Published: May 04, 2007 10:54 pm

Family foundation sues over table game law

A conservative Christian group made good Friday on its vow to legally challenge West Virginia’s new table game law, insisting in a lawsuit the 1984 constitutional amendment authorizing a lottery in which it is couched never envisioned casino-style gambling.

Consequently, the Legislature’s new law, signed by Gov. Joe Manchin, fails to pass constitutional muster, obligating the state’s highest court to issue a mandamus erasing it from the books, the suit contended.

Besides the underlying argument the scratch-off lottery can’t be used as a springboard for table games, Lewisburg attorney Barry Bruce maintained the state cannot own casino gambling operations at dog-and horse-track facilities in Jefferson, Ohio, Kanawha and Hancock counties where local referendums are planned June 9.

“There’s nothing the state can own in table games,” Bruce said shortly after he filed the suit before the state Supreme Court on behalf of the West Virginia Family Foundation.

“They don’t own the tables. Don’t own the dice. Don’t own the cards. Don’t own anything.”

Wendel Turner, counsel for Mountaineer Park and an adviser to the West Virginia Racing Association, said the lawsuit came as no surprise.

“We expected it,” Turner said from his Charleston office.

“We’re disappointed, of course, that it may be a veiled attempt to keep the people in the affected counties from voting on the issue. We certainly believe it’s without merit, that the statute is constitutional and that the court will ultimately determine that.”

Since the suit was only a few hours old when contacted, Turner said he hadn’t had an opportunity to study it, and couldn’t comment on his legal strategy.

Lawmakers are required to define the term “own” in governing approved lotteries, the suit says.

“The amendment does not give the right to the Legislature to redefine the words ‘regulate,’ ‘control,’ ‘own’ and ‘operate,’” Bruce said in the lawsuit.

“If the Legislature wanted any other definition of these words than their plain meaning, they were obligated to so define the words in the amendment. There is no evidence of any other meaning anywhere.”

Bruce used affidavits of two former lawmakers — Beckley attorney Bill Wooton and Greenbrier County Commissioner Betty Crookshanks — in buttressing his claim the table law is unconstitutional. Both said the concept of casino gambling wasn’t envisioned when the amendment cleared the Legislature a year before voters decided the scratch-off lottery.

In addition, the Family Foundation collected signatures from voters saying table games never entered their mind when voting on the amendment.

“I voted in Beckley at the time, and I didn’t contemplate it ever being used for table games,” Bruce reflected.

A key element in the suit entails the Legislature’s controversial inclusion of the term “intellectual property,” an effort to provide a means of ownership of table games.

In disputing this, Bruce relied on the advice of Michael Mann, an intellectual property lawyer in South Carolina who issued an emphatic “no” when asked if the Legislature could by statute declare its ownership of table games via intellectual property.

Put simply, Mann is quoted in the suit as saying “intellectual property” is an umbrella term and to assert this to prevent certain types of games is tantamount to staking the claim of a patent — and that isn’t feasible given the years such entertainment has been around.

Mann found it interesting the bill doesn’t explain the type of intellectual property rights the state would enjoy, Bruce said in his suit. Nor does it define the extent of such rights.

“We’re arguing that you can’t have an intellectual property that is in the public domain,” Bruce said.

“You have to have a patent. You can’t have a patent in that.”

Mann agreed, saying the state would have had to apply for a patent on the games in dispute.

“Here, of course, with table games decades old, perhaps millennia old, there are no currently valid patent rights on known games of chance such as poker, blackjack, roulette and baccarat,” the attorney said in the suit.

“A check of issued patents and published patent applications reveals no patents on games of chance owned by the state of West Virginia.”

Thus, unable to create an intellectual property right in table games, no ownership can be established, and the law is unconstitutional, Bruce maintained.

The “intellectual property” lent itself to a lengthy debate when the bill convulsed the House of Delegates for several days last winter, with Delegate John Pino, D-Fayette, leading the charge against that provision.

“The lottery amendment is clear and unambiguous on its face that the state of West Virginia must operate any lottery by said amendment,” the suit states.

“Nowhere in the West Virginia Constitution does it permit the state to assign the operation of the lottery to a private property and the term ‘operate’ does not allow for such an assignment.”

Rather, throughout the new law, the Legislature assigned the operation of table games to the four tracks, the suit says.

“We hope this lawsuit is successful and serves as a wake-up call to our governor and our legislators,” Family Foundation Chairman Ray Lambert of Beckley said.

“There is a world of business communities out there that would like to have the attention from the state that is being given to the gambling community. As a small business owner, I would love to have the backing of the $10 million given to the gambling industry to promote gambling. Maybe my business would grow like gambling.”

Another benefit of a favorable court decision would be “the saving of thousands of West Virginians and West Virginia families the pain of gambling addiction and the far-reaching effect on the local community that it brings.”

— E-mail:   mannix@register-herald.com