What did Idaho's AG say about a 2004 ballot initiative to authorize 'video lottery terminals' at horse-racing facilities in counties with population under 100,000?
Plain-English summary
This is the AG's review (under Idaho Code § 34-1809) of a ballot initiative filed December 16, 2003, by Brent Baldwin titled the "Idaho State Video Lottery Terminal Law." The proposal would have authorized "video lottery terminals" at "eligible facilities," defined as a facility operated by a person licensed by the Idaho State Racing Commission to conduct live horse race meetings for at least three of the last five years prior to 2004 in a county with a population under 100,000 in the 2000 U.S. Census. By the AG's count, eight counties had horse racing facilities; only seven were eligible (Ada County exceeded the population threshold).
Wasden's review identified two constitutional defects, either of which would likely lead a court to strike the initiative down:
Local or special law (Idaho Const. art. III, § 19). The Idaho Constitution prohibits the Legislature from passing local or special laws on certain enumerated subjects, including "the punishments of crimes and misdemeanors." A law is local if it applies to a specific locality rather than equally to all areas. The Cline initiative would make legal in seven specific counties (those with horse-racing facilities meeting the recency test) what remained illegal in the other 37. The classification was arbitrary because no rational connection tied population under 100,000 plus the recency-of-racing test to the legitimacy of slot-machine gambling. The AG cited Sun Valley Co. v. City of Sun Valley, 109 Idaho 424 (1985), and Jones v. State Bd. of Land Comm'rs, 97 Idaho 859 (1976), among others.
Constitutional and statutory gambling prohibition (Idaho Const. art. III, § 20; Idaho Code § 18-3801). Idaho Const. art. III, § 20 expressly prohibits casino-style gambling and "any electronic or electromechanical imitation or simulation of any form of casino gambling." Idaho Code § 18-3801 defines gambling to include slot machine operation. The initiative defined "Video Lottery Terminal" as a machine that accepts currency or chips, dispenses cash-out tickets, displays results on a video screen, and selects results randomly via a central computer with no skill required. The AG concluded these are slot machines by another name, and the Idaho Supreme Court had recently rejected this kind of relabeling in MDS Investments v. State of Idaho, 138 Idaho 456 (2003), holding that technological changes do not turn a slot machine into something else. The constitutional prohibition reaches "any sort or kind whatsoever" of slot machine.
Tribal gaming compacts. The AG anticipated and rejected the argument that tribal gaming compacts authorized state-sanctioned video lottery terminals. Tribal gaming is governed by a complex set of federal statutes, state statutes, tribal law, and tribal-state compacts. A legal analysis of tribal gaming was outside the scope of the certificate, but the AG noted that distinct provisions govern tribal gaming under a Compact and the prohibition on state-operated slot machines.
Currency note
This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Idaho Const. art. III, § 20 (gambling prohibition) and the constitutional prohibition on local or special laws in art. III, § 19 remain in force. Idaho Code § 18-3801 has been amended since 2004 but still defines gambling broadly. Tribal gaming has been the subject of repeated Idaho Supreme Court litigation since 2004 (Coeur d'Alene Tribe v. Denney, AHO Corp. v. State, etc.). Anyone analyzing Idaho gambling law today should consult current statutes and recent decisions.
Common questions
Q: Did this initiative make the ballot?
A: This certificate addressed only the legal form of the proposal. The petition did not qualify for the ballot.
Q: Why are video lottery terminals "slot machines" if the initiative says they aren't?
A: Because the Idaho Supreme Court, in MDS Investments v. State, 138 Idaho 456 (2003), held that the substance of the device controls, not the label. A device that accepts money, lets a player play with no skill required, randomly determines an outcome by computer, and pays winnings is a slot machine, regardless of whether it has levers or dispenses cash directly. The constitutional prohibition reaches "any electronic or electromechanical imitation or simulation of any form of casino gambling," which captures modern slot machines.
Q: Why is limiting gambling to certain counties unconstitutional?
A: Because Idaho Const. art. III, § 19 prohibits local or special laws "for the punishment of crimes and misdemeanors." Gambling that is illegal in one part of the state is illegal as a misdemeanor (or felony, depending on the conduct). Authorizing gambling in some counties but not others creates a local exception to a criminal prohibition, which the constitutional provision was designed to prevent. The classification (population under 100,000 plus prior horse-race-meeting eligibility) was arbitrary, not rationally related to any legitimate distinction.
Q: What's the relevance of MDS Investments?
A: MDS Investments v. State of Idaho, 138 Idaho 456 (2003), addressed whether certain electronic gaming devices were prohibited slot machines under Idaho Const. art. III, § 20. The Idaho Supreme Court held they were, regardless of technological updates that distinguished them from traditional mechanical slot machines. The case made clear that the constitutional prohibition is functional, not formal: any device that pays out based on chance with no skill required is reached by the prohibition.
Q: What is the gambling exception in Idaho Const. art. III, § 20?
A: The constitutional prohibition has narrow exceptions for (a) the state lottery, conducted in conformity with enabling legislation; (b) pari-mutuel betting on horse racing, conducted in conformity with enabling legislation; and (c) bingo and raffles operated by qualified charitable organizations. None of these exceptions covers electronic slot-machine-style devices.
Q: Are tribal gaming compacts different?
A: Yes. Tribal gaming on tribal lands is governed by the federal Indian Gaming Regulatory Act (25 U.S.C. §§ 2701-2721), state-tribal compacts, tribal ordinances, and federal regulations administered by the National Indian Gaming Commission. Whether and how various game types may be conducted on tribal lands depends on the compact's terms and on what gambling is "legal" under state law for purposes of IGRA. The fact that tribes operate certain games on tribal lands does not authorize state-sanctioned operation of similar devices off tribal lands.
Background and statutory framework
Idaho's initiative power (Idaho Const. art. III, § 1) lets voters propose statutes; Idaho Code § 34-1809 requires the AG to issue a Certificate of Review. Initiative legislation is on equal footing with statutes passed by the Legislature (Westerberg v. Andrus, 114 Idaho 401 (1988)), which means initiative legislation is subject to the same constitutional constraints, including art. III, §§ 19 and 20.
Idaho Const. art. III, § 20 was added by constitutional amendment in 1992 to confirm and clarify the gambling prohibition after the state lottery was added in 1986. The amendment expressly prohibits casino-style gambling and "any electronic or electromechanical imitation or simulation" of casino gambling, with narrow exceptions for the state lottery, pari-mutuel betting, and charitable bingo and raffles.
Citations and references
Statutes and constitutional provisions: see the list at the top of the file.
Cases:
- MDS Investments v. State of Idaho, 138 Idaho 456 (2003) (slot machines under modern technology)
- Westerberg v. Andrus, 114 Idaho 401 (1988)
- Sun Valley Co. v. City of Sun Valley, 109 Idaho 424 (1985) (local or special law analysis)
- Bd. of County Comm'rs of Lemhi County v. Swensen, 80 Idaho 198 (1958)
- Ada County v. Wright, 60 Idaho 394 (1939)
- Jones v. State Bd. of Land Comm'rs, 97 Idaho 859 (1976)
- Kirkland v. Blaine County Med. Ctr., 134 Idaho 464 (2000)
- Jones v. Power County, 27 Idaho 656 (1915)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C011504.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
January 15, 2004
The Honorable Ben Ysursa
Secretary of State
HAND DELIVERED
Re: Certificate of Review – Initiative to Amend Idaho State Video Lottery Terminal Law
Dear Secretary of State Ysursa:
An initiative petition was filed with your office on December 16, 2003. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office's review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."
[The full certificate runs approximately 7 pages with sections on: Ballot Title; Matters of Substantive Import (Initiated Legislation Is Equal To Legislative Enactments; Exempting Certain Counties From Constitutional Prohibitions On Gambling Is Unconstitutional, including the local-or-special-law analysis; Gambling Is Expressly Prohibited In Idaho, including the slot machine analysis under Idaho Const. art. III, § 20 and MDS Investments; Tribal Gaming Statutes Cannot Permit State Sanctioned Illegal Slot Machines); and Conclusion. See the linked PDF for the complete text.]
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Brent Baldwin by deposit in the U.S. Mail of a copy of this certificate of review.
Sincerely,
LAWRENCE G. WASDEN
Attorney General
Analysis by:
Brian P. Kane
Deputy Attorney General