OpenCDA

February 24, 2015

One Last Chance for a Proportional Response …

Filed under: Probable Cause — Tags: — Bill @ 12:06 pm

gambling-games1The Senate State Affairs Committee passed S 1011 last week to repeal Idaho Code § 54-2512A which was passed in 2013 to allow pari-mutuel betting on historic horse races.  It seems likely that the House State Affairs Committee will hold some sort of hearing on the bill, possibly sometime this week.

OpenCdA watched both the Senate hearing and the floor debate on S 1011, and while we heard some passing references to  concerns we have, we did not hear some specific questions we thought should have been asked and answered.  We hope the House will ask them.  For example:

 

1. How does Idaho Code or applicable case law define “casino gambling” and “slot machines,” and what constitutes a “simulation of casino gambling?”  Which of Idaho’s district courts has delivered a decision that the historic horse racing devices in use at Les Bois, Greyhound, and Double Down and Sandy Down violate Idaho law and the Idaho Constitution Article III, Section 20(2)?

Deputy Attorney General Brian Kane stood for questions in front of the Committee, but we did not hear one Senator ask those questions.  We think the answers are germane.

To better understand the importance of defining the terms and applying the definitions precisely, see MDS Investments LLC v. State.  See also the Idaho Attorney General’s Opinion dated May 1, 2007, for a further discussion.

2.  If S 1011 is passed by the House and enacted into law, is it an ex post facto law prohibited by article I, section 9, clause 3 of the United States Constitution and by article I, section 16 of the Idaho Constitution?

“The ex post facto clauses prevent the enactment of any statute which punishes as a crime an act previously committed, which was innocent when done;  which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed․” See Wheeler v. Idaho Dept. of Health and Welfare, 147 Idaho 257.

Some of Idaho’s legislators claimed they were duped or deceived in 2013.  Now they seek to punish the proponents of the 2013 law by passing a new law to repeal the old one and intentionally inflict financial damage on those proponents.   Imposing a criminal penalty is the function of the courts, but only after the accused have been given an opportunity to defend themselves in the courts.

Again, DAG Brian Kane stood for questions at the State Affairs Committee hearing, but we didn’t hear this one asked either.

3.  Once the Legislature has passed a law and it has taken effect, does the Legislature have the authority to arbitrarily decide the law violates the Idaho Constitution and then repeal the law based on that arbitrary decision?

The Idaho Supreme Court has held the Legislature has the authority to veto administrative rules promulgated by the Executive Branch applied to laws passed by the Legislature (see Mead v. Arnell, 791 P.2d 410 (Idaho 1990)), but we can find no authority granting the Legislature the authority to declare unconstitutional a statute it has already passed and which has taken effect.

We certainly agree that the Legislature can and should properly consider the constitutionality of proposed legislation.  If the Legislature believes a proposed law to be unconstitutional, it should not pass it until being convinced it is constitutional.   That’s important, because once that legislation has been passed and enacted, it is presumed constitutional.  The public and the authority of law rely on that presumption.  The question of the constitutionality of an existing law is better decided in the courts, the judicial branch, than by the legislators who passed the law.

Again, DAG Brian Kane stood for questions at the State Affairs Committee hearing, but we didn’t hear this fundamental question asked either.

4.  In 2013 who allegedly duped or deceived the Legislature into passing what became Idaho Code § 54-2512A?

OpenCdA seriously questions whether legislators in 2013 were in fact deceived or duped as they allege.  We think it’s more likely they may have been uninformed or unwilling to discern and understand critical facts.  Are they prepared to allege the Idaho State Police Director, the Idaho Horse Racing Commissioners, or the IHRC’s representative Frank Lamb committed some offense by failing to perform their regulatory duties?  Are legislators prepared to allege the Coeur d’Alene Tribe was involved in the alleged deception because the Tribe went along with the 2013 legislation?

It appears to OpenCdA that in 2013, the Idaho Legislature  failed to diligently understand the breadth and scope of the law it was passing.  It failed to recognize the need for and creation of an adequate regulatory structure.  A lack of diligence by the Legislature does not warrant alleging intentional deception was committed by those who supported the 2013 legislation and then applied the broad law with a different but defensible interpretation.

To illustrate that point, we cite the “bait-and-switch” assertion that the machines shown to the Legislature were not the machines installed and currently in use, machines that allegedly violate Idaho law.  To prevent that specific assertion,  the legislators should have insisted that the IDAPA rules include a process requiring that the machines shown be the ones installed, and that the Idaho Horse Racing Commission be required to review and approve (or reject) any variations from what was shown.   Thereafter would have followed a very lengthy, very detailed, and highly technical list of standards to be met and tests to be done before IHRC could approve or reject the substitute devices.

But let’s suppose there was intentional deception, that there were knowing and intentional violations of Idaho Code.  Wouldn’t making that determination hinge in part on the facts of the investigation the Post Falls Police Department has been asked to conduct?  Then it seems to us that Idaho’s judicial branch, not its legislative branch, is the proper venue to make that determination and impose penalties if guilt is proven beyond a reasonable doubt in court.

Idaho’s legislators supporting the repeal of Idaho Code § 54-2512A frequently cited the Idaho Constitution Article III, Section 20(2).  We think they should have read further.

Article III, Section 20(3) goes on to say “The legislature shall provide by law penalties for violations of this section.”  All we’ve heard from supporters of S 1011 indicates they believe Section 20(2) was violated.  But Section 20(3) doesn’t say the legislature shall determine if an offense was committed and impose the penalties; it says the legislature shall provide what any penalties for violations shall be.  The Legislature gets to define the penalties that may be imposed by a court of law but only after a court of law has determined that there was in fact and in law a violation.

5.  Does offering unsworn statements in front of elected state legislators satisfy the procedural due process of law envisioned by the authors of Idaho’s Constitution (as well as the US Constitution)? 

The Legislature might want to consider the Idaho Constitution Article I, Section 13 which includes the guarantee that “No person shall be … deprived of life, liberty or property without due process of law.”  Repealing a law because the legislators have formed an opinion the law may have been violated could financially devastate people who invested after relying on the passage of the 2013 law by the very body now seeking to repeal it to punish the 2013 proponents.   And that, it seems to OpenCdA, runs perilously close to being the ex post facto law we mentioned in our second question.

Conclusion

The actions of the Idaho Legislature to try and repeal Idaho Code § 54-2512A are reckless and irresponsible.

If Idaho Code § 54-2512A was a bad law passed by the Legislature, the better solution is to fix the law if it can be fixed.  Repealing it usurps the authority of the Executive and Judicial branches of Idaho government.  It tells Idaho’s citizens that the Idaho Legislature believes it is qualified and empowered to not only write the laws but then to decide if they have been violated.  It further suggests the Legislature is able to make an arbitrary determination about who committed the violations,  then decide summarily without due process of law that the violators are guilty.  Finally, it allows legislators become the executioners to impose and inflict an economic death sentence on an industry the Legislature had embraced in 2013.

OpenCdA believes the Idaho Legislature is perilously close to overstepping its constitutional authority.  It needs to reconsider if repealing Idaho Code § 54-2512A is the best way to correct perceived deficiencies in the law.

4 Comments

  1. I would suggest that your 5 points concisely describe the POLITICAL process in Idaho where most legislators are on a ‘need-to-know’ basis. Sadly most legislators view their jobs as filling seats and voting when and how they are told to vote. In order to perform their duties, these legislators don’t ‘need-to-know’ anything more than what they are told by ‘leadership’. The winner of this horse race appears to have been decided long before the bell rang and the starting gates opened. Just do the math. Idaho’s five tribes contribute 1.3 billion dollars to the economy per year. “Historical horse racing”? Lets just say, not so much.

    Comment by Tributary — February 25, 2015 @ 6:40 am

  2. Tributary,

    To give some credit where it belongs, Senator Bob Nonini from Post Falls touched on the Coeur d’Alene Tribe’s somewhat contradictory actions in the floor debate:

    (02:01:02) “You know, the group that brought the bill before this body is the same group that have been instigating the police investigation. And I find it ironic that they would bring a repeal bill before the police investigation is even complete. Wouldn’t we want to know what the police investigation has to say before we repeal the bill that this legislature passed a couple of years ago? In my conversations with the Chief of Police in Post Falls, my legislative district, and I’ll remind the group that I have the only legislative district in the state that has a historical horse racing machine facility, the Greyhound Park and Event Center, and also an Indian casino that fall in one legislative district. It’s an interesting and frustrating issue for me as I worked with both sides for a number of months to try to come to a resolve on this issue. And one side says, ‘No, we want it all. We want ‘em gone, and they instigated the investigation. And I think we should wait on that.

    There was another curious fact I referred to in my OpenCdA posts on February 6 and February 16: In his statement to the Senate State Affairs Committee on February 9, Coeur d’Alene Tribe Legislative Director Helo Hancock stated that in 2013, the Tribe went along with the proposed legislation. To me, the significance of Hancock’s admission is that back then, the Coeur d’Alene Casino had been operating near Worley for around 10 years. Presumably the Tribe’s whiz-bang gaming people would have been more astute than our Legislature about gambling and gaming devices when the law was proposed and passed in 2013, and even they didn’t ask the right questions either about rules and regulations to ensure the legislators’ subsequent “We was duped!” assertions would not be raised. That suggests to me that the Tribe’s own gaming regulation and integrity may need much closer and more frequent scrutiny by people who do know not only how gaming devices can be made compliant but also how they can be manipulated to deliver a desired result.

    Comment by Bill — February 25, 2015 @ 7:00 am

  3. Yes. Senator Nonini was not a ‘sheep’. That is why I stated “most”.

    Comment by Tributary — February 25, 2015 @ 9:27 am

  4. Is there a threat of losing losing Citylink in this area? How much influence do the Tribes have in Boise? Pulling Julyamsh 2015 in this area appears to be premature. Also, I appreciate the point that was made in this post that the Legislature does not have the standing to decide if there was an intentional “bait and switch” after being duped in the first place. I hope the House gets this right and I don’t even gamble. I just do not want to pay for the lawsuits that will ensue if they don’t.

    Comment by Stebbijo — February 25, 2015 @ 9:22 pm

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