Could South Carolina public officials play the newly authorized state lottery in 2002?

Plain-English summary

A South Carolina senator asked whether the governor, legislators, local council members, school board members and judges could play the newly authorized state lottery. In January 2002, the AG said Article XVII, Section 8 barred people holding an office of honor, trust or profit from gambling or betting on games of chance, including playing the state lottery. He said legality of the lottery did not remove the activity from the constitutional ban.

The opinion used the public-office test associated with the dual-office rule: exercising part of the state’s sovereign power was central, whether the official was elected or appointed. The AG read the constitutional forfeiture language to reach officers who played the lottery. He suggested that “conviction” might mean proof in a forfeiture proceeding rather than a criminal conviction.

Currency note

This opinion was issued in 2002. 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.

Historical summary

Elected and appointed officers

The AG read the prohibition broadly to include officials exercising sovereign power, including the positions listed in the request and other state and local offices. His conclusion concerned the constitution’s wording as understood in 2002.

Public bodies

The letter said an officer who played would be subject to forfeiture. It suggested a possible reading of “conviction” as proof in a forfeiture proceeding, without deciding any individual case.

Common questions

Did legalization of the state lottery let officials play it? A: The AG said no; in his view, lottery play remained gambling under the constitutional restriction on officeholders.

Did the prohibition cover appointed officials?
A: Yes, where their duties exercised part of the state’s sovereign power under the office test the AG applied.

Would an officer who played the legal state lottery risk losing office? A: Yes. The AG said such an officer would be subject to forfeiture. He suggested “conviction” might refer to proof in the forfeiture proceeding rather than a criminal conviction.

Background and statutory framework

The opinion interpreted Article XVII, Section 8 of the South Carolina Constitution. It cited Darlington Theatres v. Coker for lottery play as gambling and Sanders v. Belue for the meaning of public office. The AG reasoned that a lawful form of gambling could still be covered by the officeholder restriction.

Citations and references

• Article XVII, Section 8: constitutional officeholder gambling ban quoted by the AG.
• Darlington Theatres v. Coker: lottery classified as gambling.
• Sanders v. Belue: public-office test discussed by the AG.

Official title

Concerning Article XVII, Section 8 of the South Carolina Constitution and whether the scope of the term “office of honor, trust of profit” prohibits the governor, legislators, county and city council members, school board members, magistrates and judges from playing the lottery.

Requester

The Honorable W. Greg Ryberg, Member, South Carolina Senate.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-7-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02jan7ryberg.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

January 7, 2002

The Honorable W. Greg Ryberg
Senator, District No. 24
P. 0. Box 1077
Aiken, South Carolina 29802
Dear Senator Ryberg:
You have asked for an opinion concerning Article XVII, Section 8 of the South Carolina Constitution. This provision states that "it shall be unlawful for any person holding an office of honor, trust or profit to engage in gambling or betting on games of chance, and any such officer, upon conviction shall become disqualified from the further exercise of the functions of the office, and the office of said person shall become vacant, as in the case of resignation or death." Your question relates to the scope of the term "office of honor, trust or profit" in terms of the foregoing Constitutional prohibition? You inquire whether this provision prohibits "the governor, legislators, county and city council members, school board members, magistrates and judges from playing the lottery?" In our opinion, it does. Law I Analysis

Clearly, the State Constitution, which is the supreme law of our State, prohibits all persons holding an office of honor, trust or profit from engaging in gambling or betting on games of chance. Such activity by the officer is intended to result in the officer's disqualification from holding the office and the office is then deemed vacant. Playing the State Lottery, which has been authorized pursuant to Article XVII, Section 7 of the South Carolina Constitution and Act No. 59of2001 would constitute "gambling or betting on games of chance." As was noted in Darlington Theatres v. Coker, 190 S.C. 282, 2 S.E.2d 782 (1939), a lottery is a form of gambling. That the State Lottery is now legal in South Carolina does not alter the fact that playing or participating in the Lottery is a form of gambling or betting on a game of chance. Most forms of gambling are illegal in South Carolina. However, the Constitution in Article XVII, Section 8, makes no mention of any requirement that the "gambling" or "betting on games of chance" must be illegal activity. Moreover, as our Supreme Court held in Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 REMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE: 803-734-3970

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The Honorable W. Greg Ryberg
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January 7, 2002

(1993), certain remedies relating to gambling or betting are not necessarily limited to illegal gambling. Gambling is gambling. It is true that the Constitution speaks in terms of disqualification of the officer to hold the office "upon conviction," and thus arguably because the State Lottery is legal, there can be no criminal "conviction" for officials playing the Lottery. This does not mean, however, that the constitutional prohibition does not apply to public officials playing the Lottery. It may well be that such term "conviction" was intended by the framers simply to mean proof in the forfeiture proceeding rather than in a criminal proceeding. See, Davis v. Repp, 79 N.J.C. 394, 75 A. 169 (1910); Sawicki v. Keron, 79 N.J.C. 382, 75 A. 477 (1910). In any event, officeholders are absolutely prohibited from gambling, including playing the Lottery, regardless of whether there is a penalty of forfeiture therefor.

I

The purpose of Article XVII, Section 8 is to insure that public officers holding an "office of honor, trust or profit" are not compromised in their duties or placed in a conflict of interest by engaging in gambling activities. Gambling has been deemed by our courts to impose tremendous social costs through addiction, crime, and the breakup of families. As the Court in Holliday v. Governor of South Carolina, 78 F.Supp. 918 (W.D.S.C. 1948), affd., 335 U.S. 803 (1948) noted, the public policy of South Carolina is to suppress gambling because such activity entails "temptations beyond mere amusement." The Court stressed that gambling "detains business people from their business" and "keeps wage earners from their work." In other words, concluded the Court, gambling and lotteries take a heavy toll upon families, children and society in general. Therefore, the framers of our Constitution wished to make clear that persons holding "offices of honor, trust or profit" should not engage in gambling in any form because to do so would place those sworn to uphold the law in a position of compromise or conflict. If public officers are allowed to gamble or play the Lottery, that must be done by a vote of the people in amending the Constitution. The critical question thus is the meaning of the phrase "office of honor, trust or profit" as used in the Constitution. It is noteworthy that in the same Article, Article XVII, Section 7, the framers used almost the identical language in prohibiting the holding of two "offices of honor or profit" at the same time. The purpose of this prohibition against dual officeholding is to avoid conflicts or compromises of the duties of public officers by occupying more than one position of honor or profit at the same time.

In defining the term "office of honor or profit" the Court in Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907) found that the duties of the position must involve the exercise of some portion of the sovereign power of the State in order to constitute an office. A holder of a public office, said the Court, is "one who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned and which are continuing and not occasional or intermittent ... " 78 S.C. at 174. Other relevant considerations, as identified by the Court, are whether statutes or other authority establish the

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The Honorable W. Greg Ryberg
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January 7, 2002

position, prescribe its tenure, duties or salary, or require qualifications or an oath for the position. State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).

IL

I

In our opinion, these same criteria determine those public officials who are forbidden under the State Constitution from gambling or playing the State Lottery. To hold an office of honor or profit a person does not have to be elected, but may be appointed. The key criterion is whether the person exercises some portion of the sovereign power of the State of South Carolina, great or small. If so, that individual is an officeholder and those is prohibited by the Constitution from playing the State Lottery. The constitutional prohibition would include, among others, the Governor, other constitutional officers, judges, legislators, city and county council members, law enforcement officers, school board members, assistant attorneys general, assistant solicitors, zoning board members, etc. If a person holds an office for dual officeholding purposes, that person is prohibited from gambling or playing the Lottery and if he or she does so, the officer is then subject to forfeiture of his or her office. Conclusion

I

The State Lottery is off limits to thousands upon thousands of state and local officials appointed as well as elected. The State Constitution prohibits any public official who exercises some portion of the sovereign power of the State from gambling or betting on any game of chance. This prohibition includes playing the State Lottery. From the Governor of South Carolina, to legislators and judge, to assistant attorneys general and assistant solicitors, to county and city officials such as tax assessors or law enforcement officers or zoning board members, the State Lottery is off limits. No public official - state, county, municipal or other - may play the State Lottery without being subjected to forfeiture of his or her office. Sincerely,

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Attorney General