FALL 2004 | VOLUME 6 | NO. 2 Government, Law and Policy Journal Contents Board of Editors 2 Message from the Chair J. Stephen Casscles James F. Horan James F. Horan 4 Editor’s Foreword Ann Horowitz Vincent Martin Bonventre James P. King Patricia L. Morgan 6 Introduction Barbara F. Smith Bennett Liebman Vito J. Titone Patricia K. Wood 8 Indian Gaming Law in New York, Federal and State Staff Liaison Robert Williams Albany Law School 18 Constitutionality of Gambling in New York Editorial Board Cornelius D. Murray Vincent Martin Bonventre Editor-in-Chief 21 The Battle Over Indian Casino Gaming in New York: Rose Mary K. Bailly A War Opponents Cannot Win Associate Editor Randy M. Mastro and Anthony J. Mahajan Patricia E. Salkin 27 Account Wagering in New York and the Director, Government Law Center Dormant Commerce Clause Bennett Liebman Student Editors Dana L. Salazar 33 Legislative Intent and the NYRA Racing Properties Executive Editor Bennett Liebman and Abigail Nitka Jessica Blain-Lewis Kyle McCauley 38 Attention, Enablers: Racing Drug Intervention Imminent Senior Editors Cheryl Ritchko-Buley Brett Knowles Abigail Nitka 44 A Review of Trainer Responsibility Rules Sara LeCain Editorial Office GLP Journal 49 What’s Good for the Goose, Is Good for the Trotter? Government Law Center Chris E. Wittstruck Albany Law School 80 New Scotland Avenue 52 Game-Fixing Scandals in American Sports Albany, NY 12208 518.445.2329 Daniel K. Clemente Send Address Changes to: 60 Problem Gambling in New York: The Need for Greater Records Department New York State Commitment to Compulsive Gambling Programs Bar Association James Maney and Mariangela Milea One Elk Street Albany, New York 12207 65 Advising the Charitable Client: Bingo and Games of Chance 518.463.3200 Heather Bennett [email protected] 69 GLC Endnote Patricia E. Salkin and Rose Mary K. Bailly The Government, Law and Policy Journal welcomes submissions and suggestions on subjects of interest to attorneys employed, or otherwise engaged in public service. Views expressed in articles or letters published are the author’s only and are not to be attributed to the GLP Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor- in-chief for submission guidelines. Material accepted for publication becomes the property of the Association. Copyright © 2004 by the New York State Bar Association. ISSN 1530-3942. The GLP Journal is published twice a year. Message from the Chair James F. Horan As this issue of the Gov- by participating in the multi-state lottery (Mega Mil- ernment, Law and Policy Journal lions) and by licensing the operation of video lottery goes to print, there are notable terminals (VLTs) at certain pari-mutuel racetracks.3 Last developments to discuss con- year, the Court of Appeals found that the current public cerning the subject matter for school funding system failed to provide a sound basic this issue, concerning a prob- education for children in New York City public schools, lem that the Committee on and the Court ordered the legislature and the Governor Attorneys in Public Service to reform the funding mechanism.4 Both the Governor (CAPS) has been addressing and the State Senate Majority have proposed using VLT for the past few years and revenue as a major source for the new funding mecha- concerning a new project that nism.5 As I write this column in early July, the Albany CAPS has undertaken. Those Times Union just reported that the revenue from the developments relate to: a Seneca Casino in Niagara Falls, New York has con- major court decision that came down concerning legal- tributed toward a notable increase in tribal gaming rev- ized gambling in New York, legislation that has gained enue nationwide and that the Seneca Niagara Casino momentum to assist public sector attorneys in repaying has generated higher-than-expected revenue for New student loan debt, and the immediate need for volun- York State.6 That same morning, the Appellate Division teer legal assistance for New York National Guard for the Third Department invalidated as unconstitution- members recently called to active duty and facing al the statutory provisions legalizing VLTs, but the court deployment in Iraq. upheld provisions authorizing the Governor to enter into four Indian casino compacts and authorizing Mega Gaming and the Law: New Yorkers are engaged in Millions.7 As that case heads now to the Court of an intense debate on legalized gambling in this state. Appeals, this Journal issue provides information on the Proponents argue that legalizing casino gambling in legal issues before the Court of Appeals and the legal New York will provide the state with much needed tax and policy issues that face the Governor and the legisla- revenues and provide jobs in economically distressed ture. regions. Other persons oppose gambling for moral and I will leave it to the editors to introduce the authors and the articles for this Issue. I do wish to thank Bennett “This Journal issue on Gaming and the Liebman from the Government Law Center at Albany Law could hardly have come at a more Law School for his work in conceiving and assembling the issue, and I thank all the authors who contributed to appropriate time in the course of this this very timely effort. debate.” Student Loan Assistance Legislation: In my col- umn in the last Journal, I discussed the ongoing problem religious reasons, or due to the devastating effects that in recruiting and retaining young attorneys in lower- addiction to gambling can cause in people’s lives, or paying public sector legal positions, at a time when because relying on tax revenue from gambling consti- recent law school graduates face overwhelming student tutes a most regressive form of taxation. This Journal loan debt. Proposed legislation could address that prob- issue on Gaming and the Law could hardly have come lem, but the method to fund the legislation has caused at a more appropriate time in the course of this debate. concern and garnered partial opposition from NYSBA. For many years, New York has allowed legalized The proposed legislation from Assemblyman Brian 8 gambling and has enjoyed tax revenues from pari- McLaughlin and Senator Serphin Maltese would create mutuel wagering at racetracks, off-track betting sites a special fund (Fund) to reimburse attorneys in public and state lottery games.1 The state has also allowed sector positions for loan debts the attorneys incurred for churches and other charities to do fund-raising by con- their legal educations. After three years in a public sec- ducting certain gambling contests, such as bingo.2 In tor position, an “eligible attorney” could apply for the harsh economic climate following the September 11, annual grants of up to $6,000 for the next six years to 2001 terrorist attacks, New York State looked to increase cover costs of their law-related student loans. The Office tax revenue from legalized gambling by entering com- of Court Administration would administer the Fund, pacts with New York Indian tribes to operate casinos, with the Office of the State Comptroller to play a role in 2 NYSBA Government, Law and Policy Journal | Fall 2004 | Vol. 6 | No. 2 verifying eligibility for Fund grants. The legislation • Guard JAG Officers can make no appearances in would provide money for the Fund by raising the state civil courts, bar exam fee by $150 and increasing by $100 the fee for • one-third of the New York Guard JAG officers the admittance of out-of-state attorneys to the New have themselves been called to active duty in the York courts. The New York Law Journal (NYLJ) reported Iraq deployment, that lawmakers expected the fee increases in the legisla- tion to generate about $2.8 million, or about half the • only one JAG officer serves now full-time to pro- money the Fund may need to provide full grants to eli- vide assistance, with other non-deployed officers gible attorneys.9 serving only part-time, and, The Fund bill has received support from Chief • unlike regular Army units that go overseas from a Administrative Judge Lippman, the Attorney General’s single post such as Fort Drum, the deployed Office, several District Attorneys, the New York City Guardsmen come from all areas of the state, with Corporation Counsel and the Legal Aid Society of New about 900 from the New York City area. York.10 Due to the fee increases, however, NYSBA has taken a position supporting the bill in part and oppos- The Guard JAG have been able to handle some of their increased caseload by obtaining outside volunteer ing the bill in part.11 Although NYSBA supports the legal services from retired JAG officers, but the Guard effort to assist young public service attorneys in repay- anticipates that the caseload will increase substantially ing student loan debt, NYSBA opposes making attor- as the deployment continues. neys alone pay to fund a program that will benefit soci- ety as a whole. We at CAPS became aware of the problems facing the Guard in June and we are working now, in early The NYLJ article on the Fund bill reported that July, with Cynthia Feathers, the NYSBA Pro-Bono Direc- Assemblyman McLaughlin believes that the Bill stands tor, and Audrey Osterlitz at the Lawyer Referral and a good chance to pass this year, but that a spokesperson Information Service (LRIS) on plans to recruit attorneys for Senator Maltese felt less optimistic about passage to provide volunteer legal services to the Guardsmen this year. The Senate spokesperson noted that the pro- and their families. I hope that by the time you read this posed fee increases would provide only half the neces- that such plans will be in place, with information about sary funding and that legislators would want all fund- the plans available at the CAPS or the NYSBA Websites.