Request By:
Mr. Martin W. Mitchell
Attorney at Law
Attorney Building
121 East Fourth Street
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; Elizabeth E. Blackford, Assistant Attorney General
You have written to ask the advice of this office concerning the operation of charitable bingo by an auxiliary fire department which is too small and lacking in funds to be able to absorb the initial costs relating to operation of the game or to provide the necessary space for conducting the game. Your questions are predicated upon the assumption that the House floor amendment to SB 277, 80 BR 1323/HCS, which seeks to "decriminalize" charitable gambling by exempting such gambling from prosecution under the Penal Code is constitutional despite the proscriptions of Kentucky Constitution, Section 226. However, because of Section 226 of the Kentucky Constitution, it is our opinion that the House floor amendment to SB 277, 80 BR 1323/HCS, is unconstitutional and is void abinitio insofar as that amendment seeks to exempt bingo and/or lotteries or gift enterprises of any form from the operation of the Criminal Code.
The Kentucky Constitution, Section 226, provides in part:
"Lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties." (Emphasis added.)
In accord with this section the courts have consistently deemed any attempt on the part of the legislature to legitimize and regulate bingo, and other forms of lotteries or gift enterprises, as well as any legislative attempt to exempt bingo or other forms of lotteries from criminal sanctions, to be unconstitutional and void abinitio
For example, the legislature enacted a new section of KRS Chapter 238 in 1970 which sought to legitimize charitable bingo games and to provide for the licensing of such games. Acts 1970, Chapter 60. Section 49 exempted licensed charitable bingo games from the criminal sanctions imposed on lotteries pursuant to KRS Chapter 436. The Court held that the licensing act was unconstitutional and invalid in light of Kentucky Constitution, Section 226. Otto v. Kosofsky, Ky., 476 S.W.2d 626 (1971), cert. den. 409 U.S. 912, 73 S. Ct. 227, 34 L. Ed. 2d 173.
In like token, a subsection 1 of KRS 436.360 (now repealed) which exempted theaters that awarded prizes based upon a drawing from a pool comprised of admission tickets from the criminal sanctions otherwise imposed on lotteries or gift enterprises, was held to be unconstitutional and, therefore, void, in Commonwealth v. Malco-Memphis Theaters, Inc., 293 Ky. 531, 169 S.W.2d 596 (1943). Therein, the Court said:
"The clearly expressed purpose of the 1938 amendment to section 2573 of Carroll's Kentucky Statutes was to exempt theatres from the prohibition of conducting lotteries. The amendment is in direct contravention of the mandatory language of section 226 of the Constitution, and, consequently, is void . . . The amendment being unconstitutional and void, it was 'as inoperative as though it had never been passed,' and it was unnecessry to negative it in the indictment. [Cites omitted] The enactment of the void amendment did not affect the original act which remained operative. [Cites omitted]. Id., p. 598.
The Court went on to say that the Commonwealth was not estopped from prosecuting by reason of the amendment which sought to exempt theaters from the criminal sanctions otherwise imposed on the operation of lotteries or gift enterprises, for estoppel from prosecution under these circumstances would allow the general assembly to nullify a mandatory provision of the Constitution, a result which is not cognizable at law.
The lesson to be learned from these cases is that absent an amendment of Kentucky Constitution, Section 226, any attempt on the part of the general assembly to legitimize or "decriminalize" lotteries or gift enterprises, whether that effort be made by exempting certain classes of lotteries from the criminal sanctions which would otherwise be applicable by providing that maintenance of a certain status shall constitute a defense to criminal prosecution, or by seeking actively to license the operation of certain forms of lotteries, is unconstitutional and void. Therefore, this office has no alternative to concluding that the House floor amendment to SB 277, 80 BR 1323/HCS, which defines "charitable gaming" , which states that the status of "charitable gaming" shall constitute a defense to prosecution under KRS Chapter 528 and which seeks to exempt charitable gaming from the proscriptions of KRS 528.100 is unconstitutional and void insofar as it seeks to decriminalize bingo or other lotteries or gift enterprises 2 operated by charitable or religious organizations or institutions.
Because the statute authorizing charitable bingo games is unconstitutional, it is void abinitio. Consequently, it is still illegal to hold charitable bingo games. The criminal sanctions imposed by KRS Chapter 528 are operative as to lotteries, gift enterprises and bingo games sponsored by and for charitable purposes. Commonwealth v. Malco-Memphis Theaters, Inc., supra.
The Court decisions make it clear that if the General Assembly wishes to legalize charitable bingo, the only method of doing so is to propose a constitutional amendment placing the question before the people of Kentucky.
Footnotes
Footnotes
1 The Subsection held unconstitutional in Commonwealth v. Malco-Memphis Theaters, Inc., contained the following provision:
"(2) Subsection (1) of this section shall not apply to any gift, money, property or anything of value which is awarded by lot or drawing by mercantile establishments, theaters or newspapers which make such awards to their customers, and which charge no price and collect no fee for the privilege of participating in such lot or drawing other than the regular price or merchandise sold, admission ticket or subscription price to all customers whether or not they participate in the awarding." (Emphasis added.)
2 This opinion does not deal with, nor does it answer the question of whether the amendment is constitutional insofar as it seeks to legitimize or decriminalise games of chance other than lotteries or gift enterprises.