News-Record.com

I had a hunch about the lottery case when I found out which judges made up the panel hearing it last May: two Democrats and a Republican.

Sure enough, today they produced a 2-1 decision in favor of the lottery.

OK, the judiciary is nominally nonpartisan. I support that. But everyone knows who's a D, who's an R. Although plenty of Democrats strenuously oppose the lottery, this baby belongs squarely to Democratic Gov. Mike Easley, Lt. Gov. (and Democratic gubernatorial candidate) Beverly Perdue and Democratic legislative leaders. It would have been a huge embarrassment for them if the court nailed them for a procedural violation.

That was the substance of this case, by the way -- whether the legislature violated a constitutional requirement in how it passed the lottery act in 2005.

There's no question it violated the rules of fair play. Legislative leaders, pushed by the governor, wanted to pass a lottery in the worst way -- and they did. It took a hurry-up vote in the Senate with a couple of opponents absent to gain a tie, which Perdue then broke in favor of the lottery.

Foes cried foul. The lottery was a revenue bill -- that was its stated purpose -- and revenue bills are supposed to be voted on three times on three separate days.

The reason is to protect taxpayers from don't-blink-or-you'll-miss-it legislative fast-track shaft jobs. Well, this time somebody blinked.

No one pretends what happened was ethical. This was 2005, the bad old days before legislative leaders cared about ethics (in other words, before they started getting caught and sent to prison). But was it unconstitutional?

Wake County Superior Court Judge Henry Hight said no in March 2006. The case bounced up to the Court of Appeals, which heard it last May and took an unusually long time to issue its decision.

In fairness, I will state unequivocally my belief that Judge James Wynn, who wrote this opinion, and Judge Bob Hunter, who joined him -- both Democrats -- are fair and honorable.

Same for Judge Ann Marie Calabria, the Republican who wrote the dissenting opinion.

I just think, for whatever reason, in some cases judges bend to a gravitational pull toward the prevailing position of their political party. Not in many cases, but in a few where clear partisan territory has been staked out. This looks like one of those cases.

That makes it easier for Wynn and Hunter to see lottery revenue as something other than a tax and for Calabria to seize the opposing view.

I side with Calabria, but I'm far from unbiased. I abhor the lottery and hope to see it wiped off the map of North Carolina for the cultural rot it represents.

It's notable on that point that, even if her judicial conclusion prevailed, Calabria would not order the lottery out of existence. Instead, she'd give the legislature 20 days to save it by reconvening and voting on a lottery bill the right way.

Of course, given that it couldn't pass the right way the first time, and the fact that its performance has fallen short of the lofty predictions of Gov. Easley and other boosters, it might not be revived. But that's strictly an academic argument ... for now.

In his majority opinion, Wynn determined that a lottery isn't a tax because it isn't imposed on anyone and that a player who chooses to purchase a ticket "receives the exclusive benefit of the right to a chance of winning the lottery prizes, a benefit that is not conferred upon the general population of the State through the disbursement of state funds."

In polite judicial language, Calabria ridiculed that notion: "Virtually every purchase is voluntary and the majority's analysis would convert nearly every assessment, including a general sales tax, into a 'fee,' " she wrote.

I agree. One could as easily argue that, if you purchase a car, you receive the "exclusive benefit" of the right to drive that car. You also have to pay a lot of taxes on it, and those taxes confer a benefit on the people of the state.

The lottery "tax" isn't piddling. If a little more than 50 cents on every dollar is returned to the public in prizes, the rest amounts to the effective tax.

Procedurally, the significance of today's split decision is that it gives plaintiffs an automatic right of appeal to the N.C. Supreme Court ... where the (unofficial) partisan math is reversed. Four justices are Republicans and three are Democrats. At least at present. One seat is at stake in this year's election, that of Bob Edmunds from Greensboro. He's a Republican, although one who enjoys bipartisan support. I don't know when an appeal would be heard or decided. But lottery proponents should not be too confident that today's ruling will stand.

Addendum: Chris Fitzsimon of NC Policy Watch slams the lottery from the progressive perspective.