Delaware Supreme Court Opinion on Sports Lottery and the Delaware Constitution

Responding to the Governor’s formal request, the Delaware Supreme Court issued an opinion this week addressing the legal issues related to the recently enacted sports lottery legislation.

In their 21 page opinion, the five Justices unanimously concluded that the authorization of a state-controlled “lottery” in the Delaware Constitution is not limited to games of pure chance. Rather, games involving some skill are constitutional as long as chance is the dominant factor. In so doing, the Justices also unanimously concluded that a parlay sports lottery is a constitutional game under this standard, citing Judge Walter K. Stapleton’s 1977 decision in National Football League v. Governor of the State of Delaware. The Justices also unanimously concluded that the sports lottery proposal, as embodied in the recently enacted House Substitute 1 to House Bill 100, is properly “under State control,” as required by the Delaware Constitution, and that the legislation does not otherwise impermissibly delegate legislative power to the lottery director. The Court was not able to decide specifically whether a single game sports lottery is constitutional because the unique nature of a request for an opinion of the Justices does not provide the opportunity to develop the factual record necessary to make that decision. However, with the Court’s rejection of the “pure chance” standard, the State Lottery Office maintains that the single game sports lottery, with a proper betting line, meets the dominant factor test.

A PDF copy of the opinion is below:

IN RE: REQUEST OF THE GOVERNOR FOR AN ADVISORY OPINION- No. 105, 2009

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