Lottery Will Continue, So Will Lawsuit, Judge Rules
Posted February 15, 2006
RALEIGH, N.C. — The North Carolina lottery can continue preparing for a March 30 kickoff while a court considers a legal challenge to the way the Legislature passed the lottery law last year, a Wake County judge ruled Wednesday.
The decision is somewhat of a loss for both parties in the legal fight. While Superior Court Judge Henry Hight denied a motion by taxpayers, lawmakers and advocacy groups who sought to temporarily stop work on the lottery, he also declined the state's request to dismiss the complaint completely.
Hight wrote that he denied a preliminary injunction in part because "the harm and inconvenience to the defendants and others far outweighs any harm" to those who filed the complaint.
Hight said a hearing on the merits of the case would be held March 20.
The plaintiffs who filed the complaint argued the House and Senate each violated the state constitution by passing a lottery bill with only one recorded vote. Two separate recorded votes were required of each chamber on separate days, according to the complaint.
State attorneys argued in court Monday that the constitution only requires votes on separate days for laws that lead to higher taxes or borrow against the state's credit, and the lottery does neither.
Jeanette Doran Brooks with the N.C. Institute for Constitutional Law, a lawyer representing some of the plaintiffs, said the orders mean the judge believes her clients have legal standing to seek the challenge. State attorneys had argued otherwise.
"We definitely see it as a victory," Brooks said.
The state Attorney General's Office, which represented lottery officials, Gov. Mike Easley and State Treasurer Richard Moore in the case, declined to comment on the rulings. A North Carolina Education Lottery spokes didn't immediately have a response to Hight's decision.
Hight or another judge could still decide later to block the lottery's work if the judge agrees that the General Assembly violated the constitution.
Such a ban almost assuredly would delay the sales of the scratch-off tickets that are scheduled to begin in about six weeks.
Lottery executive director Tom Shaheen said Tuesday he anticipated that the legal promises by vendor GTECH Holdings Corp. to begin ticket sales by March 30, as well as financial penalties for missing the date, would be suspended if the lottery is blocked.
The House approved the lottery bill last April by a 61-59 vote. In August, the Senate needed a tie-breaking vote from Lt. Gov. Beverly Perdue for the measure to pass 25-24. Neither chamber held the bill over for a second roll-call vote the next day, pushing it through on voice votes despite calls for delay from lottery opponents. Easley signed the bill.
Hight's ruling allows lottery law challengers to argue that the game would unconstitutionally raise money against the state's credit and good name, since there was no second, recorded vote. They want the courts to strike down any lottery-related contracts and void a $10 million loan to the lottery commission for start-up costs.
The General Assembly could return for a special session to approve the lottery law using the procedure the plaintiffs favor if the lottery law is ultimately struck down. Passage could be questionable given the narrow votes last year.