*1
277
reasonably
room more than the time
consid-
State v. 18 P.3d Charleston; County Kanawha Commis (“A Ct.App.2001) guest’s expectation hotel sion; City Huntington; and Ohio privacy unlimited, normally ... but County Commission, Respondents upon peri- ends the termination of the rental od.”); County Against Greenbrier Coalition great In weight view the authorities County Gambling Expansion and Cabell issue, addressing is clear after Against Gambling Expansion, Coalition expired, Abdelhaq check-out time Mi’. all lost Unincorporated Associations, Petition expectation constitutionally protected of his ers Thus,
privacy in the room. hotel hotel man- v. agement right had the to consent to the police entering searching the room. West Commission Consequently, entry into room and sei- Musgrave, Director, John Its police zure of was evidence lawful. Respondents Therefore, majority’s I concur deci- Association, Racing West sion in I am this case. authorized to state Intervenor. joins Maynard that Justice in this me concur- 31540, Nos. 31541 and 31564. ring opinion. Supreme Appeals Court of Virginia. 10, 2003.
Submitted Oct. 17, Oct. 2003. Decided Concurring Opinion of Justice Albright Dec. Davis, recognized exception privacy past.” Wash.App.
2. The to the loss of State v. room, (citations expectation omitted). in a rented after check-out P.2d 1113 case, time, accepted pay- when "the motel has late the instant there was no evidence intro- stays application trigger exception. ment tolerated overtime in the duced to and/or *2 Starcher, C.J., “concurring filed
lamenting” opinion
Virginia Lottery Commission and John Mus- grave.
Rudolph DiTrapano, McGinley, L. Sean P. Han, DiTrapano, Richard Di- S. Barrett & Piero, Charleston, Virgi- for Intervenor West Racing nia Association. Maroney, Maroney,
Thomas P. Thomas P. LC, Curiae, Amicus West Labor Federation, AFL-CIO. Jr., Boyle, Kay
Richard E. Casto & Cha- ney, Curiae, for Amicus Lottery Op- Amusement and Limited Video Association, erators Inc. Hunter,
Roger Curiae, D. for Amicus Building Authority Virginia. School of West Southworth, II, Louis S. Wendel B. Tur- *5 ner, Kelly, & Hey- Jackson and Thomas A. wood, Love, Rice Bowles McDavid Graff & Curiae, for Virginia Amici West Business Roundtable, Virginia In- West Business & Council, dustry Virginia and Hospitali- West Association, ty & Travel Inc. Trivelli, Calwell, Vincent Stuart for Amicus Curiae, Farmer, Farmer, Stephen B. Ar-& Affiliated Construction Cline Trades Foun- Charleston, nold, dation, for Virginia Cities of Charleston and a division of the West Council, Building and Huntington, Counties of and Kana- and Construction Ohio Trades wha, Fitzsimmons, andWV Robert P. Fitz- AFL-CIO. Offices,
simmons Law for Wheeling, Ohio MAYNARD, Justice:
County, WV. These consolidated cases arise from three MeGraw, Jr., General, Attorney Darrell V. petitions seeking writs of mandamus from and Herlihy, Special Charleston William As- regards this Court in to the issuance of reve- General, Durst, Attorney sistant Paula L. Virginia nue bonds the West Economic Stuart, Spilman, B. Michael Thomas & Bat- Development Authority purpose for the of Charleston, tle, Virginia for West Economic financing development economic pro- several Development Authority. jects Virgi- certified the State the West Harless, Larry Cottageville, L. for Rever- Development nia Economic Grant Committee Lewis Cooney, end Jim and John and Green- 29-22-18a(d) pursuant to W.Va.Code County Against Gambling brier Coalition Ex- (2003). pansion County Against and Cabell Coalition City case number Petitioners Gambling Expansion. Charleston, City Huntington, County Ohio MeGraw, Jr., Attorney V. General Darrell County seek a writ of Kanawha manda- Schultz, Deputy and Katherine A. At- Senior compel mus from this Court the West General, Charleston, torney Virgi- for West Development Authority Economic Development nia Economic Commit- Grant pro- issue bonds to finance revenue certified tee. jects they grants. for which received For below, grant the reasons stated we writ this MeGraw, Jr., Attorney Darrell V. General as moulded. Goodwin, Special and Thomas R. Assistant General, II, Attorney Johnny Knisely, M. In ease number Rev. Petitioners Goodwin, Charleston, Cooney & for Goodwin West Jim Lewis and John seek a writ § 29- stitutionality portions prevent either mandamus from Court 22-18a(d)(3) (2002), specifically per- the bonds least as it the issuance of corporations private mandate all tained manner which members to the economically from the persons who benefit Development Economic Virginia Economic grants issued the West Committee”) (“Grant were Grant Committee required Authority pay Development appointed process by which the and the rate, State, to the at a low interest back Grant, approved Committee selected equivalent financial of the economic benefits grant applicants. This determined Court grants.1 petitioners from the received appointment mechanism request that the Court refer this matter also separation Grant violated the Committee taking Special to a Commissioner powers appointments provisions of the below, stated we For the reasons evidence. constitution, state and that deny this writ. wrongfully delegated powers providing In case number Petitioners Green- for the Grant lack of sufficient standards County Against Gambling Ex- brier Coalition in evaluating use the submitted Committee’s County Against pansion and Coalition Cabell grant that due applications. We concluded Gambling Expansion a writ manda- seek infirmities, the Grant these constitutional Virginia Lottery against Com- mus the West approval grant Committee’s the various Musgrave requir- mission Director John applications of no was force and effect. ing the Commission to cease desist the operation gambling of video further Legislature subsequently amended 29-22A-1, seq. pursuant W.Va.Code et special 29-22-18a in a session 29-22B-101, seq., requir- et further conforming purpose the statute complete all ing shutdown of other State thereafter, Shortly directives. Court’s *6 lottery games games as until such time these Development Committee Economic Grant brought compliance applica- are into full with provided was reconstituted legal requirements. For ble the reasons 20, 2003, statute, August and amended below, deny writ. stated we this forty-nine grants Grant certified Committee aggregate amount of one loan I. $225,855,802.00. following day, the The Gov- ernor, order, the Eco- executive directed FACTS (“the Develop- Development Authority nomic background The facts this case are Authority” Authority”) ment or “the to issue ex rel. WV Action found Citizens projects bonds to fund revenue the certified Development Group v. Economic Grant 29-22-18a(d)(l) pursuant to W.Va.Code Committee, 580 213 W.Va. S.E.2d (2003).2 However, Development Authori- (Grant I). (2003) in- Committee That ease ty’s approve a Board refused resolution Virginia appeal an volved the West Citizen authorizing the issuance of the revenue Group Action from an order of the Circuit County citing legal upholding the con- bonds unresolved issues. Court Kanawha authority development respondents than two 1. The in case number are the in no more Authority, Virginia Development Economic pay portion West the West cost of series to for all or Virginia Development Grant Economic constructing, equipping, improving or main- Committee, Hunt- the Cities of Charleston and taining projects under or to refund this section Commission, County ington, the Kanawha authority. the bonds at the discretion of the County the Ohio Commission. Any the first revenue bonds issued on or after two, day July, which are se- two thousand 22—18a(d)(l): According 29— proceeds by state excess revenue cured development economic exceeding a time or shall mature at times authority fifteen, provided in article created years thirty respective from their dates. shall, thirty-one chapter of this code of, redemption principal and the interest and resolution, provisions accordance with the on, premium, any, payable if the bonds shall be fifteen, thirty- chapter this article article and solely special provided in this from the fund code, upon this one of direction of payment. section for the governor, revenue bonds of the economic issue 25, 2003, August On Petitioners the Cities II. Huntington Charleston Counties STANDARD OF REVIEW petition Ohio Kanawha filed (“Cities
writ of mandamus
and Counties Peti-
above,
As noted
the consolidated
tion”)
against
Develop-
this Court
original
cases
us
pro
before
mandamus
Authority praying
ment
that this Court issue
ceedings.
that,
isIt well-settled
ordering
Authority
writ mandamus
writ of
[a]
mandamus will not issue unless
to issue the revenue bonds. Petitioners Rev.
(1)
three
legal
elements
a clear
co-exist —
Cooney
petition
Jim Lewis and John
filed a
right
petitioner
sought;
to the relief
(“Lewis Petition”)
with this
on Sep-
Court
(2)
legal duty
respondent
part
on the
9, 2003, praying
tember
for a writ of manda-
do
thing
petitioner
which the
seeks
against
mus to be directed
the West
compel;
the absence of another
Development Authority
Economic
and others
adequate remedy.
alia,
mandating,
private corpora-
inter
Syllabus Point
State ex
City
rel. Kucera v.
persons
tions and
economically
that benefit
Wheeling, 153 W.Va.
3. At this we would like to the West Business the West of Council; valuable contributions in the several Virginia amici curiae Industry Business & the West case, the Affiliated Construction Trades Association, Inc.; Virginia Hospitality & Travel Foundation, Virginia a division of the West Building Authority Virgi- and the School of West Council, Building and Construction Trades AFL- express appreciation nia. We also our to the CIO; Virginia the West Amusement and Limited parties well-argued presentations for their Association, Inc.; Lottery Operators Video the these cases. Federation, AFL-CIO; Virginia West Labor the revenue, I, of the execu- department tax 3 of Grant Committee Syllabus Point Virginia develop- of tive director the West Court held: persons appointed and six ment office Virginia of Code provisions West Provided, governor: That at least one the 29-22-18a(d)(3) (Supp.2002) that direct from of the citizen must be each member ap- in the Legislature’s involvement the congressional districts.4 three state’s process of pointment members the the (Footnote added.) Virginia Grant Committee Economic West appointments provi- are in violation the find amendment con that this We seven, eight of found in section sion article I Committee forms to our directive Grant Virginia Constitution. the West provide the exec amend the statute 5, Finally, Syllabus held: Point we appointment of the members utive enabling an statute such as West When use of a submitted Grant Committee without 29-22-18a(d)(3) (Supp. Virginia Code presiding list officers of of nominees from 2002) extends discretion to executive Legislature. Accord the two houses expenditure contemplation of an branch Lottery ingly, we hold that the State Excess only public a broad state- funds with statute, §§ 29-22- Fund Revenue W.Va.Code legislative intent and insufficient ment of 22, 18a, Chapter Acts of the as amended legislative guidance for execution of Extraordinary Legislature, Ses Second intent, Legislative Legislature has sion, separation pow does not violate delegated powers legis- wrongfully its five, provision in section one of the ers article six, one of late in violation article section also hold West Constitution. We Virginia Constitution. the West that the Revenue Fund State Excess 29-22-18a, statute, Accordingly, amend we concluded that was Legislature, Special Ses ed Acts Legislature upon incumbent to amend sion, Chapter does violate subject legislation provide seven, appointments provision in article sec appointment of members of executive eight tion Constitution. without use Grant Committee presid- submitted of nominees from the list Also, response finding to this Court’s Legis- ing officers of the two houses Legislature I Grant Committee provide necessary further lature legislative provide stan- failed suitable legislative stan- guidance the form development, achieving dards economic enable Committee to dards will amended 29- reviewing perform statutory task of 22-18a(d) provide: project ap- selecting among the submitted determining whether or not When plications in accord with the announced certify a project, the committee shall take develop- legislative objective of economic following: into consideration the ment. *8 (A) ability project leverage The of the I, at Grant Committee W.Va. funding; of other sources at 894. S.E.2d (B) funding the amount re- Whether holdings response to our in Grant Com- or quested grant application in the is rea- I, mittee the amended W.Va. sonably should be available from commer- 29-22~18a(d) part: provide, Code sources; cial (6) certifying of purpose For the the (C) ability project to or projects will funds from The create receive the jobs, hereby considering the number of proceeds, a es- retain bond committee jobs, type jobs, are comprised governor, the the of whether benefits tablished and of paid, in- designee, secretary type or will the or his or her the the be benefits governor by be the the The version of W.Va.Code 29-22- five names to submitted to former senate, 18a(d)(3), constitutionally president Virginia and was in- of the West three found governor persons appointed provided from list firm this six citizen Court governor by Grant would be three five names to submitted to members tire Committee delegates.” "appointed governor speaker persons from a list of the West house of (F) compensation reasonably parks, including volved and the Industrial construc- roads, sewer, water, anticipated paid persons filling tion of lighting to be new and facilities; jobs compensation currently paid other or the (G) retained; persons jobs Improvements whose would be parks, such state as construction, expansion or extensive reno- (D) project promote will Whether eco- cabins, lodges, vation of conference facili- development region nomic and the restaurants; ties and type development of economic that will be (H) bridges, Railroad switches and track promoted; spurs extension public private or or (E) type capital investments to be necessary existing land to retain busi- proceeds made with bond and the useful businesses; or nesses attract new investments; capital life and (I) facilities, amphi- Recreational such (F) project Whether the best theaters, trails, walking hiking and bike public. interest of the trails, facilities, restrooms, picnic boat docking fishing piers, basketball and (9) may grant No be awarded to an indi- courts, baseball, tennis football and private person entity. vidual or or other fields; soccer may only agency, Grants an be awarded (J) buildings regis- State-owned that are instrumentality political or subdivision of tered on national register historic agency or an state or instrumentali- places; ty political of a subdivision of this state. (K) facilities, including Retail related ser- project private of an individual or vice, parking transportation facilities, may person entity be certified receive appropriate lighting, landscaping and secu- paid pro- loan bond low-interest from rity systems decaying to revitalize down- ceeds. The terms conditions areas; town loan, to, including, but not limited rate (L) promote Other facilities that or en- paid period of interest to be development, hance economic educational repayment, shall be determined opportunities opportunities tourism development authority economic after con- thereby promoting general welfare of sidering all applicable facts and circum- state and residents. stances. This Court now holds the State * * * . statute, Excess Lottery Revenue Fund W.Va. may certify pro- The committee not 29-22-18a, by Chapter Code as amended ject unless the committee finds that Legislature, Acts of the Second project public is in the interest and the Session, Extraordinary sets forth sufficient grant public purpose. for a will be used guide criteria to the West Economic subsection, projects purposes For of this in Development Grant its execu Committee public public purpose and for a interest Legislature’s in enacting tion intent include, but limited to: Having the statute. made these initial deter minations, proceed we now to consider the (A) arenas, fields[,] Sports parks, stadiums challenges new to W.Va.Code 29-22-18a sports sports-related and other facili- (2003). ties; (B) clinics Health and other health facili- 2. Petitions 815&0 3156& ties; *9 the Constitutionality The of (C) infrastructure, Traditional such as wa- Lottery Video Acts facilities, ter and wastewater treatment in The issues raised the and Coun- Cities lines; pumping facilities and transmission Petition, Petition, ties the Coalition and the (D) State-of-the-art telecommunications Racing Intervenor Association Brief concern infrastructure; constitutionality the of lot- the State’s video (E) incubators, development tery According Biotechnical statutes. to W.Va.Code “[tjhere facilities; 29-22-18a(a) special § centers and is continued a 286 tion, it of lottery fund in could be unmindful the solemn within the state fund
revenue treasury obligations imposes. designated is which that station which the state lottery implication slight as the ‘state excess revenue But not on known ” legislature 29-22- vague conjecture to W.Va.Code is to fund.’ Pursuant that the 1, July 18a(b), year beginning fiscal its pronounced for the be have transcended 2003, Lottery was directed Commission the its to be considered powers, and acts $19,000,000.00from ex- the state deposit opposition the constitu- void. The between fund into the economic cess revenue law such that the tion and the should be repay princi- project fund to the development judge strong conviction of a clear and feels interest, redemption premium, if pal, incompatibility with each other. their by any, bonds the revenue issued the on (6 Cranch) 87, 128, Peck, 10 Fletcher v. U.S. Development Authority pay all Economic (1810). 162, duty L.Ed. 175 “A court has 3 constructing, equip- the of part of cost attempt proper uphold- basis to find projects ping, maintaining the improving, and ing validity legislative of a the enactment by Development the Economic certified constitutionality ehallenged[.]” its when § 29-22- Grant Committee. Appalachian ex Power Co. v. Gain- State rel. (2). 18a(d)(l) under Revenues received er, 746-47, 143 149 S.E.2d W.Va. provisions 29-22A-10b the omitted). (1965)(citations Also, “[c]ourts Act, Lottery of the Racetrack Video 10c must use the exercise of their restraint Act, Lottery Limited W.Va. Video the legislative acts to uncon- power to declare be 1903,except §§ 29-22B-101 to amounts Code Gainer, at 149 W.Va. stitutional.” Lottery due Commission under W.Va. the (citation omitted). end, at To this S.E.2d 29-22B-1408(a)(l), placed are to be Code have we held: Lottery State Excess Revenue Fund the 29-22-18a(a). pursuant In to W.Va.Code considering constitutionality In of a the sum, the issued because revenue bonds enactment, legislative courts must exercise Development Authority fund the the restraint, recognition princi- due the grants paid lottery proceeds video ple separation powers govern- the Lot- generated under the Racetrack Video judicial, among legislative and ment Lottery Act, tery Act and Limited Video Every branches. reasonable executive viability grants depends must construction be resorted to constitutionality of two these Acts. constitutionality, courts in order sustain must any
We at the doubt be resolved note outset those reasonable constitutionality Legis constitutionality legis- challenge who in favor of the heavy in question. face a burden.5 Courts are lative enactments lative enactment relating to questions not concerned question, a law void for its whether legislative policy. general powers of is, constitution, repugnancy all limits, legislature, times, within constitutional delicacy, question of much which seldom, ever, plenary. considering In are almost ought if to be decided affirmative, court, constitutionality legisla- of an act of the in a doubtful case. The ture, negation legislative by duty power impelled such a when render beyond unworthy appear must doubt. judgment, would be sta- reasonable Rose, petitioners allege Deputy also Alvin Director of The Coalition re- Virginia Lottery spondents, Lottery Security. tire West Commis- Office Video Ms. Rose Director, Musgrave, are sion and its John Lottery Program Specialist visited states that a lottery games compli- operating the video in full Young. cited Mr. several of the businesses statutory support ance with mandates. four forms Attached to affidavit are checldist claims, petitioners have filed with this their applicable appear which to indicate that the lot- Young D. Court an affidavit of Franklin tery complied were with at the businesses. rules Young personally states he has Mr. wit- reviewing arguments After and the exhibits nessed violations of video statutes at sev- issue, petitioners on this this Court finds that eral business establishments Jackson Ka- requirements for the issuance of a writ of *10 Lottery nawha Counties. The Commission and present. are not mandamus respond its Director with an affidavit of Marion
287 1, Syllabus Appalachian Point ex rel. constitutional and State does not vest the Lot- Gainer, supra. Company tery Power v. Commission uncontrolled discre- tion. enacted, originally As our State constitu- prohibited According tion lotteries. for- to Polan, State ex rel. Mountaineer Park v. 190 VI, 36, legislature mer “[t]he Article Section 279, (footnote W.Va. at 438 311 S.E.2d at power shall have no to authorize lotteries omitted). Syllabus In 1 Point of Mountai- any gift enterprises purpose, shall Park, neer we held: pass prohibit lottery laws the to sale of VI, Virgi- Article section 36 of the West gift enterprise tickets in this On State.” provides exception nia an Constitution to 6, 1984, November the voters of the State prohibition against the lotteries to allow VI, ratified an amendment Article Section operation lottery regulat- the of a which is Legislature 36 to allow the to “authorize ed, controlled, operated by owned and the controlled, regulated, lotteries which are of West pro- State in the manner operated by owned and the State of by general Only vided lottery law. those provided by general the manner operations controlled, which regulated, are law, separately by jointly either State or operated provid- owned and in the manner cooperation inor with one or states[.]” more by general ed laws enacted the West Polan, ex rel. Mountaineer Park v. 190 State Virginia Legislature may properly con- (1993). Shortly
W.Va.
438
308
S.E.2d
exception
ducted
with the
accordance
thereafter,
the
enacted the State
VI,
under
created
article
section 36 of our
Act,
-28,
Lottery
§§
29-22-1 to
Constitution.
was,
purpose
of which
Applying this rule to
facts
before the
implement
state-operat-
establish and
Court,
that,
we concluded
lottery
ed
supervision
under the
of the
legislature
because
has not enacted
lottery
state
commission and the director
general
control,
laws for
regulation,
lottery
of the state
office who shall be
ownership
operation
of electronic vid-
appointed
governor
hold broad
lottery,
legislature
eo
and because the
authority
system
to administer
prescribe adequate
failed to
standards in
provide
manner which will
with a
the state
Lottery
guide
Lottery
Act to
highly
operation.
efficient
power
Commission
the exercise
(1985).
W.Va.Code 29-22-2
upon it with
respect
conferred
electronic
Lottery
In
aas
result of the
lottery,
Lottery
video
Commission was
expansion
lottery opera
Commission’s
of its
authority
without
under
Constitution
lottery
tions
include an electronic video
lottery.
to establish electronic video
game at
thoroughbred
Mountaineer Park’s
285-86,
W.Va.
video causes neously game play clear all credits and play displayed to be on video credits entitling print redemption ticket and, which, lottery respect terminal free player to the cash value of the receive game play player credit each entitles plays cleared from the video termi- symbols choose or more or one numbers nal; and video terminal to ran- cause the (7) following game Does use the numbers; domly symbols or select commonly associated with casino themes player to win Allows additional dice, Roulette, card gambling: baccarat credits, game play or tokens based coins Provided, games having games: That upon game rules which establish ran- symbols appear to roll display with winning dom selection combinations slot symbols drums to simulate classic casino or numbers or both the num-
289
machine, game
games
themes
other card
...
chines
have no relation whatsoever to a
may
and keno
be used.
lottery
addition,
or
petitioners
raffle.”8 In
aver
the 1984
approved
electorate which
(1999).
29-22A-3(y)(l)-(7)
§
W.Va.Code
lottery
of a
only to bring
intended
back state-
2001,
In
Limit
enacted the
run ticket lotteries
when
voted to amend
Act,
Lottery
ed Video
29-
constitution,
not
gam-
“hard-nosed” video
22B-101,
seq.,
purpose
et
of which “was
bling machines.
single
regulat
to establish a
state owned and
lottery
allowing
ed video
thus
the State to
previously
This Court has
de
therefrom,
collect
opera
revenue
control the
“lottery.”
fined the term
In State v. Mat
machines,
tors of the
prolifera
stem the
thews,
97,
(1936),
117
184
W.Va.
S.E. 665
we
gambling
tion
the State.” Club Ass’n v.
Syllabus
stated
Point 1 that
word
“[t]he
Wise,
(4th Cir.2002) (foot
723,
293 F.3d
724
“lottery”
commonly
is
understood to mean ‘a
omitted).7
provides
note
Act
The
that all
for
prizes
scheme
the distribution
by
persons conducting
lottery
limited video
”
Syllabus
chance.’
Later
4
Point of State
premises
possess
lottery
them
must
a video
Hudson,
655,
v.
128 W.Va.
291
Wassick,
Cty.
v.
manufacturer read-only memory ownership programmable the soft- copyrighted erasable retains 29-22A-6(a)(7) granted chips. the state is but the license ware (2001). conclude, the state to and authorizes nontransferable and 29-22B-311 We there- solely fore, program, lottery “regulated, run the software con- that video use, equipment trolled, central own state’s operated owned and the State of video terminals net- provided by unit electronic Virginia in the manner West equipment central unit. worked excep- general scope law” within (c) prohibition against finds Legislature further tion to the lotteries Const., VI, § can control and Art. the state declares W.Va. lottery if the limits video state regulate a Accordingly, we hold that number of video lot- to limited licensure pursuant to video created the Race qualified tery facilities located horse Act, Lotteiy §§ 29- track Video racetracks, dog strict exclu- extends 22A-1, seq., regulated, which is et persons, regulation to all loca- state sive controlled, operated in the man owned tions, practices and associations related provided general laws enacted ner lottery facil- operation of licensed video properly so that it ities, provides comprehensive law en- *15 lawfully may in and be conducted accordance lottery supervision video ac- of forcement exception prohibition against with the to the tivities. VI, set forth article section 36 of lotteries (1994) 29-22A-2(b) (c) §§ and
W.Va.Code
Further,
Virginia
the West
Constitution.
we
(2001).11
and 29-22B-202
lottery
pursuant
hold that the video
created
challenged
Acts indi-
Our review
the
Act,
Lottery
to the Limited Video
W.Va.Code
control,
regulation,
cates that
the State’s
29-22B-101,
seq.,
lottery
§§
et
which is
a
lottery
ownership,
operation
video
and
controlled,
regulated,
operated
owned and
certainly
bring
and are
sufficient
extensive
provided by general
the manner
laws enacted
lottery
scope of the
within the
the video
by
Virginia Legislature
that it
the West
so
exception
authorized lotteries
for
W.Va.
may
properly
lawfully
conducted in
be
VI,
Const.,
example,
§
Art.
36. For
video
exception
prohibi
the
accordance with
the
use at
lottery terminals for
licensed race-
VI,
against
forth in
tion
lotteries set
article
by
Lottery
approved
the
tracks must be
section 36
the West
Constitution.
the
and must conform to
exact
Commission
specifications
lottery
of the video
terminal
3. Petition 315U1
prototype
approved by
the
tested
Com-
29-22A~5(f) (1994).
§
mission. W.Va.Code
Challenges
Projects Certijied
Lottery
directly
through
Commission
by the Grant Committee
vendor,
a
third-party
a
maintains
central site
and John
Petitioners Rev. Jim Lewis
system
monitoring
lottery
the
terminals
challenge
projects
Cooney12
the
certified
immediately
may
lot-
disable the video
Development
the Economic
Grant Committee
tery games and video
terminals.
First,
(2001)
grounds.
29~22A-6(14)(h)
petitioners
on
several
§§
W.Va.Code
(2001).
improperly
aver that
Committee
Applicants
a
Grant
29-22B-305
video
findings
qualifica-
failed to make
to show
several
license must meet
approved.
projects
certified
the Committee were
tions in order
(2001).
public purpose
consistent with
and 29-22B-502
were
29-22A-7
Finally,
Lottery
the standards set forth
the State Excess
Commission
consid-
29-22B-202(3)(A)
Cooney
Virginia.
§
John
as the
11. of the Limit-
State of West
sues
Lottery
replaces "qualified
ed Video
Act
horse
operator
in down-
owner and
of Club Pet located
dog
"qualified
racetracks”
locations.”
County,
Virginia,
Huntington,
town
Cabell
West
which is a small
business devoted
retail-service
According
petitioners’ petition
to the
12.
sale,
regarding
services
to the
care
attendant
mandamus,
Rev. Jim Lewis sues as
writ
pets.
small animals used as domestic
citizen, resident, taxpayer
and voter
Charles-
ton,
County,
Virginia, and
Kanawha
petitioners’
Fund
at
argument
Revenue
statute W.Va.Code merit to the
on this
(F).
29-22-18a(d)(8)(A) through
dis-We
issue.
First,
29-
agree.
nothing
in W.Va.Code
Third,
reject
petitioners’
we
constitu-
22-18a(d) (2003)requires the Grant Commit-
challenges
tional
to W.Va.Code
29-22-18a
findings,
formal
tee to make
written
and this
projects
and to the
certified
the Grant
impose
requirement
Court
did
such
Specifically,
petitioners
Committee.
aver
Second,
Grant
I.
Committee
Grant Com-
grants
economic
amount to violations
proceedings
mittee
full record
made
“smaller,
process
rights
publicly
the due
transcripts
as evidenced
of its meet-
retail,
unsubsidized
service and entertain-
16, 2003,
28,
ings
2003,
July
July
August
on
enterprises.”
petitioners
ment
also as-
15,
2003,
August
public
and its
grants
sert that the
amount to an unconstitu-
hearing
August
on
tran-
These
taking
tional
of these smaller businesses’
scripts
Finally,
were filed with this Court.
property.
appears
It
to this Court that these
according to the affidavit of Brian
Kas-
M.
arguments
part
constitutional
rest at least
tick,
Secretary
of the West
De-
proposition
grants
issue
partment
Tax and
Revenue and
Chair
public purpose,
are not for a
but rather will
Committee,
Member of the Grant
the Com- predominantly
private
aid
commercial inter-
open
proceedings
public
mittee’s
were
However,
rejected
ests.
we heretofore
pursuant
Regis-
and conducted
to the State
same claim in Grant
I.
Committee
ter;
public hearing
notice
was adver-
circulation;
newspapers
Concerning challenges
tised in three
of wide
to the indi
certified,
projects
vidual
public
and oral and
written
comment was
has
reposed broad
Accordingly,
solicited.
find
discretion
Com
we
no merit
Grant
petitioner’s argument
development pro
select economic
on this
mittee
issue.
jects
Legislature’s
*16
that meet with the
de
Second,
petitioners
that
the
assert
objective
development.
clared
of economic
according
provisions
to the
of W.Va.Code
carefully reviewing
pleadings
After
the
29-22-18a(d)(9) (2003),
§
equiv
the financial
Court,
this
exhibits submitted to
are un
we
by
alent of
economic
the
benefit received
projects
by
to
that the
able
conclude
certified
private
from
entities
State monies must be
the
to
into
Grant Committee faded
take
con
interest,
repaid, at a low rate of
to the State.
Legislature’s
sideration the
directives set
petitioners
misread the statute. The
29-22-18a(d)(8)(A)
forth in W.Va.Code
“[g]rants
provides
may
statute
that
be
(F)
(L).
(11)(A)
through
through
only
agency, instrumentality
awarded
to an
political
or
Finally,
petitioners
subdivision of this
or
an
state
to
the
assert
that
agency
instrumentality
political
a
grants
single
or
amount
subdi
the economic
to “the
Further,
anti-woman,
project
vision of
biggest
operation
“[t]he
this state.”
sexist
of the
person
entity
of an
private
140-year history.” Specifically,
individual or
or
in its
State
may
appears
to
that
petitioners’ argument
certified
receive
low-interest
the
paid
proceeds.”
loan
grants
from bond
The exhibits
that
the
will
in
issue
result
the
retail, service,
forty-
filed
this Court indicate that
the
creation
and entertainment
which,
applicants
jobs
petitioners allege,
nine
certified to receive
in
tra
economic
women
development grants
agents,
ditionally
pay
were
instrumen-
have received less
than their
talities,
political
counterparts
systematically
or
subdivisions
the
are
State male
subjected
or
agency
instrumentality
an
of political
disproportionately
employment
to
Finally,
injustices.
subdivision.
to the extent that the
find that
a claim
Because we
such
petitioners challenge
funding
speculative,
petition
basic
mech
that
the
we conclude
the
29-22-18a,
§
provided
anism
in W.Va.Code
ers have failed to state a
action.
cause of
challenge
rejected by
such a
Accordingly,
petition
was
this Court
we find no merit to the
Therefore,
I.
Grant Committee
no
we find
ers’
on
issue.13
averments
support
13. This Court has also reviewed the other con-
find
these
fail
the
that
contentions
to
by
petitioners
by
tentions set forth
the
which
prayed
petitioners.
are
of the writ
the
issuance
above,
specifically addressed
and we likewise
fifteen,
code,
chapter thirty-one of this
sum,
cle
this Court has determined
the
governor,
upon
constitutional infirmi-
direction
issue
Legislature cured the
develop-
by amending
§
bonds
the economic
29-22-18a
revenue
ties W.Va.Code
authority
di-
ment
no more than two series
to conform this Court’s
that statute
pay
portion
all or a
of the cost of
I.
also have
Committee We
rectives Grant
by
constructing,
equipping,
improving or
the video
created
found that
maintaining projects
Limit-
under this section
Lottery Act and the
Video
Racetrack
Act,
which
to refund the bonds at the discretion
serves
ed Video
authority.
issued
funding
of the revenue bonds
source
Authority
Development
by the Economic
agree with the Cities and Coun
We
29-22-18a,
§
is a
pursuant
to W.Va.Code
29-22-18a(d) provides
§
ties
controlled,
regulated,
owned
lottery which is
Develop
mandatory duty
part
operated
provided
manner
Authority bonds in
ment
issue
revenue
within
general laws
specific
terms of that
accord with
code
scope
exception
prohibition
of the
that the word
section. “It is well established
Const.,
VI,
Art.
against
W.Va.
lotteries
‘shall,’
language
in the
in the
absence
rejected
Finally
§
we
all other
have
showing contrary
part
intent on the
statute
legal challenges brought against W.Va.Code
a man
Legislature,
should be afforded
29-22-18a,
projects
the certification of the
datory
Syllabus
Nel
connotation.”
Point
Development
Com-
the Economic
Grant
Bd.,
Employees
son v. W.Va. Pub.
Ins.
mittee,
issuance
the revenue
(1982).
445,
We further note that several of the chal- charge subject top legislators. This lenges legislation to twelve latter are based on However, “[cjourts public policy grounds. newspaper is also cited in a recent local article, questions According every are with relating not concerned to this article.16 Finn, Gazette-Mail, Projects Leg- Money, Sunday 16. Scott Grants Panel Has Pet The Au- Charleston 24, 2003, Leadership’s Big gust islative Home Counties Win at 1A. STARCHER, C.J., concurring brought and the Grant Committee member of project lamenting. in his or money home for at least one addition, county. the counties served her opinions I about this case —a have two House and Rules Commit- the Senate personal opinion. professional opinion, and a chairpersons of several up of the tees —made opinions, two and I will summarize these first committees, judiciary as powerful such and separately. then discuss them President, finance, well as the Senate as House, majority and mi- Speaker of the Professionally, Legisla- I think that nority represent 56% of the State’s leaders — ture, overwhelmingly and re- which has 78% of population but received the economic massive, peatedly state- voted establish ap- grant alleged development funds. Such wide, system government-operated gambling are bound to meet pearances of favoritism significant in West to finance —and chal- public and the court resistance budget sys- from piece public our usually accompany resis- lenges such legal do so our right under tem —has However, not, true or whether these tance. Constitution. actually po- charges types of claims and are and, questions at least as policy litical and question right Personally, I whether it is here, questions. legal not These are framed my government up or wise for set not be addressed issues which should massive, statewide, government- operate this properly court are decided but more use, system operated gambling to—and ultimately Legislature people on elec- system, private- managing thousands day. tion impossible ly-managed that are to su- sites monitor; also thou-
pervise and and to use IV. gambling that are known sands devices addictive; dangerous especially CONCLUSION impossible future then to make it next to cancel, above, generations revamp, or restrict Accordingly, for reasons stated legal obligation pay sought system, mandamus the Cities of because the writ of Huntington gambling reve- the Counties off bonds that based Charleston Kanawha, of Ohio and case nues. granted is moulded.
number sought by the Re- of mandamus The writ Opinion A Professional Cooney in Lewis and John ease verend Jim lawyer justice Professionally, as a is number 31541 denied. job apply legal principles that whose is to sought by writ of mandamus years, I many have over concur with evolved County Against Gam- Greenbrier Coalition majority opinion’s conclusion County bling Co- Expansion and the Cabell “Lottery language of our constitutional Expansion Against Gambling alition case gave au- Amendment” number 31564 denied. massive, thority up operate to set The Clerk this Court directed issue statewide, government-operated gambling forthwith. the mandate this case in the case. system challenged that is instant granted No. as moulded. 31540—Writ legal issue before this Court is *19 No. 31541—Writ poker- denied. in whether voters 1984 had “video type” in conscious minds machines their No. 31564—Writ denied. they approved of state-run lotteries. when Rather, language is the issue whether concurs a Justice STARCHER and files approved enough con- that the voters created opinion. concurring lamenting Legisla- room” to allow stitutional “elbow system. to As the ture create current concurs Justice ALBRIGHT and reserves opinion. majority opinion does. right concurring a demonstrates —it to file Opinion image that mind my memory A Personal comes to is the poorly-dressed of two whom I women recent- repeat: Legislature To has to decided ly saw, they sitting car, in beat-up were massive, statewide, government-operat- have outside a convenience store. gambling, privately-man- in thousands ed aged in locations West to fund —and feverishly scratching The women were good budget bit of the with the State’s they surfaces of their tickets to if see enterprise. gambling revenues from this winning they had a number. When were Regardless position of one’s ultimate on done, they buy to headed some inside more course, beyond it wisdom of this dis- tickets. Virginia, as a pute West result of this This, thought, I financing is how we are Legislature, decision does now and senior our citizens’ centers —on backs of increasingly in the suffer a will future sub- these people’s imagina- low-income wishful tragic injury harm stantial amount of they might miraculously tion that escape individuals, families, businesses, and commu- materially impoverished their existence nities. “hitting big.” system Legisla- Under the created ture, expect twenty we can have between I thought of the Bible verse—“insofar as (closer forty forty) thousand West Vir- these, you you do it to the least of do it to adults, ginia five about thousand West me.” What would think of balancing Jesus any given teenagers time —who —at budget the State’s on the dollars of these problem gamblers. pathological poor women? The effects of thousands of these And when I think about thousands of Virginians’ gambling problems severe —on spread “video slot machines” that are across families, schools, jobs, communities, their state, family I think of a middle-class I directly negatively households —will af- parent know where a wonderful became ad- several fect hundred thousand other West gambling dicted video machine —the members, Virginians: family employers, etc. gambling” “crack in cocaine a few —and Many personal bankruptcies originate will months, lost tens thousands dollars. problems, many gambling as will incidents of (The speed play and ease of of video slots crime, suicide, divorce, and domestic violence. rapidly process accelerates addiction percent Virginians Less than of West five individuals.) vulnerable gambling problems help; will seek those, perhaps half be able to will recover This, thought, building I is how some significantly.1 politician’s home town will be financed —on family’s the back of a crisis of addiction This, summary, rough tragic is hu- suffering. (in numbers) Legislature man cost that our pay, get has decided our will I do not want to be misunderstood. In no widespread, state-operated, benefits “con- way gambling per do I People condemn se. gambling. venience” gamble legally, it should be able to seems to numbers, course, tragic Each of these only put place me—but if we devise a human has face. effective, system proven that contains struc- I safeguards When think about the “instant tural checks and that will mini- system problems ticket” has mize the and harms associ- creat- terrible State, every legalized our community gambling. first ated with ed figures problem gamblers. These come A conservative from a num- treatment well-docu- ber of report problem pathological gam- national and state studies. Louisville mented in December Courier-Journal did a series of 2002 bling Oregon, published Oregon De- brings together compelling some most Services, partment “Gambling of Human titled www.courier-joumal.com. facts. See There seems 2002,” Update Programs: Treatment Evaluation Oregon, to be consensus that the State of http://www.dhs.state.or.us/ad- and can be found at budget public gambling has also hitched summ.pdf. diction/publications/gambling/2002ann *20 revenues, measuring offering is a leader in and me, however, system that Conclusion appeal’s It massive, has Legislature that created — legal disagreed professionally If I with the statewide, gambling pretty convenience by majori- —is conclusion and result reached approach. of a sound opposite exact much the Howev- ty opinion, I would write dissent. noted, er, my on disagreement, as based conducting In West —instead essentially personal mis- my deeply-felt but publicly number of gambling in a limited Legislative givings decisions about the sites, prob- where managed and overseen reviewing. arewe addictive, pathological, compulsive, lems of not a dissent— Accordingly, I have written avoided, can be iden- gambling and excessive but a lament. Legislature tified, has responded to—the regressive fiscally proliferated the most ALBRIGHT, Justice, concurring. devices, dangerous gambling psychologically points. separately to make two I write lottery and video slot machines— instant like First, “lottery” is I not believe that a do decentralized, privately man- in thousands one, by syllabus point fully State described sites, all incen- aged where financial Polan, sylla- ret. Mountaineer Park v. ex revenue, ignore and to to maximize tives are four, Hudson, adopted as point v. bus gambling. pathological problem and in the Court’s syllabus points six and seven Furthermore, Legislature does judice. I believe that opinion the case sub gamblers to have the best chance in- question allow for decision even the critical success, prolong “lot- proceeding or at least to their enter was whether state stant Instead, by tery,” the state’s constitu- they money. as authorized lose their tainment tion, electronically in the could be conducted high against gam odds Legislature sets pok- myriad ways provided so-called video Then, (much higher Vegas). than Las blers In view of the determination er machines. revenues, above gambling well the massive Legislature that such electronic de- business, doing are treated as a costs of qualify as a under the constitu- vices government, for our which be “cash cow” restraint, duty tion and our to exercise due upon revenues. The dependent these comes indulge every reasonable construction issuing Legislature is even bonds that must any in favor of the reasonable doubt resolve money our paid taken State’s from from enactment, I constitutionality legislative aof now, they become decades when children from necessary it was for this Court believe gam Talk about credit-card blers.2 Moreover, uphold the video law. government! development rapid of electronic commerce me, is a dismal situation. For To formerly on many things conducted reasons, personally question I the wis- electronically paper accomplished these are now Legislature’s course that the has action to our dom of the commended the favorable consideration. chosen. system against job-related question gambling benefits. I recognize that the these I that the created, money Legislature system appreciation has and the this and whether there will everbe a fair (both gamblers problem massive, statewide, collects from weighing true costs many provide jobs people. non-problem), for Rather, gambling. I foresee that convenience case, fact, made much of the briefs This gambling dependence will for state revenues Money coming out of is not rocket science. leaders, who to be ever fearful of blind our seem obviously going gamblers' pockets is into other fees, raising by general taxation and revenues directly indirectly pockets, peoples’ —where recognizing evaluating the human and from go? else would system they of the have created to social cost recognize Legis- of the I also that the members course, money gamblers. And of obtain from strongly goal creat- motivated lature are portion that are also of the massive revenues ing supporting jobs jobs people who — gambling going pockets private gambling operations, work connection manage system Legisla- operators who government, jobs people who work inevitably up will return to influence ture has set too. ways frankly political process I —in I think that the human and social But don't would rather not think about. system weighed have costs of the current been
Second, this Court has declined to while lottery constitutionally imper-
find the video
missible, that should not be seen as an en- by this
dorsement author the manner system permitted
which the has been de-
velop specter statewide. The of video coffee outlets, poker
houses and other video some- comer, on every
times it seems street
widespread unseemly advertising and rather availability video demeans people. my state and It our earnest
hope responsible that the authorities for the system rigorously
administration of this will our exposure people
restrain the and our appearance
state to the has the state huge gambling
become one hall.
588 S.E.2d
STATE of West Plaintiff
Below, Appellee,
v. WHALEN,
Dale Scott Defendant
Below, Appellant.
No. 31244.
Supreme Appeals Court of Virginia. Sept.
Submitted 2003.
Decided Nov.