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Officials say video poker bill will face a legal challenge

by Randy Coleman

THE ASSOCIATED PRESS

CHARLESTON -- The opinion is unanimous. Gov. Bob Wise's video poker law is going to court.

Everyone from club owners who believe the new law could put them out of business to conservatives who think there's too much gambling in West Virginia to the governor himself say video poker is fast-tracking its way to the state Supreme Court.

Justices would decide if the legislation, which legalizes 9,000 video poker machines and allows slot machine bets at racetracks to increase from $2 to $5, is constitutional.

"I don't even call it the bill we passed. I just can't make myself do that yet," said House Minority Leader Charles Trump, R-Morgan, a lawyer.

"I call it the document the governor signed."

The law limits video poker machines to bars, clubs, restaurants and fraternal organizations that have a Class A liquor license. The legal machines will be monitored by the state through the state Lottery.

The legislation is expected to raise at least $72 million the first year and considerably more in subsequent years.

Wise signed the bill into law on Monday. On Thursday, he said opponents should appreciate that he signed the bill quickly.

"They should be happy because by signing the bill so quickly I gave them the opportunity to go to court as early as possible," Wise said.

"The reality is we'll wait to see what the courts say, but I don't think there's a court challenge. I say let's get it under way so we can get it behind us.

"So bring it on," Wise said.

Mike Queen, organizer of the grass-roots organization Citizens Against Gambling Expansion, said he intends to do just that.

Queen's group spent about $15,000 in its unsuccessful effort to block passage of the bill. Queen says to challenge the constitutionality of the law in court, the group would have to raise an additional $25,000.

That effort is under way, Queen said.

"We're going to pose a basic question. When voters approved the state Lottery in 1984, did they really assume the lottery was going to include slot machines?" Queen asked.

"We contend the lottery was never meant to mean 15,000 slot machines. We believe that's the most sound argument and will give us the best chance at success."

The 15,000 machines are an addition of the projected 9,000 video poker machines to about 6,000 slot machines now in service at the state's four racetracks.

Queen said his group never intended to challenge slot machine gambling at the racetracks.

A 1994 Supreme Court ruling said that racetrack gambling is an extension of the state Lottery. But that lawsuit was narrowly defined, Queen said.

"We didn't intend to discuss the racetracks. We tried to point out that there was a difference between destination gambling and video poker machines. We tried to be reasonable," Queen said.

But in the end the law addresses both video poker and racetrack gambling, therefore, so will his lawsuit, Queen indicated.

Queen said his advice comes from Jim Lees, a Charleston lawyer he hopes to retain.

Such a lawsuit would pit Wise's law against a challenge by Lees, who lost to Wise in the 2000 Democratic gubernatorial primary election.

Lees said he has no plans at this time to file a lawsuit because no one has retained his services. But Lees said he has looked at some of the constitutional questions surrounding passage of the bill.

There would be little merit in suing the state over flaws in the construction or passage of the video poker bill because those problems are easily fixed, Lees and Queen said.

An outdated section of the law, for example, requires racetracks' coin-drop slot machines to contain ticket printers, which they no longer have.

Another issue arose recently when some legislators questioned whether a majority of senators passed the bill during a special session last month. The vote was 17-15 with two members absent. But the question is whether a majority vote is based on the number of members present or the number elected, which in the 34-member Senate would be 18.

Lees contends such problems would be fixed because the Legislature could reconvene at any time to fix problems or vote again on the issue.

"The Supreme Court said in one case that racetrack machines are a legitimate extension of the lottery. But now machines are in bars across West Virginia," Lees said.

"At some point, we have to ask whether we're going beyond what the constitutional amendment intended. Did the 1984 lottery referendum open the door to any form of gambling? Just where is the line, and have we crossed it?"

Another group, the Club Association of West Virginia, has scheduled a meeting Monday in Clarksburg to discuss ways to stop implementation of the video poker law.

Association spokesman Chris Wakim of Wheeling told the Clarksburg Exponent-Telegram that implementation of the bill would put many of West Virginia's club owners out of business.

Wakim could not immediately be reached for comment.

House Speaker Bob Kiss, D-Raleigh, assumes a lawsuit is coming. He agrees with Wise: the sooner the better.

"I'm not going to sit here and say there's no possible or plausible challenges. But I'd say the arguments I've heard so far aren't the kind that would be adopted by any court," Kiss said.

"Even if they're successful, I think it's merely a matter of time before we successfully address the problem, which is the proliferation of gambling machines all over the state."

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