Thursday, 11 June 2009
Would Slots Even Be Legal?
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I am not a lawyer, but I am going to take a stab at the question would slots legislation be legal? I decided to explore this question by taking a look at the original Kentucky constitution and what provisions it has against gaming. Here is the text from state constitution before 1992.
So what is a "gift enterprise"? The court goes on to define that as well.
Now we fast forward to Stumbo's oppinion on gambling while he was AG.
Here is my problem with Stumbo's argument. If you expand the definition of a "lottery" to be so broad then almost all forms of gambling would fall into a "numbers" game. Why wouldn't craps, roulette, or most casino games not also fall into this definition of a lottery? Roulette is a perfect example. You are buying a chance in a particular number and if the number comes up by chance you win.
One interesting things of note. Before the state constitution, the states actually licensed lotteries to be run by private citizens. The law basically canceled those licenses and made the practice of lotteries illegal. So at the time, lotteries had a very definite and narrow meaning and the gift enterprises clause was a catch all for everything else. To expand the definition of lottery today well beyond the original concept defined by the framers seems to make a mockery of the original intent.
Therefore, it seems obvious to me that the video slots bill would be constitutionally illegal. Which means if they do pass the bill during the special session, there is an excellent chance that the law will be thrown out by the courts. It seems to me that the only legitimate way to legalize slots is to get a constitutional amendment to allow slots as a form of gambling in Kentucky. All other attempts run afoul of our state constitution and a waste of tax payer money.
226 - Lotteries and gift enterprises forbidden. Lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revokedThe key question I had from reading the constitution above is what are lotteries and gift enterprises? I did some searching on Google until I came across the case STATE v SHUGART that was taken before the Alabama Supreme Court. It provided the definition for these terms.
To be a criminal lottery, there must be a consideration, and when small amounts are hazarded to gain large amounts, and the result of winning to be determined by the use of a contrivance of chance, in which neither choice nor skill can exert any effect, it is gambling by lot, or a prohibited lottery. It was also said in this case that lot has been defined to be a contrivance to determine a question by chance or without the action of man's choice or will.Wow, that is confusing. From what I gather lotteries are "games" of chance in which a person takes a "lot" and if his "lot" is selected a larger prize is gained. This is the way that current lotteries work. A person takes a "lot" or a set of numbers and if those numbers are drawn (lot selected) then the person receives a large chunk of money. Raffles and other drawings would seem to me to fall into the category of lotteries.
So what is a "gift enterprise"? The court goes on to define that as well.
What constitutes a "gift enterprise"... The statute does not, in terms, define it. The thing denounced, "gift enterprise", is used in the statute in connection with "lottery", which is likewise denounced and prohibited. The term "gift enterprse" therefore, must be construed in connection with the context and the evil sought to be prohibited. The statute is manifestly directed against the vice of gaming. Without the aid of statutory definition of a "gift enterprise" suchs as the statute indeded to prohibit, we are left to determine its meaning by the context of the statute in which it is employed, and definitions given by lexicographers as well as by decisions of other courts.The short of it is almost all gambling which is not a lottery fall into this definition of a gift enterprise. For example lets take a look at craps. People put money (articles of property) down on the table and the winner is determined by the roll of the dice (chance) and the winners are given winnings based upon the result of the roll (shares in the scheme). Poker, blackjack, roulette and just about every form of gambling falls into this catch all. Thus the Kentucky constitution banned all forms of gambling. In 1992, the state ratified an update to the constitution that did two things. Allowed for a state lottery and legalized all forms of charitable gambling.
In Bouvier's Law Dictionary the following definition is given - "Gift Enterprises" - a scheme for the division or distribution of certain articles of property, to be determined by chance, amongst those who have taken shares in the scheme....
The same definition is given in Black's Law Dictionary. In Anderson's Law Dictionary the following definition is given, "a gift enterprise, in common parlance, is a scheme for the division of distribution of certain articles of property, to be determined by chance, amoung those who have taken shares in the scheme.
1) The General Assembly may establish a Kentucky state lottery and may establish a state lotter to be conducted in cooperation with other states. Any lottery so established shall be operated by or on behalf of the Commonwealth of Kentucky.The modification of the law made it legal for the state to establish a state managed lottery organization. The Kentucky Lottery is that organization. To me the law is very specific on what is allowed. In this case only "lotteries" are allowed by the law. All other forms of gaming are illegal.
2) The General Assembly may by general law permit charitable lotteries and charitable gift enterprises...
3) Except as provided in this section, lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.
Now we fast forward to Stumbo's oppinion on gambling while he was AG.
Such "lotteries' are generally characterized by the purchase of a card or ticket which entitles the holder to a prize should, purely by chance or lot, the numbers, letters, or symbols on the ticket match a winning combination. These types of games are known by many names, bingo, beano, keno, and lotto, as well as in slang references such as "numbers games', they they each carry recognizable indicia of a "lottery"...What Stumbo argues is that slots are nothing but a "numbers game". Which means that "slots" fit into the definition of a "lottery" and is thus something that the Kentucky Lottery can introduce.
Here is my problem with Stumbo's argument. If you expand the definition of a "lottery" to be so broad then almost all forms of gambling would fall into a "numbers" game. Why wouldn't craps, roulette, or most casino games not also fall into this definition of a lottery? Roulette is a perfect example. You are buying a chance in a particular number and if the number comes up by chance you win.
One interesting things of note. Before the state constitution, the states actually licensed lotteries to be run by private citizens. The law basically canceled those licenses and made the practice of lotteries illegal. So at the time, lotteries had a very definite and narrow meaning and the gift enterprises clause was a catch all for everything else. To expand the definition of lottery today well beyond the original concept defined by the framers seems to make a mockery of the original intent.
Therefore, it seems obvious to me that the video slots bill would be constitutionally illegal. Which means if they do pass the bill during the special session, there is an excellent chance that the law will be thrown out by the courts. It seems to me that the only legitimate way to legalize slots is to get a constitutional amendment to allow slots as a form of gambling in Kentucky. All other attempts run afoul of our state constitution and a waste of tax payer money.
Posted by at 3:18 PM in Kentucky Politics
