Tuesday, February 12, 2008

Expanded Gambling: Referendum Not Needed?

Do we need a referendum to decide the merits of expanded gambling in Kentucky? Maybe not according to Hopkinsville Attorney and Assistant Christian County Attorney John T. Soyars. Mr. Soyars brought something to my attention this week that he found while taking a cursory look at the website Lawreader.com and Newslawreader.com.

I found this interesting and he provided me a copy of an opinion issued in 2005 by Attorney General Greg Stumbo. The opinion written by Robert S. Jones, Assistant Attorney General provides a legal basis for one to assume that Kentucky's Constitution does not require a change in our Constitution to allow for expanded gambling.

The opinion which was requested by State Senator Ed Worley, rest on case law handed down by the Supreme Court {Phalen v. Virginia, 8 Howard 163,12L Ed 1030,1033(1850)} and{ Stone v. Mississippi, 101 US 814,818,25 L Ed 1079(1880)} and goes on to lay a foundation that the framers of the Kentucky Constitution (1890) intended to address "lotteries" not other forms of gambling.

The opinion cites two cases{ Commonwealth v. Douglas,100 ky. 116,24 S.W.(1893)} and {Commonwealth v. Kentucky Jockey Club, Inc., 238 Ky 739, 38 SW2d 987 (1931)} which in the latter case the Court pointed out regarding section 226:

"At the time section 226 was being considered in the convention that framed the Constitution, and amendment was proposed forbidding every species of gambling. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time." Id. at 993.

I'm not an attorney and the opinion does offer up a little more information but none that argues against the above. I think the opinion makes it clear that section 226 and later court cases have dealt with lotteries and the definition of lotteries. Furthermore it seems evident, at least to me, that the power and responsibility to vote on expanded gambling falls squarely on the shoulders of the General Assembly.

Kentucky is not referendum state nor should every controversial issue be put before the voters because if that is the case then we don't need a General Assembly. I personally don't care one way or the other regarding expanded gambling but it does concern me that so much of Kentucky's future is being invested on a issue that the General Assembly could vote on this afternoon if they wanted to. Vote up or down. Let's take a vote and move on so we can sit down and see how much revenue were going to have and where the revenue is going to come from.

I can appreciate Legislators wanting to give the folks back home the choice on such a controversial issue but it's not our job- it is theirs. Kentucky is not a Baptist church and were not operated by the congregation. We have a representative form of government and it needs to carry out its responsibilities. If we vote to have a referendum then at what point do we really know how much revenue will be coming in other than estimates. Kentucky is at a point where we either have to decide to borrow and spend, cut government or raise taxes. As much as I hate taxes and believe as most that we pay too many, the reality is that Kentucky is a poor and small state that has to make some quick decisions. I believe we need to move on accordingly without factoring in expanded gambling. If it happens then great. If it does not happen then great. We are going to have to raise the cigarette tax, cut government and issues some bonds. So let's quit dragging this out and move on.

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