NY Legislature has no power to authorize casinos

First US Constitutional Convention

First US Constitutional Convention

 

Memo from Cornelius Murray, Esq.    20 June 2013   sent earlier today to journalists interested in New York State government

Re Upstate New York Gaming Economic Development Act of 2013

 

Art I section 9 of the Constitution CURRENTLY states that, except for circumstances not pertinent here, no gambling shall be AUTHORIZED or allowed and the Legislature is mandated by the very same provision in the Constitution to “pass appropriate laws to prevent offenses against any of the provision of this section.”

Yet the bill that will most likely pass the Legislature tomorrow does exactly the opposite. It purports to authorize such gambling with an elaborate regulatory scheme.  To be sure, the last paragraph states that it will become effective only if and when the Constitutional Amendment passes.  But it hasn’t, and until it does, the current sitting Legislature can’t pass a bill to take effect in the future on the supposition that the Amendment will be approved by the voters in November.  Don’t get me wrong.  I’m fully cognizant of the fact that a Legislature can pass bills to take effect in the future and does so all the time.  But that occurs where the Legislature has the power to act on a given subject to begin with.  Here it has no such power.  The Legislature can get into the business of authorizing and regulating casino gambling only after the People authorize it to do so, which won’t/can’t happen – if at all—until November.  If and when it does, then the Legislature would have the power to act.  But it can’t put the proverbial cart before the horse.  The Legislature has no power to act to authorize gambling currently prohibited by the Constitution.  It is – at least I hope it is – axiomatic that a Legislature can only exercise such power as the People give it.

Imagine if you will that the Legislature in its infinite wisdom (don’t laugh too hard) decided that slavery ought to be reinstated and passed laws now to regulate it which would take effect in the future once the 13th Amendment to the US Constitution and the corresponding prohibition in our State Constitution were repealed.

Cornelius Murray, Esq.  was lead counsel for the plaintiffs in Dalton v. Pataki

http://www.governor.ny.gov/sites/default/files/documents/GPB-33-UPSTATE-MEMO.pdf is a 4-page outline of Program Bill 33.  The whole bill is more than 220 pages

The picture shows the first US Constitutional Convention, not a NYS one.  credit Robinphillips.blogspot.com

Buying Silence

    

West Canada Creek 8648883400_05b7c72b4bwestcanada

West Canada Creek 8648883400_05b7c72b4bwestcanada

 

 

 

 

 

 

 

 

 

 

     NYS  Legislature should not approve the  pact between NYS and the Oneidas  

     The provisional deal (ref.  6, below) of 16 May between the State and the Oneida Nation of Indians, if not literally vote-buying, is arrant influence-peddling. Dead set on adding   commercial casinos to his legacy for New York, Gov. Cuomo has sold  out the rights of several parties for the contracted silence of the Nation about  his proposed “casino amendment.”  Those  non-ONI parties, historically discordant,  differ on why they object to the pact.   They agree it is a bad deal for everyone except the ONI.  Casino promoters elsewhere could also benefit; so might some residents of the proposed ten-county exclusivity area who sensibly  don’t want another casino close to home but myopically  don’t mind it somewhere else.  

     The county governments of Oneida and Madison Counties have acceded to the pact, under duress.  (ref. 2)  The NYS Legislature, the Attorney General  and the Federal Government must also approve it.  There are good grounds why they should not.

     Opposition to all or some terms of the pact has come from the Cayuga Nation (ref. 5); from traditional Iroquois besides Cayugas (ref. 1); from the Conservative Party of NY; from Republican Assembly Member Claudia Tenney (ref. 3) ; and from the towns of Vernon and Verona.  (ref. 5)  For most of these entities, however,   the implications for expanding predatory gambling are not  the crux of their opposition.   

     To the Coalition Against Gambling in New York (CAGNY), a statewide organization, it is obvious that the  pact was crafted  just to prevent  the ONI  from using its money to fight the “casino amendment,”  some outcomes of which could bring  competition to Turning Stone.  CAGNY totally opposes the proposed amendment.  We thus oppose the ONI pact,  which if ratified at all levels would make passage of the amendment more likely than  if the  ONI were against it.  Our dismay with the pact, however,  is  less that it could smooth the path to more casinos in the state than that it gives further evidence our  Governor will stop at nothing  to gain his ends by any means.    

     To paraphrase  Cornelius Murray,  Esq. , attorney for Verona and Vernon, as he spoke  in a press conference on June 4, “This is not about gambling.  It’s about Constitutional law.”  Mr. Murray’s concerns about the law are detailed in his letter to the NYS Attorney General (link in ref. 5).    This is not a “win-win.”  It’s a “win big-lose big.”

     Read further  for brief summary of the proposed terms of the pact is below and for the listed references.

Continue reading

Invest in Recovery

 

Dusk on the Neversink 8745715895_222d9cfde0_mNeversink

Dusk on the Neversink
8745715895_222d9cfde0_mNeversink

 

 

 

 

 

 

Dave Colavito, at a CAGNY press conference in Albany on 4 June  2013,  presented this outline of a just scheme that would save NYS more than the hidden quantifiable socio-economic costs generated by legalized gambling each year.

  • The first step in helping local economies: Don’t make them worse.  Yet the Gov.’s plan will do just that, because it ignores the financial cost of gambling disorders.
  • Socioeconomic costs of gambling in NYS are now estimated at $3.7 billion annually
    • Exceeds revenues from all Atlantic City casinos in 2012
    • 381,000 Problem and 172,500 Pathological gambler costs burden all NYers
    • Gov.’s plan will produce more people (and costs) with gambling disorders.
    • FISCALLY RESPONSIBLE ALTERNATIVE: NYS INVESTS in RECOVERY, not CASINOS
      • Stop Denying the Problem
      • State share of tribal casino proceeds isn’t restricted for education
        • § Dedicate $600 million escrow & future proceeds: Recovery, Prevention
  • Fund Professional Training, Staffing, and Siting to Address the Need
  • Fund Aggressive Marketing Campaign: Promote Addiction Prevention & Recovery

SOCIAL Implications

 Gov. Cuomo Claims NYS is the Progressive Capital of the Nation

 FIVE CONSIDERATIONS:

 1. NYers afflicted with a disorder (Problem & Pathological gamblers) classified by the American Psychiatric Association exhibit measurably different brain function than the general population.

2. Predatory Gambling incites  those differences in brain function  

3. Symptoms of those afflicted worsen uncontrollably when re-exposed to Predatory Gambling   

4.Vendors of Predatory Gambling derive  50% of their revenue from  these afflicted persons and from those who trust(ed)  them and lost their resources too.

5. NYS actively promotes predatory gambling via Lottery including video lottery terminals and electronic table games; Gov. Cuomo now wants to increase that promotion with added full-blown casinos.

New Yorkers could almost zero out the hidden costs of gambling if the State invested to guide all problem gamblers (and their families and friends) to become again the people they  were before the first bet.  This would save money and save lives, not take away money and take away lives.

The opinions expressed in this post are those of the author, Dave Colavito, and do not necessarily represent the opinion of any or all other members of CAGNY.  Permission is granted to reproduce and distribute in whole or in part as long as the above permalink is cited.

Assets for Sale

Peering over the Edge Flickr CC

Peering over the Edge
Flickr CC

Governor Cuomo  spoke in his press conference on May 9, 2013 (at  minute 46:16)   about setting tax rates on the new casinos he wants to see and the competition he expects among bidders.  He continued  “I think we have an asset to sell.”

He did not say what the asset is. It must be something big casino companies want. 

Greek yogurt production capability?

Deep shale natural gas?

Apple production capability?

Olympic-quality winter sports settings?

Maple sugar production capability?

Nanotechnology infrastructure?

 None of the above.

What else could that asset be other than a population to be trawled for customers?    New York’s people are on the block.

Casinos depend for half their “gross gaming revenue” on the small minority of their customers who are pathological or problem gamblers.*  These categories make up a very small fraction (about 4%) of the adult population.  To reward owners richly,  the casinos must maintain this small sector AND  replace each person in it as he or she recovers, dies, goes to prison, gets deathly ill or moves out of range.  The asset that’s really up for grabs, the mother lode, is current and future pathological and problem gamblers

Yet this is not all that’s for sale.   Each of these gambling addicts or problem gamblers has hidden assets that can be tapped through him or her.  Those are the fiscal and emotional resources of many non-gamblers who enable the addiction while the gambler betrays their love or trust .

The casino companies don’t just buy the opportunity to capture or create compulsive gamblers,  They buy a network of pipelines through each one of those afflicted gamblers to drain six, eight or a dozen other people.   Lesieur* put the number at  seventeen.

This is the asset for sale.  What are we bid?

 Grinols, Earl L. and  J.D. Omorow.  J Law and Commerce (1996-97) 16: 49-87

Lesieur, Henry   The Chase, 1976

The above text was distributed by hand to the offices of all legislators on June 4 and read at a press conference held by CAGNY that morning in the legislative office building.  It does not necessarily represent  the opinion of all CAGNY members.  Permission is granted by the author, Stephen Q. Shafer, to reproduce in whole or in part as long as the permalink above is cited.