Request By:
Senator Tom Buford
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Jennifer L. Carrico, Assistant Attorney General
Opinion of the Attorney General
INTRODUCTION
Senator Tom Buford requests the Attorney General's opinion on the following questions:
1. Does the prohibition against the use of playing cards apply to the use of video games which use depictions of playing cards? Is a video game that uses pictures of playing cards different than instant or scratch-off games that use pictures of playing cards?
2. Is a video lottery terminal whereby a patron wins by matching numbers, pictures or symbols considered to be a slot machine and therefore prohibited by the statute?
3. Is "Keno" prohibited by the statute?
4. Can the Corporation allow one or more vendors to have or operate several lottery terminals at a single location? Several dozen terminals at the same location? Several hundred terminals at the same location?
5. Does the current wording of the Constitution prohibit the General Assembly from allowing the Lottery Corporation or some other state lottery entity to operate or approve a casino if the proceeds therefrom are returned to the state?
The answer to each question presented by Senator Buford depends on the Kentucky Lottery Corporation's authority to operate video lottery terminals. For example, the Corporation cannot offer a video game whereby the player wins by matching numbers if the Corporation cannot operate the video lottery terminal on which it is played. Similarly, if the Corporation cannot operate video lottery terminals, then the question of whether video depictions of playing cards differ from actual playing cards is moot. Therefore, this opinion addresses whether Section 226 of the Kentucky Constitution authorizes the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals.
The Kentucky Lottery Corporation may operate video lottery terminals only if the Constitution authorizes them. Section 226 of the Kentucky Constitution has prohibitedlotteries in any form since 1891. Kentucky courts have defined this section broadly to prohibit any scheme consisting of (1) chance, (2) prize and (3) consideration. However, in 1988, Kentuckians adopted an exception to this prohibition called the "lottery amendment," which authorizes the General Assembly to establish a "Kentucky state lottery. " The question is whether the term "Kentucky state lottery" authorizes the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals.
The term "Kentucky state lottery" is not defined in the Constitution or elsewhere. The Attorney General has been invited by the Lottery Corporation to define this term as broadly as the comprehensive 1891 prohibition described above, thereby authorizing the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals. Defining "Kentucky state lottery" as expansively as it is defined in the broad prohibition amounts to a constitutional authorization for the Corporation to operate casino games such as black jack tables and slot machines at convenience stores and gas stations. This broad definition conflicts with the legislative history of thelottery amendment, the circumstances of its adoption, and its operation in the context of Section 226 as a whole.
Therefore, the Attorney General concludes that courts will not interpret the Constitution to authorize the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals. If the Corporation wishes to operate video lottery terminals, such authority must be established by constitutional amendment.
ANALYSIS
Section 226 of the Kentucky Constitution determines the Kentucky Lottery Corporation's authority to operate video lottery terminals. Subsection (3) of Section 226 prohibits lotteries in any form. Specifically, subsection (3) states that "except as provided in this section, 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." 1 KY. CONST. § 226(3).
Subsections (1) and (2) of Section 226 are limited and narrow exceptions to this comprehensive prohibition. Subsection (2) authorizes the General Assembly to permit charitable lotteries. 2 Subsection (1), which commonly is termed the "lottery amendment" and is the subject of this opinion, provides that "the General Assembly may establish a Kentucky state lottery. " 3 The issue is whether the term "Kentucky state lottery" in subsection (1) authorizes the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals.
The term "Kentucky state lottery" must be given its plain and ordinary meaning. See City of Louisville Municipal Housing Comm'n. v. Public Housing Admin., Ky., 261 S.W.2d 286 (1953). If a term's plain and ordinary meaning is expressed in the language of the provision itself, the court may not look to external sources for guidance. Grantz v. Grauman, Ky., 302 S.W.2d 364 (1957). This means that when construing a constitutional enactment, the court is limited to the language of the enactment itself. Id.
The plain and ordinary meaning of the term "Kentucky state lottery" can be either narrow or broad. For example, Kentucky courts have interpreted the specific word "lottery" broadly as it is used in the comprehensive prohibition against lotteries in subsection (3). Interpreting subsection (3), the Kentucky Court of Appeals stated that "the word 'lottery' is a generic term and embraces all schemes for distribution of prizes by chance for consideration . . . ." Otto v. Kosofsky, Ky., 476 S.W.2d 626, 629 (1971) cert. denied 409 U.S. 912 (1972) quoting A. B. Long Music Company v. Commonwealth, Ky., 429 S.W.2d 391 (1968). Under this definition of "lottery, " the term "Kentucky state lottery" could encompass any scheme distributing a prize predominately by chance for consideration. 4
In contrast, the word "lottery" also may be interpreted narrowly. For example, the Oxford English Dictionary defines a lottery as "an arrangement for the distribution of prizes by chance among persons purchasing tickets . . . ." IX THE OXFORD ENGLISH DICTIONARY 43 (2d ed. 1989)(emphasis added). 5 This narrow definition indicates that a game is a lottery only if it is an "instant" or "online" game, which are the traditional games employing lottery tickets. Under this definition of "lottery, " the term "Kentucky state lottery" could be limited to instant and on-line games. Cf. Jefferson County ex. rel. Grauman v. Jefferson County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918 (1938)(courts may use dictionary definitions to determine the plain meaning of a term).
Whether the term "Kentucky state lottery" encompasses video lottery terminals differs under each definition of the word "lottery. " A video lottery terminal (VLT) is an electronic video games machine that replicates common games of chance such as poker, keno, blackjack, bingo and craps upon insertion of cash. See, e.g. Ronald J. Rychlak, Lotteries, Revenues and Social Costs , 34 B.C. L.Rev. 11, 47 (1992). A person playing the VLT accumulates credits upon winning, and redeems these credits for cash with the VLT owner. Id. A pre-set payout percentage is programmed into each machine. Id. These particular characteristics make VLTs schemes for the distribution of prizes by chance for consideration. If courts apply the broad definition of "lottery" to the term "Kentucky state lottery, " the General Assembly may authorize the Corporation to operate VLTs simply because the broad definition encompasses any game consisting of chance, prize and consideration. On the other hand, if courts apply the narrow definition, the General Assembly may not authorize the Corporation to operate VLTs because the VLT is not the traditional "instant" or "online" lottery game.
Under these circumstances--where language of a provision reasonably is subject to alternative meanings--the court may determine the meaning of the provision from its context, effect, consequences, and spirit. Runyon v. Smith, 308 Ky. 73, 212 S.W.2d 521 (1948). In other words, since "Kentucky state lottery" can be either broad or narrow, the court must look beyond the plain language and determine that term's meaning from its legislative history, circumstances of adoption, and its operation in the context of Section 226 as a whole. Wood. v. Board of Education, 412 S.W.2d 877 (Ky. 1967);Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F.Supp. 193 (D.Ct. Ky. 1944).
The lottery amendment is not the first provision in the Kentucky Constitution regarding lotteries. Over one hundred years ago, in 1891, the Commonwealth adopted the first prohibition of lotteries in the Kentucky Constitution now contained in subsection 226(3). The language of subsection 226(3) prohibits all lotteries as well as "gift enterprises," "privileges granted for such purposes," the exercise of "such privileges," and "schemes for similar purposes." KY. CONST. § 226(3). This comprehensive language reflects the framers' intent to extend the broad prohibition of lotteries beyond their traditional form.
The framers adopted subsection (3) in response to overwhelming public opposition to lotteries in the late nineteenth century. This strong opposition to lotteries is revealed in the comments of Delegate Robert Rodes of Warren County during the Constitutional debate of 1890:
The newspapers have called lotteries vampires, one of those big Brazilian bats that fans you gently to sleep while it sucks the last drop of blood from you. Some other newspapers call it a political 'octopus,' the appellation of the great, large-eyed, huge monster of the deep, with its hundred tentacles reaching out and drawing you in its close embrace with the hug of death. Lotteries are doing those very things, and anything that does it belongs properly and ought to be inserted in the Bill of Rights, the right intention of which is to protect the people and save them from such an unspeakable lot.
KY. OAG 93-58 quoting Vol. 1, p. 443, DEBATES, CONSTITUTIONAL CONVENTION 1890.
Only six years after this broad prohibition of lotteries was adopted, the U.S. Supreme Court described the motivation of the framers of the Kentucky Constitution when adopting Section 226. In Douglas v. Commonwealth, 18 S. Ct. 199, 168 U.S. 488 (1897) the Court stated:
This court had occasion many years ago to say that the common forms of gambling were comparatively innocuous, when placed in contrast with the widespread pestilence of lotteries; that the former were confined to a few persons and places, while the latter infested the whole community, entered every dwelling, reached every class, preyed upon the hard earnings of the poor, and plundered the ignorant and simple.
Id. at 496.
For over a century, Kentucky courts implemented this strong public opposition to lotteries by defining the elements of a lottery expansively as any game distributing a prize predominately by chance for consideration. Otto, 476 S.W.2d at 629 quoting A. B. Long Music Company v. Commonwealth, Ky., 429 S.W.2d at 391. The courts then used this definition to prohibit a myriad of schemes including pin-ball machines, A. B. Long Music Company, Ky., 429 S.W.2d 391 (1968); promotional enterprises based on theater ticket sales, Commonealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531, 169 S.W.2d 596 (1943); pyramid schemes, Commonwealth v. Allen, Ky., 404 S.W.2d 464 (1966); and numbers games, Gilley v. Commonwealth, 312 Ky. 584, 229 S.W.2d 60 (1950).
Kentucky Attorney General Opinions reflect this expansive definition of a lottery in subsection (3). For example, in OAG 93-58, the Attorney General concluded that the term "lottery" in subsection (3) is broad enough to prohibit casino gambling. Id. Similarly, this term has been interpreted by the Attorney General to prohibit slot machines, OAG 76-719; raffles conducted as a fundraiser for the fire department, OAG 78-372; the card game "rook," OAG 80-409; raffling a farm, OAG 81-290; "punch board" schemes, OAG 84-187; and a lottery game based on the Breeder's Cup, OAG 92-127.
Ninety-seven years after this comprehensive prohibition of lotteries was adopted, on November 8, 1988, the people of the Commonwealth approved an amendment to Section 226 authorizing the General Assembly to establish a "Kentucky state lottery. " KY. CONST. § 226(1). The issue is not how to define the term "lottery" as it has existed for over one hundred years in the previously described broad lottery prohibition in subsection (3). Instead, the issue is how to define the comparatively new term "Kentucky state lottery" in subsection (1). Although these terms coexist in the same section of the Constitution, each term's legislative history, circumstances of adoption, and operation in the context of Section 226 as a whole differ drastically.
While the meaning of the term "lottery" has been established clearly by the courts, the meaning of the term "Kentucky state lottery" has not. The Attorney General has been invited by the Corporation to define the term "Kentucky state lottery" in the lottery amendment as broadly as it is defined in subsection 226(3); thereby authorizing the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals. However, defining "Kentucky state lottery" as expansively as it is defined in subsection (3) amounts to a constitutional authorization for the Corporation to operate casino games such as black jack tables and slot machines at convenience stores and gas stations. See OAG 93-58 (prohibition of "lotteries" in subsection 226(3) encompasses casino gambling) . Such an expansive interpretation does not apply to the lottery amendment because it conflicts with the legislative history of the lottery amendment, the circumstances of its adoption, and its operation in the context of Section 226 as a whole. Therefore, the Attorney General concludes that the broad definition of a lottery developed by the courts over the years for subsection 226(3) does not apply to subsection 226(1).
The operation of the term "Kentucky state lottery" in the context of Section 226 as a whole requires a narrow definition of that term. Exceptions to broad constitutional prohibitions should be construed narrowly. See 16 Am. Jur. 2d. § 70 (1998). The lottery amendment in subsection (1) authorizing a "Kentucky state lottery" merely is an exception to the comprehensive prohibition of lotteries in subsection (3). In this sense, the lottery amendment is a specific and narrow grant of power to the General Assembly to establish a state lottery. Since the state lottery amendment is a narrow exception to a broad prohibition, it should be construed narrowly to include only the state lottery games in operation at the time it was adopted.
The legislative history of the lottery amendment supports this narrow construction. On March 10, 1988, Representative Louis Johnson offered an amendment limiting the state lottery to weekly drawings, which would have limited it to traditional "instant" and "on-line" games. Tapes of the proceedings of the General Assembly , HB1, HFA3, March 10, 1988 (on file at Kentucky Educational Television). Representative Johnson argued that "electronic devices and slot machines" are a "reflection of the electronic age" and the "logical next step" for the lottery. Id. Representative Johnson argued that his amendment would prevent the Corporation from interpreting slots into the definition of a lottery. Id. The House rejected this amendment upon assurance by Representative William Donnermeyer that the amendment "does not provide for slot machines or anything like that." Id. This debate indicates that the General Assembly limited the "Kentucky state lottery" to traditional state lottery games. See Barker v. Stearns Coal & Lumber Co., 287 Ky. 340, 152 S.W.2d 953 (1941) (debates are accepted as an indication of the meaning of the amendment); Gaines v. O'Connell, 305 Ky. 397, 204 S.W.2d 425 (1947) (what is implied by language of the constitution is as much a part of the instrument as what is expressed).
The circumstances surrounding the adoption of the "Kentucky state lottery" require a narrow definition of that provision. Where the meaning of a constitutional provision is in doubt, it should be given the meaning it possessed at the time of its framing and adoption, as determined by contemporaneous legislative and administrative construction. Herold v. Talbott, 261 Ky. 634, 88 S.W.2d 303 (1935). Prior to adopting the lottery amendment, the Legislative Research Commission distributed a pamphlet to voters informing them that they were adopting a "modern day" state lottery. KENTUCKY LEGISLATIVE RESEARCH COMMISSION, CHANGES IN THE 80'S: PROPOSED LOTTERY AMENDMENT (1988). The ballot language itself stated that the General Assembly "may establish a state lottery to be conducted in cooperation with other states." KY. CONST. § 226(1). Less than two weeks before voters approved the lottery amendment, the Kentucky Lottery Commission recommended to the Governor the proposed implementing legislation for the state lottery. REPORT OF THE KENTUCKY LOTTERY COMMISSION, October 31, 1988. The report describes in detail lottery games in existence at the time of the report. The section entitled "Games" states as follows:
Today there are three basic types of games prevalent in state lotteries.
These games include:
Instant or scratch-off game. In this game, the player receives a ticket which contains a covered space. The player scratches an opaque coating off the covered space. The portion of the card thus revealed indicates whether the player has won a prize and the amount of the prize.
Lotto, Megabucks, or Pic-Six game. To play this game, the player gives the retail clerk a choice of six numbers out of a field that typically ranges from 1-36 or 1-54. This selection is registered on a computer at lottery headquarters and on a computer-printed receipt which the clerk gives the player. Typically, there is a televised drawing once or twice a week. If the player matches 4, 5, or 6 of the numbers drawn in any order, a prize is awarded. The prize for matching six out of six is very large, and if no one has picked all six numbers, the prize is added to the jackpot amount for the next drawing. The rollover feature allows lotto prizes to grow to millions of dollars.
Pick Three, Pick Four or Daily game. In this game, the player picks 3 or 4 numbers from 0-9. If the player's numbers are the same (and in the same order) as the numbers drawn in a nightly televised drawing, the player wins a fixed prize.
Lotto and daily games are known as "on-line" games. This means the player selects numbers at a clerk operated computer terminal at a retail location anywhere in the state and the transaction is recorded in a central computer. Virtually all lotteries offer both instant and on-line games . Without exception, start-up states begin with an instant game and progress to on-line games a few months later. On-line games are responsible for over 75% of gross lottery sales in the United States.
Id. (emphasis added).
The Commission determined that instant and on-line games were "prevalent in state lotteries" by visiting and observing lotteries operated by ten other states, including Iowa, Kansas, Missouri, Ohio, West Virginia, Massachusetts, New York, Florida, Illinois and Quebec. Id. at Exhibit II. Thus, the Commission's 1988 description of "current" state lottery games to include only instant and online games is a description of a "modern day" state lottery in 1988. Cf. R.C. Tway Coal Co. v. Glenn, 12 F.Supp. 570 (W.D.Ky. 1935) (courts should look to the history of the times and examine the "state of things" when the provision was formed and adopted).
External publications around the time voters adopted the lottery amendment confirm the Commission's narrow description of a modern day state lottery in 1988. In THE INSIDE SCOOP ON THE LOTTERY (Lot Co America 1990), B.S. Avdevich states that "lottery games come in 3 basic forms. The most popular is commonly called Lotto . . . then there are variations of the Daily Numbers games, and finally the instant lottery games." Id. at 8. Each game described is either the traditional instant or on-line state lottery game. This book was published in 1990, two years after voters adopted the lottery amendment. Similarly, in 1989, Charles Clotfelter and Philip Cook published a "comprehensive account of modern state lotteries in America." Charles Clotfelter and Philip Cook, SELLING HOPE, book jacket, (Harvard University Press 1989). The authors state that "virtually all of the games used in twentieth-century lotteries are of four basic types: so-called passive drawings, instant scratch-off games, numbers and lotto. " Id. at 51. Most importantly, according to each report, video lottery terminals were not modern state lotteries but "technology of the future." See J. Allen Karcher, LOTTERIES 67 (Transaction Publishers 1989).
Other states reach the same conclusion when addressing the scope of constitutionally authorized state lotteries. In Poppen v. Walker, 520 N.W.2d 238 (S.D. 1994), the South Dakota Supreme Court considered whether a 1986 constitutional exception for a state lottery in the South Dakota Constitution authorized the operation of VLTs. The court took judicial notice that in 1986 the predominate forms of state-sanctioned lotteries in the Midwest were "instant" and "on-line" lotteries. Id. The court stated that the constitutional exception for a state lottery encompassed only "the sale of tokens or tickets to large numbers of people for the chance to share in the distribution of prizes for the purpose of raising public revenue." Id. (emphasis added). On this basis, the court concluded that video lottery terminals were not constitutionally authorized for the state lottery. Id.
In Johnson v. Collins Entertainment Co., Inc., 508 S.E.2d 575 (S.C. 1998), the Supreme Court of South Carolina considered whether a constitutionally authorized state lottery encompassed video lottery terminals. The court stated it was "constrained to give the words of our Constitution their plain and ordinary meaning," and held that "[a] lottery is a term of art, and video gaming devices do not come within the plain and ordinary meaning of 'lottery' because they do not involve a drawing and 'tickets' or other indicum (sic.) of entitlement to a prize. " Id. at 579. See also Gabalac v. New Universal Congregation of Living Souls et al., 379 N.E.2d 242 (Oh. App. 1977) (narrowly construing "lottery" in the Ohio Constitution); Lee v. Miami, 163 So. 486, 490 (Fla. 1935) (narrowly construing "lottery" in the Florida Constitution to include only games "infecting the whole community").
Similarly, in State ex rel. Mountaineer Park, Inc, v. Polan, 438 S.E.2d 308 (W.Va. 1993), the Supreme Court of Appeals of West Virginia considered whether the state lottery authorization in the Constitution permitted video lottery terminals. After stating that "electronic video lottery, by its very nature, is significantly different from common state-run lottery games," the court said "we are simply unwilling to approve, on this record, the Lottery Commission's attempt to bring 'electronic video lottery' within the definition of lottery. " Id. at 316.
State courts also narrowly interpret constitutional exceptions for state sanctioned gaming other than lotteries. In State ex rel. Stephan v. Parrish, 887 P.2d 127 (Kan. 1994), the Supreme Court of Kansas considered whether a constitutional exception for bingo authorized "instant bingo. " The court stated that "the test is rather whether the legislation conforms with the common understanding of the masses at the time they adopted such provisions and the presumption is in favor of the natural and popular meaning in which the words were understood by the adopters." Id. at 750. The court then looked to the broad constitutional prohibition of lotteries, and concluded the limited exception to this prohibition for "games of bingo" should be interpreted narrowly. Id. at 755. The court stated that the "amendment does not grant the legislature carte blanche in adopting such definitions," and held that the exception for "games of bingo" did not encompass "instant bingo. " Id. at 761. See also City of Piedmont v. Evans, 642 So.2d 435 (Ala. 1941) ("instant bingo" does not constitute "bingo" as allowed by Amendment No. 508 of the Constitution of Alabama).
In Western Telcon, Inc., v. California State Lottery, 917 P.2d 651 (Cal. 1996), the California Supreme Court considered whether "keno" constituted a lottery under the constitutional exception for the California State Lottery. Id. The court found that defining a lottery as any scheme distributing a prize by chance for consideration improperly encompasses any conceivable game, and then narrowed the definition of a lottery to exclude "keno. " Id. These cases suggest that although a "lottery" may encompass any game of chance, a "state lottery" is a narrowly defined constitutional grant of authority to the state to operate only traditional state lottery games.
The Kentucky Lottery Corporation suggests that the broad definition of "lottery and gift enterprise" in the Kentucky Penal Code at the time the lottery amendment was adopted indicates that the term "Kentucky state lottery" should be defined broadly. 6 This argument is not persuasive. Criminal penalties associated with unauthorized lottery games correlate directly to the broad lottery prohibition in subsection (3). They are unrelated to, if not in conflict with, a lottery game authorized by the Constitution and operated by the Commonwealth. Therefore, this statutory definition in the Penal Code implements the longstanding broad lottery prohibition in subsection (3) of Section 226, not the "Kentucky state lottery" exception set forth in subsection (1). Cf. Western Telcon, Inc., 917 P.2d 651 (Cal. 1996) (rejecting a broad definition of "lottery" in the California Constitution despite broad definition of "lottery" in the California Penal Code).
As a matter of public policy, the failure of the Kentucky Lottery Corporation to expand the form of its lottery games over the years indicates that the term "Kentucky state lottery" encompasses only the traditional on-line and instant games. On September 20, 1989, the Kentucky Lottery Corporation introduced a game called "Sports Lotto Game." To operate this game, the Corporation intended to sell "parlay cards," the purchasers of which would attempt to pick the outcome of 4 to 14 professional football games against the betting line established for casinos in Las Vegas. Movant's Memorandum In Support of Motion For Interlocutory/Intermediate Relief, Kentucky Thoroughbred Association, Inc. v. Kentucky Lottery Corporation , 89-CA-002156 - I, p.2 (October 13, 1989). Payoffs would be made from a pari-mutuel pool established and operated by the Corporation. Id.
The Kentucky Thoroughbred Association and others sued primarily to have the game declared unconstitutional and moved for a temporary injunction. The Kentucky Court of Appeals, reversing the decision of the trial court, stated that "we are of the opinion that the (Lottery Corporation has) exceeded their authority in adopting the Super Sports Game," and issued the temporary injunction. Kentucky Thoroughbred Association, Inc. v. Kentucky Lottery Corporation , Order No. 89-CA-002156 - I (October 17, 1989). Although the Kentucky Supreme Court vacated this decision and remanded the case to the trial court, Kentucky Thoroughbred Association, Inc. v. Kentucky Lottery Corporation , Order No. 89-SC-792-I (October 23, 1989), the Lottery Corporation never succeeded in implementing the Sports Lotto Game. The decisions in this case are not published and cannot be cited as legal authority. However, from a historical perspective, the inability of the Corporation to implement this game supports the policy argument that voters intended a narrow definition of the term "Kentucky state lottery. "
Similarly, on August 3, 1990, the Corporation unveiled a plan to launch "keno. " Amy Vernon, Lottery Game Unveiled: Keno Payoff is Largest, Will Start Next Month , The Courier-Journal, August 4, 1990 at 05A. In the new game developed by the Corporation, the player would have chosen one or more numbers from 1 through 80. Id. Whether and how much the player could win depended upon how well the numbers matched up with 20 numbers chosen randomly by a computer. Id. The computer would draw numbers every fifteen minutes from 6:15 A.M. to 12:45 A.M., so a player could purchase a new ticket 75 times a day. Id. When the lottery board realized that "race tracks and bars were planning to build rooms specially designed for keno, " the game was placed on hold and eventually stopped because the Governor and General Assembly opposed the game. Gil Lawson, Lottery's Suspended "Keno" had been Approved by Mail, The Courier-Journal, September 11, 1990 at 01A ("the Keno game was suspended because of concerns that it resembled casino-style gambling, something Governor Wallace Wilkinson and legislators oppose").
These policy considerations along with the legislative history of the lottery amendment, the circumstances of its adoption, and its operation in the context of Section 226 as a whole indicate that the "Kentucky state lottery" is an extremely narrow and limited exception to the long-standing prohibition of lotteries in the Commonwealth of Kentucky. The Constitution does not expressly define the limits of the state lottery, but the General Assembly and the people limited it to traditional instant and on-line state lottery games.
CONCLUSION
For over a century, Kentucky courts have considered a lottery to be any game at all that distributes a prize by chance for consideration. This broad definition has been applied by courts and the legislature to prohibit anything from early numbers games to pin-ball machines. The expansive scope of the prohibition reflects the strong public opposition to lotteries in Kentucky since 1891. Ninety-seven years later, in 1988, the people approved a "Kentucky state lottery. " The Kentucky Lottery Corporation would argue that the broad definition of "lottery" adopted a century ago also should define the term "Kentucky state lottery. " The Corporation advocates this approach because applying this broad definition allows the Corporation to operate video lottery terminals. However, the lottery amendment is a limited exception to a broad constitutional prohibition, and exceptions to broad prohibitions should be interpreted narrowly. In this respect, it is inconsistent with the intent of the people who adopted the lottery amendment to broadly define a narrow exception for a "Kentucky state lottery. "
The Kentucky Lottery Corporation would argue that the Constitution is "progressive and not static in its application to meet changed conditions," and therefore the term "Kentucky state lottery" encompasses video lottery terminals. It is true that the Constitution should be held adaptable to relations and conditions of the present state of society. Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 273 Ky. 674, 117 S.W.2d 918 (1938). However, words in the Constitution cannot be given a strained interpretation for the purpose of effecting a result not contemplated by those who framed it. Inter-County Rural Electric Co-op. Corporation v. Reeves, 294 Ky. 458, 171 S.W.2d 978 (Ky. 1943).
Prior to the 1988 election, voters were informed by the Legislative Research Commission as well as the Kentucky Lottery Commission that they were adopting a "modern day" state lottery. Reports and resources from 1988 indicate that a modern day state lottery did not include video lottery terminals. In fact, two years after the lottery amendment was approved, only two states legislated to operate video lottery terminals. PHILIP R. GREEN, THE $ 65 BILLION GAME, p.59 (Philip R. Green and World Media Brokers 1991). Additionally, legislative debates indicate public assurance that the "Kentucky state lottery" would not encompass "electronic devices and slot machines" of the future. Finally, the Kentucky Lottery Corporation Board of Directors stopped attempts by the Corporation to expand the form of games beyond traditional instant and on-line games. As a matter of public policy, the Board's actions indicate that the "Kentucky state lottery" is limited to these traditional games.
The function of the Attorney General's Opinion is to predict the decision of the court on a question of law. The legislative history of the lottery amendment, the circumstances of its adoption, and its operation in the context of section 226 as a whole indicate that the term "Kentucky state lottery" is construed narrowly to encompass only instant and on-line games. Therefore, the Attorney General cannot conclude that a court will find that the Constitution authorizes the General Assembly to permit the Kentucky Lottery Corporation to operate video lottery terminals. Since the General Assembly is not constitutionally authorized to permit video lottery terminals, such authority must be established by constitutional amendment.
Footnotes
Footnotes
1 KY. CONST. § 226(3):
(3) Except as provided in this section, 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. All lottery privileges or charters heretofore granted are revoked.
2 KY. CONST. § 226(2):
(2) The General Assembly may by general law permit charitable lotteries and charitable gift enterprises and, if it does so, it shall:
(a) Define what constitutes a charity or charitable organization;
(b) Define the types of charitable lotteries and charitable gift enterprises which may be engaged in;
(c) Set standards for the conduct of charitable lotteries and charitable gift enterprises by charitable organizations;
(d) Provide for means of accounting for the amount of money raised by lotteries and gift enterprises and for assuring its expenditure only for charitable purposes;
(e) Provide suitable penalties for violation of statutes relating to charitable lotteries and charitable gift enterprises; and
(f) Pass whatever other general laws the General Assembly deems necessary to assure the proper functioning, honesty, and integrity of charitable lotteries and charitable gift enterprises; and the charitable purposes for which the funds are expended.
3 KY. CONST. ? 226(1):
(1) The General Assembly may establish a Kentucky state lottery and may establish a state lottery to be conducted in cooperation with other states. Any lottery so established shall be operated by or on behalf of the Commonwealth of Kentucky.
4 The test for the element of "chance" in Kentucky is the "dominant factor" test. Commonwealth v. Allen, Ky., 404 S.W.2d 464 (1966). When a game involves both chance and skill, the game is a lottery if chance is the "dominant factor" in determining the outcome. Id.; Otto, 476 S.W.2d at 626, cert. denied 409 U.S. 912. Thus, all games "permeated by chance" that have elements of consideration and prize are lotteries under Section 226 part (3).
5 BLACK'S LAW DICTIONARY 947 (6<th> ed. 1990) provides both broad and narrow definitions of the term.
6 At the time thelottery amendment was adopted, "lottery and gift enterprise" was defined in the Kentucky Penal Code as:
(a) A gambling scheme in which:
1. The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one or more of which are to be designated the winning ones; and
2. The winning chances are to be determined by a drawing or by some other method based upon the element of chance; and
3. The holders of the winning chances are to receive something of value.