Foes of lottery see risk of casinos in measure
Posted on Sunday, August 24, 2008
URL: http://www.nwanews.com/adg/News/235159/
A majority of Arkansas voters in 1996 and 2000 rejected lottery proposals that contained provisions authorizing casinos, too, provisions widely regarded as the biggest factor in the failures at the ballot boxes.
Lt. Gov. Bill Halter’s proposed amendment to authorize the General Assembly to create state lotteries doesn’t mention casinos.
But attorneys for its foes are trying to paint it as casino-prone as the Nov. 4 election draws nearer. The lack of a definition of “state lotteries” opens a door to casino-style games and is a major problem, they maintain.
The Halter camp portrays this stance as g roundless in light of positions taken by the state Supreme Court in past cases.
Bud Jackson, spokesman for the Halter camp, said the Supreme Court stated in the 1994 case Christian Civic Action Committee v. McCuen that “most voters will readily understand what a state lottery... entails.”
And the high court said in the 1996 case of Parker v. Priest that it had “tacitly approved” the use of “state lottery” as language “that most voters could readily understand,” said Jackson, stating what he said were the views of lawyers for Hope for Arkansas, the Halter-established committee that is promoting his lottery proposal.
Those lawyers, Jackson said, are Williams & Anderson PLC attorneys Jack Williams, Jess Askew, Shelli Jordan and Michele Allgood. He declined to let them be interviewed directly by the Arkansas Democrat-Gazette about the legal issues raised by lawyers for the opposing side. From the other side comes Martha Adcock, an attorney for the Family Council Action Committee, asking, “Are you going to allow video poker or video slots ?” She contends such games would be allowed “because lotteries can be operated by video lottery terminals, and it is not prohibited by this amendment.”
Such methods are not specifically authorized, either, she conceded.
Forty-two states have lotteries. Six have video lottery terminals in addition to the usual paper lottery tickets, according to Arkansas Advocates for Children and Families, which also opposes Halter’s amendment.
The lack of a lottery definition means “you don’t know the scope [of the proposal ], and if you don’t know the scope, then the people don’t know what they are voting on,” Adcock said in envisioning the possibility of filing a lawsuit aimed at removing the lottery amendment from the Nov. 4 ballot.
It is “not an undemocratic thing to say ‘Kick this off the ballot,’ because the people may really need to vote on this but they need to know what they are voting on. And when you don’t have the term defined, the people don’t know what they are buying,” Adcock said.
Since 1874, the Arkansas Constitution has prohibited lotteries without defining what they are. “No lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed,” says Article 19, Section 14, the constitution’s lottery provision, in its entirety.
Halter’s proposal would make Section 14 say “lotteries and the sale of lottery tickets are prohibited,” but it would create this exception: “The General Assembly may enact laws to establish, operate, and regulate state lotteries.”
The exception also would provide that the “lottery proceeds shall be used solely to pay the operating expenses of lotteries, including all prizes, and to fund or provide for scholarships and grants to citizens of this state enrolled in public and private non-profit two-year and four-year colleges and universities located within the state that are certified according to criteria established by the General Assembly.”
The amendment adds, “The General Assembly shall establish criteria to determine who is eligible to receive the scholarships and grants pursuant to this amendment.”
Also, it provides that “lottery proceeds shall not be subject to appropriation by the General Assembly and are specifically declared to be cash funds held in trust separate and apart from the state treasury to be managed and maintained by the General Assembly or an agency or department of the state as determined by the General Assembly.”
Lottery proceeds “remaining after payment of operating expenses and prizes shall supplement, not supplant, non-lottery educational resources,” says the proposed amendment.
The state’s bingo amendment would not be affected by the lottery amendment, according to the proposed wording.
One intriguing element of the debate about the absence of a lottery definition is that Halter supported House Joint Resolution 1005 by Rep. Will Bond, D-Jacksonville, a proposed constitutional amendment that included a lottery definition. Bond said he was trying to demonstrate to legislators that “you weren’t opening up the state to all-out gambling.”
Halter then proposed his own measure without a definition.
Asked about the absence of a definition, Halter said he sought advice from top-notch lawyers who reviewed proposals from across the nation “and we came to the belief that the language they put in was the best language.”
Of 42 states with lotteries, 29 have “lottery” in their constitution but don’t define it there, Halter said. Eleven don’t use the term in their constitution, with only New Jersey, New York and Wisconsin defining a lottery in the constitution, he said. In general, state constitutions don’t define words, he said.
Many of the opponents of his proposal would oppose it no matter how it defined lotteries, he said.
The argument over the lack of a lottery definition is pressed also by Scott Trotter, an attorney who is co-chairman of the United Methodists Against Gambling.
Trotter pointed out that Attorney General Dustin McDaniel has opined that a game or scheme constitutes a “lottery” under the Supreme Court’s long-standing interpretation if three elements are present. These elements, McDaniel said, are consideration is paid to play or participate; playing or participating creates the chance to win a prize; and the game is controlled entirely by chance and winning is not influenced by the player’s skill or judgment.
Trotter said he sees the prohibition on lotteries as “a prohibition on all games of chance, including casino-style gambling, because any of the casino-style gambling would meet this definition of a lottery.”
But, he conceded, he’s not aware that the Supreme Court has ever explicitly said that.
The proposed constitutional amendment would change none of the legal history surrounding the term “lottery,” and it changes nothing with regard to prohibiting casinos, Jackson said.
He cited Arkansas Code Annotated 5-66-103, which defines the crime of keeping a gambling house, a Class D felony punishable by up to six years in prison and / or a fine of up to $ 10, 000.
Bond said he doesn’t believe “there is any danger whatsoever of the Legislature broadening an amendment about a lottery into something else.” In the Legislature, there is “a tremendous amount of opposition to casino gambling and other forms of gambling,” he said.
Trotter said the Legislature has at times tried to expand gambling. In 1967, lawmakers passed a bill to legalize casinostyle gambling even as then-Gov. Winthrop Rockefeller’s administration was raiding illegal casinos in Hot Springs, he said. Rockefeller vetoed the bill, Trotter said.
The 2005 Legislature enacted a law enabling Oaklawn Park and Southland Gaming and Racing to add “electronic games of skill,” he said.
So far, nobody has filed a lawsuit challenging the lottery proposal. The foes are content so far to air their legal views in the news media to try to sway voters. Adcock said she doesn’t know whether her group will file suit. Trotter said his group isn’t considering filing suit.
Jackson said Hope for Arkansas would vigorously resist such a suit.
“Now a small group of individuals and a special interest group are repeatedly taking actions to impose their own will and to prevent the will of a majority of Arkansans,” he said. “With the facts and the will of Arkansans clearly not on their side, they now seek to exploit our judicial system to further their own special interest agenda. Arkansans will be upset. We say, ‘Let Arkansans decide for themselves. ’”
CITIZEN On another issue, Adcock wonders what “citizens of this state” means in terms of the recipients of scholarships and grants under the proposed amendment. “Do you have to show that you have state citizenship ? Do you have to be a citizen of the United States ? Do you not have to be a citizen of the United States or is the term citizen just used as somebody who is basically residing here ?” Jackson said the amendment says the General Assembly would establish the criteria to determine who is eligible to receive the scholarships and grants. The phrase “citizens of this state” appears in several places elsewhere in the constitution, he said.
ENROLLED Trotter questioned whether a student has to be “enrolled” at a private or public nonprofit two-year or four-year college to receive a scholarship or grant. Jackson said the General Assembly would establish the criteria to determine who is eligible. Being enrolled is one. “You must be ‘ enrolled’ in order to be a student,” he said. RESOURCES AND FUNDS Trotter also wondered why the amendment didn’t state that the proceeds shall supplement, not supplant, nonlottery “state scholarship funds” rather than nonlottery “educational resources.” Jackson said the intent is to provide additional sources for state-funded scholarships and is intended to make it clear that the lottery proceeds aren’t meant to take the place of any other educational resources.
POLITICAL LEANINGS Halter has repeatedly said he opposes casino-style gambling such as video lottery terminals and believes the Legislature is against it, too.
House Speaker-designate Robbie Wills, D-Conway, said he believes the Legislature will implement a lottery in a manner consistent with the intent of voters if voters adopt Halter’s amendment.
“I personally don’t believe the proposal authorizes slot machines, video lottery terminals or casino gaming,” said Wills, an attorney.
Gov. Mike Beebe has said he doesn’t believe a lottery would open the state to other forms of gambling. But he has not taken a public position for or against the amendment. Halter briefly challenged Beebe for the 2006 Democratic nomination for governor.
McDaniel and Halter are widely viewed as potential opponents for the Democratic nomination for governor in the future. McDaniel has said he’s worried that Halter’s proposal could open a door to video lottery terminals and slot machines. But he’s also said that he doesn’t know whether lawmakers would authorize them.
He said Friday that he expects voters to approve the amendment, though he hasn’t decided how he’ll vote and doesn’t intend to disclose how he intends to vote. He said he’s confident that his office could successfully defend the proposal against a challenge in court.