Legal Foundation Brands Lottery Bill Unconstitutional
Posted December 15, 2005
RALEIGH, N.C. — A legal foundation in Raleigh is challenging the Legislature's creation of a state lottery, claiming in a lawsuit that the vote in the state House failed to occur on three separate days, as required by the state constitution.
The North Carolina Institute for Constitutional Law wants state courts to void the law and cancel all contracts for games scheduled to start by April because the House suspended rules to take up the second and third votes on separate days, which is standard unless the bill being voted on is tax or bond legislation.
The institute contends in the lawsuit that the lottery is tax legislation, but General Assembly leaders argue that the quick votes pass legal muster because the games are voluntary.
"Nobody has ever been prosecuted for failing to buy a lottery ticket," said Senate Majority Leader Tony Rand. "If you don't pay your taxes, they'll put you in jail. So, it's obviously not the same thing."
Former state Supreme Court Justice Robert Orr, who heads the institute, said that unless courts step in, lawmakers will know they can skirt the constitution's requirements for raising taxes or other revenue in the future.
The lottery passed by a razor-thin margin in the General Assembly and the lawsuit claims legislative leaders were too quick to cast the final vote.
Orr said the lawsuit is not about whether the state should have a lottery. He said that if the public wants a lottery, legislators could go back and do it right next time.
"It's not a case of being a sore loser," said Bill Brooks, with the N.C. Family Policy Council, which is a plaintiff in the lawsuit. "It's not a case of just being the lottery bill. It's just the fact that the bill was passed unconstitutionally."
The suit calls for lottery organization to stop until the case is settled, but lottery commissioners say they are moving ahead to get the games going by April.
If plaintiffs win this case, lawmakers would have to come back to Raleigh and vote all over again.
Many lottery opponents believe the bill would not pass again, but Rand disagrees, saying he thinks it actually would have a better chance of passing because the lottery organization is so far along and because counties are counting on the money.