Judge Scott Vowell's ruling allowing sweepstakes at Birmingham Race Course
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
CIVIL DIVISION

JEFFERSON COUNTY RACING )
ASSOCIATION, INC. d/b/a THE
BIRMINGHAM RACE COURSE, )
and INNOVATIVE SWEEPSTAKES
SYSTEMS, INC., )

PLAINTIFFS, ) CIVIL ACTION NO.
CV 05-7684 JSV
v. )

MIKE HALE, IN HIS OFFICIAL )
CAPACITY AS SHERIFF OF
JEFFERSON COUNTY, ALABAMA, )

DEFENDANT. )

DECLARATORY JUDGMENT AND INJUNCTION
I.
THE CASE
This action was brought by the plaintiff, the Jefferson County Racing Association, Inc., d/b/a the Birmingham Race Course (the Race Course), whose primary business activity is pari mutuel wagering on live and simulcast greyhound racing and on simulcast horse racing at the Race Course facility located in the eastern area of Birmingham. This entity has been referred to as Milton McGregor’s company. The intervenor, who has been aligned by the court as a plaintiff, is Innovative Sweepstakes Systems, Inc., (Innovative), the owner of the gaming equipment which is at the center of this litigation. Innovative is a wholly owned subsidiary of Multimedia Games, Inc., (Multimedia), a publicly traded company, which provides computer equipment and software to promote gaming activities. The defendant is Mike Hale, in his official capacity as Sheriff of Jefferson County, Alabama.
It is undisputed that the Race Course’s pari mutuel wagering is legal under current Alabama law, but on December 15, 2005, the Race Course opened a “CyberCenter” and began an activity it called “Quincy’s Sweepstakes.” After six days of operation, deputies of the Jefferson County Sheriff’s Department obtained a search warrant and, on December 22, 2005, raided the facility. They began seizing the equipment used to operate the Sweepstakes on the grounds that the Sweepstakes constituted an illegal lottery or gambling scheme.
While the raid was progressing, the Race Course filed this action and sought a temporary restraining order to require the Sheriff to cease and desist the seizure, alleging that the Sweepstakes was a legal sweepstakes promotion under Alabama law. This court conducted an expedited hearing on the application for a T.R.O. and by agreement of the parties issued a preliminary injunction to preserve the status quo and to allow the parties to brief and prepare their case for trial. The court also suspended further operation of the Sweepstakes until the merits of the case could be considered. Because of the intervening holidays, the case was set for trial on January 3, 2006.
On January 3, 2006 the court again heard arguments of counsel and the Sheriff agreed that he no longer required physical possession of the seized equipment. Therefore, the equipment was ordered to be returned to the Race Course and the disputed issue of responsibility for payment of the moving expenses was reserved by the court. The parties jointly requested additional time to try to narrow the disputed issues of fact and former Supreme Court Justice Ralph Cook agreed to facilitate their negotiations. The trial was continued for two weeks.
The court conducted a bench trial on January 17 and 18, 2006, and the stipulated facts were submitted as Joint Exhibit Number 1. As a result, there are few remaining issues of disputed fact. II.
THE ISSUE
The fundamental issue this Court must decide is the legality of the Sweepstakes. The Sheriff contends that the Sweepstakes promotion at the Race Course facility constitutes an unlawful lottery and/or gambling scheme under Alabama law. The Sheriff asserts that the CyberCenter being promoted by the Race Course is a “sham,” and that patrons are actually paying consideration for sweepstakes entries.
On the other side, the plaintiffs deny that the CyberCenter is a sham and contend that the Sweepstakes is a lawful sweepstakes promotion under Alabama law because no consideration is required to participate in the Sweepstakes. Plaintiffs also deny that the operation involves gambling or gambling devices. Plaintiffs assert that the Sweepstakes is a promotional plan designed to attract patrons to the Race Course facility, to promote the CyberCenter, and to enhance the pari mutuel activities, thereby increasing income. Plaintiffs further contend that the Alabama gambling statutes are unconstitutionally vague as applied to the facts of this case.
II.
THE FACTS
In 2005 the Race Course engaged Multimedia to develop a sweepstakes promotion as part of a marketing plan to promote the Race Course. During the development process, both the Race Course and Multimedia sought opinions from those it considered to be experts in the area of sweepstakes promotions to help them determine whether or not their proposed operation complied with applicable Alabama law.
On May 25, 2005 plaintiffs demonstrated the Sweepstakes operation to the Alabama Attorney General’s office. After seeing the demonstration and being furnished with additional requested documentation, the Attorney General’s office advised the plaintiffs that sweepstakes promotions are legal in Alabama and that the promotion would be lawful if the Sweepstakes were operated as demonstrated. The Attorney General’s office informed the plaintiffs that they would give the same opinion if other law enforcement agencies were to inquire.
The stipulations also reflect that representatives of the plaintiff had discussions with the Sheriff and the District Attorney and offered to demonstrate the Sweepstakes to them prior to beginning operations. The plaintiffs proceeded with the promotion plans and the Race Course’s Sweepstakes began on December 15, 2005.
During the trial the court was given a courtroom demonstration of the Sweepstakes at the Race Course.
To play the Sweepstakes at the Race Course, a patron must first open an account to obtain a plastic account access card containing an encoded magnetic strip similar to that on a credit card. To open an account the customer presents his/her driver’s license to a Race Course attendant who scans the license into the Race Track’s computer system. The patron then receives the access card at no charge as well as an individual account number similar to a PIN. Plaintiffs call the card a “Qcard.”
After obtaining the Qcard, the patron moves to a Point of Sale Terminal where he/she may purchase Internet time (cybertime). The sale of cybertime also triggers the system to give the customer promotional Sweepstakes entries. For each $1.00 spent the patron receives four minutes of Internet time and is given 100 MegaSweeps entries, each of which represents a separate chance to win a cash prize. The rate charged for access to the CyberCenter is comparable to rates charged by providers of similar computer services and is “fair market value.” There is no separate charge for the Sweepstakes entries.
In the CyberCenter there are 116 state-of-the-art computers. The customer swipes his/her Qcard and logs onto a computer that tracks the amount of Internet time available to the customer, deducting the used time from the customer’s account. The computers provide the customers with broadband Internet connections allowing the user to browse the Internet, to access email and to obtain many of those services that are available on the Internet. The CyberCenter can also be used to make telephone calls via the Internet, to make copies, to print digital photographs, to send faxes, and so forth. The computers can be used to gain access to online information about greyhound and horse races and the customer can access pari-mutuel tip sheets and other information used for handicapping live and simulcast racing sites around the country.
As stated, when the customer buys Internet time he/she also gets Sweepstakes entries in Quincy’s MegaSweeps. Whether or not the customer has a winning or losing entry is predetermined at the time the customer purchases Internet time. Once the customer has been given the Sweepstakes entry, it cannot be changed and the customer cannot tell by looking at the card whether he/she has drawn a winning entry. The customer may determine whether the Sweepstakes entries are winners or losers at the CyberCenter, by accessing a website remotely, by calling a toll-free telephone number, or by going to an electronic Reader.
The most popular way to learn the result of an entry is through the use of the more than 1,300 electronic Readers that display winning and losing entries. To learn the result of an entry from a Reader, the customer swipes his Qcard to activate the Reader and then presses a button on the Reader to see the results. The customer may select one entry or a batch of entries to be read at the same time.
The demonstration and other evidence makes it clear to the court that these Readers are designed and arranged so that they look and sound like slot machines at a gambling casino. But while they look, sound and act like a gambling machine, the evidence shows that they are not gambling machines. These machines do not determine who wins or who loses. There is no chance involved. The Reader simply reads and displays the results of the predetermined sweepstakes entries. As plaintiff contends, these Readers are “dumb terminals” that only read the electronic entries.
Another machine demonstrated as part of the promotion was the Recharger Kiosk, located near the Readers. This is an automated station that allows the card holder to purchase additional cybertime and to add cybertime to his/her account. If the patron has won a cash prize in the MegaSweeps, he/she can go to the Recharger and use those winnings to purchase additional cybertime. Of course the customer also gets additional MegaSweeps entries when he/she purchases more cybertime.
The evidence shows that during the brief period the plaintiffs were operating the promotion, few customers were using the CyberCenter; however they were lined up at all hours to use the Readers. It is obvious that most of the customers are more interested in getting MegaSweeps entries than they are in using the CyberCenter. This court has no way of knowing whether the customers think they are playing real slot machines or whether they are aware that the Readers simply look like slot machines.
The evidence also shows that there are methods under the rules adopted by the Jefferson County Racing Commission, by which a customer can obtain a free Sweepstakes entry without making a purchase of cybertime. The customer can request and receive a free entry in the Sweepstakes by mail. There was also evidence that the plaintiffs plan to offer some MegaSweeps entries to patrons at the Race Course even if they do not buy cybertime.
Once the results of the entries have been read by the Reader the customer’s account is updated. When the customer decides to “cash in,” the customer is paid cash for the winning entries by a cashier.
IV.
THE LAW

A.
LOTTERIES
Lotteries are prohibited in Alabama. The Alabama Constitution of 1901 provides:
“65. Lotteries; prohibited
“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. Art. IV 65 (1901).

The Supreme Court has stated that “the broad conception set forth in § 65 showing that the prohibition is not only against lotteries but also against any scheme in the nature of a lottery. The very purpose of this broad declaration was to put a ban on any effort at evasion or subterfuge.” Opinion of the Justices No. 83, 31 So. 2d 753, 755 (Ala. 1947).

The Alabama Legislature has specifically defined the term “lottery:”
“(6) lottery or policy. An unlawful gambling scheme in which:
“a. The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other medium, one or more of which chances are to be designated by the winning ones; and
“b. The winning chances are to be determined by a drawing or by some other fortuitous method; and
“c. The holders of the winning chances are to receive something of value.”
Ala. Code (1975) 13A 12 20(6) (1975) (emphasis added).
B.
GAMBLING AND GAMBLING DEVICES
The promotion of gambling or the possession of a gambling device is also unlawful under
Alabama law. Ala. Code (1975) 13A 12 22 and 27. The Code of Alabama defines “gambling” and “gambling device” in relevant part as follows:
“(4) gambling. A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome....
“(5) gambling device. Any device, machine, paraphernalia or equipment that is normally used or usable in the playing phases of any gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine. However, lottery tickets, policy slips and other items used in the playing phases of lottery and policy schemes are not gambling devices within this definition.”

13A 12 20(4) and (5) (emphasis added). A slot machine is one form of a gambling device. Ala. Code (1975) 13A 12 20(10).
The promotion of gambling and the possession of a gambling device both require that “something of value” be risked. “Something of value” is defined as:
“(11) something of value. Any money or property, any token, object or article exchangeable for money or property or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service entertainment or a privilege of playing at a game or scheme without charge.”

Ala. Code 13A 12 20(11).
The Alabama Legislature has specifically exempted “sweepstakes” from illegal gambling activities, including a lottery. A “sweepstakes” is defined as “[a] legal contest or game where anything of value is distributed by lot or chance.” Ala. Code (1975) 8-19D-1(4) (1989). Unlike a lottery, a “sweepstakes” does not include the payment of consideration for a chance to win a prize. Pepsi Cola Bottling Co. v. Coca-Cola Bottling Co., 534 So. 2d 295, 296 (Ala. 1988).
“The three elements of a lottery are (1) a prize, (2) awarded by chance, and (3) for a consideration.” Pepsi, 534 So. 2d at 296. See Opinion of the Justices No. 277, 397 So. 2d 546, 547 (Ala. 1981); State ex rel. Tyson v. Ted's Game Enters., 893 So. 2d 376, 378 (Ala. 2004); Grimes v. State, 235 Ala. 192, 193, 178 So. 73 (Ala. 1937). All three elements must be present. “This three pronged definition of ‘lottery’ was based on definitions of that term used by a vast number of authorities, both judicial and nonjudicial, and it is still accepted by the overwhelming majority of jurisdictions, as well as the United States Supreme Court.” Opinion of the Justices No. 373, 795 So. 2d 630, 634 35 (Ala. 2001).
In Pepsi, supra, the Alabama Supreme Court held that Pepsi’s bottle cap instant cash promotion did not constitute a prohibited lottery because the element of consideration was absent. The court found that, although the elements of a prize and award by chance were present, “the 'Pepsi Instant Cash' game is not a lottery, because participants were not required to purchase cards in order to play.” Id. at 297. Moreover, “[a]ny incidental profit or benefit to Pepsi in the sale of the soft drinks containing the 'under the crown' chance neither provides the consideration to make the game a lottery nor negates the free participation aspect of the game.” Id.
Following the Pepsi decision, an Alabama Attorney General concluded that a promotional program which distributed a tear off “scratch and win” game piece with the purchase of a prepaid phone card did not constitute a prohibited lottery because the element of consideration was lacking. Op. Att’y Gen. 99 28 (1998). In return for $1, the purchaser of a phone card received two minutes of prepaid long distance service. Each two-minute phone card contained a tear off “scratch and win” game piece that gave the purchaser the opportunity to win a monetary prize ranging from $1 to $50,000. In addition to selling the phone card, the company made game pieces available for free to consumers at certain retailers, or by mailing a self addressed, stamped envelope to the company. The Attorney General acknowledged that the proposed program satisfied the prize and award by chance elements of a lottery, but concluded that because the program “allows for the free distribution of game chances through a mail in option,” there is no element of consideration:
“A plan that offers game pieces in conjunction with the purchase of a product, like the Phone Card plan proposed, must also provide for free distribution of game pieces or it will be deemed a lottery. . . . The Phone Card program proposed, which allows for the free distribution of game chances through a mail in option, does not constitute a prohibited lottery.” Op. Att’y Gen. 99 28 (1998).

Although lotteries are forbidden in Alabama, sweepstakes are not. Section 65 of the Alabama Constitution “does not prohibit the Legislature from authorizing gambling.” Opinion of the Justices No. 373, 795 So. 2d 630, 641 (Ala. 2001). Even before the adoption of the Alabama Constitution of 1901, a distinction was made between lotteries and sweepstakes. See Yellow-Stone Kit v. State, 88 Ala. 196, 7 So. 338 (1889); Buckalew v. State, 62 Ala. 334, 335 36 (1878). The Alabama Legislature recognized the historical legality of sweepstakes in Section 8-19D-1(4) – where the payment of consideration for a chance to win a prize is lacking. See, e.g., Pepsi, 534 So. 2d 295; Op. Att’y Gen. 99 28 (1998); Op. Att’y Gen. 2005 173 (2005).
V.
PRINCIPLES OF INTERPRETATION

In determining the legality of the Quincy’s Sweepstakes, this Court must follow well-settled principles of statutory construction. “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” Ex parte Bertram, 884 So. 2d 889, 891 (Ala. 2003) (internal quotes and citation to authority omitted).
This Court will not invade the province of the Alabama Legislature by declaring an activity illegal when the Legislature has not defined that activity as illegal. It is not within the domain of any Court to usurp the authority of the Legislature or to infringe upon the exercise of legislative power. Ala. Const. 1901, Art. III, Section 43:
“In the government of this state, except in the instances in this Constitution hereafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial power, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.” See McInnish v. Riley, 2005 WL 2403733 (Ala.).

Under the separation of powers section of our State Constitution, Ala. Const 1901, 43, it
is solely within the province of the Legislature to ascertain and determine when a particular act should be prohibited or declared criminal. Beasley v. Bozeman, 315 So. 2d 570 (Ala. 1975); Tolbert v. Tolbert, 903 So. 2d 103, 108 (Ala. 2004). Neither is it the function of this Court “to usurp the role

of the legislature and correct defective legislation or amend statutes under the guise of construction.” Employees' Retirement System of Alabama v. Head, 369 So.2d 1227, 1229 (Ala. 1979).
It is not the court’s “place to engage in such a guessing game” of what the Legislature should have done or what the statute should have stated. DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 277 (Ala. 1998). Rather, the job of any court is “to say what the law is, not what it should be.” Hammonds v. Town of Priceville, 886 So.2d 67, 70 (Ala. 2003).VI.
FINDINGS OF FACT AND CONCLUSIONS OF LAW

The facts of the case are hardly in dispute. The task for the court is to determine the legal question of whether the Sweepstakes operation at the Race Course constitutes a lottery. The other legal question is whether the Sweepstakes operation constitutes gambling or use of a gambling device.
The CyberCenter services have substantial value and they enhance the racing experience at the Race Course. The plaintiffs expended significant funds for construction and operation of the CyberCenter thereby providing computer programs and access to pari mutuel betting information and other personal and business services. The parties stipulated that “[t]he rates charged for access to the CyberCenter is fair market value.” Although usage of the CyberCenter was scant during the six days of operation, some purchasers of Internet time actually made use of the CyberCenter. During the six days of the Sweepstakes’ operation, significant increases were experienced in attendance, pari-mutuel revenues, and concession sales at the Race Course facility. The promotion

was apparently working. While some institutions, such as the Birmingham Public Libraries, provide free Internet access it cannot be disputed that Internet time is a valuable service for which many people have to pay. What the customers of the Quincy's Sweepstakes do with the Internet time they have purchased does not contradict the fact that they actually purchased a valuable service or product.
Neither the Sweepstakes system nor the other operations were designed to impose, and did not impose, a charge on customers for the entries they received in connection with their purchases of Internet time. The record contains no evidence that anything of value was required of the customers in order to receive Sweepstakes entries. Entries could be obtained by the customers either through purchases of Internet time or through a mail in request for a free entry done according to rules established by the Birmingham Racing Commission. In the context of this case and considering all the evidence, this Court finds that any additional benefits to the customer over and above the Internet time, namely the Sweepstakes entries, were a gratuity as opposed to a purchase for consideration.
This Court concludes as a matter of fact and of law that the element of consideration is lacking in the Quincy’s Sweepstakes and therefore, the Quincy’s Sweepstakes does not meet the definition of a lottery under current Alabama law.
With regard to gambling, the evidence was undisputed that the outcomes of the Sweepstakes entries are predetermined before they are given to the purchasers of Internet time. After the purchase, there is no contest of chance or future contingent event impacting whether the customer wins or loses. Consequently, neither the Sweepstakes nor the individual components thereof fit the current definitions of illegal “gambling” or “gambling devices” contained in Sections 13A-12-20(4)
and (5). Because no element of chance is present at the Readers, and because no consideration is paid or can be paid to use the Readers, this Court finds that the Readers are “dumb terminals” and are not slot machines or other types of gambling devices under Alabama law.
The Sheriff contends that the MegaSweeps operation is a “sham” while the plaintiffs vigorously deny this charge. A “sham” is defined in various dictionaries as: a spurious imitation; fake; something that is not what it purports to be; an imitation that is meant to deceive; a counterfeit; a deception. In some of these senses, the Sweepstakes operation is a sham. The court in this case, sitting without a jury, is the trier of the facts and it is clear that the Sweepstakes promotion is not what it appears to be; it appears to be a lottery, but it is not; it appears to be gambling, but it is not; the Readers appear to be slot machines, but they are not. So the court agrees with the Sheriff that in this sense the promotion is a sham. Despite the testimony at trial about the plaintiffs’ high-sounding motivation in establishing the CyberCenter, the court finds that the plaintiff undertook this promotion to attract customers who wanted to gamble, or, at least, those who could be made to think that they were gambling. Plaintiffs’ advertising through television commercials and billboards promoted playing MegaSweeps as an alternative to attending gambling establishments at Greentrack, or Philadelphia and Biloxi, Mississippi.
The operation looks and sounds like a gambling casino, but under Alabama law it is not. The evidence convinces the court that through careful planning the plaintiffs have found a loophole in the patchwork of Alabama’s anti-gambling laws and they have taken advantage of that loophole. In the words of the Sheriff’s expert witness, Robert Sertell, the plaintiff’s sweepstakes promotion was “trying to pull a tractor-trailer through a loophole.” This court agrees that the plaintiffs have taken advantage of weaknesses in the law, but it would be the height of judicial activism for this court to legislate in response to that loophole. Perhaps the Alabama Legislature will do so. The stipulations of the parties, the evidence, and Alabama law compel this Court to rule that the Quincy’s Sweepstakes promotion as explained and demonstrated to the Court is a lawful sweepstakes operation.
There has been no evidence of any wrongdoing on the part of the Sheriff. Under the facts
of this case, it is no surprise that different people seeking answers in good faith could come to different conclusions as to whether the plaintiffs’ promotion was lawful. The matter is complex and it is only after a considerable amount of consideration of the evidence and of the law, that this court has concluded that it was lawful. When Sheriff Hale conducted the raid, he was relying on an undercover investigation and on expert opinion that the operation was illegal. The Sheriff was performing the duty imposed upon him by Alabama law:
“(4) It shall be the duty of sheriffs in their respective counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals, and, insofar as within their power, to secure evidence of crimes in their counties and to present a report of the evidence so secured to the district attorney or assistant district attorney for the county.” Ala. Code (1975) Section 36-22-3.

No court should discourage that vital function of law enforcement and nothing in this final judgment should be construed as criticism of the defendant’s actions in connection with this case.
The plaintiffs have forcefully argued that the relevant statutes, Ala. Code (1975) Section 13A-12-20 et seq., are unconstitutional as applied to this case because of vagueness. The United States Supreme Court has said that a law may be void for vagueness if persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Smith v. Goguen, 415 U.S. 566, 572, n.8 (1974). The argument may have merit, but because of the conclusion reached

by the court that the plaintiffs’ promotional scheme is lawful, the constitutional issue need not be addressed.
The Court finds that plaintiffs have established the requisites for permanent injunctive relief under Rule 65, Ala. R.Civ.P., as well as the requested declaratory judgment. The plaintiffs have succeeded in establishing the merits of the claims asserted in their complaint. Serious harm has occurred and threatens to continue if the shut-down is not permanently enjoined. An action at law for damages would not be an adequate remedy. The harm and continued threat of harm to the plaintiffs outweighs any harm which an injunction will inflict on the Sheriff. In addition, a permanent injunction, permitting reopening and operation of the CyberCenter and the Quincy’s Sweepstakes in the manner represented to this Court, will be consistent with Alabama’s laws permitting legal sweepstakes.
FINAL JUDGMENT
Upon consideration it is ORDERED AND ADJUDGED as follows:
1. This Court declares that the Quincy’s Sweepstakes as represented to this Court during trial, is a lawful sweepstakes promotion and is not illegal under Alabama law.
2. The Sheriff is, therefore, permanently enjoined from further actions against such operations at the Race Course facility, provided plaintiffs operate the Sweepstakes as represented to the Court.
3. The Sheriff is instructed to return to the Race Course all money seized during the
raid, as well as any remaining papers, records, equipment, or property siezed but not heretofore
returned.
4. The plaintiffs deposited funds with the Sheriff to guarantee payment of the expenses incurred by the Sheriff to pay a moving company to return the plaintiffs’ equipment to the Race Course. Said funds shall be used to pay (or reimburse, if they have been paid) such expenses and any balance remaining shall be returned by the Sheriff to the plaintiffs. 5. In view of this Court's Order, the Plaintiffs' Motion to Quash the Search Warrant and District Attorney's Subpoena are MOOT.
6. Costs are taxed as paid.
Done and ordered, this the 31st day of January, 2006.

______________________________________
J. SCOTT VOWELL, PRESIDING JUDGE

cc: All counsel of record.

Pursuant to Ala. Code (1975) 6-6-227, the Alabama Attorney General received notice of the plaintiffs’ case including the constitutional challenge to the relevant statute. The court allowed the Jefferson County District Attorney to intervene.
Stipulation #41. The Sheriff subpoenaed Troy King, the Alabama Attorney General, to testify at the trial but King immediately filed a motion to quash the subpoena. He also filed a petition for a writ of mandamus in the Alabama Supreme Court requesting that court to stay the trial until the motion to quash could be considered. On the morning of the trial, this court granted King’s motion to quash the subpoena and the case proceeded to trial.
Stipulation # 8.
Defendant’s Exhibits 15 and17.
Trial transcript 845-846.