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State Supreme Court tie vote keeps lottery law in place

Posted March 20, 2009

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— About 5,500 retailers can keep on selling ticket for the North Carolina Education Lottery will go on after the state Supreme Court deadlocked over whether the votes creating the games were lawful.

Three of the seven justices agreed Friday the lottery law was unconstitutional, and three others upheld the law.

N.C. Education Lottery N.C. lotto goes on after Supreme Court deadlocks

The 3-3 decision lets stand a lower court ruling that rejected plaintiffs' claim that the bill creating the lottery was a revenue measure and that the General Assembly didn't follow proper procedures to pass a revenue bill. State attorneys argued that the lottery bill didn't create a new tax.

"We are pleased that the proceedings have come to a close. We are operating business as usual, raising as much money for North Carolina as possible," lottery spokeswoman Alice Garland said.

"We're disappointed that we didn't get a decision on the merits" of the case, said Bob Orr, a former justice and head of the N.C. Institute for Constitutional Law, which represented some plaintiffs who filed suit before the first tickets were sold in March 2006.

Orr said that the court's decision raises questions of how lawmakers do business.

"If the General Assembly or executive branch think they can keep getting way with it, then you'll see a steady erosion of the constitutional rights that our citizens have under the North Carolina constitution," he said.

A spokeswoman for Gov. Bev Perdue said that the governor was pleased with the court's decision and never expected that the court would rule it unconstitutional.

Justice Mark Martin could not vote in the case after he recused himself from hearings in September and later filed notice that he might have a conflict of interest. A member of Orr's group – retired Supreme Court Chief Justice Beverly Lake Jr. – represented Martin's family in a case involving injuries suffered by one of his children.

A Jan. 22 memo filed by a state attorney found that was a significant conflict of interest and refused to let Martin vote in the case.

Friday's opinion didn't identify which justices wanted to affirm or reject the Court of Appeals ruling and can not be used to set precedent in future cases.While justices run in nonpartisan elections, four justices, including Martin, have Republican voter registrations.

At the heart of the case was whether the bill that created the lottery should be considered a revenue measure.

"There also was that underlying issue about what exactly is a tax," Orr said. "I think that has much broader implications for the state. And I certainly regret that those issues are unresolved by the Supreme Court."

In March 2008, two of three appellate court judges rejected plaintiffs' argument that the lottery legislation was a revenue bill, saying it didn't commit state funds to paying lottery winners or create a tax that state residents must pay.

The state constitution requires that on new revenue measures, the House and Senate must each hold two separate votes on separate days.

"There was no question the Lottery Act did not follow that particular procedure," Orr said.

When the General Assembly approved the lottery bill, each chamber only took one day. The House passed the bill by two votes in April 2005, and the Senate by one vote in August 2005. Two Republican senators who opposed the bill were absent; one was ill, and the other on his honeymoon. Then-Lt. Gov. Bev Perdue cast the deciding vote to send the bill for Gov. Mike Easley to sign.

"The lottery was void from the beginning, because it was enacted improperly and not in accordance with the state constitution," said Tami Fitzgerald, with one the plaintiffs, the N.C. Family Policy Council.

A spokeswoman for Attorney General Roy Cooper, whose office represented the state, elected officials and the lottery commission in the lawsuit, didn't immediately return a phone call or e-mail seeking comment.


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  • nceast704 Mar 23, 2009

    Shaheen is a JOKE. He promoted his secteraty to a new job "special project manager" and went from 30K to 65K per year. This new state job was never posted either!!!! He even gave her an assigned parking place next to his. They do travel together daily......guess she is working on that special project!!

  • time4real Mar 20, 2009

    Wheeeeeeeeeeew, I bet Tom Shehanmale is sure breathing a big ole sigh this evening.
    The lottery joke continues!

  • Tax Man Mar 20, 2009

    Back to the same old argument - the majority of NC voters want the lottery - if someone is opposed to it they should just not play! Don't tell me what to do - I want to play and I want to play in my state, not one of the surrounding states. My question is, who paid for Orr to bring this bogus suit all the way to the NC Supreme Court? Follow the money - it is probably some group with a vested interest in making money that the NC Lottery is taking away from them. Don't like it - Don't play it. Leave the rest of us alone, thank you.

  • xchief661 Mar 20, 2009

    "No Smoking" "No Lottery" "No tv" Ok What else? Give it to me I can take it!!!!!!!!!!

  • djofraleigh Mar 20, 2009

    The tie breaking vote was the 7th judge who took himself off the case to avoid appearance of prejudice, as stated in the blog.

    This is a loss to me, but I suspect predetermined in some back rooms. Am I cynical? yes. why wouldn't I be when the initial lottery vote, devoid of a majority, saw the legislature 'close' and after several 'anti-lottery' reps went home, the vote was then held in a day, got a tie, and the not-quite-so-honorable Lt. Gov. Bev Perdue, being the leader of the house, cast her tie breaking vote, as planned. (Why would she proceed over such hook & crookery?) Rep Brown was on his Honeymoon & Rep Garwood was in the hospital?. Well...seems apparent that it was all orchestrated, probably fueled either by gambling interest money or by high ethical idealism of how government should run. YOUR CHOICE!

    So, would I suspect the Supreme Court of being influenced by other than the finer points of the law? YES Would you?

    Depends on our own biases, doesn't it! YOU BE THE JUDGE!

  • Scrofula Mar 20, 2009

    Question: why are those who are so opposed to a lottery (which they are indeed entitled to be) of the opinion that they have a right to prevent anybody else from participating in one?

    I agree with the other posters. If you don't like the lottery, don't play.

  • yacs Mar 20, 2009

    Now that this issue is again finished, why not move onto something else? Like bringing back prohibition, or something else that denies the existence of personal responsibility....

  • saries Mar 20, 2009

    Foetine - it doesn't matter how many judges they have, the fix is in. Tha passage of the lottery was clearly done illegally and the court has gone subjective on an issue that is objective.

    At least 3 of the State's Supreme Court justices didn't see it as "clearly illegal." Unless the law cited is written using the word "revenue" (as cited in this story)rather than "tax" (as has been previously stated and as implied in this story), then I don't see how the legislation was "clearly illegal." Please explain...

  • Lone Voice in the Wilderness Mar 20, 2009

    Finally…we can put this issue to bed.

    I play the lottery, a whopping $2/week. Plus, I play in a pool at work, and we have both men & women as well as Republicans & Democrats. All of us have college degrees (some Bachelors, some Masters), and we have a good time playing it.

    So, for those who oppose the lottery, let me suggest: don't play it. And if it irks you that people do play it: get over it.

    You lost. Move on. Your life will be happier.

  • maddiesmom972 Mar 20, 2009

    Shouldn't whether BEV IS STEALING that money be the real issue? The reason most people I know were opposed to the lottery was they could only see it being used for things it was not LADY BEV OMG! That is exactly what has happened. HUGE SHOCK!