2003 Court Decision Has Bite

- The West Virginia Supreme Court of Appeals has rejected a motion by the West Virginia Family Foundation to expedite its hearing of their constitutional challenge to the law authorizing local referendums on table games at four state tracks. The court set the opening arguments for May 23, which makes it very unlikely that the court would reach a decision in time to stop the June 9 votes. In its argument against the fast-tracking of the case, the state wrote:

"In support of its request for expedited consideration, petitioner posits that there is 'extremely time sensitivity' afoot here, but it falls woefully short of demonstrating any such thing....The only 'deadline' here it identifies is June 9, 2007... It is a rather jarring notion that the mere holding of an election -- the basic expression of the democratic will -- could harm anyone, much less threaten the calamity that the parties and this court must rush to judgment on constitutional questions. [The State Journal]

And in a little dig, it was noted that the Foundation could have acted sooner given that the law was passed on March 8. I guess they were too busy promoting their homophobic agenda.

But despite my feelings regarding this group and religious conservative groups in general, I've been rather intrigued by the arguments they are making, as I discussed at the bottom of this post.

But the state will defend the law and the referendums by pointing to the language of the 1984 amendment that authorized the Lottery: "The Legislature may authorize lotteries which are regulated, controlled, owned and operated by the state of West Virginia in the manner provided by general law." Those words at the end are the key. It basically says: "in whatever manner the legislature should decide, and if you don't like it, bite me." The racetracks' lawyer Wendel Turner explains:

"'Lottery,' as used in that amendment, means a game involving the elements of consideration, chance and prize,....The Supreme Court has decided what that meant, so it's legally irrelevant what any particular voter thought, and that includes former members of the Legislature." [State Journal]

He's referring to a 2003 State Supreme Court decision that stated that a lottery can be defined as "a scheme for the distribution of prizes by chance" [Charleston Daily Mail]; a broad definition to be sure. And on the ownership issue, the same decision declared that the state does not have to own or operate the games "in an absolute sense, but rather in a manner provided by general law." In other words, in the manner that the legislature decides.

That determination, Turner said, means the state owns the games by conferring the right to have table games, and the state operates the games by using agents, just as it does for scratch-off lottery tickets.

"The state doesn't own the machine that dispenses the Powerball ticket. ... The lottery is not operated by state employees going out and selling all the lottery tickets but by contracts with agents of the state," he said. "Table games will be set up exactly the same way." [Charleston Daily Mail]

And though the judge who wrote the opinion expressed his personal feeling that it's unwise for the government to "operate this massive, statewide, government-operated gambling system....he adds that the Legislature "has the legal right to do so under our Constitution."

So it would seem as if the high court of the state has already spoken on this matter. And that the West Virginia Family Foundation can bite me.