I'D WAGER IT'S TIME FOR A CHANGE: RECONSIDERING NEW YORK STATE'S CONSTITUTIONAL PROHIBITION AGAINST GAMBLING.

Author:Ma, Di
 
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  1. INTRODUCTION

    1. Constitutional Prohibitions Against Gambling Generally

      The Bill of Rights of the New York State Constitution prohibits gambling except in limited circumstances. (1) Article I, section 9, states:

      [N]o lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling, except lotteries operated by the state and the sale of lottery tickets in connection therewith as may be authorized and prescribed by the legislature, the net proceeds of which shall be applied exclusively to or in aid or support of education in this state as the legislature may prescribe, except pari-mutuel betting on horse races as may be prescribed by the legislature and from which the state shall derive a reasonable revenue for the support of government, and except casino gambling at no more than seven facilities as authorized and prescribed by the legislature shall hereafter be authorized or allowed within this state; and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section. (2) This section was added in 1894 and was subsequently amended multiple times--most recently in 2013. (3) The Constitution does not define the term "gambling," however. (4) The New York State Penal Law describes criminal gambling as follows:

      A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome. (5) In addition, the New York General Obligations Law voids losses or authorizes the recovery of losses due to unlawful gambling activities. (6) For example, section 5-401 states: "All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful." (7) However, there is no body of law or regulation that specifically defines gambling.

      The Constitution authorizes the legislature to pass appropriate laws to prevent offenses against prohibited types of gambling. (8) The New York State Penal Law and General Obligations Law provisions above are examples of the legislature exercising its constitutional authority to prevent unlawful gambling activities. The legislature has also passed gambling laws that clarify what is not prohibited gambling. (9) State courts have repeatedly held that the legislature has latitude in determining what activities do and do not constitute prohibited gaming within the meaning of the Constitution. (10)

      History suggests that the general prohibition against gambling is rooted in morality. The New York State Court of Appeals has held that Article I, section 9, was "adopted with a view toward protecting the family man of meager resources from his own imprudence at the gaming tables." (11) While the state legislature can enact laws in furtherance of the constitutional prohibition against gambling, it may not expand gambling without a full amendment to New York's Constitution. (12)

    2. Constitutional Amendments

      This article argues that changes to the Article I, section 9, prohibitions on gambling are necessary in light of today's gambling environment. Amendments to New York's Constitution are achieved in two different ways. (13) The first method is via amendment by the legislature, subject to voter approval. (14) The second method is through a convention, called either by proposal of the legislature or through an automatic referendum every twenty years, subject to voter approval. (15) The main difference between constitutional revision through legislative amendment and amendment via convention is that a constitutional convention "allows for much wider modifications of the Constitution." (16) Conventions have generally been unpopular, though recent Albany scandals involving state legislators have prompted renewed interest in political reform through a constitutional convention. (17) Legislators are unlikely to call for a convention, though, in fear that changes to New York's Constitution may take away their powers. (18)

      An automatic vote on whether New York State residents want to hold an optional twenty-year constitutional convention is scheduled for November 7, 2017. (19) If the people vote "yes," an Election Day 2018 vote would be scheduled to decide the delegates for the convention. (20) The actual convention would not happen until 2019. (21) Triggering the process is difficult, as many organizations are opposed to re-writing the Constitution. (22) Additionally, all amendments to the Constitution related to gambling face an additional hurdle, as special interest groups in the casino and gaming industry do not "want to see additional expansion to compete with [the gambling that already] exists." (23)

      Despite these hurdles, the authors seek to explain why New York must endeavor to alter Article I, section 9, in the near future. Part II of this article makes note of the wide array of forms of gambling currently authorized by the Constitution in New York State. Part III explores special instances of gambling, which currently exist in a gray area of legality, but continue to operate unimpeded in New York. Part IV identifies and discusses new developments in gambling in recent years, and identifies inadequacies in the Article I, section 9, prohibition in accounting for these changes. Part V concludes by urging lawmakers to abandon the Article I, section 9, failed prohibition--either at the constitutional convention or via standard amendment--to bring New York's gambling laws in line with the reality of modern society. The authors opine that the ideal path for gambling regulation in New York is a full repeal of the gambling prohibition contained in Article I, section 9, as well as the promulgation of rational regulations that will serve to ensure the integrity of widely expanded gambling operations in New York State.

  2. PERMISSIBLE TYPES OF GAMBLING IN NEW YORK

    Presently, the New York State Gaming Commission only identifies lottery, horse racing, gaming (including Native American, commercial, and video lottery), and religious, charitable, and other non-profit organization-run gaming, as authorized forms of gambling. (24)

    1. Native American Casinos

      Native American gaming exists in New York, and indeed, in all jurisdictions, by virtue of the federal Indian Gaming Regulatory Act ("IGRA"). (25) The statute plainly states that "Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by federal law and is conducted within a state which does not, as a matter of criminal law and public policy, prohibit such gaming activity." (26) New York currently features six Native American casinos--Akwesasne Mohawk Casino, Seneca Niagara Casino, Seneca Allegany Casino, Seneca Buffalo Casino, Turning Stone Casino, and Yellow Brick Road Casino--operated by the St. Regis Mohawks, Seneca Nation of Indians, and the Oneida Indian Nation of New York, respectively. (27) Each Native American nation has its own compact with New York State, which dictates the regulation of the gaming on tribal lands. (28)

      All other forms of gambling currently legal in New York State owe their existence to amendments to the New York State Constitution. (29) Unlike Native American casinos, these types of permissible gambling fall within the sole jurisdiction of the New York State Gaming Commission. (30)

    2. Horse Racing

      Horse racing has the longest tenure of any form of legal gambling in New York State, having been part of the state Constitution since its amendment in 1939. (31) The Constitution allows "pari-mutuel betting on horse races as may be prescribed by the legislature and from which the state shall derive a reasonable revenue for the support of government." (32) Currently, "[t]here are four Thoroughbred tracks and seven Standardbred... tracks" where New Yorkers can watch and wager on live racing. (33)

    3. Charitable Gaming

      Non-profit, charitable, and religious organizations first received their golden ticket into the gambling world in 1957, when an amendment was passed that allowed these entities to run bingo games. (34) In 1975, the Constitution was further amended to allow these organizations to run a wider range of games of chance. (35) The Constitution now states:

      [A]ny city, town or village within the state may by an approving vote of the majority of the qualified electors in such municipality voting on a proposition therefor submitted at a general or special election authorize, subject to state legislative supervision and control, the conduct of one or both of the following categories of games of chance commonly known as: (a) bingo or lotto, in which prizes are awarded on the basis of designated numbers or symbols on a card conforming to numbers or symbols selected at random; (b) games in which prizes are awarded on the basis of a winning number or numbers, color or colors, or symbol or symbols determined by chance from among those previously selected or played, whether determined as the result of the spinning of a wheel, a drawing or otherwise by chance. If authorized, such games shall be subject to the following restrictions, among others which may be prescribed by the legislature: (1) only bona fide religious, charitable or non-profit organizations of veterans, volunteer firefighter and similar non-profit organizations shall be permitted to conduct such games; (2) the entire net proceeds of any game shall be exclusively devoted to the lawful purposes of such organizations; (3) no person except a bona fide member of any such organization shall participate in the management or operation of such game; and (4) no person shall receive any remuneration for participating in the management or operation of any such game. Unless otherwise provided by law, no single prize...

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