Delaware Supreme Court Gives Green Light to Sports Lottery

Decision paves way for implementation of Delaware's sports lottery

May 28, 2009 -- WILMINGTON – Responding to the Governor's formal request, the Delaware Supreme Court issued an opinion late Wednesday addressing the legal issues related to the recently enacted sports lottery legislation.

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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.

"I am very pleased with the Supreme Court's decision," said Gov. Markell. "This decision resolves the legal issues that have been presented and provides a solid legal framework for our sports lottery. With this guidance in hand, we are moving forward with implementing a successful sports lottery in Delaware."

"I want to thank the Justices for the hard work they have done in considering these questions on a very quick schedule," said Gov. Markell. "I also want to thank the lawyers – Andy Bouchard, Larry Ashby, and the lawyers at their firms – who donated their time to help the Supreme Court consider the question."

Source: Delaware Governor