made a visit to certain casinos at that same
time and had played machines similar to the VictoryLand
machines.
Although the State disputed the trial court’s assertion
that it had ignored other operators of casinos and had
targeted only VictoryLand, the State’s statements, like the
trial court’s colloquy with KCED’s counsel, were not
161141044, 1150027
admissible evidence. This Court, however, may take notice of
our own prior decisions.
The efforts of the State to enforce Alabama’s gambling
laws and to prevent misuse of local constitutional amendments
legalizing bingo have resulted in at least a dozen decisions
5
by this Court during the last six years. We began our
analysis in one of those cases, State v. Greenetrack, Inc.,
154 So. 3d 940 (Ala. 2014), by noting the widespread efforts
undertaken by State law-enforcement officials and by county
and State courts to shut down so-called “electronic-bingo
machines” in locale after locale throughout Alabama:
“[T]he State takes note of our holding in [Barber
v.] Cornerstone [Community Outreach, Inc., 42 So. 3d
65 (Ala. 2009),] and our reliance upon Cornerstone
last year in Ex parte State, 121 So. 3d 337, 359
(Ala. 2013). The State also notes that, consistent
5
See Houston Cty. Econ. Dev. Auth. v. State, 168 So. 3d
4 (Ala. 2014); State v. Greenetrack, Inc., 154 So. 3d 940
(Ala. 2014); Ex parte State, 121 So. 3d 337 (Ala. 2013);
Chorba-Lee Scholarship Fund, Inc. v. Hale, 60 So. 3d 279 (Ala.
2010);; Riley v. Cornerstone Cmty. Outreach, Inc., 57 So. 3d
704 (Ala. 2010); Barber v. Cornerstone Cmty. Outreach, Inc.,
42 So. 3d 65 (Ala. 2009); Ex parte Rich, 80 So. 3d 219 (Ala.
2011); Surles v. City of Ashville, 68 So. 3d 89 (Ala. 2011);
Tyson v. Jones, 60 So. 3d 831 (Ala. 2010); Etowah Baptist
Ass’n v. Entrekin, 45 So. 3d 1266 (Ala. 2010); Tyson v. Macon
Cty. Greyhound Park, Inc., 43 So. 3d 587 (Ala. 2010); and
Macon Cty. Greyhound Park, Inc. v. Knowles, 39 So. 3d 100
(Ala. 2009).
171141044, 1150027
with these holdings, judges have in recent months
issued warrants to the State to seize so-called
‘electronic bingo machines’ in Greene, Houston,
Jefferson, and Lowndes Counties and judges in
Jefferson and Houston Counties have issued various
final rulings finding this sort of gambling
illegal.”
154 So. 3d at 948. Indeed, Greenetrack itself and other cases
evidence continuing activity on the part of the State since
the February 19, 2013, raid at VictoryLand to enforce
Alabama’s gambling laws against other casinos operating in the
State. See, e.g., Houston Cty. Econ. Dev. Auth. v. State, 168
So. 3d 4 (Ala. 2014) (Houston County); Alabama v. PCI Gaming
Auth., 801 F.3d 1278 (11th Cir. 2015) (relating to a challenge
by the State to the operation of tribal casinos in Alabama).
Thus, solely on factual grounds, the trial court’s selective-
prosecution finding conflicts with cases previously before
this Court. Beyond the problems with the factual grounds for
the trial court’s finding, however, the trial court’s legal
standard for finding an equal-protection violation is not one
the law recognizes. - Legal Standard
Prosecutors have broad discretion to choose which cases
they will prosecute. “[S]o long as the prosecutor has probable
181141044, 1150027
cause to believe that the accused committed an offense defined
by statute, the decision whether or not to prosecute …
generally rests entirely in his discretion.” Bordenkircher v.
6
Hayes, 434 U.S. 357, 364 (1978). A “presumption of regularity
supports the official acts of public officers, and, in the
absence of clear evidence to the contrary, courts presume that
they have properly discharged their official duties.” United
States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926).
Prosecutorial discretion will not be subject to strict equal-
protection scrutiny unless a fundamental right is implicated
or a suspect class targeted. City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Gambling is
not a fundamental right. “There is no constitutional right to
gamble.” Lewis v. United States, 348 U.S. 419, 423 (1955),
overruled on other grounds, Marchetti v. United States, 390
U.S. 39 (1968). KCED did not argue, and the trial court did
not find, that VictoryLand has been targeted for prosecution
on the basis that it is part of a suspect class, e.g., race,
6
In this in rem action the “accused,” of course, is the
seized property alleged to be contraband. This Court has
previously held that probable cause existed to issue a search
warrant directed at that property. See Ex parte State, 121 So.
3d 337 (Ala. 2013).
191141044, 1150027
religion, or nationality. “The burden is … on [KCED] to
prove the existence of purposeful discrimination.” Whitus v.
Georgia, 385 U.S. 545, 550 (1967). But first KCED must allege
purposeful discrimination, which it has not. Indeed, KCED
eschewed the equal-protection argument until the trial court
spontaneously inserted it into the case.
To reiterate, “the conscious exercise of some selectivity
in enforcement is not in itself a federal constitutional
violation” unless “the selection was deliberately based upon
an unjustifiable standard such as race, religion, or other
arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456
(1962). To demonstrate discriminatory enforcement of a
statute, “three elements must generally be proved: selectivity
in enforcement; selectivity that is intentional; and
selectivity based upon some invidious or unjustifiable
standard such as race, religion, or other arbitrary
classification.” DeShazo v. City of Huntsville, 416 So. 2d
1100, 1103 (Ala. Crim. App. 1982). See also Snowden v. Hughes,
321 U.S. 1, 8 (1944) (requiring “an element of intentional or
purposeful discrimination” to state an equal-protection claim
based on selective prosecution). A selective-prosecution
201141044, 1150027
claim, therefore, must not merely allege disparity in
enforcement but also intentional discrimination against a
suspect class. “It is insufficient merely to show that other
violators have not been prosecuted, that there has been laxity
in enforcement, or that there has been conscious exercise of
some selectivity in enforcement.” DeShazo, 416 So. 2d at 1103.
Instead, “[d]iscriminatory enforcement violative of the
Fourteenth Amendment requires a showing of intentional and
purposeful selection based on an unjustifiable standard.”
Butler v. State, 344 So. 2d 203, 207 (Ala. Crim. App. 1977).
As long as “intentional selectivity based upon an
unjustifiable standard” is not present, enforcement of a
statute, contrary to the trial court’s analysis, need not be
universal to satisfy the Equal Protection Clause. Starley v.
City of Birmingham, 377 So. 2d 1131, 1133 (Ala. Crim. App.
7
1979).
7
At trial the court stated that the Equal Protection
Clause required the State to either prosecute all violators of
a law or else to prosecute none: “[I]f you’re going to do it
to one, you’re going to have to do it to all. … And if
you’re not going to do it to all, then just leave it, just
forget about all of them. You can’t pick and choose.” A rule,
however, that enforcement of the law in one case is
impermissible if other similar illegal activity is not
simultaneously suppressed would hamstring the prosecution of
all crime. Uniform and comprehensive enforcement of the law is
211141044, 1150027
Thus, selectivity in enforcement, within boundaries that
have not been breached or even alleged to have been breached
in this case, does not violate the Equal Protection Clause of
the Fourteenth Amendment. - Separation of Powers
A further difficulty with the trial court’s selective-
prosecution argument, as exemplified by its interrogation of
the State at trial and during the posttrial hearing, was its
intrusion into the discretionary functions of the executive
branch, a violati
