Constitutionality of the proposed lottery for the distribution of moose hunting permits

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) RICHARDS, COHEN A TTOHNEY GENERAL S'l'A'l'E OF MAINE DEPARTMENT OF THE ATTORNEY GENERAL AUGUSTA, MAINE 04333 February 13, 1979 Honorable Harold L. Silverman Senate Chambers State House Augusta, Maine 04333 Dear Senator Silverman: JOHN MR. PA'l'Elt.SON DEPUTY ATTORNEY GENERAL This is in response to your request of January 30, 1979, inquiring into the consti~utionality of the lottery currently proposed for the distribution of permits to hunt moose. The question of the constitutionality of the moose lottery was thoroughly covered in an opinion issued by this office during the legislative debate on the proposal in 1977. A copy of that opinion is attached. You will note that the opinion finds no impediment to a moose lottery in the United State or Maine Constitutions, but does r,tise a question of technical incom- patibility with the federal law governing the operation of lotteries in interstate commerce, 18 U.S.C. § 1301, et seq. While we indicate in our prior opinion that an attacko:n-- those grounds is not likely, it must be understood that this office cannot guarantee federal inaction. As to the specific questions which you raise, I would reply, first of all, that there is no constitutional reason why the Legislature cannot assigr. any function it chooses to any agency of state government. Thus, it may constitutionally assign the function of conducting a moose lottery to the Inland Fisheries and Wildlife Department regardless of whether that Department has heretofore operated a lottery. Your second question seems to suggest a possible constitutional infirmity with the Legislature's restricting the number of persons who may hunt moose to those who have won a lottery. The Equal Protection Clauses of the United States and Maine Constitutions do not prohibit all discriminations by government, but only those Page 2 which are without a rational basis. In the case of the moose lottery, the Legislature could argue that such a basis exists in that the resource to be hunted is sufficiently scarce to require regulation of the number of hunters and that the only equitable way to determine the identity of such hunters is by random selection. Accordingly, it would seem most unlikely that the lottery proposal would be deemed to involve consti- tutionally impermissible discrimination. RSC/ec Enclosure Attorney General cc: Honorable James McBreairty Honorable Ronald Usher Honorable Roland Martin Honorable Charles Dow Maynard Marsh, Commissioner I •' lnter~Departme.ntal Memorandum . April 7, 1977 Oat(;.-----------------·-·-·- fo Representative Charles G. Dow Dept. ________ _ From Subjt!CC JeffreyrR-..J:?idot, Assistant Depc. Attorney General -=-·~~i\:t;, . LD 2~4 and LD 588 - Constitutional Questions You ha~e asked for· an opinion as to the constitutionality of. the two above referenced bills, in -light. of the fact that . they create a scheme in which persons may, upon payment of a fee, · participate in a drawing ::or the chance to engage in moose hunting in the State. The legality of a similar, lottery-type scheme has apparently been questioned by the Idaho Attorney General in interpreting the constitution of that State. ANSWER: The moose hunting lotteries established by LD 254 and LD 588 are not in violab.on of the Maine or federal Constitutions ·although a question arises.as to their permissibility under a technical reading of federal statutes relating to unlawful lotteries~ REASONING: ·Neither the Maine nor the federal constitutions, unlike that of the State of Idaho, contain pro~isions which prohibit or otherwise deal with lotteries authorized by the State. Accordingly, there aprears to be no con:; ti tu t:ional infirmity rolatud L:o L:he establishment by the State of Maine of a lottery scheme for the purposes here present. There are, however, both State and federal laws which regulate and prohibit certain types of lotteries. 17-A M.R.S.A. chapter 39 (§951 et -~-~_g) makes it a crime to engage in or conduct cortain types of gambling., including lotteries. However, by defining "unlc:i.wful" gambling as gambling not expressly autho:r.izcd by st~tute, this law appears to exclude from its covoraac the State-created lottery scheme here proposed. See 17-A M.R.S.A. §952(11). In any event, it is obvious that the Legislature, were it ~o. ena~t. either LD 254 or LD 588, would by i£:1plicali<?n l/ be de-criminalizing the St~te-operated lottery therein sanctioned.~ ----------------------------------------···-----· L/ l L i::; nol:<.?worthy in L:hi~ rc<:JC:lrd that the Legislature, it created the Maine State Lottery, resolved any pc,ssiblc incon!.:iistcncy with the State's srambling laws by providing; "No other law providing any ponalty or disability for the sale of lottery.tickets or any acts done in connection with a lottery wh e; n. ~~hall i:lpply lo Lllu ~;alu of l::i.ckul:u or t,;[1ar0u porformed pursuant to this chapter." 8 M.R.S.A. §363 In the interest of clarity, con.sider-at.ion mi9ht be given l:o includiri<.J a similar provision in LD 254 nnd LD 588 so as to expressly eliminate any conceivable inconsistency with 17-A M.R.S.A. cha?tcr 39 or 17 M.R.S.A. chapter 14. 1::··, \.'-\;J / 17 M.R.S.A. Chapter 14 (§330 et~-) requires opor~tors of gameJ of chance, including lotteries, to obtain a l:i.ccnse from t chief of Police. Although it seems unlikely that the framers of either bill he~e at iss~e intend· that the Department of Inland Fisheries and Wildlife register with the chief of Police, any ambiguity could be resolved by including a general provision nngating the applicability of such lm•1s. A technical issue arises by reason of the possible applicability to the scheme here proposed of the fe:::1.eral laws prohibiting lot terie ~ •. 18 use §1301 et g_g_. makes it a crime to,inter alia, engage in the use of the mails, radio br_oadcasting or interstate commerce to operate a lottery. Since both LD 254 and LD 588 appear to contemplate the use of the mails for purposes of dissemination of information, collection of fees and notification of selection for moose hunting licenses, and since the elements of a .. lottery ,, / under federal law ap9ear t:o be f:?rese nt in both proposed formats, b there appears· to be .the possibility that a strLct applicatioy of 18 use §§1301 -1304 would bar the schemes here proposed. However, since the federal lottery laws do_ not appear to be designed to impair the relatively innocuous scheme here considered, the likelihood·of such an attack by t~e federal government might be rcmoto despite the tGchnical applicability of such laws to the rroceduros established by LD 254 and LD 588. 2/ The three necessary elements of a "lottery", for purposc!s of -Ehe application of federal lav,, are s .:l.id to be the furnishing of consideration, the offering of a prize and the distribution o:E the prize by chance. See, e.g., Brooklyn Daily Eagle v. Voorhies, 181 F. 579 (1910 2d Cir.). All of those indicia appear to be present in the chance dra~ing procedures of LD 254 and LD 588. 3/ Although 18 USC §1307 ?rovides ex8mption for certain state- conducted lotteries from federal prohibition, such exemption by its terms applies only to functions, such as the Maine State Lottery, whc:ro there is involved "thu pooling of proceeds derived :Crom tho sale of tickets or ch,mces and a.llotting- those proceeds or parl:~~ the rGof by chance . to one or more chance takers· o:c ticke l: pur.chas<.'!:t:f:,. 11 10 USC §l307(d). Since it is assumed that the Department of Inland Fisheries and Wildlife would not, under the bills here involved, be awarding any part of tho proceeds of the "moose hunt loll:cry" to tho "winning" hunters, it appears that this exemption does not cover the proposed scheme •. / If I can be of furl:hor assistancP. to you in this matL,~r:, please el free to call upon m~. JP/bls cc: Sonator McNally Representative ·McBrecc..irty Andrew Redmond, Chairman - Senatn Committee on Fishcrio:.:; and Wildlife Maynard F .. Marsh, Commissioner - Department of I nlunc1 Fi ::!w.d.<::s and Wildlife bee: Donald A. Alexander V---- Caba nne Howard