Letter Opinion 1972 No. 009

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                                                                 January 28, 1972

Honorable Mark Litchman
State Representative, 45th District
Legislative Building
Olympia, Washington 98504                                                                                              Cite as:  AGLO 1972 No. 9 (not official)

Dear Sir:
 
            This is written in response to your recent letter requesting our opinion with regard to the constitutional validity of House Bill No. 15, a measure currently pending before the legislature which proposes to establish a state‑operated sweepstakes.
 
                                                                     ANALYSIS
 
            Suffice it to say, without going into detail as to how this bill would operate, that the activities which it would authorize would clearly constitute a lottery within the meaning of Article II, § 24 of our state constitution as it now reads1/ - and thus, if nothing further were involved, this proposal would undoubtedly be unconstitutional.  However, the bill in its present form manifests a recognition of this problem and, accordingly, provides in § 10 that it shall only become effective
 
            ". . . upon the approval by the voters of the state of an amendment to or the repeal of Article II, section 24 of the Constitution of the state of Washington so as to authorize lotteries within the state."
 
            Your questions regarding the bill are specifically keyed to just such a constitutional amendment; namely, the proposal contained in SJR No. 5 which was approved for submission to the voters in November of this year by the 1971 legislative session.  If affirmed by the voters, this amendment would alter the present text of Article II, § 24, supra, to read as follows:
 
             [[Orig. Op. Page 2]]
            "The legislature shall never grant any divorce.  Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon."
 
            With this proposal in mind you have asked two questions which we paraphrase as follows:
 
            (1) May the current session of the legislature, without awaiting voter approval of S.J.R. No. 5, enact the provisions of House Bill No. 15 so as to be effective contingent upon voter approval of the constitutional amendment?
 
            (2) If so, would the requirement of the proposed constitutional amendment that any legislation authorizing a lottery be approved by sixty percent of the members of each house of the legislature be applicable to the passage of this measure?
 
            We believe that both of these questions are answerable in the affirmative.
 
            In AGO 65-66 No. 99 [[to Ted G. Peterson, State Senator on July 26, 1966]], copy enclosed, we discussed at some length the ability of the legislature to anticipate the adoption of an enabling constitutional amendment by the prior passage of a proposed law to become effective only upon approval by the voters of the constitutional amendment.  The reasoning of this prior opinion is clearly applicable in the case of the questions which you have now posed.  However, because in this case the proposed constitutional amendment (as above set forth) contains a special voting requirement for the approval of such laws as would be sanctioned by its adoption, this same line of reasoning also means that any action taken by the current session of the legislature with regard to House Bill No. 15 must be in accordance with these requirements if it is to be of any effect.
 
            Therefore, while it is our opinion that House Bill No. 15 may be enacted by the present legislative  [[Orig. Op. Page 3]] session, with its effectiveness being contingent upon voter approval of S.J.R. No. 5, it is also our opinion that in order to be thus enacted it will be necessary that the bill be approved by a sixty percent majority of the members of both houses ‑ rather than the usual constitutional majority which is required for the passage of ordinary legislation.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
Philip H. Austin
Deputy Attorney General
 
                                                         ***   FOOTNOTES   ***
 
1/Article II, § 24 provides as follows:
 
            "The legislature shall never authorize any lottery or grant any divorce."