Court filing stirs debate over casinos
By John Lyon / Arkansas News Bureau / jlyon@arkansasnews.com
Friday, October 3, 2008 11:08 AM CDT
Lt. Gov. Bill Halter’s response to a legal challenge of his ballot proposal for a state-run lottery has stirred debate over another thorny gambling issue in Arkansas: whether the state constitution bans casino gambling.
In a court filing last week, Halter’s Hope for Arkansas campaign advanced the argument that the constitution bans lotteries, not casinos, calling lottery opponents’ argument that the lieutenant governor’s proposed constitutional amendment would open the door to casinos a “red herring.”
“I didn’t expect that argument to be made. It’s always been my understanding that the Supreme Court has interpreted the constitution to say the prohibition against lotteries extends to all forms of gaming,” said state Rep. Steve Harrelson, D-Texarkana, a lawyer.
Hope for Arkansas is seeking to intervene in a lawsuit filed Sept. 19 by the Family Council Action Committee, which is asking the state Supreme Court to take Halter’s lottery proposal off the November ballot.
Among other arguments, the Family Council says the ballot language does not adequately inform voters that the amendment would remove from the state’s 1874 constitution the sentence, “No lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed.”
In an answer to the Family Council’s lawsuit, Hope for Arkansas said, “This is a classic red herring. ‘Casino gaming’ is prohibited by statute in Arkansas, not by the constitution.”
“I am surprised at that,” Jerry Cox, executive director of the Family Council, said in an interview last week. “Obviously something has kept casinos out of Arkansas, and every group that’s ever tried to bring casinos to Arkansas has always tried to amend the constitution.”
Hope for Arkansas spokesman Bud Jackson declined to discuss details of the case.
“We’re not going to try this in the newspapers,” Jackson said.
Hope for Arkansas’ interpretation of the constitutional ban on lotteries is at odds with traditional interpretations, according to John DiPippa, who teaches constitutional law at the University of Arkansas at Little Rock.
“Traditionally, Arkansas courts have understood that prohibition to mean more than just a lottery, to mean a general prohibition on gambling,” DiPippa said.
But Hope for Arkansas’ argument is a plausible one, he said. The state Supreme Court has never explicitly said what a lottery is, though some guidelines have emerged through court rulings and attorney general opinions.
In the 1949 case Longstreth v. Cook, the state’s highest court ruled that pari-mutuel betting on horse racing did not violate the state constitution because the outcome is not governed entirely by chance. The court made a similar ruling on dog racing in 1958, finding that “it is essential to a lottery that the winners be determined by chance alone.”
In a 1999 opinion, then-Attorney General Mark Pryor said, “Under the Arkansas Supreme Court’s long-standing interpretation of this constitutional prohibition against lotteries, a game or scheme constitutes a ‘lottery’ if the following three elements are present: (1) consideration is paid to play or participate; (2) playing or participating creates the chance to win a prize; and (3) the game is controlled entirely by chance and winning is not influenced by a player’s skill or judgment.”
In 2005, when the Legislature passed a law permitting local elections to decide whether gaming machines should be allowed at race tracks in Hot Springs and West Memphis, lawmakers defined the machines as “games of skill” to work around what was understood to be a constitutional ban on gambling, DiPippa said.
If the Supreme Court were to agree with Hope for Arkansas’ interpretation, casinos still would be banned by statute in Arkansas, but the “political dynamic” would be significantly changed, DiPippa said.
“It’s a lot easier to pass a bill than it is to amend the constitution,” he said.
