Published: March 13, 2007 10:49 pm         

Attorney set to challenge table games in court case

West Virginia’s 1984 lottery amendment is one avenue for a challenge, but public morality is another for attorney Barry Bruce and the West Virginia Family Foundation in attacking casino-style gambling in the courts.

From his Lewisburg office, Bruce vowed to file suit “as soon as we can get all the pieces put together.”

For him, that means assembling experts to testify about the harmful effects of sophisticated gambling in Las Vegas-style venues, as HB2718 envisions in the four dog-and-horse track counties of Jefferson, Ohio, Kanawha and Hancock.

Bruce’s underlying argument in the potential lawsuit is the 1984 amendment that put West Virginia officially in the gambling business by authorizing state-owned, scratch-off lotteries.

Echoing the arguments of anti-gambling lawmakers and Family Foundation leader Kevin McCoy, the attorney said that 1984 issue never was intended to open the gates to table games.

And for that reason, the Legislature cannot use that as a springboard to launch table games, he said.

Lawmakers telescoped the referendum to the four track counties, but opponents said this simply isn’t legal, maintaining the state Constitution would have to be altered, and that can only be accomplished in a statewide vote.

Nor did the voters in 1984 believe the lottery proposal would ever include table games, Bruce said.

Bruce said his case wouldn’t be narrowed to the constitutional issue, however.

“I think as good of an argument is that the Legislature shall pass no law that is detrimental to the healthy, safety and welfare of its citizenry,” the attorney said.

When the ill-fated casino issue came up a few years ago in his home county, Bruce said, opponents learned of a special study President Bill Clinton had commissioned in 1999 to look into the effects of gambling.

In its findings to Clinton, the commission warned against any expansion of gambling until the effects on the public’s health and welfare were known.

“We now have sophisticated reports and studies that show that gambling expansion and table games in other areas are detrimental to the health, welfare and safety of the citizenry,” Bruce said.

Bruce recalled the testimony of a Marshall University professor at an Associated Press gathering in January, just prior to the start of the 2007 session.

Studies routinely demonstrated that states are compelled to shell out $1.90 in social costs for every $1 benefit, the Marshall professor told reporters.

“There is a strong argument that our Legislature did not consider the detriments and injury to the health and welfare of the citizens, especially in light of the studies that had been done,” the attorney said.

“I think it’s just a further argument that legislation that is passed needs to be by public referendum.”

Gov. Joe Manchin has indicated he intends to sign the table games, but until he does, or allows it to become law without his signature, the Family Foundation’s court challenge is on hold.

“If he vetoes it, there’s no basis for a lawsuit, because there’s no statute,” he said. “Nothing can be done until it is a law.”

McCoy said the Legislature did “a great disservice” to state residents by passing the legislation.

One supporter, Sen. Andy McKenzie, R-Ohio, who lives in one of the four track counties, said Saturday night he welcomed the suit because it would “speed up the process” and get the legal issue resolved.

McKenzie predicted ultimate victory for the gambling industry in the court challenge.

The suit likely would be filed in Kanawha County, after the attorney general’s office is given the customary 30-day notice, Bruce indicated.

“We’re moving forward expeditiously to file the suit,” McCoy added.

Equally adamant in his opposition during floor debates, Senate Minority Leader Don Caruth, R-Mercer, who failed to get a constitutional amendment required in the bill, said he supports the lawsuit.

Caruth pointed to a Saturday night interview with former Supreme Court Justice Richard Neely, whose remarks “sounded very similar” to those of casino opponents.

“He said our Constitution permits a lottery but what the table games bill presents to us is certainly not a lottery,” Caruth said.

— E-mail:

mannix@register-herald.com