Pennsylvania Gov. Tom Corbett is expected to say as soon as Friday whether he will challenge Attorney General Kathleen Kane's rejection of his plan to privatize the state lottery.
If he does, Corbett likely will file his challenge directly with the state Supreme Court, said Duquesne University law professor Bruce Ledewitz. Ledewitz said the case raises questions that Pennsylvania courts have never addressed before.
"There's no smoking gun," Ledewitz said. "The attorney general's opinion in the matter is worthy of respect, but no one could have said this is obviously unconstitutional."
In a decision delivered last week, Kane said Corbett overstepped the executive branch's authority by infringing on the Legislature's power to make basic policy decisions about the operation of the lottery.
The contract's provision to expand the lottery to include electronic games like KENO violates the State Lottery Act and usurps the authority the General Assembly delegated to the Pennsylvania Gaming Control Board, Kane said.
And Kane said the contract's provision for Camelot to sue the state for "indirect expenses" is an unlawful waiver of the state Constitution's sovereign immunity doctrine, which gives the Legislature authority to determine when the state can be held liable for damages.
Franklin & Marshall College pollster G. Terry Madonna said the precise issues Corbett is likely to raise in the challenge are hard to predict. Kane's opinion does not detail how her staff reached the conclusions that warrant invalidating the contract.
While Kane said the State Lottery Act doesn't provide express or implied authority to turn over operation of the lottery to a contractor, it is silent on the limits of the power the Legislature delegated to the executive branch, Madonna said.
"If you don't have specifics like a state law saying what are your responsibilities are, then it's difficult," he said.
Ledewitz said Corbett is likely to ask the Supreme Court to use its power to circumvent the normal flow of cases through the courts and hear the governor's challenge immediately.
The first question the governor's office is likely to pose is how much authority the executive branch has to make fundamental decisions about the implementation of state laws.
Unlike the federal system of government, where the president has broad latitude to implement laws passed by Congress, in the state government, delegation to the executive branch is more limited, Ledewitz said.
Corbett has other options:
- He could give up on privatizing the lottery, which Ledewitz said is unlikely.
- He could attempt to have the General Assembly amend the law to give him clear authority.
At least one member of the Legislature indicated a willingness to do just that.
In a House Appropriations Committee hearing Tuesday, Chairman William Adolph, R-Delaware, noted that the administration's goal was to raise more money to benefit the state's growing senior population. The problem could be rectified if the Legislature grants that power to the revenue secretary under the Lottery Act, Adolph said.
But Revenue Secretary Dan Meuser told the panel that the administration's lawyers determined the Camelot agreement is no different than other contracts entered into by the lottery.
Reacting Thursday to a possible legal challenge by the governor, Kane's spokeswoman, Ellen Melody, said: "Should Gov. Corbett choose to challenge the rejection of the Camelot lottery contract, the Office of Attorney General will defend its position."
Kane on Wednesday said the Camelot contract is far more complex than any other services contract.
"It is above and beyond anything the General Assembly has ever intended to be contracted out," she said.