Jerry Kopel

Did you think the fight over Lottery Powerball was over? Guess again. The Powerball trial will begin at 9 a.m. Tuesday, Oct. 29 and run for three days in Pueblo's District Court. Plaintiff is State Sen. Doug Lamborn of Colorado Springs. Defendant is the Colorado Lottery Commission.

Powerball is a form of lotto played on a national scale by about half the states with odds of 80 million to one on winning the big prize. It's run from a headquarters in Des Moines, Iowa, not Pueblo, Colorado. In deciding Powerball issues, each state has one vote and a second tier of votes based on percentage of sales for each state. That makes Colorado, with 4,300,000 population a minor force in decision making.

A court battle last summer centered on whether plaintiff could get an "injunction" to stop Powerball games from beginning, claiming Powerball violated the state constitution regarding Colorado supervised lottery games. An injunction requires more proof than does deciding a case on its merits. The Pueblo judge in the one day hearing didn't grant the injunction against starting Powerball, but he also didn't dismiss the lawsuit.

Attorney General Ken Salazar is required to defend the law authorizing Powerball regardless of his own beliefs. It became law by way of a referendum to voters in November of 2000, approved by a 52,000 vote majority out of 1,612,000 votes cast.

In 2000, Salazar had Deputy Attorney General Christine Arguello submit the following to the legislature to put in the publication that set forth arguments to voters for and against passing the referendum:

"Multistate lotteries cannot be made legal in Colorado by the method proposed in this referendum. Article 18, Section 2 of the Colorado constitution prohibits the legislature from authorizing lotteries.

"The Colorado Supreme Court has held that the legislature cannot circumvent this constitutional provision by passing legislation and then referring such legislation to the people. To make lotteries legal in Colorado, a constitutional amendment must be passed which amends Article 18, Section 2 of the Colorado constitution."

In plain English, Salazar was referring to a sweepstakes bill the legislature placed on the ballot in the 1970's. It passed, but the state Supreme Court threw it out, because the state constitution forbade lotteries. The legislature than placed a constitutional amendment on the ballot to allow a Colorado supervised lottery. The voters approved it.

Salazar's position was Powerball isn't a Colorado supervised lottery, so it needed to be in the constitution, and not as a statute submitted to voters. Reason it was in a bill was because proponents didn't have 2/3rds vote in the House and Senate to make it a constitutional amendment, and they didn't have votes to overcome a veto by Gov. Bill Owens if they made Powerball a regular bill.

In contrast, lotto was added to the lottery by a bill, because lotto IS part of the Colorado supervised lottery run by the Lottery Commission headquartered in Pueblo, Colorado, not Des Moines, Iowa.

* * *

Smile, you're on Candid Camera. Someone pulled a fast one on me and the Denver Post. A Feb.13th Post editorial urged extending the date for repeal of the lottery from 2009 to 2024, claiming the change was needed to allow Great Outdoors Colorado (GOCO) to borrow $180 million through sale of bonds. Financing source for GOCO is the lottery.

The Post stated "...under current law, the lottery will sunset in 2009. All state agencies eventually face a sunset review, so the legislature can decide whether to continue the programs...."

Well, the lottery doesn't face a "sunset" review under current law. Sunset is a published review done by the Dept. of Regulatory Agencies to determine if the lottery should continue past its repeal date. From 1981 through 2000 the lottery DID face sunset review, but in 2000 the legislature passed a bill wiping out the lottery review. No media covering the legislature took note.

Obviously, proponents seeking Post editorial support for HB 1250 to extend the date for lottery repeal didn't point out lack of any future sunset review, and they didn't mention it to the House Finance Committee on Feb. 13th until I testified that adding 15 more years to a lottery Sunset review was illegal.

My main suggestion to Finance Committee? Strike the lottery repeal date instead of moving it to 2024. No other state statute has a repeal date that far ahead.

(Jerry Kopel served 22 years in the Colorado legislature.)

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