| Sign up | Log in | Forgot Password |
This is a memorandum of fact and law that is primarily written to support those parties interested in mounting a federal attack on the Gambling Act of 2004, aka Act 71, nee HB2330. Its purpose is to apprise those parties of certain facts gleaned from the legislative journals of the Pennsylvania House and Senate during the 2003/2004 legislative session, of which they may not be aware, and the suggested application of certain federal statutes and relevant case law as they pertain to those revelations. The issues and arguments are merely presented to supplement the debate and the efficacy of any action brought in a Federal Court to challenge the Gambling Act. This memo primarily addresses allegations of violations of Article III of the Pennsylvania Constitution by the Pennsylvania General Assembly when it passed ACT 71 in July of 2004. The paragraphs are numbered for ease of reference.
The issue stated is:
WHETHER OR NOT THE PENNSYLVANIA GENERAL ASSEMBLY VIOLATED ARTICLE III OF THE PENNSYLVANIA CONSTITUTION BY FAILING TO CONSIDER THE ABROGATION OF THE FEDERAL STATUTES CONCERNING THE GAMBLING DEVICES ACT OF 1951 ON THREE DIFFERENT DAYS IN THE HOUSE AND SENATE?
FACTUAL BACKGROUND
1. HB623 originated on March 3, 2003, (PN# 724) as an amendment to Title 18, totaling five pages, providing for deceptive or fraudulent business practices, and ultimately, after a long and tortuous journey though the legislative process, which included the realm of gambling, ended up as it started, on December 8, 2004, 21 months later, when it ultimately was signed by Governor Rendell. Sometimes the words in a story are more important the story, and this is such an occasion.
2. On May 13, 2003, HB 623, on its third consideration in the Senate, was amended and thus became a ten page bill, PN#1814, still relating to its original purpose. However on June 25, 2003, HB 623, during its third consideration for final passage in the Senate, Senator Tomlinson offered amendment No. A2402. 77 pages later, as PN#2232, HB623 morphed from a bill amending Title 18 for deceptive and fraudulent business practices into a slot machine industry.
3. The next day on June 26 HB623 was sent back to the House where it was referred to the Rules committee. On July 17, 2003, PN#2232, 77 pages, became PN#2458, totaling 163 pages with the first 77 pages (PN#2232) deleted. Racetracks with slot machines were expanded in length and breadth. On July 18, 2003, HB 623 underwent two printings PN#2471, 103 pages, and PN#2473, 178 pages with each reprinting deleting the previous printing ultimately settling around 100 pages of actual statute, thus creating a slot machine industry that included slot machines at racetracks and two, and only two stand alone casinos, specifically situated in Pittsburgh and Philadelphia.
4. HB623 Returned to the Senate on July 24, 2003, retaining PN#2473, and was referred to RULES AND EXECUTIVE NOMINATIONS (Rules Committee), where it laid dormant until Nov. 19, 2004, when it was reported on concurrence and became PN#4793, 106 pages with 101 pages deleted, it reverted back to its original intent and purpose, five pages in length. HB623 was then sent back the House concurred in the Senate amendments and HB623 was assigned PN#4800, ten pages, with the first five deleted and therefore became originally what it was in March of 2003, a five page amendment to Title 18, providing for fraudulent business practices. Ultimately the Governor signed it on December 8, 2004, 21 months after it was introduced.
5. HB1216 of 2003 was introduced on April 21, 2003, as an Act amending the Liquor Control of 1951. On April 21, 2003 it was assigned PN#1453 and totaled 6 pages in length and referred to Finance. On Oct 7, 2003 it was reported and committed and referred to the Liquor Control Committee. On November 19, 2003, it was reported as amended, now 37 pages in length, PN#2961, and included the establishment of a slot machine industry in the Commonwealth. Therefore, as of November 19, 2003 there were two slot machine bills pending, HB1216 in the House, and HB623 in the Senate. On the same day it was given its first consideration and then laid on the table. On December 10, 2003, it was removed from the table and recommitted to the Liquor Control Committee where it languished until the expiration of the 2003/2004 Session.
6. HB2330 was introduced in the House on February 3, 2004 as an amendment to Title 18 and providing for the duties of the Pennsylvania State Police regarding background checks for participants in harness and horse racing. It was one page in length.
7. HB2330 proceeded on an uneventful course through March 22, 2004, when the House gave HB2330 its third consideration and final passage, without any amendments (PN#3251), and sent it to the Senate where it was referred to Law and Justice. HB2330 proceeded on a smooth course through the Senate from March 23, 2004, through June 29, 2004, where HB2330 passed through its first and second considerations and the Law and Justice Committee without any amendments.
8. Then, on the third and final consideration of HB2330 in the Senate, on Thursday, July 1, 2004, at approximately 9:00 PM EDT, Senator Tomlinson offered A3055, the first amendment submitted by either body, a 146-page amendment providing for the establishment of a slot machine industry in the Commonwealth of Pennsylvania that also included stand-alone casinos. In the wee hours of Friday July 2, 2004 HB2330, now with PN#4272, was sent back to the House for concurrence. At this point in time HB2330 became the third gambling bill pending in the Pennsylvania General Assembly. HB2330, PN#4272, was referred to the Rules Committee of the House, and reported as committed on Saturday July 3, 2004, and then signed in the House sometime on July 3, sent to the signature in Senate sometime on Sunday July 4, 2004, and finally approved by the Governor on Monday July 5, 2004 as ACT 71.
9. Therefore, during the wee hours of Friday morning of the Fourth of July weekend of 2004, while most Pennsylvanians were sleeping, and on Saturday while most Pennsylvanians were celebrating the Fourth of July, and on Sunday while most Pennsylvanians were going to church, the Pennsylvania General Assembly decriminalized gambling and allowed casinos to be established anywhere in the Commonwealth.
10. SB100 was introduced in the Senate on March 24, 2003, and referred to the Committee on Finance. On June 25, 2003 SB100 was given its third consideration and finally passed 27-22. On June 26,2003 SB100 was sent to the House for concurrence. On July 19, 2003 SB100 was given its third consideration with amendments and finally passed 198-3. SB100 was sent over to the Senate for concurrence with the House amendments and on July 24, 2003 was referred to the Senate Rules Committee. Almost a year to the day later, on July 2, 2004, the Senate concurred in the House amendments, as amended by the Senate and finally passed 50-0 and sent to the House. On the same day, July 2, 2004 SB100 was referred to the House Rules Committee and on the next day July 3, 2004, it was re-reported on concurrence as committed and the House concurred in Senate amendments to House amendments and finally passed 164-37. SB100 was signed in the House and Senate on Sunday, July 4, 2004, and approved by the Governor on July 5, 2004 as ACT 72.
11. We begin our discussion by recapping the legislative history of the following bills that are the stars of our legislative drama.
12. HB623 This is the original Gambling Bill of the 2003/2004 session that introduced Racinos and did in fact pass both houses as a gambling bill. It was introduced in the House on March 3, 2003, referred to the House Judiciary Committee and ultimately signed and enacted as ACT 234 on December 8, 2004.
13. HB2330 This is the second gambling bill and is the interloper and antagonist of our drama. It was introduced into the House on February 3, 2004 and referred to the Judiciary Committee, and ultimately signed and enacted on July 5, 2004 as Act 71.
14. SB100 This was the carrot for the gambling stick, as property tax relief and reform, for the first gambling bill, HB623 of 2003, and then ultimately for the second gambling bill, HB2330 of 2004. It was introduced in the Senate in March of 2003, passed by both Houses of the legislature by July 19, 2003, but was relegated to the Senate Rules Committee for over a year before being finally passed on July 4, 2004.
15. HB1216 Although HB1216 only appeared in a cameo performance during the misadventures of the establishment of a slot machine industry in Pennsylvania during the 2003/2004 legislative session, it is tangentially relevant to our discussion.
16. Essentially, from March of 2003, HB623 and SB100 followed the identical legislative trajectory up to and including their simultaneous referral to the Senate Rules Committee on July 24, 2003(remember the acrimonious budget debate of 2003). SB100 languished for over a year until aroused from its legislative somnolence and considered and passed as ACT 72 at the same time as its legislative sibling HB2330 became ACT 71. HB623 and SB100 were debated in the House in a marathon session that began at 10:00 am on Friday July 18, and ended just past noon on Saturday July 19, 2003. (Legislative Journal of the House pages 1547 to 1740.) HB623 and SB100 were locked at the hip and considered to be companion bills for the purpose of tax reform. HB623 was to be the financial engine that ran the SB100 property tax relief train. Ultimately HB2330 assumed the position of HB623 in its functional relationship with SB100.
17. It is plainly evident from the record that HB623 and SB100 were passed by both houses of the Pennsylvania General Assembly by July 19, 2003, and, for no apparent reason, were allowed to languish for over a year. For all intents and purposes the General Assembly passed and the people of Pennsylvania had a gambling act and a property tax reform act as of July 19, 2003.
18. SB100 passed through the Senate and House in two days, from July 2, 2004 to July 4, 2004. On December 8, 2004, HB623, after returning to its original form as an amendment to Title 18 for fraudulent and deceptive business practices, was signed by the Governor as ACT 234. The irony does not go unnoticed.
19. All of the House Bills, which were directed toward establishing a slot machine industry in the Commonwealth, HB 623, HB1216, and HB2330, discussed herein, shared one common denominator; they all invoked the Johnson ACT. HB623 invoked the Johnson ACT at §9217 in its third printing, PN#2232 June 25, 2003, HB1216 at §1123 in its second and final printing, PN#2961 Nov. 19,2003, and finally HB 2330 at §1511 in its final printing, PN#4272 on July 1, 2004.
DISCUSSION
20. It is axiomatic that the states my regulate gambling within their borders. 15 U.S.C. Chapter 57 § 3001,
(a) The Congress finds that—
(1) the States should have the primary responsibility for determining what forms of gambling may legally take place within their borders;
21. For purposes of our discussion gambling refers to wagering money or something of value on an event with an uncertain outcome with the primary intent of winning additional money and/or material goods. Typically the outcome of the wager is evident within a short period of time. Gaming, the noun, is the term of art adopted by the Gaming Industry in an apparent attempt to disassociate them from the negative connotation of the term gambling, the verb, which is what you do when you are playing slot machines. In sum and substance, gambling is illegal, gaming isn't.
22. We continue our discussion by noting that the horse racing industry, and gambling on the outcome of those races is known as pari-mutuel betting, and is lawful and has existed in our Commonwealth for decades. We can find no reference in the legal scholarship or jurisprudence that refers to betting on horses in Pennsylvania as anything but pari-mutuel betting, or in the vernacular, “playing the ponies”, or “gambling at the track”, not “gaming”. Moreover, the horse racing industry is regulated by the Commonwealth and has been since its inception, by the Pennsylvania Horse Racing Commission, a Department of the Pennsylvania Department of Agriculture (Title 4 §§325.101 et seq). We quote from the Pennsylvania Horse Racing Commission Web site home page,
“The Commission has general jurisdiction over all pari-mutuel thoroughbred activities in the Commonwealth and the corporations engaged therein.” (Our emphasis)
23. Their reference to betting on horses is “pari-mutuel thoroughbred activities”, not gaming or gambling. Therefore there is no requirement, statutory or otherwise, to invoke the Johnson Act to amend a bill for horse racing because there is no need to employ the use of a “gambling device” as defined in the Johnson ACT in order to engage in pari-mutuel betting on horse races.
24. The Johnson ACT of 1951, as amended at 15 U.S.C. Section 1171 states in relevant part,
(a) The term “gambling device” means—
(1) any so-called “slot machine” or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and
(A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or
(B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property; or
(2) any other machine or mechanical device (including, but not limited to, roulette wheels and similar devices) designed and manufactured primarily for use in connection with gambling, and
(A) which when operated may deliver, as the result of the application of an element of chance, any money or property, or
(B) by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property; or
(3) any subassembly or essential part intended to be used in connection with any such machine or mechanical device, but which is not attached to any such machine or mechanical device as a constituent part.
25. Additionally 15 U.S.C. at §1172 Transportation of gambling devices as unlawful; exceptions; authority of Federal Trade Commission
(a) General rule It shall be unlawful knowingly to transport any gambling device to any place in a State or a possession of the United States from any place outside of such State or possession: Provided, That this section shall not apply to transportation of any gambling device to a place in any State which has enacted a law providing for the exemption of such State from the provisions of this section, or to a place in any subdivision of a State if the State in which such subdivision is located has enacted a law providing for the exemption of such subdivision from the provisions of this section, nor shall this section apply to any gambling device used or designed for use at and transported to licensed gambling establishments where betting is legal under applicable State laws: Provided, further, That it shall not be unlawful to transport in interstate or foreign commerce any gambling device into any State in which the transported gambling device is specifically enumerated as lawful in a statute of that State.(our emphasis)
26. See also UNITED STATES vs. GAMBLING DEVICES, 346 U.S. 441 (1953) 346 U.S. 441, FN 2 In pertinent part: "It shall be unlawful knowingly to transport any gambling device to any place in a State, the District of Columbia, or a possession of the United States from any place outside of such State, the District of Columbia, or possession: Provided, That this section shall not apply to transportation of any gambling device to a place in any State which has enacted a law providing for the exemption of such State from the provisions of this section, or to a place in any subdivision of a State if the State in which such subdivision is located has enacted a law providing for the exemption of such subdivision from the provisions of this section. . . ." 64 Stat. 1134, 15 U.S.C. (Supp. V) 1172. (our emphasis)
27. As noted there is a federal statutory requirement by a state to invoke the Johnson Act for a Declaration of Exemption from the Federal Law to transport gambling devices. Therefore the Federal Courts have jurisdiction to hear a motion for Declaratory and Injunctive Relief pursuant to 28 U.S.C. §1331. (Although there were several House Bills introduced in the 2003/2004 legislative session that invoked the Johnson ACT, for purposes of our discussion and the federal challenge, we restrict our discussion to the bills noted above.)
28. We quote from the relevant section of HB2330 Section 1511.
“DECLARATION OF EXEMPTION FROM FEDERAL LAWS PROHIBITING SLOT MCHINES.
(A) DECLARATION. – PURSUANT TO THE GAMBLING DEVICES TRANSPORTATION ACT (64 STAT. 1134, 15 U.S.C. § 1171 ET. SEQ.) , THE COMMONWEALTH DECLARES IT IS EXEMPT FROM SECTION 2 OF THAT ACT.
29. This is the identical language that was used in HB623 at §9217, HB1216 at § 1123, as well as the other House Bills that were introduced to create a slot machine industry in the Commonwealth that invoked a Johnson ACT declaration.
30. We now let HB1216 and its other gaming siblings depart our stage and concentrate on House Bills 623 and 2330, both introduced in the 2003/2004 legislative session, both suffered extensive amendments in the Senate at the eleventh hour of legislative deliberations, both originated in the House with entirely different purposes, both introduced the establishment of slot machines, and both passed both houses of the legislature as slot machine bills, albeit at different times, but, only HB2330 was signed.
31. The legislative leaders in both Houses of the General Assembly obviously knew of the Johnson ACT declaration requirement in order to comply with the Federal Statutes. And, while the Pennsylvania Legislature may amend any statute with respect to regulating pari-mutuel betting on horse racing without the Johnson ACT, or introduce legislation that creates other games of chance, including those games known in the industry as table games, without the Johnson ACT, it may not create a slot machine industry in the Commonwealth without it.
32. HB623 started out as an “ACT amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, further providing for deceptive or fraudulent business practices.” It was five pages in length. There was no mention of the Johnson ACT Declaration or gaming, and on Third Consideration in the House was finally passed by a margin of 199 – 0.
33. According to the Legislative Journal of the Senate of June 25, 2003 on page 721, Senator Tomlinson introduced Amendment A2402 creating the “Gaming Act of 2003” and on page 732 of the Senate Journal §9217, made the Johnson ACT declaration and invoked Federal Law. This made HB623 an entirely different legislative creature than was passed by the House in its 199-0 vote. When HB623 reappeared in the House for concurrence to the Senate amendment the margin was substantially different, (120-81). HB623 did pass both houses with Senator Tomlinson’s amendment but ultimately was referred to the Senate Rules Committee where it languished for over a year. When it finally was passed and enacted in December of 2004, it was in its original form, sans Senator Tomlinson’s amendment.
34. On February 3, 2004, HB2330 was introduced as an ACT providing for the duties of the Pennsylvania State Police regarding criminal history background reports for persons participating in harness or horse racing. This bill also was one page in length and absolutely did not require invoking Federal Law for a Johnson Act declaration. As previously noted pari-mutuel betting on horse races has existed for several decades in the Commonwealth and nowhere is the word “gaming” mentioned in any statutes governing its regulation.
35. At this time we take notice of the Legislative Journal of the House of March 22, 2004, pages 284 and 285, and the colloquy between the Speaker of the House, Mr. Perzel, and the gentleman from Bucks County, Mr. Clymer, discussing HB 2330 on its Third and final consideration. (The emphasis of certain passages below is ours)
36. The Speaker, “This bill has been considered on three different days and agreed to and is now on final passage. The question is, shall the bill pass finally?”
The Chair recognizes the gentleman from Bucks, Mr. Clymer.
Mr. Clymer. Thank you Mr. Speaker. Would the maker of the bill stand for a brief interrogation?
The Speaker. The gentleman indicates that he will stand for interrogation. The gentleman, Mr. Clymer, is in order and may proceed.
Mr. Clymer. Thank you Mr. Speaker. Mr. Speaker we understand that this is a request, a request that can be submitted by the State Harness Racing Commission of the State Horse Racing Commission. It is a request; it is not a mandate. So that is what it means? It is a “may” provision in the bill?
Mr. DiGirolamo. That is correct, Mr. Speaker. It is a “may” provision. They are allowed to request those background checks.
Mr. Clymer. Okay. Thank You. Mr. Speaker, the genesis of the bill seems to be it is for those directors and owners and investors with racetracks. What about stand alone casinos? Suppose in the legislation we have four or five stand alone casinos. Can they, since you know, we are looking at racetracks, can they also ask for background check for those—
The Speaker. Mr. Clymer, none of that is in the bill before the House.
Mr. Clymer. Okay. Thank you.
Mr. Clymer continuing a few moments later on page 285
… And then finally, Mr. Speaker, as we all know that this is a vehicle that is being sent to the Senate so the Senate can—That is their prerogative, of course, if they want to use this for a gambling bill, but it is going to be moving over there for that reason. Now, the Senate has numerous Title 18 bills. They certainly do not need this bill to do their gambling promotion.
Mr. Clymer Continuing.
…. So, Mr. Speaker, there is a real problem here, and I would ask that the members, based on the information that we have—We do not have complete information here. To try to suspend the rules to put our amendments in will be very difficult time. Last time we dealt with this legislation, we recognized the difficulty it was to suspend the rules.
37. Several moments later HB2330 was passed 138-56 as a one page Act and amendment to Title 18 providing for State Police background checks of persons participating in horse racing.
38. We first turn our attention to the question by Mr. Clymer, referring to stand alone casinos and the reply from the Speaker of the House of the Pennsylvania General Assembly, Mr. Perzel which states, “None of that is in the bill before the House”, obviously referring to “stand alone casinos”. We also refer back to the beginning of the colloquy when Mr. Perzel stated, “This bill has been considered on three different days and agreed to and is now on final passage. The question is shall the bill pass finally?”
39. Pursuant to Article III Section 4, Consideration of Bills, “Every bill shall be considered on three different days in each House.” According to the public Web site of the General Assembly, the definition of a legislative day refers to “a calendar day during which the House or Senate is in session.”
40. This exchange plainly states that HB 2330, on March 22, 2004, was not a bill that included provisions for casinos and slot machines and therefore the House did not consider HB 2330 as a bill regulating slot machines during three different days. Likewise, the Senate did not consider HB2330 as a bill regulating slot machines until the Third Consideration in the Senate on July 1, 2004, when Senator Tomlinson introduced amendment A3055 and for the first time the Johnson Act declaration was introduced. Declaring the Federal Exemption may be a formality for the state legislature to lawfully obviate the Federal Gambling Devices Statute, never the less, the state must comply with the law and it may not do so as a sham maneuver.
41. Therefore, in light of Mr. Perzel’s comment that stand-alone casinos were not in HB2330 on March 22, 2004, during the Third Consideration in the House for final passage, they could not have been in HB2330 during the first and Second considerations. When Senator Tomlinson introduced amendment A 3055 in the Senate on July 1, 2004, which also included the Johnson Act declaration at §1511, HB2330, became an entirely different bill, and was therefore entitled to be reconsidered on three separate days in the House as well as the Senate, with July 1, 2004 as the first day of consideration in either House.
42. If the Pennsylvania legislature is going to invoke the Johnson Act declaration, and declare itself exempt from the Federal Gambling Devices Transportation Act, thereby abrogating Federal Law, it must do so within the lawful confines of its constitutional process. “In practice, Section 3’s dual requirements--clear expression and single subject--are interrelated as they both act to proscribe inserting measures into bills without providing fair notice to the public and to legislators of the existence of the same”. City of Philadelphia v. Com. 838 A.2d 566, 586, citing Rogers 109 Pa. at 112, 1 A 2d 346(striking down an act whose title appeared designed to prevent popular opposition to the bill by concealing its true effects); Pennsylvania State Lodge v. Commonwealth., 692 A2d 609, 615 (Pa. Comwlth. 1997) (relating that the purpose of Section 3 is to provide public notice of all proposed legislative enactments and to prevent the passage of “sneak “ legislation. (Our emphasis) All of the people of this Commonwealth have the right to know in an open and forthright manner if their state legislature is authorizing the wide scale importation of slot machines to be implanted in casinos that may be erected anywhere in the state, especially if one might arise in their backyard.
43. HB2330 was morphed into an entirely different bill that was known only to the horse racing industry, who may have been expecting casinos at horse racetracks in the Commonwealth, and select members of the Pennsylvania General Assembly. However, the establishment of a bill to erect casinos anywhere throughout the state, in addition to racetracks was unknown to the preponderance of the people of Pennsylvania. Mr. Justice Saylor, in his opinion in City of Philadelphia, supra, describes “stealth legislation”, or “24 hour legislation” as he prefers to call it, which was exactly what happened during the late and early morning hours of Friday, Saturday and Sunday of the Fourth of July weekend of 2004, while the rest of Pennsylvania was sleeping, celebrating and going to Church.
44. In light of the foregoing we now address and parse Pennsylvanians Against Gambling Expansion Fund, Inc. et al vs. Commonwealth of Pennsylvania, 877 A.2d 383, (Pa. 2005), in a new and different light. For the purposes of our Federal challenge we only address the violations of Article III of the Pennsylvania Constitution. (Unless otherwise noted all of the quotations noted below are from the 51-page opinion written for a unanimous court by the Chief Justice of the Supreme Court of Pennsylvania, Ralph Cappy, and are enumerated as pages 1 through 51.)
45. We first note that there was not a developed record and the unanimous decision written by Chief Justice Cappy was based, “…solely from the face of the title and content of the bill as enrolled, together with the judicially noticeable legislative history”. (pg. 3) Apparently the Court read the Legislative Journals of the House and Senate and disregarded the colloquy between the Speaker of the House and Mr. Clymer wherein the Speaker admitted that HB2330 had no mention or reference to casinos or “gaming” up to and including its final passage in the House as noted above.
46. The Chief Justice continuing, on page 12, “…in the matter sub judice, there is a single unifying subject--the regulation of gaming.” “Specifically, HB2330 sets forth the legislative intent of regulating gaming, creates the Gaming Control Board, establishes policies and procedures for gaming licenses for the installation and operation of slot machines, enacts provisions to assist Pennsylvania’s horse racing industry through gaming, and provides for administration and enforcement of the gaming law, including measures to insure the integrity of the operation of slot machines.”
47. It is admitted that all of the above is true but, only after Senator Tomlinson introduced amendment A3055 on Thursday night July 1, 2004, thus rendering all of the previous readings and considerations of HB2330, as a one page amendment to Title 18 for background checks, in the House and Senate nugatory. The introduction of the Johnson Act declaration in A3055 at §1511, completely changed HB2330, from a Title 18 (Crimes and Offenses) to a Title 4 (Amusements), subject matter, (establish slot machines), which was entitled to three separate considerations on three separate calendar days of both Houses.
48. Chief Justice Cappy notes that with regards to the change in purpose of a bill, “Respondents answer that the Gaming Act does not violate Article III Section 1, because the original purpose of HB2330 remained the same from inception to passage- to regulate gaming.” With all due respect to the Chief Justice we believe he is trying to jam a huge square peg into a small round hole. The original one page amendment has absolutely nothing to do with gaming because at the time of its introduction in February of 2004, gaming was illegal in the Commonwealth, and it is illogical to opine that a one page bill, dealing with background checks by the State Police for the horse racing industry, could be applied to an industry that did not exist at the time.
49. If, as the Respondents in PAGE claim, and apparently Chief Justice held in his ruling, that horse racing is the same as gaming, then why didn’t the legislative leadership of the proponents for slot machines originate HB2330 as an amendment to Title 4 (Amusements) which is where the statutes that govern horse racing in the Commonwealth have existed for the past several decades?
50. The answer is because the Respondents in PAGE knew and learned from their experience in the passage of HB623 the previous year, how to obviate the objections of the minority and relied on the fact that a bill does not have to be reconsidered after an amendment after the third consideration. “Respondents assert that Article III Section 4 does not require the Legislature to reconsider a bill after amendment. [A]n amended bill need not be referred to committee and considered on those separate days if the amendments are germane to, and do not wholly change, the general subject of the bill.” (Page 36 of the PAGE opinion citing Pennsylvania AFL-CIO vs. Commonwealth of Pennsylvania, 691 A.2d 1023, 1037(Pa. Cmmw. Ct. 1996) (citations omitted), aff’d. 757 A.2d 917 (Pa. 2000)”) The House’s only choice, was an up or down vote to the Senate amendment A3055, during that infamous Fourth of July weekend.
51. Of interest to our argument and contention that the leadership proponents for gaming were duplicitous in their strategy to pass HB2330 we only have to look to the record of the House Journal. HB2330 in its original form passed the House, 138-56 on March 22, 2004 after the colloquy between Mr. Clymer and the Speaker of the House Mr. Perzel in which Mr. Perzel admitted there was nothing in HB2330 that had anything about casinos or gaming. The House debated A3055 from 10:30 am Saturday July 3 until approximately 2:30 am on Sunday July 4, 2004, and ultimately concurred in the Senate amendment with a close majority of 113-88, after which the Speaker signed HB2330.(Journal of the House pages 1510 to 1581) If, as the Respondents claim, and Chief Justice Cappy held in his ruling, that HB2330 was the same in title, form and purpose then how do they explain the fact that 25 members of the house changed their votes from yea to nay in its final passage? If it was the same, and every one knew what HB2330 contained, then the vote should have been the same, or very little difference.
52. It is important to note the part that SB100 played in the passage of HB2330. Property tax reform was a hot political issue during the debate on the budget process that was also ongoing at this same time as the final consideration of HB2330 and for all intents and purposes HB2330 and SB100 should be considered companion bills. SB100 was debated in the House and Senate immediately following the debate on HB2330 during that infamous weekend marathon, and was used as an inducement to some, and a stick to others, in order to bring pressure to bear on the rank and file of the General Assembly under the guise of property tax reform.
53. In summary we would note that one must look at the development of HB2330 within the context of its four-month metamorphosis. It may be true that a state legislature can institute whatever laws they deem necessary, however, they still must comply with their own rules and their state’s constitution. Article III is very clear that a bill, among other things, must have a single subject, and must be read and considered on three different days in each House. The Respondents (ref. PAGE) claim, and Chief Justice Cappy’s ruling that the underlying subject matter—“regulation of gaming”--never changed from February 3, 2003, until July 3, 2003 is in plain error. . The Respondents (ref. PAGE) would have us believe that HB2330 as written and introduced in February, and passed in March of 2003, has the same meaning, purpose, and intent as Amendment A3055 as written and introduced four months later in July of 2003.
54. The Great Divide, which the Respondents (ref. PAGE) must span between the introduction of the “horse racing amendment” in February and the introduction of the “casino amendment” four months later in July, is the federally mandated Johnson Act declaration. While a state may possess a pari-mutuel horse racing industry without the Johnson Act declaration, a state may not possess a slot machine industry (with or without a horse racing industry), without a Johnson Act declaration. And, while they may be integrated as a practical matter of function at the same site, they are two entirely different entities with two different governing authorities.
55. There is not now, nor has there ever been a requirement to invoke the Johnson Act for the regulation of pari-mutuel horse racing. If it was necessary it would already have been situated within the statutes of the Commonwealth at Title 4 Amusements, along with the other horse racing statutes. Moreover, as previously stated, slot machines and gaming were non-existent and illegal in Pennsylvania in February of 2003, when HB2330 was introduced as an amendment providing for background checks in the horse racing industry. Therefore claiming that the Tomlinson amendment A3055, introduced four months later in the Senate in July of 2003, was the same from “inception to passage” as HB2330, as originally introduced in the House, is at best sophistry and at worst outright duplicity.
56. However, all arguments are pale when compared to the illuminating comment of the Speaker of the House, Mr. Perzel, which is memorialized in the Journal of the House during his colloquy with Mr. Clymer on March 22, 2004,at page 284, responding to a question about casinos. “Mr. Clymer, none of that is in the bill before the House”. The Speaker’s own words admit that the prior considerations of HB2330 in the House, including its introduction on February, were not about the regulation of casinos, or their slot machines from inception to passage, and therefore Chief Justice Cappy’s opinion in toto is in error.
57. The claim by the Respondents and chief Justice Cappy’s opinion that HB2330 was the same from inception to passage—“the regulation of gaming”-- was in error, because at its inception HB2330 provided for background checks in the horse racing industry, which has no requirement for a Johnson Act declaration because “gambling devices” are not needed to engage in pari-mutuel horse racing activities.
58. The Johnson Act declaration, which manifestly altered the form HB2330 in July of 2004, was not considered on three separate days in each House of the General Assembly as per the Pennsylvania Constitution, and therefore HB2330, subject to its own rules of severability, must be struck down as constitutionally infirm.
59. The sole issue that we addressed in the foregoing was:
WHETHER OR NOT THE PENNSYLVANIA GENERAL ASSEMBLY VIOLATED ARTICLE III OF THE PENNSYLVANIA CONSTITUTION BY FAILING TO CONSIDER THE ABROGATION OF THE FEDERAL STATUTES CONCERNING THE GAMBLING DEVICES ACT OF 1951 ON THREE DIFFERENT DAYS IN THE HOUSE AND SENATE?
We believe that we have demonstrated that the answer is in the affirmative.
59. At this time we note the following. “The proper defendants in this suit would be the officials or others enforcing or relying upon the laws created in the manner that the plaintiffs claim is unconstitutional.” Risser vs.Thompson 930 F.3rd 549,551 (7th Cir. 1991) Chief Judge Richard Posner. In the matte sub judice, the only proper defendants would be the Governor, in his executive capacity, (to overcome indispensable party argument), the Attorney General in his capacity as chief law enforcement officer, and Mr. Tad Decker, in his official capacity as the Chairman of the Gaming Board. Depending on the Federal Court Judge assigned, the Governor may, or even probably, be dismissed.
I hope this is of some help to your cause.
Respectfully submitted March 21, 2007.
PUBLIUS