The man chosen by a former governor to enforce state laws against illegal gambling said this week that he is not surprised by Gov. Robert Bentley's recent order on illegal gambling which states, in part: "The responsibility for enforcement of Alabama's criminal laws most properly lies with the elected sheriffs and district attorneys of each county."
It's hard to argue with the heart of Bentley's recent executive order because it's the way things are supposed to work. But when it comes to illegal gambling in Alabama, it often doesn't work that way.
John Tyson Jr., a former Mobile County district attorney and candidate for state attorney general, was pulled into the gambling fray when former Gov. Bob Riley decided that not only were local sheriffs and prosecutors in some jurisdictions not enforcing the law, but neither was the then-attorney general, Troy King.
So Riley named Tyson to head a gambling task force.
"I'm not surprised by his order, but only by his sense of timing," Tyson told me in a telephone interview about Bentley's order. "He's said this before."
Tyson said the order serves to emphasize the natural state of things, with local authorities having the primary responsibility to enforce state law in their jurisdictions.
"The governor has every right to believe local folks will do their work," Tyson said.
But if they don't, he believes the attorney general's office has the right to step in.
He is right. I believe there needs to be a check and balance on local authorities who might bow to local political and economic pressure and refuse to enforce the law. Similarly, local authorities should be able to step in to enforce the law in their jurisdictions if state officials ever bow to political pressure and refuse to do so.
In other words, either should be able to enforce the law, with each serving as a check and balance on the other.
Let me make one point clear: The debate about how and whether to enforce the law is not the same as the debates over what the law actually requires and whether it is constitutional. Those issues are the provinces of the courts of Alabama, and ultimately the Alabama Supreme Court.
The state Supreme Court currently has a case before it involving VictoryLand in Macon County that could set new precedents in how the law is interpreted. But as of right now, the Supreme Court has made it pretty clear that the gambling machines that were being used by gambling operations in Alabama did not meet the definition of "electronic bingo" in the state.
Unless that is changed, it would seem to me that the attorney general, as the state's chief legal officer, not only has the power, but the responsibility, to enforce laws if local officials decide not to do so.
Alabama governors may have the power to name a special task force to enforce the law if an attorney general declines to do so. But I doubt if the state Supreme Court ever would agree that a governor has the power through an executive order to prevent the attorney general from enforcing the law.
Tyson said that based on Bentley's prior statements, he does not believe that the governor thinks gambling is the answer to Alabama's financial troubles.
"I would add that illegal gambling certainly is the not answer," he told me.
So what is the ultimate effect of Bentley's executive order? Not much, I believe. If the status quo on illegal gambling is going to change, it will take a new interpretation of the law by the Alabama Supreme Court or a new law and constitutional revision by the Legislature and Alabama voters.
In other words, if the law is unconstitutional the Supreme Court should say so. If it is wrong, the Legislature and the voters should change it. Until then, local authorities and the attorney general should enforce it. That is their job.
Ken Hare is a longtime editorial writer and editorial page editor who now writes a regular column for wsfa.com. Feedback appreciated at firstname.lastname@example.org.
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