For the reasons we offered in our posts on February 6, then on February 16, and finally on February 24, 2015,  OpenCdA applauds Governor Otter’s veto of S 1011 which, if enacted, would have repealed Idaho Code § 54-2512A.

Not surprisingly since it came out on the losing end so far, the Coeur d’Alene Tribe is screaming the loudest about the Governor’s veto.  (Addendum on 04-11-2015:  For a discussion of the timing of gubernatorial vetoes, see Cenarrusa v. Andrus, 99 Idaho 404, 582 P.2d 1082 (1978) .)

The Coeur d’Alene Tribe had first sought a criminal investigation to determine if the historic horse racing/instant racing machines at Greyhound Park and Event Center in Post Falls violated the state gaming laws.  OpenCdA had no objection to that request, though we did wonder , “Why now?” rather than in 2013 when the Tribe voiced no objection to I.C. 54-2512A.

Then, after the Post Falls Police Department (PFPD) had initiated the requested criminal investigation and it became clearer that the PFPD would conduct a thorough and professional investigation, the Tribe may have had reservations the investigation’s outcome might not go the Tribe’s way.  The Tribe may have feared that in a court of law (and particularly in a criminal prosecution), its claims that the historic horse racing/instant racing devices were slot machines or prohibited simulations of casino gaming devices might not be supported by admissible evidence.  OpenCdA suspects the Tribe’s rationale with S1011 was that by getting the 2013 law (I.C. 54-2512A) repealed, the matter would be moot and the PFPD investigation would be abandoned.   (We suspect that our Kootenai County Prosecutor would have been happy with that outcome as well.)  So we think the Coeur d’Alene Tribe decided to hedge its bet by getting S1011 introduced specifically for the purpose of using the Idaho Legislature to preserve the various tribes’ monopoly on legalized gambling in Idaho.

But we don’t think preserving its economic dominance over gambling was the Tribe’s only motivation for promoting S1011.  We think the Coeur d’Alene Tribe’s secondary motivation might have been to avoid the Legislature’s revisiting  the need for an effective state gaming commission.   An effective and potent state gaming commission might decide to reexamine and renegotiate the terms of the gaming compact with the Tribe.

In our opinion, an effective state gaming commission or gaming board should have been put in place before the State and the Tribes entered into the gaming compacts in the early 1990s.  OpenCdA strongly supports the concept of an effective Idaho State Gaming Board properly staffed and funded, though we also think that H0279 promoted this session by Representative Loertscher was a feeble effort amounting to putting a small self-adhesive bandage on a sucking chest wound to hide the real issue rather than address it.

This morning’s Coeur d’Alene Press reports the Coeur d’Alene Tribe is asserting that the Governor’s veto violated the Idaho Constitution and therefore S1011 is law.  Others have made a similar assertion.  The issue seems to be one of timing.  Did the Governor timely return his veto to the Senate?  We think that Idaho Code § 67-504 may somehow figure into the outcome.

OpenCdA doesn’t know the legal answer; that will likely have to be decided by the state’s courts.

In his veto announcement, Governor Otter recommended the Legislature join with him to appoint a special outside investigator to assess the legality of machines used at every facility that now conducts historical racing.  OpenCdA hopes the Governor and Legislature will consider these observations:

• If the investigation is to be limited to the gaming machines,  experts will have to be selected from fewer than a handful of independent testing laboratories. They will not offer an opinion about the legality of the machines in Idaho; they will provide expert explanations and evidence-supported opinions on function, operation, and the mathematical probabilities resulting from the machine’s operation. It will be up to our erstwhile county prosecutors to determine if those functions, operations, and probabilities are admissible evidence proving whether the machines violate Idaho’s gambling laws or not.
• This recommendation crosses county boundaries.  It seems to OpenCdA that if the investigation is to be limited to state government, the logical mechanism of investigation would be to empower and fund the Idaho Attorney General to conduct a statewide grand jury investigation. A single investigator, whoever it is, will need to be completely independent, competent, and probably most important, have extensive subpoena authority. The Governor has the authority to direct the AG to step in and conduct the investigation, however the state is going to have to agree to fund it regardless of how long it takes and where it leads.
• The Indian tribes  are sovereign nations.  Any investigator, whether an individual or an agency, used by the State of Idaho is going to have to be cognizant of the implication of federal laws not limited to the Indian Gaming Regulatory Act (IGRA) but also including the Foreign Corrupt Practices Act (FCPA) and the Racketeer Influence Corrupt Organization (RICO) Act.

In our earlier posts cited in the opening paragraph of this one, OpenCdA consistently suggested proceeding slowly and methodically to resolve this immediate issue but also to lay the foundation for future decisions on gambling in Idaho.   Foundational planning and comprehensive regulation wasn’t done in the early 1990s and it wasn’t done in 2013.  It needs to be done now.