news-record.com

RALEIGH (AP) — The North Carolina Education Lottery can still operate after the state Supreme Court deadlocked Friday over whether the votes creating the games were lawful.

Three of the seven justices agreed Friday the lottery law was unconstitutional and three others upheld the law. A seventh justice, Mark Martin, had recused himself from oral arguments in the case in September and did not vote.

The 3-3 decision means a March 2008 state Court of Appeals ruling that rejected the claim challenging the law remains in place, allowing the sale of lottery tickets to continue.

"We're very pleased that it's settled. The lawsuit has been there for a while," lottery spokeswoman Alice Garland said.

Taxpayers and advocacy groups sued before the first tickets were sold in March 2006, arguing that the General Assembly didn't pass the lottery legislation properly in 2005. They said the state constitution required the House and Senate to each hold two separate, recorded votes on separate days. Each chamber only took one day and counted one roll-call vote.

"We're disappointed that we didn't get a decision on the merits" of the case, said Bob Orr, an attorney who represented some of the plaintiffs who filed suit before the first tickets were sold in March 2006.

Attorneys for the state responded that the law was approved appropriately and dismissed arguments that the lottery was a tax on ticket buyers, therefore requiring two days of discussion in both the House and Senate.

"There also was that underlying issue about what exactly is a tax," said Orr, a former associate Supreme Court justice and 2008 candidate for the Republican nomination for governor. "I think that has much broader implications for the state. And I certainly regret that those issues are unresolved by the Supreme Court."

A spokeswoman for Attorney General Roy Cooper, whose office represented the state, elected officials and the lottery commission in the lawsuit, didn't immediately return a phone call or e-mail seeking comment.

If the court had sided with those who sued, the current lottery — which has generated more than $900 million for preschool and elementary school class size-reduction programs, college scholarships and to build public schools — would have been deemed unlawful.

It was unclear whether the games would have been allowed to continue while the Legislature reconsidered the legislation.

The House approved the lottery in April 2005 by a 61-59 vote. Four months later, the Senate needed a tie-breaking vote from then-Lt. Gov. Beverly Perdue for the measure to pass 25-24. Then-Gov. Mike Easley, a Democrat, had made passing the lottery law one of his priorities.

Friday's opinion didn't identify which justices wanted to affirm or reject the Court of Appeals ruling, which can't be used to set precedent in future cases. While justices run in nonpartisan elections, four of the court's seven members have Republican voter registrations.

Martin, a Republican, filed a notice in December saying he had disqualified himself from the case because of a potential conflict involving an attorney who was working with Orr in a legal advocacy group.

That attorney, retired Supreme Court Chief Justice Beverly Lake Jr., also was representing Martin's family in a case involving injuries suffered by one of his children.

Martin could have been allowed to participate anyway in Friday's opinion — breaking the ultimate tie among his colleagues — had lawyers in the case found the conflict insignificant. But the state, in a Jan. 22 memo filed by a state attorney, declined to let him do so.