TE posted in another thread that the opt out process WILL NOT automatically require a legislative process, but will be defined by state law.

So what would be helpful would be for everyone, especially those with legal experience, to try and figure out what state law governs their opt out process

Any guidance from PX, TE, Skall, or anyone about where to look within a state legal code to try and figure this out (i.e. what is the process of "opting out" referred to as legally, etc) would be great.

The general answer is this: Governors are executives charged with carrying out the law. Legislatures make the law. A decision to opt-in or opt-out of a federal licensing and regulatory scheme (on anything) is a legal decision and will have the force of law. So unless you live in a state with some unique state constitutional provision giving your governor extra powers, or unless your state has already passed some other law giving the governor the power to make such a decision, opting out will require an act of the state legislature.

Don't let this get out too much though, OK? I was really kinda looking forward going around the country and suing the governors who opted-out on their own for breach of their constitutional authority and thus asking the Courts to invalidate the opt-out.

Skallagrim

Bismark, ND
Lincoln, NE
Cheyenne, WY
Pierre, SD

Doesn't sound like much fun to me.

DJ, it isn't a foregone conclusion that any state will opt-in or opt-out, even Alabama. I used to live there, so I know how ultra-conservative the place can be, but I also saw plenty of wacky things happen politics-wise.

You seem to be automatically assuming the worst.

My advice? Work for the best (for all, not just yourself). Be prepared for the worst (this may include getting a job, setting up a VPN and out of state address, moving, etc).

Wait, Skall, isn't the idea to avoid litigation in the first place? I think that you are right, but the present language in all the bills is very vague. FWIW, some states, like Missouri, may require an amendment to the state constitution. In Missouri, all the gambling provisions were approved by public referendum amending the state constitution because the state constitution originally prohibited all lotteries.

States with state constitutional provisions banning lotteries and/or gambling present an interesting situation.

Generally speaking, I disagree with JP that Congress has the authority to tell the states how to decide whether to opt-out or not as that is a pure state function. Congress can only mandate the timing and form of notice required (and, of course, the consequences of opting out).

And, of course Federal law trumps these state constitutional provisions in areas where the US constitution gives the Feds authority, areas like interstate commerce.

But how such a state constitutional provision may or may not affect what a state has to do to opt-out is a really interesting question.

But its Friday afternoon and time for me to have a beer (or two, or ....). Sorry.

Skallagrim

So I was looking for information about how WA state could go about opting out if they wanted to do so (figuring there's a decent chance they'd at least consider it), and found this little nugget in 2009's Health Care Bill (http://www.cbsnews.com/htdocs/pdf/Se...in;contentBody). At the top of page 223, the following passage occurs:

"STATE OPT-OUT.--A State may, by specific reference in a law enacted after the date of enactment of this title, provide that this subsection shall not apply to that State. Such opt-out shall be effective until such time as the State by law revokes it."

That sounds different than what I've been reading throughout the threads in that we can't specify the opt-out procedure for the various states.

Granted, this was one of those must pass health-care bills, but could we get language similar to this into our bill? How would we go about doing that?

Have one (or two, or....) on me. I appreciate your (TE and the PPA) hard work.

Thanks!!!!!!!

On New Mexico, I think New Mexico is in. We have a lot of Indian Casinos here so on the surface some might think that it's a negative. Probably not though. New Mexico is not a very populated state and much of casino action is tourist related. I think Indian casino honchos could be convinced that ultimately they could benefit from it. Not even sure how much power they have ultimately in influencing New Mexico state government. State is strapped financially. Got lotteries here, pari-mutual wagering with simulcast, etc. Bill Richardson is out but his Lt. Governor Dianne Denish is running for governor and she's a Richardson supporter. I'm pretty sure Richardson is ok with online gambling. Denish's Republican opponent is Susanna Martinez who is a Tea Party favorite so I'm assuming that her Libertarian leanings indicate she'll support opting in. New Mexico state legislature doesn't convene all that often. If legislators see that New Mexico will benefit financially I think there's not much doubt they'll opt in. New Mexico is a poor state with a small population base that has plenty of gambling already and desperately needs the revenue FWIW.

New Mexico - opt in

Don't the Governors in some states already opt-out of certain regulation imposed by federal authorities? Not sure if it applies here but it might depending on state law.

Also IMO it's different then a Governor saying to their state we now are going to part of intrastate lotteries, or say by order of the Governor we are opt-in to a new law. BY opting-out the governor isn't imposing or creating new law or forcing something on their state (online gaming). The state wasn't part of any federal online gaming regime to begin with. The governor is say our state opt-out, if the legislature want's to opt back in let they can always do say at a later time.

These states have constitutional provisions banning gambling:

Delaware
Idaho
Montana (but the provision states that gambling can be authorized by the legislature)
New Jersey
New York
North Dakota

So in those states (except Montana), it takes a constitutional amendment (by public referendum) to authorize a form of gambling. (Some forms of gambling are already authorized in all those states, by constitutional amendment.)

This still leaves the question of how such state constitutional bans affect state opt outs. Certainly, a constitutional amendment would not be required in order to opt out - the constitutional provision banning gambling means that the legislature can't vote in a form of gambling, but the legislature can still prohibit or penalize a form of gambling. Does the federal bill trump a state constitution, or are the governors of these states compelled to opt out unless a referendum passes otherwise?

Thanks PX.

Sounds like six states where internet poker will be tied up in litigation for years.

Good info thanks PX

What about in some other states might the governor not be compelled to opt-out until the legislature acts on the issue?

Note: Put new batteries in my keyboard so I wont be mistyping words and sentences like in my last post

I'm mulling that one over as we speak. My last post got me thinking about it. State governors are generally charged with enforcement of state law as one of their executive responsibilities. They may feel compelled to opt out if their state law or constitution has a general law that prohibits gambling (as most of them do).

However, the Menendez bill has a provision that states existing state law cannot be construed to require the governor to opt out. I think we need that provision in the final bill, or even better a positive statement that new state legislative action is required to opt out (like TheMathProf so kindly found for the Health Care Reform bill), to avoid a LitigationFest.

Totally agree, clarity is better here. Awesome pull TheMathProf

In MA, the House and Senate came to an agreement on casino gambling, but Governor Patrick is vetoing it because it has two slot parlors. "The jobs from slot parlors do not justify the increased social costs".

Given that Governor Patrick has both submitted a bill criminalizing online poker and has now killed an expanded gambling bill on social grounds, its looking more likely MA opts out if Governor Patrick is involved.

Skall, we will have to disagree on this one. IMO, the Supremacy Clause and the Interstate Commerce clause, with current interpretations by SCOTUS, give Congress the power to tell a state whether it can, cannot and how it can opt out. I agree that if the federal law just permits states to opt out, then state law should determine the method. This seems to be the case in HR 2267 except for the governor notice language confuses things. IMO, the US Congress could delegate such power to the governors (although doing so would be odd), require a new state statute or just permit any lawful means. I just wish the language in the present licensing bills was less ambiguous.

Missouri has a constitution amendment on its Aug. 3 ballot to opt out of the Health Care bill's requirement that all US citizens must purchase health care insurance if not otherwise covered. IMO, the amendment violates the Supremacy clause.

We will have to agree to disagree JP, but we are not in a big disagreement.

I agree that under the Supremacy clause Congress can specify a lot of things, including requiring that a new law directly on the subject be passed regardless of prior laws, even by a specific method like "popular vote." What I don't think Congress can do is tell a state legislature what method it must use to decide its position. In other words, if Congress allows the state legislature to make the decision, if cannot stop the state legislature from delegating its decision to an executive authority (like a gaming board or a specific official).

This actually is not likely to ever be a real issue, but we lawyers like to keep our minds active with this stuff.

Skallagrim

I believe this is correct about Delaware. The relatively recent passage of parimutuel sports betting involved a big fight between the governor's office and the legislature. So, Delaware may not be a shoe-in to opt in. Then again, this state is so damned small that no one should care, including me and I live here.

I think the discussion about Nevada has been quite scant, given its overall importance in the big picture.

Correct me if I'm wrong, but I believe states like Nevada would have to have a legislative "opt-in" in order to play. Nevada is on the short list of states that currently ban online play. (again, I hope to stand corrected)

The real question is whether or not the MGM's and Harrah's of the world see this as a long-term money maker. If they do, then there is a good chance of actually getting a vote in the Senate. If they don't, then I will argue to the entire poker community that you are all wasting your breath, time, etc. dreaming about something that is never going to happen. ("Never" being defined as the current congressional session*)

For you non-schoolhouse rockers, if the senate majority leader doesn't want to talk about something, then that something doesn't get talked about.

Wow, things looks pretty bleak for MA, NY and CA, from what people are saying itt.
If neither goes through, it's going to really suck playing for a living in this country.

I guess there's still Florida. See you guys there....

Agreed,
If we do not get this issue in front of the Senate we are wasting our breath.
Harrahs and its very very very deep pockets has come out as pro online gaming. HR 2267, as passed by committee, seems very reasonable and straightforward addressing the issues most detractors will throw on the table in blocking maneuvers. But the US Senate debate on the Menendez Bill is where the ugly fight will occur. It is time to start identifying where we stand in the Senate before we count states.

IMHO, The "Opt Out" clause may cause us issues on a state by state basis. It is entirely possible that unless given additional time constitutional showdowns over online gambling are possible in many states like Kentucky. There are at least a dozen governors that will "Opt Out" based on personal opinion and ignore legislative intent. Thinking about it this entire process will make for one heck of an 8th grade Civics lesson.

Harrah's deep pockets are news to its wildly underwater equity owners. Pockets aint that deep.

Harrah's can't even buy a ham sandwich without refinancing their debt

Harrahs has deeper pockets than just about any other player in this issue. They are currently privately held so the true nature of their debt is well, private.

http://www.thestreet.com/story/10821...cm_ven=GOOGLEN

I'm not saying their broke, they have assets, but they aren't doing great either